Ashish Aggrawal Vs CGST (Patiala House Court)
An application under section 437 CrPC for grant of bail moved on behalf of accused Ashish Aggarwal is pending.
Reply filed.
Arguments heard.
Ld counsel for accused submits that accused is aged about 44 years of age and is suffering from severe Sleep Apnea and Hypertension. Ld counsel further submits that as per medical report of the accused, accused may lead to sudden Cardiac Death or brain death while sleeping and he has problem in breathings. Ld counsel further submits that his father had already expired and his mother aged about 66 years is suffering from Left Hand Paralysis, Blood Clotting in Brain and Osteoporosis and is bed ridden. Ld counsel further submits that no one is available in his family to look after after him. He further submits that accused is first time offender and since the arrest of the accused on 29.10.2020, the investigation agency conducted no investigation from him. He further submits that the statement of the accused had already been recorded by the 10 which has been duly retracted on 29.10.2020 itself and therefore said statement cannot be read against the accused in view of he Article 20 (3) of Constitution of India. He also submits that the accused is not the ultimate beneficiary of the alleged evasion of GST and the best case against him even if case of department is considered as gosple truth is of Rs. 7.63 Crors only. He further pointed out that as per reply of the department dated 10.11.2020 on an application u/s 91 CrPC, a sum of Rs. 7 Crores have already been secured. He also pointed out that accused may hamper the investigation, till date the department has not obtained any non bailable warrants or look out circular against the accused. He reply upon the judgment in the matter of Sanjay Maheshwari Vs. Commissioner of Customs, A. Tajudeen Vs. Union of India, Adani Enterprises Ltd., & Anr Vs. U0I, Champsi M. Shah Vs. UOI and D. K. Shivakumar Vs. Directorate of Enforcement and Make My Trip Vs. Union of India. Ld counsel for accused prays for grant of bail.
On the other hand, Ld SPP has strongly opposed the bail application on the ground that during investigation, it was revealed in the statement u/s 70 of CGST Act, Smt. Sushma Rani deposed that she is the Proprietor of the firm namely, M/s Maya Impex which is handled by his son i.e. Ashish Aggarwal. He further submits that accused in his statement has admitted that he was involved in passing off fake ITC to the tune of Rs. 77 Crores, Rs. 4 Crores through M/s. Aaditya Sales, Rs. 22 Crores appmx. through M/s. Shiv Muskaan Traders, Rs. 12 Crores approx. through M/s Nidhi One Foods. He submit that accused used multiple firms to pass on fake ITC and has also availed fake ITC without actual movement of good. He further pointed out that Rs. 7 Crores secured from other taxpayers involved in this network of fake billing and no GST has been deposited by the firm being operated by Ashish Aggarwal.
Ld Sr. SPP also submits that Sanjay Kumar Garg, Proprietor of Devyani Agra Industries is cousin of accused Ashish Aggarwal and said firm of Sanjay Kumar Garg had availed admissible ITC to the tune of Rs. 22 Crores from the firms controlled by accused Ashish Aggarwal and further passed inadmissible credit to the tune of Rs. 29 Crores.
Ld Sr. SPP also submits that the accused was apprehended after 60 days of intense efforts and if released on bail, he may hamper the investigation as he will be in contact with parties involved in this rietwork and therefore the present bail application deserved to be rejected. He relied upon the judgement titled as SFIO Vs. Nitin John Anr (Crl. Appeal No. 1381/2019 date 12.09.2019) and Ram Narain Popli Vs. CBI (AIR 2003 SCC 3257).
Heard. Perused.
The personal liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle. The sanctity of liberty is the fulcrum of any civilized society. Deprivation of liberty of a person has enormous impact on his mind as well as body. Further, article 21 Of the Constitution mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Further India is a signatory to the International Covenant On Civil And Political Rights, 1966 and, therefore, Article 21 of the Constitution has to be understood in the light of the International Covenant On Civil And Political Rights, 1966. Further Presumption of innocence is a human right. Article 21 in view of its expansive meaning not only protects life and liberty, but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. The fundamental principle of our system of justice is that a person should not be deprived of his liberty except for a distinct breach of law. If there is no substantial risk of the accused fleeing the course of justice, there is no reason why he should be imprisoned during the period of his trial. The basic rule is to release him on bail unless there are circumstances suggesting the possibility of his fleeing from justice or thwarting the course of justice. When bail is refused, it is a restriction on personal liberty of the individual guaranteed by Article 21 of the Constitution.
Further it has been laid down from the earliest time 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 preventive. Deprivation of liberty must be considered a punishment unless it can be 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 convictions, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earlier 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 accused persons should be held in custody pending trial to secure their attendance at the trial, but in such case ‘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 persons 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 under Article 21 of the Constitution upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a 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 mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an accused person for the purpose of giving him a taste of imprisonment as a lesson. While considering an application for bail either under Section 437 CrPC, it must be kept in mind that the principle that grant of bail is the rule and committal to jail an exception. Refusal of bail is a restriction on personal liberty of the individual guaranteed by Article 21 of the Constitution. Seriousness of the offence not to be treated as the only consideration in refusing bail : Seriousness of the offence should not to be treated as the only ground for refusal of bail. (Judgment of Sanjay Chandra Vs. Central Bureau of Investigation, AIR 2012 SC 830 relied).
But, the liberty of an individual is not absolute. The Society by its collective wisdom through process of law can withdraw the liberty that it has sanctioned to an individual when an individual becomes a danger to the societal order. A society expects responsibility and accountability from the member, and it desires that the citizens should obey the law, respecting it as a cherished social norm. Therefore, when an individual behaves in a disharmonious manner ushering in disorderly thing which the society disapproves, the legal consequences are bound to follow.
It can be noted that interpreting the provisions of bail, the Hon’ble Supreme Court in its various judgments has laid down various considerations for grant or refusal of bail to an accused in a non-bailable offence like:
