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TMI Blog2024 (12) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer or while in police custody are inadmissible under Sections 25 and 26 of the Indian Evidence Act, however, Section 27 allows for an exception where information received from the accused leads to discovery of a fact. The Section makes only that part of the statement relevant, which directly leads to the discovery of facts. It does not make the entire statement of the accused inadmissible. The condition for applicability of the aforesaid Section is that the person giving the information must be an accused in police custody. The information provided must lead directly to the discovery of the material fact and only that portion of information which directly leads to the discovery is admissible. For example, if an accused, while in custody, reveals the location of a weapon used in the crime and upon searching that location, the weapon is indeed found, the part of statement where accused described the location of weapon is admissible in courts as evidence. In the present case, after registration of the FIR when forgery had been done by using the Aadhaar Card and PAN Card of the informant, fake GST firms were registered, Investigating Officer proceeded on the information as provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Bhati v. NCT, Delhi and another [ 2001 (3) TMI 1053 - SUPREME COURT ], has held that while granting bail, the court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, larger interest of the public or State and similar other considerations. Law on consideration of the Court to grant or refusal of bail has been settled by the Apex Court in a catena of decisions. In the case of Kalyan Chandra Sarkar v. Rajesh Ranjan [ 2004 (3) TMI 763 - SUPREME COURT ], the Supreme Court has held that the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. The Apex Court has, in the case of P. Chidambaram v. Directorate of Enforcement [ 2019 (12) TMI 186 - SUPREME COURT ], held that precedent of another case alone will not be the basis for either grant or refusal of bail though it may have bearing on principle and the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or these registrations and whose contact details are updated in these GST registrations. It is also mentioned that the two registrations are already authenticated for Aadhaar verification whereas as on date no email ID and mobile number is linked with his Aadhaar. Copy of Aadhaar Card along with screenshot showing the absence of any email ID or mobile number in Aadhaar details is enclosed as Exhibit. Further it has been learnt that similar registration has been applied in the UT of Delhi, however, the same got rejected by the GST authorities. The acknowledgement number generated after filing of GST registration application is AA070323054161Q. Hence, the FIR has been lodged. (ii). As per prosecution version in FIR/Case Crime No. 248/2023, dated 01.06.2023 under Sections 420, 467, 468, 471, 120-B IPC, Police Station Noida Sector-20, Gautam Buddh Nagar, the informant Sumit Yadav came to know about registration of fake firm, Yadav Traders, against his PAN Card No. AHFPX9874Q and the address is recorded as Ground Floor JL No. 219 Khatian No. 2275 dag no. 1835, Sahibganj Road, near Sahibganj, High School, Kharimala, Khagrabari Cooch behar West Bengal 736101. Said Firm is got registered f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged offence or he is beneficiary of alleged fraud. The alleged fictitious firms are also not known to the applicant and he has no connections with such firms. It is further submitted by learned counsel for the applicant that the applicant has no role in the alleged misuse of credentials of the informant for obtaining fake registration of firm as has been alleged against the applicant. (iii). There is no documentary or ocular evidence available on record to show that the applicant is involved in creation of any fake firm or has forged any document for that purpose, therefore, no offence under the relevant section is made out against the applicant. There is no evidence against the applicant in the entire case diary constituting any offence of cheating anybody or forging/manipulating any documents or hatching any conspiracy whatsoever. There being no evidence of cheating anybody or forging any document, the applicant is entitled to be released on bail. (iv). Learned counsel for the applicant further submits that in relation to same offence co-accused Rajiv Jindal, has already been released on bail by Apex Court vide order dated 25.10.2024, therefore, he claims parity. (v). