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TMI Blog2022 (11) TMI 836X X X X Extracts X X X X X X X X Extracts X X X X ..... he modus operandi of the complainant was that in order to contravene the provision of the Act with an intent to evade tax, there were multiple transactions inter se between the said firms controlled and owned by a single person i.e. the petitioner-accused. It has been further alleged that the aforesaid fact of cyclic transactions was tracked in Business Analytics and Fraud Analysis module BIFA. 3. In a detailed complaint, it was further alleged that owing to these cyclic transactions, the firms were involved in evasion of tax running into crores. The allegations qua the petitioner further got corroborated by the Commodity-wise Harmonised System of Nomenclature Code (HSN) analysis of the inward and outward supplies made by the aforesaid firms. The gravamen of the complaint is:- "The cases where the amount of inward supplies is higher than the outward supplies, it suggests that the remaining goods are in stock But as per the registration details, no godowns or additional place of business was being maintained by any of the firms in question. Where the amount of outward exceeded the inward supplies, the tax on the value addition should have been deposited. However, the data avail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reau of Investigation' 2017(2) SCC (Cri) 520 to submit that the detention in custody of an undertrial person cannot be extended to an indefinite period as that would be in the teeth of Article 21 of the Constitution of India. He further reads Manorajana Singh's case (supra) to hammer forth his contention that though seriousness of the charge is one of the relevant considerations while examining the application of bail, but it cannot be the solitary test. Further reliance is placed upon judgment passed by Coordinate Bench of this Court in CRM-M-24033-2021 titled as 'Maninder Sharma vs. State Tax Officer, State Tax, Mobile Wing, Jalandhar, Punjab' decided on 31.08.2022. 5. He further submits that there is a peculiar circumstance to the present case. Even after passing of almost 06 months, the prosecution has not been able to lead any pre-charge evidence against the complainant and the same is evident from the order dated 11.11.2022 passed by the trial Court which reads as under:- "Accused has been produced by the jail authorities through VC. Heard. Pending investigation, accused is remanded to judicial custody and is ordered to be produced on 24.11.2022. Witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ma's case (supra) laid down the following tripode test while dealing with economic offences:- "xx xx xx Further, while considering the grant of bail, the triple/tripod test would also be a relevant consideration. The three factors as set out in the said test are:- (i) Whether the accused is a flight risk; (ii) Whether the accused will tamper with the evidence, if granted bail & (iii) whether the accused could influence the witnesses, if granted bail. 8. Therefore, broadly speaking (subject to any statutory restrictions contained in Special Acts) , in economic offences involving the IPC or Special Acts or cases triable by Magistrates once the investigation is complete, final report/complaint filed and the triple test is satisfied then denial of bail must be the exception rather than the rule. However, this would not prevent the Court from granting bail even prior to the completion of investigation if the facts so warrant." 10. There is no denial to the fact that the economic offences constitute a separate class of their own, but trite it is that presumption of innocence is one of the bedrocks on which the criminal jurisprudence rests. Time and again, Apex Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity 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: th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars to us that this factor weighs on the mind of the Court while deciding the bail applications in a negative sense. Courts tend to think that the possibility of a conviction being nearer to rarity, bail applications will have to be decided strictly, contrary to legal principles. We cannot mix up consideration of a bail application, which is not punitive in nature with that of a possible adjudication by way of trial. On the contrary, an ultimate acquittal with continued custody would be a case of grave injustice. 68. Criminal courts in general with the trial court in particular are the guardian angels of liberty. Liberty, as embedded in the Code, has to be preserved, protected, and enforced by the Criminal Courts. Any conscious failure by the Criminal Courts would constitute an affront to liberty. It is the pious duty of the Criminal Court to zealously guard and keep a consistent vision in safeguarding the constitutional values and ethos. A criminal court must uphold the constitutional thrust with responsibility mandated on them by acting akin to a high priest. This Court in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, has observed that: "67. Human liber ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020. The specific case of the appellant is that he has been targeted because his opinions on his television channel are unpalatable to authority. Whether the appellant has established a case for quashing the FIR is something on which the High Court will take a final view when the proceedings are listed before it but we are clearly of the view that in failing to make even a prima facie evaluation of the FIR, the High Court abdicated its constitutional duty and function as a protector of liberty. Courts must be alive to the need to safeguard the public interest in ensuring that the due enforcement of criminal law is not obstructed. The fair investigation of crime is an aid to it. Equally it is the duty of courts across the spectrum-the district judiciary, the High Courts and the Supreme Court-to ensure that the criminal law does not become a weapon for the selective harassment of citizens. Courts should be alive to both ends of the spectrum-the need to ensure the proper enforcement of criminal law on the one hand and the need, on the other, of ensuring that the law does not become a ruse for targeted harassment. Liberty across human eras is as tenuous as tenuous can be. Liberty surv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cept the period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. As posed in the Sanjay Chandra's case (supra) we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above." Further, the Hon'ble Supreme Court in the case of Sanjay Chandra (supra) has held as under:- "15. In the instant case, as we have already noticed that the "pointing finger of accusation" against the appellants is 'the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, if the petitioners are allowed to be kept in judicial custody for indefinite period then Article 21 of the Constitution is violated. It is the fundamental right of every person in judicial custody for speedy trial. In the facts of the present case, it is to be seen whether keeping the petitioners in custody is justified specially when some of the persons who have been nominated during investigation are yet to be arrested and challan against them is to be presented on their joining investigation. 12. Second argument is regarding tampering with the evidence. I have considered this contention also. The entire case is based on the documentary evidence i.e. forged vouchers, bills and thereafter the payment to various contractors and others in connivance with the Government officials. This is not a case based on the oral testimony of individuals. No doubt the allegations against the petitioners are serious in terms of the alleged huge loss caused to the State exchequer, that by itself should not deter this Court from enlarging the accused on bail specially when they are already behind bars for about seven or more months. I do not see any good reason to continue the judicial custod ..... X X X X Extracts X X X X X X X X Extracts X X X X
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