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TMI Blog2024 (4) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... ons as set out in the prosecution report which eventually led to institution of complaint by the Additional Commissioner of CT & GST, Rourkela, are that on the basis of confidential information of involvement of Directors as well as Ex-Directors of three companies namely, M/S. Sairam Ingot Private Limited, M/S. Swastik Ingot Private Limited and M/S. Sunayana Metal Industries Limited and others for wrongfully claiming, utilizing and passing bogus input tax credit (ITC) on the strength of forged documents purportedly issued in the name of non-existent and ghost business entities created and operated by them, without physical receipt and supply of goods, the local Authorities under GST Act started investigation, in the course of which, the petitioners Dhanman Shaw, Ram Bharose Shaw, Niku Singh, Subash Kandulna and others were found to have committed offences U/s. 132(1)(b)(c)(f) & (l) of the OGST Act for individually as well as jointly and severally in collusion with each other by issuing invoices or bills without physical supply/receipt of goods or services leading to wrongful availment or utilization of input tax credit by using such invoices or bills and fraudulently availing input ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /S. Swastik Ingot Private Limited and M/S. Sunayana Metal Industries Limited. It is also alleged that petitioner Dhanman Shaw was the creator and operator of 19 numbers of non-existent ghost business entities and have effected purchase of goods from different registered and un-registered tax payers without obtaining purchase invoices from them and without payment of tax and he by arranging forged invoices from non-existing and dummy firms availed bogus input tax credit worth Rs. 96.26 crores on the strength of fake invoices and defrauded the State Exchequer and similarly, petitioner-Ram Bharose Shaw by allegedly creating and operating 17 numbers of non-existent and ghost business entities had secured bogus input tax credit worth Rs. 78.87 crores on the strength of fake invoices and thereby, defrauded the State Exchequer and similarly petitioner-Niku Singh allegedly by creating and operating 10 numbers of non-existent and ghost business entities could manage to avail bogus input tax credit worth Rs. 49.09 crores and defrauded the State Exchequer. It is also alleged in the prosecution report that petitioner Dhanwan Shaw, Ram Bharose Shaw and along with others have managed to secure b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ars and the petitioners having already been in custody for one and half years, no fruitful purpose would be served by keeping the petitioners in custody further. It is also submitted that since the witnesses appearing against the petitioners are official witnesses, it can safely be said that the prosecution evidence cannot be tampered with. Mr. Kar has also submitted that in this aforesaid situation, the petitioners can be considered to have satisfied the tripod test for being not posing flight risk as well as being not in a position to tamper prosecution evidence and the PR having already been submitted, there is no question of tampering the witnesses. In summing up his argument, Mr. Kar has prayed to grant bail to the petitioners. Further, learned counsel for the petitioners Ram Bharose Shaw and Dhanman Shaw by filing an affidavit has made a clear statement that no bail application of the petitioners is pending before any other forum. 4.1. Mr. Biswajit Nayak, learned counsel appearing for the petitioner in BLAPL No. 10652 of 2023 has submitted that although there is an allegation against the petitioner and other co-accused persons to have wrongfully availed ITC and defrauded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner and thereby, causing hindrance to Nation's growth. It is further submitted by Mr. Mishra that the present petitioners except Subash Kandulna had earlier unsuccessfully approached this Court and just after 25 days of their becoming unsuccessful in getting bail, they have approached this Court again without any supervening or changed circumstance to consider their bail applications and thereby, the bail applications of the aforesaid petitioners is not maintainable. Mr. Mishra by taking this Court through the allegation on record has further submitted that the petitioners in collusion with other accused persons had evaded a huge chunk of GST/Revenue by claiming, utilizing and passing bogus ITC on the strength of fake invoices issued in the name of non-existent and ghost business entities which were found to have been created and operated by them and the modus of operandi of the petitioners in conducting such fictitious business operations through forge invoices and transferring the illegal benefits to the three companies namely, M/S Sairam Ingot Private Ltd. (non-existing) as well as existing business entities M/S Swastik Ingot Private Ltd. and M/S Sunayana Metal Industries it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can make some reference to the materials on record, but it should avoid to make a detail and in-depth analysis of materials to record findings on their acceptability or otherwise, which is essentially a matter of trial. Keeping in view the aforesaid principle that detailed examination of evidence and elaborate documentation of merit of the case at the stage of considering bail application is not the mandate of law, this Court reasonably believes that calling for the records as sought for by the petitioners Ram Bharose Shaw and Dhanman Shaw and making a in-depth analysis of such documents for the purpose of grant of bail would undeniably have affect on the fair trial in this case, which the petitioners have right under the Constitution of India. Further, calling for the records at this stage would protract the bail proceedings further and when the trial has already progressed substantially with examination of little more than half of the PR witnesses, this Court considers it undesirable to call for the records as sought for by the petitioners Ram Bharose Shaw and Dhanman Shaw. Accordingly, the interlocutory applications in I.A. No. 1430 of 2023 and I.A. No. 1431 of 2023 as filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at imprisonment before conviction has a substantial punitive content. While considering the bail application either U/S. 437 or 439 of Cr.P.C., the object of bail has to be respected and the principle that bail is the rule, but jail is the exception has to be considered in a pragmatic way, no matter, liberty of an individual is not an absolute rule since exception also flows from Article 21 of the Constitution of India. 8. Bail is undoubtedly a discretionary jurisdiction of the Court in case of non-bailable offence, but there are certain checks and measures while authorizing the detention of a person accused of an offence in custody. Court must indicate brief reasons either for granting or refusing bail, but such reason must not be based on detail examination of evidence and elaborate documentation of the merits of the case, no matter the Court can make some reference to materials on record while considering the bail application. Besides, prolong detention of a person accused of an offence in custody not only frustrates the very object of Article 21 of the Constitution of India, but it also creates an concavity in the mind of sufferer. The pretrial detention would be an irreversib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el for the CT, GST that out of the 10 remaining witness, one has already been expired and the whereabouts of another is not available and 3 out of the remaining 8 witnesses are official witnesses and rest are private witnesses and therefore, how much time would be required to complete the trial is eventually a guess in this situation. 9. In the peculiar facts and circumstances of the situation, especially when the prolong custody of the petitioners which frustrates the right to speedy trial and the maximum punishment that is provided for the offence is five years, out of which one year & nine months has already been suffered by the petitioners as a pretrial detention and taking into account a hypothetical consideration that the personal liberty of the petitioners cannot be restored back if the prosecution fails to bring home the charge against them on the face of the prolong incarceration generally militates against the most precious fundamental right as guaranteed under Article 21 of the Constitution of India and already 13 witnesses having examined in this case and the decision of the case revolves around documentary evidence and thereby, further detention of the petitioners in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... report against the petitioners for tampering their evidence, the apprehension of tampering of evidence can be prima facie ruled out at this stage. Similarly, prosecution report having already been submitted, there is hardly any question of influencing witnesses by the petitioners. Further, the grant of bail to an accused pending trial should not be confused with his acquittal of the criminal charges, which is of course to be decided by the criminal Court on appreciation of evidence tendered by the witnesses on conclusion of trial, but grant of bail to an accused is a process of transfer of custody of accused from the custody of law to the custody of surety on certain terms and conditions and the surety certainly has a duty to ensure appearance of the accused before the trial Court till conclusion of trial. 12. In view of the undisputed logical sequitur of the discussions made hereinabove on the face of conspectus of materials placed on record including the long pretrial detention of the individual petitioners, which have punitive content, vis-à-vis the maximum punishment prescribed for the offence alleged against the petitioners being not beyond five years, this Court is p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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