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TMI Blog2024 (1) TMI 1109X X X X Extracts X X X X X X X X Extracts X X X X ..... OSHI Appearance: For the Applicant(s) No. 1 : Mr Jal Unwala, Sr. Adv. with Mr Vishwas K Shah (5364) For the Respondent(s) No. 1 : Mr Hardik Soni App CAV ORDER 1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with the FIR being C.R. No. 11205032231414/2023 registered with the Mundra Police Station, Kutch for the offence punishable under Sections 420, 465, 467, 468, 120(B), 201, 472 and 114 of the Indian Penal Code. 2. Heard learned Senior Counsel, Mr. Jal Unwala assisted by learned advocate, Mr. Vishvas Shah for the applicant and learned advocate, Mr. Hardik Soni for the respondent - State of Gujarat. 3. Learned Senior Counsel, Mr. Unwala appearing for the applicant submitted that the so-called incident has taken place for the period between 01.02.2023 to 30.09.2023, for which, the FIR has been lodged on 26.10.2023 and the applicant has been arrested in connection with the same on 01.12.2023 and since then, he is in judicial custody. Learned advocate submitted that the aforesaid FIR has been lodged against total 6 accused persons, wherein the name of the present applicant is not mentioned but dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in fact, Section 138 of the GST Act clearly shows that the said provision provides for "compounding of offences" and as per the provision of Section 138 of the GST Act, those offences are compoundable one and, therefore for the sake of argument without admitting the guilt of the accused, it is to be believed that if any offence being committed by the present applicant under the GST Act, in that event, by repaying the amount of tax, those offences can be resolved by way of compromise (compounding the offence). As per the express provision of the GST Act, those accused persons can be released on the basis of the repayment of the amount but admittedly uptill now, not a single notice is being issued from the office of the GST. Learned Senior Counsel further submitted that in case of Canon India Pvt. Ltd. Vs. Commissioner of Customs, reported in AIR 2021 SC 1699, the Hon'ble Supreme Court has held that only proper officers in the term of the Custom Act can initiate and investigate the case pertaining to evasion of custom duty. Learned Senior Counsel submitted that here in this case on hand, the offences are being inquired and investigated by the State Police Officers, who are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... they have imported salt and other miscellaneous articles from foreign country but in fact, as per the police papers, they have imported betel nuts from Dubai and the price of said socalled imported goods are too much low in the said country as the usages of the said are minimal in the said country. Not only that, those containers were cleared by the office of the custom house and all the containers were sent to local godown viz., 4fox Logistics Pvt. Ltd. and the said unit was run and functioned by other co-accused persons. Learned APP submitted that various seals fixed on the containers were removed and all luggage-laden in the containers have been replaced in the said firm/ godown and then after, once again seal was affixed and the said seal was procured at the behest of the main accused, Manishkumar Jain, who is stationed at Dubai and active involvement of the present applicant - accused in the commission of crime from the beginning is clearly found out and the present applicant and the said accused, Manishkumar Jain have designed a plan to import betel nuts from Dubai. Learned APP submitted that during the course of investigation, it is also found out that bills have been genera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the hands of the Police authority. Learned APP submitted that during the course of investigation, the concerned head of the investigating department has also made communication in writing to the head of all the department, whose direct and indirect involvement is found out so far as the investigation of tax evasion is concerned. The head of the Investigating Officer has written a letter to the Commissioner of CGST Department as well as Commissioner of Custom and Excise Department to carry out investigation by narrating entire sequence of events in a very crystallize manner and in pursuance thereto and in turn, they have received written communication specifically stating that the documents have been seized and sealed by the officer of the Police department and the investigation is still going on and in absence of those material, they could not be able to carry out investigation to the logical conclusion and, therefore, they are awaiting for the outcome of the investigation carried out by the Police officer. Learned APP further submitted that during the course of investigation, it is found out that the present applicant has deleted all call details, datas etc. available in the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gations contained in FIR as well as affidavit of the concerned Investigating Officer or the merits of the case as well, is not necessary and should be avoided. 10. It is found out from the available record that the present applicant - accused, in connivance with other accused persons, have hatched criminal conspiracy of evasion of tax and as a part of said conspiracy, they have prepared false and fabricated documents i.e. purchase invoices and by using it as genuine, they have committed an offence of tax evasion in crores of rupees, which has come on record during the course of investigation. It is true that the applicant is not named in the FIR, however, the role played by the applicant at the time of commission of crime is found out from the investigation papers collected so far to the effect that the applicant has provided false seals to the co-accused for applying in containers. Further during the course of investigation, the statements of the witnesses as also the accused persons, whose names are there in the FIR, have been recorded and at that point of time, the involvement of the present applicant as prime accused is found out. Over and above that during the course of inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave to take into consideration, the following aspects, (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; (c) Prima facie satisfaction of the court in support of the charge; 14. The Hon'ble Apex Court, further, observed at Paragraphs-10 and 16 thus; "10. In our opinion none of the aforesaid decisions can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that because a long period of imprisonment has expired bail must necessarily be granted. 16. We are of the opinion that while it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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