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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 ..... 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. This is a fit case to exercise this Court s discretion of granting bail to the applicant - the bail is granted subject to conditions imposed - application allowed. - Criminal Misc. Bail application No. - 21223 of 2022 - - - Dated:- 1-9-2022 - Hon'ble Subhash Vidyarthi J. For the Applicant : Rahul Agarwal,Malay Prasad For the Opposite Party : Dhananjay Awasthi ORDER HON'BLE SUBHASH VIDYARTHI J. 1. Heard Sri Anurag Khanna, the learned Senior Counsel assisted by Sri Rahul Agarwal, Ms. Tanya Makker, Sri. Malay Prasad, Ms. Saloni Mathur and Sri. Piyush Kant Shukla, the learned counsel for the applicant and Sri Dhananjay Awasthi and Sri Digvijay Nath Dubey, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of perfumery compounds without accounting for in the books and without payment of GST, but he has not disclosed the names and particulars of the buyers and sellers of the aforesaid firms. 6. As per the complaint averments, the amount of GST evasion far exceeds Rs. 500 lakhs prescribed under Section 132 (1) (i) of the Act and the offence committed by the applicant is punishable for a term which may extend to five years. 7. On 02-03-2022, the applicant filed an application before the learned Trial Court for being released on bail and on 05-02-2022, the Trial Court passed an order rejecting the bail application on the ground that the applicant is an active partner in all the three firms; that more than Rs. 196.58 Crores cash was seized from the applicant s premises; that the financial records of the firms showed different liability of tax than seized amount of cash and no reasonable explanation was provided for the huge amount of cash seized; that the applicant has neither denied the ownership of the searched premises nor did he deny possession of the huge amount of the cash; that the matter is serious in nature and is very harmful to the economic health of the country and g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... till date and there appears to be no likelihood that the trial will commence soon. 15. It has further been stated in the rejoinder affidavit that in the counter affidavit filed by the DGGI before the Trial Court, it was categorically stated that since the applicant has not made any payment of tax, the plea of the applicant cannot be entertained. Now the applicant has paid the amount of tax along with interest and penalty, the DGGI is pleading that the voluntary payment of tax has no impact on the present proceedings, which stand is clearly and afterthought and a mischievous and deliberate attempt to keep the applicant incarcerated. 16. Regarding the DGGI s contention that it is yet to ascertain the tax liability of the assessment, it has been stated in the rejoinder affidavit that the assessment proceedings (which typically start with the issuance of a show-cause notice) have not even been initiated till date. 17. Sri. Anurag Khanna, the learned Senior Advocate for the applicant has submitted that the offences alleged carry a minimum punishment of six months imprisonment and a maximum of five years imprisonment and the offence is compoundable, which indicates that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of this Act or the rules made thereunder; * * * shall be punishable- (iii) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine; * * * (3) The imprisonment referred to in clauses (i), (ii) and (iii) of sub-section (1) and sub-section (2) shall, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, be for a term not less than six months . (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Act, except the offences referred to in sub-section (5) shall be non-cognizable and bailable. (5) The offences specified in clause (a) or clause (b) or clause (c) or clause (d) of sub-section (1) and punishable under clause (i) of that sub-section shall be cognizable and non-bailable. * * * 138. Compounding of offences .- (1) Any offence under this Act may, either before or after the institution of prosecution, be compounded by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bt that that the offences alleged carry a minimum punishment of six months imprisonment and a maximum of five years imprisonment and Section 138 of the Act provides that the offence is compoundable. 21. Although the learned Counsel for the DGGI have contended that the applicant is also accused of committing offence under the Customs Act and the present case falls under clause (c) of the Proviso appended to Section 138 and it is not compoundable, but the aforesaid submission appears to be misconceived. For the aforesaid clause to be attracted, the person should have been accused of committing an offence under this Act which is also an offence under any other law for the time being in force. The allegations against the applicant which amount to an offence under the Customs Act, are not an offence under this act and vice versa and, therefore, clause (c) of the Proviso appended to Section 138 is not attracted in the present case. 22. The learned Counsel for the DGGI have also submitted that the applicant has not disclosed the names and particulars of his suppliers of raw material and, therefore, he is not co-operating in investigation and thereby he appears to have committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... century old, going back to colonial days. 24. In P. Chidambaram v. CBI , (2020) 13 SCC 337, the Hon ble Supreme court reiterated the following principles for grant of bail: - 21. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) 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. 25. In a recent decision in the case of Satender Kumar Antil v. Central Bureau of Investigation , 2022 SCC OnLine SC 825 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial. -Sanjay Chandra v. CBI, (2012) 1 SCC 40: 39. Coming back to the facts of the present case, both the courts have refused the request for grant of bail on two grounds : the primary ground is that the offence alleged against the accused persons is very serious involving deep-rooted planning in which, huge financial loss is caused to the State exchequer; the secondary ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation was that the total invoice value of the fake supplies made by the 126 bogus firms of the accused was Rs. 691.35 Crores and the total GST evasion involved in it is Rs. 100.30 Crores, after taking into consideration the legal position referred to in the last preceding paragrahs, on the following reasons: - 28. Analyzing the facts of the case in light of the law laid explained in the case of Y. S. Jagan Mohan Reddy, Dataram Singh and Satender Kumar Antil (Supra), it has to be taken into consideration that (1) the applicant has been implicated on the basis of the statement of a co-accused Chandra Prakash Kriplani, who has already been granted bail by this Court; (2) earlier, the applicant himself had been granted anticipatory bail by this Court; (3) the applicant has no criminal history; (4) the department had initiated proceedings on 31.12.2019 by issuing a summons under Section 70 of CGST Act and after completion of the investigation, on 22.11.2021 the department has filed a complaint in the Court of Special Chief Judicial Magistrate, Agra and, therefore, it cannot be said that now the applicant is in a position to influence the investigation of the case; (5) the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Counsel for the DGGI have placed reliance upon a judgment of the Chhattisgarh High Court in the case of Basudev Mittal versus Union of India , MCRC No. 3919 of 2022 decided on 15-07-2022 and the decision dated 24-12-2019 given by Calcutta High Court in Arvind Kumar Munka versus Union of India , CRM No. 10075 of 2019, in which the High Courts had denied bail to the accused. However, mere denial of bail by another High Court on the facts of a particular case, without laying down any proposition of law, would not amount to a binding precedent. 30. The position of law regarding grant of bail which emerges from the judgments of the Supreme Court referred to above, is that the basic jurisprudence relating to bail in economic offences 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. It is not advisable to categorize all the economic offences into one group and deny bail on that basis. One of the circumstances to consider the gravity of the offence is the term of sentence that is prescribed for the offence the accused is alleged to have committed. Even if the allegatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the public at large is protected; (v) 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; (vi) the trial is yet to commence; (vii) the applicant has no previous criminal history and he has already been granted bail in the case under the Customs Act; (viii) the applicant does not hold a passport and, therefore, he is not at a flight risk; (ix) Besides a mere vague allegation that the applicant may tamper with the evidence, no material is there to give rise to a reasonable apprehension that the applicant will misuse his liberty to subvert justice or tamper with the evidence or witnesses; I find it a fit case to exercise this Court s discretion of granting bail to the applicant. 32. Let the applicant - Peeyush Kumar Jain be released on bail in Criminal Case No. 7646 of 2022 in the Court of the Special Chief Judicial Magistrate (Economic Offences) / Additional Metropolitan Magistrate-III, Kanpur Nagar, arising out of the complaint filed by DGGI in respect of offence under Section 132 (1) (a) read with Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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