9911796707
TMI Blog2023 (11) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner instructed by Mr. S. Tibrewal & Mr. Rahul Raheja, advocates. The learned senior counsel advanced arguments at length supporting the prayer for bail. 3. On behalf of the investigating agency, Mr. Mohapatra, learned Senior Standing Counsel, Director General, GST was heard in extenso along with Mr. Avinash Kedia, learned Junior Standing Counsel, CGST & Customs, Orissa High Court, Cuttack. Pleadings : 4. Apart from considering the averments made in the petition filed by the petitioner, this Court has considered the case compilation filed by the petitioner along with memo dated 17.10.2023 and the written note of submission and compilation of the judgment/orders relied upon by the learned counsel for the petitioner filed on 02.11.2023. The opposite party have filed their response/objection to the petition in the form of an affidavit dated 16.10.2023 sworn to by the Senior Intelligence Officer on behalf of Directorate General of Goods and Services Tax Intelligence, Bhubaneswar Zonal Unit and further additional affidavit dated 01.11.2023 has been filed on behalf of the opposite party along with written notes of submission on behalf of the opposite parties and a compilati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been alleged against the present petitioner that he sources documents like Aadhar card, PAN card of different persons. The accused no.2 facilitates finding of place for rent. The rental agreement is signed between the proprietor and the owner of the premises. The proprietor opens a bank account and the details are then furnished. It is indicated in the complaint that the ITC in the goods and service tax (GST) system is a mechanism that allows registered business to claim a credit for the tax, they have paid on inputs used in their business operations. The credit is offset against the GST liability that the business owes to the Government. 5.4 In the context of exports, businesses can claim refunds on the GST paid on the inputs used in the export of goods and services. It is alleged that the refunds have been received by at least two entities and after money has been credited to the bank accounts, the same have been withdrawn. It is alleged that the petitioner has created 111 fake GSTINs to generate bogus transactions and has claimed ITC amount of Rs.267,41,14,087/- thereby a refund to the tune of Rs. 16,40,09,812/- has been received. Submissions on behalf of the petitioner : 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing the witnesses. The petitioner is not a flight risk and is ready and willing to appear before the DGGI Authorities as per the terms and conditions fixed by this Hon'ble Court. Submissions on behalf of the opposite party : 7. It is submitted by the learned Senior Standing Counsel, DGGI that the learned courts below while considering the factual matrix, circumstances and the gravity of the offences have been pleased to deny bail to the petitioner herein. The petitioner's bail application is premature as the investigation of the case is evolving with the discovery of 111 fabricated GSTINs involved in illegal export benefit claims, fraudulent Input Tax Credits of around Rs. 267 crores, and false export transaction representations resulting in a fraudulent refund of approximately Rs. 16.40 crores. The ongoing investigation has revealed the intricate supply chains of M/s. Jasem Overseas and M/s. Rompather General Overseas, involving entities registered in Delhi with a paper-bound existence, intended for the fraudulent availing of ITC pertaining to fake exports. The co-accused Ronald Earnest Ignatio has assisted Nitin Kapoor and has actively participated in the creation of 13 fake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baram v. Central Bureau of Investigation) disposed of on 22.10.2019. (xiv) Writ Petition(s) (Criminal) No(s). 339 of 2023 (Gagandeep Singh v. Union of India & others) (xv) SLP Appeal (Crl.) No. 10319 of 2022 (Ratnambar Kaushik v. Union of India) disposed of on 05.12.2022 (xvi) S.B. Criminal Miscellaneous Bail Application No. 17349 of 2022 (Vikas Bajoria v. Union of India) disposed of on 01.06.2023. (xvii) MCRC No. 2729 of 2023 (Sourabh Agrawal v. Union of India) disposed of on 19.07.2023. (xviii) SB Criminal Miscellaneous Bail Application No. 17536 of 2022 (Gaurav Kakkar v. Directorate General of GST Intelligence) disposed of on 11.01.2023. (xix) Bail Application No. 4019 of 2020 (Raghav Agrawal v. Commissioner of Central Tax and GST Delhi North of Delhi High Court. (xx) Bail Appl. No. 3257 of 2021 (Yogesh Kumar Goyal v. DGGI). (xxi) AKhil Krishan Maggu v. Deputy Director : 2019 SCC Online P & H 5416. (xxii) Sitaram Aggarwal v. Customs: 2005 SCC Online Del 61 : (2005)79 DRJ 554. (xxiii) Criminal Petition Nos. 979 and 980 of 2019 (Shravan A. Mehra & Ors, v. Superintendent of Central Tax, Anti-evasion, GST Commissionerate). (xxiv) Sunder Singh Bhati v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limited purpose of answering the prayer for grant of bail by this Court, during pendency of trial, the above contentions have been taken note of. 11. Apart from