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sly argued that to divulge the involvement of the applicants, the dots are required to be joined to examine as to who has done it. B. It is submitted by Mr. Goel that 2600 fake firms were found to be registered and the input tax credit availed with these 2600 firms was more than Rs. 40,00,00,00,000/- (Rupees Four Thousand Crore). In the present matter anticipatory bail application was filed by one of the co-accused persons and after due consideration the Court has rejected the said anticipatory bail application. C. Learned Additional Advocate General has further contended that from the material as collected by the Investigating Officer including statements, as recorded, it is evident that it is a case where a number of SIM Cards have been utilized, therefore, it is a case where the entire family is involved and if the bail is granted to one person, it will perpetuate illegality. D. The FIR was lodged by one Saurabh Dwivedi, who is a journalist and Editor of The Lallantop Internet News Portal, about unknown GST registrations applied on his PAN showing the addresses of Punjab and Maharashtra. The said GST registrations have been obtained without consensus. It has also been alleged th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It has also been argued that the Supreme Court has viewed the matters of economic offences and laid down law while considering bail applications in the cases of Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation [(2013) 7 SCC 439] , Central Bureau of Investigation v. Ramendu Chattopadhyay [(2020) 14 SCC 396] , Tarun Kumar v. Assistant Director, Directorate of Enforcement [2023 SCC OnLine SC 1486] , State of Bihar and another v. Amit Kumar alias Bachcha Rai [(2017) 13 SCC 751] , Nimmagadda Prasad v. Central Bureau of Investigation [(2013) 7 SCC 466] , Serious Fraud Investigation Office v. Nittin ohari and another [(2019) 9 SCC 165] , and State of Gujarat v. Mohanlal Jitamalji Porwal and another [(1987) 2 SCC 364] . 5. As argued by learned counsel appearing on behalf of the State, the following material has been collected to show the involvement of the accused persons including the applicant in the present case: (i) C.D. Parcha No. 2 bears details of Mobile No. 8800966916 which was used to register the GST firms mentioned in the FIR, its CDR (Call Details Report) / CAF (Customer Acquisition Form) reports were obtained from Surveillance Cell. (ii) CDR/ CAF reports were received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovery of incriminating articles. Whereafter, the investigating team reached at Gautam Buddh Nagar along with accused taken in police custody remand alongwith arrested accused persons Gurmeet Singh Batra and Gaurav Singhal, from where accused Rahul Gupta and Rajiv Maheshwari were arrested with several SIMs and other incriminating material and the recovery memo was handed over with consent to Rajiv. (vii) C.D. Parcha No. 16 shows that the accused taken in police custody disclosed the names of Atul Gupta, Sumit Garg alias Sumit alias Chacha, Mannan Singhal, Baldev alias Balli, Ishwar, Praveen, Sanjay Garg, Banti, Archit Goyal. All of them confessed to prepare fake GST invoices against the names of fake firms at the office taken on rent by Deepak Murjhani and Archit Goyal. (viii) On being reached at the office of Jiwalo India Pvt. Ltd. (Shop No. 1- F/A-16, Gurudwara Road, Madhu Vihar, Delhi), statement of property owner, namely, Sahil Gupta S/o Sri Prakash Chandra Gupta was recorded, which revealed that the shop was taken on rent by one Rajnish Kumar Jha along with Raj Kumar Jha, for which a rent agreement was executed in the name of Jiwalo India Pvt. Ltd. The landlord identified t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intu, Amit alias Montu and Mahesh was made, which is mentioned in C.D. Parcha No. 30 (09.07.2023). Recovery of 07 mobile phones, 06 tax invoices, one car and 3 aadhaar cards was made from said accused persons. (xv) In the C.D. Parcha No. 31 the Investigating Officer found that the registration of vehicle mentioned in the invoices were found to be fake and fabricated. (xvi) In the C.D. Parcha No. 37 arrest of Preetam Garg alias Chacha is mentioned along with recovery of fake tax invoices, mobile, aadhaar and voter ID. In his statement, the accused Preetam Garg confessed that he along with his elder brother Sanjay Garg went to Rohini, New Delhi, where he was introduced with Gaurav Singhal, Pradeep, Atul, Mannan, Sumit, Vikas Dabas, Goldi and Nand Lal, at the office of Arjit and Anchit. (xvii) In the C.D. Parcha No. 39 the Investigating Officer recorded arrest of Jatin Murjhani alias Rohit and Dolsy Murjhani. In their confessional statements, both have stated to have part of the entire transaction by getting commission. (xviii) In the C.D. Parcha No. 44 the Investigating Officer recorded arrest of accused Nandlal alias Nandu father of co-accused Mahesh and recovery of tablet (notepad) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ghaziabad has informed that accused persons were arrested by the police of P.S. Sector-20 Noida, Gautam Buddh Nagar and from their possession list of 2600 fake GST registration firms was recovered. On thorough inquiry it was found that the forged GST firms YOYO Traders has transferred ITC to fake GST firm AKS Traders, from which it was transferred to M/s Good Health Industries Pvt. Ltd., and both YOYO Traders and AKS Traders were found to be registered on fake documents. A complete report of DGGI office containing 28 pages is enclosed along with the parcha. In the said report it has been found that YOYO Traders and AKS Traders are non-existing firms and mobile numbers have been provided which are used in the registration of fake firms. (xxvii) C.D. Parcha No. 77 shows that on physical verification Investigating Officer found that both firms, namely, YOYO Traders and AKS Traders are non-existent at the