This is the second bail application moved on behalf of accused. The accused has been transited from the court of Ld. SCJM, Rohtak and all firms /companies involved in the present case are registered in Delhi. It is submitted that as per the JC application filed before Court, it is admitted by department that applicant is neither the proprietor/partner/director/Authorized signatory/shareholder of any of the alleged firm/company and no invoice has been brought on record which bear the handwriting/signature of the applicant and also no banking transactions pointing out that applicant is a beneficiary of the alleged documents. It is submitted that self incriminatory statement obtained from the applicant has been retracted by the applicant vide statement dated 23.02.2021. the only alleged incriminatory material recovered from the applicant is pendrive and laptop containing details of alleged firm/company involved in the present case and at best the applicant can be charged for abatement u/s 132 (L) of CGST Act 2017 which is bailable in nature. Applicant is not a habitual offender and he joined investigation as and when directed by department. Also applicant never attempted flee. The allegations of department regarding influencing witness is totally misconceived and false. It is also submitted that the first application to interrogate the applicant to JC was filed after 43 day of judicial custody and after dismissal of first bail application which indicate that custody interrogation is not required by department. It is submitted that by virtue of law laid down in Mohan Raikwar Vs. State of M.R • 1999 (2) MPLJ 663 the second application is maintainable. It is also submitted that the entire evident present case is based on documents and accused undertakes not to with the evidence or influence any witnesses and to join the investigatiion and when directed. It is submitted that accused has already retracted from his statement made to the department. It is submitted that accused is not a habitual offender and sole bread earner of the family and considering the change in circumstances, in view of his responsibilities, he may be released on bail. It is submitted that applicant is deep roots in the society and he may be granted bail subject to just conditions.
The bail application has been opposed by the department that investigation is at a very nascent stage and same is continuing. It is submitted that authorized person of M/s Brij Industry and M/s Singhal Wire Industry have admitted in their statements that they used to get fake invoices without actual receipts of goods from accused Praveen jain @ Sonu Jain. It is submitted that the role played by the applicant is squarely covered within the ambit of Section 132 of CGST Act. It is submitted that the statement tendered by the applicant was voluntarily without any threat, fear, force, pressure. It is submitted that applicant was involved in issuing paper invoices without actual movement of goods which resulted into wrong availment of ITC by recipient of such invoices. It is submitted that accused admitted in his statement dated 19.11.2020 that various bogus proprietorship firms have been floated by him by forging documents with PAN Card and voter card for operating a net of fake firm to receive and issue invoices without actual movement of goods to earn commission. The applicant was also involved in several other firms which were arranged by Sh. Vijay Pal in order to receipt and issue fake invoices without movement of goods to earn and also shared commission with Sh. Vijay Pal. Applicant admitted to have earned commission in a statement on 19.11.2020 and details regarding nine firms were collected from the prints out of whatsapp, laptop and pendrive. It is submitted that accused has caused a loss of Rs. 44.19 crores to the government exchequer through the aforesaid means.
The grant of bail depends upon complex of facts and factors considered in the light of golden principles laid down from time to time by the higher Courts. In Dipak Subhash Chandra Mehta Vs. CBI : (2012) 4 Sc_C-134 Hon’ble Apex Court held that …”the Court granting bail should e rcise its discretion in a judicious manner and not as a matter of course. Tough at the stage of granting bail, a detailed examination of evidence and elaorate documentation of the merits of the case need not be undertaken, there is need to indicate in such orders reasons for prima facie concluding whey bail was being granted, particularly, where the accused is charged of having committed serious offence. The Court granting bail has to consider, among other circumstances, the factors such as:
a) The nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence;
b) reasonable apprehension of tampering with the evidence or apprehension of threat to the complainant.
c) Prima facie satisfaction of the court in support with the charge.
In addition to the same, the court while considering a petition for grant of bail in a non bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from the justice and tampering with the prosecution witness, have to be noted.
In Anil Mahajan Vs. Commissioner of Customs: (2000) 84 DLT 854 it was held that “there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the Courts. There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting of refusing bail. The answer to the question whether to grant bail or not depends upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be teated as a universal validity or as necessarily justifying the grant or refusal of bail… “
In the given facts, accused is in custody since 12.01.2020. The statement of the accused has been recorded by the department already in the prison. It is not forthcoming from the reply of the department that custodial interrogation of the accused is still required. Accused apparently rendered cooperation to the department and it appears that department is in custody of the entire documents relating to the alleged commission of offence. As tht fact shows that accused was receiving commission for receipt and issu of fake invoices without actual movement of goods as such the accused is no beneficiary of the entire projected loss by the department. As no banking transactions have been pointed out towards the accused showing him beneficiary and not a single invoice bears his handwriting and signature and he is not the proprietor/partner /director/authorized signatory/share holder of the alleged firms, the further detention of the accused seems to be useless for the reason that his interrogation qua these aspects is not warranted rest is already with the department. Accused has apparently clean antecedent as the reply of the department do not indicate his previous involvement in commission of similar offence. Pre-trial detention cannot be used as an indirect mode of reprisal unless the conduct of the accused warrants otherwise. It appears that no fruitful purpose would be served by keeping present accused in custody as whatever documents were in possession has been seized by the department.
So far as the concern of the department that the instant case is falls under the socio economic offence leading to loss to exchequer, in this regard the following judgment is important , “H.B. Chaturvedi Vs. CBI : 2010(3) JCC 2109 it was held by Hon’ble High Court of Delhi ” para 12…Bail, it has been held in catena of decision is not to be withheld as punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the accused person before he is convicted. Furthermore, there is no justification for classifying offence into different categories such as an economic offences and for refusing bail on the ground that the offence involved belonging to particular category. It cannot,therefore, be said that bail should invariably be refused in cases involving socio economic offences.”
Further, from the aforesaid it is forthcoming that evidence qua accused seems to be in possession of the department. It is correct proposition of law that each day of captivity gives the prisoner the renewed right to apply for bail. From the reply of department it is not forthcoming that release of the accused would cause substantial damage to the prospects of fair investigate and accordingly, considering the conduct of the accused, his perio of incarceration, his family responsibilities, his age, antecedents, the accused is entitled for bail subject to furnishing PB/SB in the sum of Rs. 5 lacs with one surety in the like amount subject to following conditions:-
1. That the accused shall join the investigation as and when directed by the investigating agency.
2. The accused shall not tamper with the evidence or influence the witnesses which will be examined by the department during investigation.
3. That accused shall not leave the country without the permission of the Court and deposit his passport with the 10 within seven days.
4. That accused shall not indulge in similar offence in future.
5. That accused shall appear before the Court on each and every date of hearing.
The application stands disposed off.
Copy of the order be transmitted to Ld. Counsel for applicant through email/whatsapp.