adverting to the aforesaid rival contentions, this Court takes note of the principles laid down by the Hon'ble Supreme Court in Satender Kumar Antil v. CBI, (2022) 10 SCC 51 : 2022 SCC Online SC 825 (paragraphs 12 to 16, 19 & 90 to 94 of SCC) Bail is the rule 12. The principle that bail is the rule and jail is the exception has been well recognised through the repetitive pronouncements of this Court. This again is on the touchstone of Article 21 of the Constitution of India. This Court in Nikesh Tarachand Shah v. Union of India [Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri) 302] , held that : (SCC pp. 22-23 & 27, paras 19 & 24) "19. In Gurbaksh Singh Sibbia v. State of Punjab [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465], the purpose of granting bail is set out with great felicity as follows : (SCC pp. 586-88, paras 27-30) '27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [Gudikanti Narasimhulu v. Public Prosecutor, (1978) 1 SCC 240 : 1978 SCC (Cri) 115] that : (SCC p. 242, para 1) "1. ... the issue [of bail] is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process. ... After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law". The last four words of Article 21 are the life of that human right." 29. In Gurcharan Singh v. State (Delhi Admn.) [Gurcharan Singh v. State (Delhi Admn.), (1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the Court, that : (SCC p. 129, para 29) "29. ... There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "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 person 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 upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. Apart from the question of prevention being the object of 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 a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson." [Underlined to supply Emphasis] Presumption of innocence 14. Innocence of a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of Enforcement [P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791 : (2020) 4 SCC (Cri) 646] : (SCC pp. 804-805, para 23) "23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench [Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465] 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 would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allega ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, 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. xxx xxx xxx Role of the court : 93. The rate of conviction in criminal cases in India is abysmally low. It appears 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 [Emphasis Supplied] ultimate acquit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations made against the petitioner are concerned, the learned Senior Counsel for the petitioner while rebutting the same would contend that at this juncture, such allegations made by the respondent against the petitioner are far-fetched. Even if one accepts as correct, the allegation on which the proceedings is predicated, wherein 90,520 kg of raw/unmanufactured tobacco in 7 trucks is taken note of, the GST, if reckoned, comes to only Rs 1,93,26,020. It is contended that the sum of Rs 11,04,34,400 shown as cess by the respondent is even without the proof of manufacture of zarda and it has been done only to indicate the projected value of more than Rs 15 crores. The learned Senior Counsel for the petitioner therefore disputed the allegations and contended that such allegations have been made only to allege cognizable and non-bailable offence against the petitioner so as to deny bail and take him into custody. 7. Though allegations and counter-allegations are made, at this stage, it would not be necessary for us to advert to the details of the rival contentions, since the matter in any event is at large before the trial court and any observations on merits herein would prejudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officer its admissibility and relevancy is not a matter of consideration before this Court in the present proceeding. 14. It is true that the allegation made against the petitioner is that he received the benefit of the amount that was granted to different entities to the tune of Rs. 7,79,52,045/-, obtaining refund of Rs. 7,79,52,045/- and it is contended by the prosecution/complainant that there is likelihood of the discovery of more such transaction, but it is also not disputed that the final prosecution report has been filed in the case. The petitioner was arrested on 11.07.2023, incarcerated for more than four months and the punishment provided is imprisonment which may extend to five years and fine and completion of trial in any event would take some time. Since the alleged offence constitutes the act of crediting amount of ITC through the departmental Online system, to the account of the certain entities which have been alleged to be non-existent and the money has been subsequently received by the petitioner, the evidence tendered by the opposite party/complainant would essentially be documentary and electronic. The ocular evidence will be through official witnesses of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