principle place of business. (xxviii) In C.D. Parcha No. 78, the Investigating Officer mentions that mobile number used in the registration of GST firm YOYO Traders i.e. 9873797648 was found to be used in mobile having IMEI No. 862625043825695, the said mobile was recovered at the ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 companies were found to be common, by which fake ITC claims were received. Further, Annexure-1 of the said report reveals that from these 20 firms, by way of fake tax invoices about Rs. 16,91,74,236/- was misappropriated as a tax claim as such huge loss to the State Exchequer was caused. From Annexure No. 2 it is revealed that fake ITC claims of Rs. 8,57,60,146/- were fraudulently claimed from the fake GST firms. Further, Annexure-3 discloses that fake ITC of Rs. 226.45 crores were claimed in collusion with the accused Sanjay Jindal and Ajay Sharma. The report of DGGI is enclosed along with the said Parcha. (xxxv) C.D. Parcha No. 105 shows the arrest of accused Rahul Nigam, Piyush Kumar Gupta and Dilip Sharma. They confessed that they use to create fake GST firms and invoices for the accused persons Arjit Goyal alias Adarsh Goyal, Anchit, Pradeep, Vikas Dabas and told that they are somewhere outside but they create fake GST firms and fake invoices on the email i.d. of [email protected] which is still logged-in on his laptop, wherein many fake GST firms are uploaded. Whereafter, 2 boxes containing 40 stamps, 1 box with 2 bank passbooks and 19 various bank cheque books, 1 bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose information was provided to the police by DGGI Ghaziabad Unit, are in jail, as such the statement of the accused persons were recorded wherein they have confessed their complicity in the present offence and requested the court below for allowing the remand of the accused in the present case crime under Section 420, 467, 468, 471, 120B IPC. (xlii) In C.D. Parcha No. 135, a letter from DGGI Delhi Unit is submitted by the IO which reveals that the accused Tushar Mehta who was arrested by DGGI Delhi Unit, was involved in recipient of fraudulent ITC to the tune of Rs. 24 crores on the strength of purported invoices issued by the fake GST firm M/s MKJ Enterprises which is a part of Noida fake invoice syndicate. (xliii) In C.D. Parcha No. 139 (10.04.2024) shows that during investigation it was found that accused Tushar Gupta, who was arrested by DGGI, Delhi Unit amongst 8 persons and also involved in the registration of 2600 fake GST firms, is in jail, as such the statement of the accused persons were recorded wherein they have confessed their complicity in the present offence and requested the court below for allowing the remand of the accused in the present case crime under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the complicity of the accused persons naming them. (xlix) C.D. Parcha No. 162 (26.05.2024) reveals that a report from DGGI, Coimbatore which reveals that names of Smt. Suganya Prabhu and Sri Prabhuparam Shivam came to the light in the complicity of offence, showing huge amount was misappropriated through ITC. (l) C.D. Parcha No.167 (23.06.2024) details about the arrest of Smt. Suganya Prabhu, her confessional statement was recorded which discloses the complicity in the present case. (li) C.D. Parcha No.172 (27.06.2024) shows the arrest of accused Babar Khan and recovery of forged tax invoices and other incriminating material and thereafter confessional statement of the accused was recorded. 6. Learned counsel for the State has argued that the complicity of the applicant along with other accused was unravelled by complete chain of evidence and the name of firms AKS Traders and YOYO Traders were disclosed which were connected with the firm M/s Good Health Industries Private Limited, which was ultimately involved in the entire scam. These firms, namely, AKS Traders and YOYO Traders, during investigation, were found to be non-existing and fake as they were registered by procuring f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able person is required to issue an invoice containing all relevant information, such as the GSTIN, tax divergence and so on. If a taxpayer issues an invoice that is missing critical information, the invoice may be considered a fake GST invoice. Thus, by forging fake GST number using PAN Card of the informant fake GST invoices have been created for financial benefit, thus, the very basis of the present case is forgery done by the accused persons, on the basis of which financial gains in terms of ITC have been availed by them. 11. The learned Additional Chief Standing Counsel, in order to show how use of PAN Card in such a manner, is detrimental not only to the interest of the person whose PAN Card has been used but is also detrimental in national interest, has relied upon a judgement of Bombay High Court in the case of UTI Infrastructure Technology and Services Limited v. Extra Tech World and Ors. (By Bombay High Court in Interim Application (L) No. 564 of 2024 in Commercial Intellectual Property Rights Suit (L) No. 537 of 2024) , wherein the Court has observed thus: It cannot be in dispute that the PAN system is of paramount importance on a national scale due to its multifaceted i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon searching that location, the weapon is indeed found, the part of statement where accused described the location of weapon is admissible in courts as evidence. 