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TMI Blog2022 (9) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the case are that on 22-12-2021 the Officers of the DGGI started making a search on the residential and official premises of the applicant at Kannuaj and Kanpur, which continued till 28-12-2021. Cash amounting to Rs. 196.57 Crores was seized from the applicant's premises besides recovery of 23 kilograms gold, which was handed over to the Officers of the Directorate of the Revenue Intelligence. The applicant was arrested on 26-12-2021. 4. On 22-02-2022, the DGGI filed a complaint before the learned Special Chief Judicial Magistrate (Economic Offences) / Additional Metropolitan Magistrate-III, Kanpur Nagar against the applicant seeking his prosecution and punishment for committing the aforesaid offences. It has been stated in the complaint that the applicant is one of the partners in the firm M/S Odochem Industries and he used to operate and manage two proprietorship concerns namely Odosynth Inc., (of which the applicant's wife Smt. Kalpana Jain is the proprietor) and M/S Flora Naturale (of which Smt. Vijay Laxmi Jain, wife of Sri Ambrish Kumar Jain is the proprietor) and it was revealed during investigation that the aforesaid firms operated by the applicant along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The DGGI has filed a counter affidavit stating that during the searches conducted at the business and residential premises of the firms operated by the applicant along with his family members, unaccounted cash of Rs.196,57,02,539/- has been seized; that the applicant has admitted that the amount seized is the sales proceed of the goods clandestinely supplied by him without payment of tax and the applicant has paid Rs. 54.09 crores towards GST liability along with interest and penalty as per his own calculation, but as the investigations are still in progress, DGGI is yet to ascertain the final tax liabilities under Section 74 (7) of the CGST Act, 2017. 11. It has further been stated in the counter affidavit that the department has recovered several fake invoices and fictitious LRs (transport documents) evidencing clandestine supplies of taxable goods. Additionally, 23 Kgs of Gold bullions believed to be having foreign origin markings, have also been recovered from the residential premises of the applicant and separate proceedings have been initiated against the applicant in respect thereof under the provision of the Customs Act, 1962. 12. In the rejoinder affidavit filed on be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... public at large is protected; that the applicant has already spent more than 8 months in jail and during this period the department has not sought his custodial interrogation, which shows that his custody is not at all required. He has further submitted that investigation against the applicant stands completed and the trial is yet to commence and that the applicant cannot be kept in custody on the ground that investigation against the suppliers of the raw materials to the applicant and the buyers of the applicant is still pending. 18. Sri. Khanna has also submitted that the applicant does not have a passport and, therefore, he has not a flight risk. He has further submitted that the entire evidence in the present case is documentary in nature, which is already in possession of the department and the statement of the applicant has already been recorded and, therefore, there is no possibility of the applicant tampering with any evidence and moreover, a mere apprehension of the applicant tampering with the evidence is not a ground to deny bail to the applicant. 19. Before proceeding to decide the prayer for grant of bail, it would be apt to have a look at the following relevant stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n those in clause (a), under this Act or under the provisions of any State Goods and Services Tax Act or the Union Territory Goods and Services Tax Act or the Integrated Goods and Services Tax Act in respect of supplies of value exceeding one crore rupees; (c) a person who has been accused of committing an offence under this Act which is also an offence under any other law for the time being in force; (d) a person who has been convicted for an offence under this Act by a court; (e) a person who has been accused of committing an offence specified in clause (g) or clause (j) or clause (k) of sub-section (1) of Section 132; and (f) any other class of persons or offences as may be prescribed: Provided further that any compounding allowed under the provisions of this section shall not affect the proceedings, if any, instituted under any other law: Provided also that compounding shall be allowed only after making payment of tax, interest and penalty involved in such offences. (2) The amount for compounding of offences under this section shall be such as may be prescribed, subject to the minimum amount not being less than ten thousand rupees or fifty per cent. of the tax inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as pleased to reiterate the law of bail in the following words:- "2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. * * * 5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India [(2018) 11 SCC 1] going back to the days of the Magna Carta. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgments, will govern the field:- Precedents -P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791: 23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. xxxxxxxxx 46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordinate Bench of this Court granted bail in an offence under Section 132 (1) (b) of the CGST Act, 2017, keeping in view the facts that the applicant was in jail since 18-02-2022, he had no criminal history, the offence is compoundable and the trial will take a its own time to conclude. 28. The learned Counsel for the DGGI have submitted that in the case of Vimal Yashwantgiri Goswami versus State of Gujarat, R/Special Civil Application No. 13679 of 2019 decided on 20-10-2019, the Gujarat High Court had declined to give any relief to the petitioner, as the case against him involving allegations of GST evasion was found to be serious in nature and the petitioners had not offered to compound the offence. In the aforesaid case, the relief sought by the petitioner which was declined by the High Court was stay of arrest of the petitioner. However on 28-04-2022, the Gujarat High Court has passed an order granting bail to the petitioner Vimal Yashwantgiri Goswami versus State of Gujarat, in its order reported in 2022 Scc OnLine Guj 713: - "9. _ _ _Even, if the tax evasion is taken more than 5 crores, the maximum punishment which can be imposed is five years. It is not disputed by the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations. A prayer for bail is not to be denied merely because of the sentiments of the community are against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. 31. Having considered the facts and submissions made in light of the law laid down by the Hon'ble Supreme Court in various cases, which has been summarized in the preceding paragraphs and keeping in view that: - (i) the offences alleged carry a minimum punishment of six months' imprisonment and a maximum of five years' imprisonment and that the offences are compoundable, which indicates that the offences are not grave; (ii) The applicant has already paid a sum of Rs. 54.09 C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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