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TMI Blog2021 (6) TMI 232X X X X Extracts X X X X X X X X Extracts X X X X ..... s, that he has been guilty of an offence punishable with death or imprisonment for life. The presumption of the innocence of an accused can easily be defeated if the investigation is not constrained by time, is open-ended and protracted. It is for this reason that the legislature has wisely provided that the investigation of an accused should reach its culmination by the filing of a Chargesheet/complaint within sixty days, or ninety days where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. The accused has already remained in judicial custody for 28 days since 21.09.2020. No further custodial interrogation is required. Ld Sr SPP has stressed upon that the applicant/accused is the mastermind of the alleged evasion. However, it is noted that accused was previously searched on 06.03.2020 and despite lapse of more than 07 months there are no allegations that accused has attempted to flee the country to thwart the course of justice - The quantum of alleged fraudulent claim by accused is yet to be adjudicated. It is also noted that no inquiry/investigation has been cited against accused Sudh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhary and Vikas Chandan who were earlier arrested on 07.03.2020 are enlarged on regular bail vide order dated 23.03.2020 passed by the Ld. Predecessor of this court. He further submits that the allegations against the co-accused persons were of alleged evasion of ₹ 61.02 Crore and on the other hand the allegation evasion against the applicant in the present cares are to the tune of ₹ 26 Crores only. He further submits that ingredients of Section 69 (Power of Arrest) of the CGST Act, 2017 have not been met by the department and the applicant is entitled to be forthwith released on bail. It is further submitted that the applicant has been languishing in custody since 21.09.2020 and has been interrogated by the officers of DGGI and in case there was any immediate investigation required to be conducted, the applicant would have been interrogated/ investigated multiple time by now. He also pointed out that the entire evidence in the present case is based on documents and further, the applicant undertakes to join investigation as and when directed. He further submits that the department in its JC application dated 21.09.2020 at Para 22 stating that Mr. Sudhir Gulati/Applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its that M/s Anmol Tradex Pvt. Ltd. had availed ITC from M/s Compact Logistic Private Limited, Village Jitwal Khurd, Kup Kalan, Tehsil-Malerkotla, Punjab-148019 (a company of Rakesh Kumar Goyal), M/s Compact Logistic Private Limited had taken ITC on the bills of M/s Kwality Overseas Private Limited, 863, Industrial Area-A, Ludhiana, Punjab-141003 (a company of Rakesh Kumar Goyal). This M/s Kwality Overseas Private Limited, 863, Industrial Area-A, Ludhiana, Punjab-141003 had availed ITC on the bills of M/s Cannon Industries Private Limited (a company of Rakesh Kumar Goyal) and ITC on the of bills of M/s Candex Filament Pvt. Ltd., Industrial Area, Raja Ka Bagh, Nurpur, Himachal Pradesh176201 (a company of Rakesh Kumar Goyal). M/s Cannon Industries Private Limited, 851, Industrial AreaA, Ludhiana, Punjab-141003 had taken ITC from M/s Opes Chem Corp Private Limited, HB No.211, Village Katha, Tehsil Baddi, Himachal Pradesh- 174103 (a company of Rakesh Kumar Goyal). M/s Opes Chem Corp Pvt. Ltd., Baddi took ITC from M/s Candex Filament Pvt. Ltd. Nurpur (again a company of Rakesh Kumar Goyal). Further, M/s Opes, Baddi has passed on ITC to M/s SVC Textiles Pvt. Ltd. (another company of Rake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some recovery of weapon/equipments / documents used in the alleged crime are to be recovered and there is apprehension if released on bail, accused may hamper the investigation and recovery thereof. The other consideration is that some co-accused are to be arrested who are absconding and if accused is allowed to be released on bail, he may forewarn them. Another object is that accused has previous criminal antecedents and he/she is a habitual offender which increases chances of committing similar offences which endangers life and property of the public at large. 9. In economic offences the abject of keeping an accused in pre trial detention is to ensure that the accused has no opportunity to tamper with the documentary/ electronic evidence which may reveal the commission of any offence. Furthermore, it can be done to track the money trail which might be disturbed by the accused, if released on bail. The accused also be kept in pre trial detention if there is likelihood that he has the opportunity and wherewithal to influence and won over the witnesses of the crime by allurement or threat and commit similar crime again. Furthermore, the object of enactment of CGST Act is simpler ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat detention in custody pending completion of trial could be a cause of great hardship. From time to necessity demands that accused persons should be held in custody pending trial to secure their attendance at the trial, but in such case 'necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the constitution that any persons should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty under Article 21 of the Constitution upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an accused person for the purpose of giving him a taste of imprisonment as a lesson. While considering an application for bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. 2. Furthermore, in the landmark judgment of Gurucharan Singh and others v. State (AIR 1978 SC 179), it was held that there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the courts. It was further held that there cannot be any inexorable formula in the matter of granting bail. It was further held that facts and circumstances of each case will govern the exercise of judicial discretion in granting or refusing bail. It was further held that such question depends upon a variety of circumstances, cumulative effect of which must enter into the judicial verdict. Such judgment itself mentioned the nature and seriousness of nature, and circumstances in which offences are committed apart from character of evidence as some of the relevant factors in deciding whether to grant bail or not. 3. It is now well settled by a catena of decisions of the Supreme Court that the power to grant bail is not to be exercised as if the punishment before trial is being imposed. The only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter, he was examined by the investigation officers in judicial custody after seeking prior permission from this Court. However despite claiming that accused remained non-cooperative during such examination, neither any report has been filed nor the proceedings conducted in jail are produced before this Court. It is also need that invariably it has been stand of the Officers of DGGI that accused remained non-cooperative and gave evasive replies during inquiry/investigation, but no videography of such non-cooperation or evasive replies is done to enable this Court to see merit in such contentions as the stand of the accused always remain that they fully cooperated in the inquiry/investigation and officers of DGGI attempts illegal confessions from the accused. Hence, the piece of evidence cited by the investigating agency i.e the statement of accused recorded u/s 70 CGST Act which has been duly retracted by the accused cannot be the sole basis to deny bail to an accused. 8. The accused is aged about 62 years as said factum has not been disputed. Even previous history of accused being operated for heart bypass surgery has also not disputed. However, Ld. Sr. SPP has objected such me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontroversy of insertion of sections in the remand application which were not mentioned in the arrest memo has been sufficiently explained by the Ld. Sr. SPP. 11. In view of the above discussion, I am satisfied that accused Sudhir Gulati is entitled to bail as not only he has joined the investigation at the first summons but has further been examined while in judicial custody since 21.09.2020. The investigation of DGGI will take considerable time and it is highly unlikely that complaint will be filed soon as the adjudication proceedings are yet to commence. 12. Accordingly, accused Sudhir Gulati, S/o late. Sh. Ram Narian Gulati is admitted to bail on furnishing bail bond in the sum of ₹ 1 Lac with one surety of like amount subject to the conditions that he shall join the investigation / inquiry on summons / intimation issued by the investigating officer and shall not leave the country without permission of the court. Furthermore, he shall not make any attempt to either dissuade or influence any witness or temper with evidence in any manner whatsoever. 13. Copy of this order be also sent to all the parties through email/Whatsapp. 14. Copy of this order be sent to Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X
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