16. The rationale behind Section 27 of the Act, 1872 is to strike a balance between protection of the accused from coercive confession and the necessity of law enforcement to discover fact related to a crime. The courts have interpreted Section 27 in various judgements, often emphasizing that it should be applied only to the extent necessity to prove discovery of a fact. The Hon'ble Apex Court has also laid down guidelines to ensure that the information obtained is not the result of any compulsion or coercion. 17. In the case of Pulukuri Kotayya and others v. King Emperor P.C. App. No. 37 of 1946, 19th Dec. 1946 (Indian Appeal Vol. LXXIV Page 65) , which is a landmark judgement, the Apex Court has explained the scope of Section 27 of the Act. In the said case it has been held that the phrase distinctly related to the fact thereby discovered is crucial, meaning only that part of statement that led directly to the discovery is admissible, and not the entire statement. In the case of State of Uttar Pradesh v. Deoman Upad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unlawful Activities (Prevention) Act (UAPA) and the Prevention of Money Laundering Act, 2002 (PMLA), lastly economic offence and white collar crimes. 20. The present case relates to economic offences, such as large scale fraud, money laundering and corruption, are often viewed seriously because they affect the economic fabric of the society. The Courts may deny bail in such cases especially if the accused holds a position of influence or power. In the present case, money trail of crores, which affects the society at large scale, is involved which started from registration of fake firms by using Aadhaar and PAN Cards of the informant who had not applied for such registration. 21. It has been informed in the case of accused Rajiv Jindal that discharge application of one of the accused has been rejected and it shows that the charges are proved and once on the basis of material collected chargesheet has been submitted, discharge is rejected, the case of bail is not made out in economic offence where money trail of crores has been found which is a result of registration of fake firms. Offence under the IPC is made out and such accused cannot be dealt with easy hands. In the case of Y.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mic offences which are having great impact on the society, the court must be slow in exercising discretion under Section 438 of Cr.P.C. 24. In the case of Tahir Hussain v. The Assistant Director Enforcement Directorate (Order dated 24.11.2022, Crl. Rev. P. 775/2022 and Crl. M.A. No. 23452/2022) , the Court has observed that the accused Tahir Hussain was involved in the acts of cheating/ falsification/ forgery of documents which resulted in fraudulent removal of money from the accounts of the three companies (M/s SEAPL, ECPL and EGSPL). On the directions and instructions of Tahir Hussain, huge amount of money was withdrawn from the accounts of the said three companies by way of transfer of funds to entry operators and bogus companies. Tahir Hussain was ultimate beneficiary of the laundered money which he used for fulfilment of ulterior motives. Fake and bogus invoices were created to cover the money trail. 25. The same situation is there in the facts of this case where the crime has started with registration of fake GST firms by using Aadhaar and PAN Card of the informant which amounts to forgery, therefore, offence under the relevant sections is made out and these offences have bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is clear, immediate and a proximate cause of discovery is admissible. 23. The facts proved by the prosecution, particularly the admissible portion of the statement of the accused, would give rise to two alternative hypotheses, namely, (i) that the accused had himself deposited the physical items which were recovered; or (ii) only the accused knew that the physical items were lying at that place. The second hypothesis is wholly compatible with the innocence of the accused, whereas the first would be a factor to show involvement of the accused in the offence. The court has to analyse which of the hypotheses should be accepted in a particular case. 27. While considering an appeal against the bail cancellation order, the Apex Court in the case of Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118] , has held that there cannot be an inexorable formula in the matter of granting bail. Paragraph-29 of the said judgement is thus: 29. We may repeat the two paramount considerations, viz. likelihood of the accused fleeing from justice and his tampering with prosecution evidence relate to ensuring a fair trial of the case in a Court of Justice. It is essential that due and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Paragraph-11 of the said judgement is being quoted below: 11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. 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. 32. Recently the Apex Court in the case of Satendra Kumar Anti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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