Case Law Details
Mahabir Jain Shyamsukha Vs Central Bureau Of Investigation Rep. (Gauhati High Court)
Heard Mr. A.M. Borah, learned senior counsel, assisted by Mr. D. Baidya, learned counsel for the accused and also heard Mr. M. Haloi, learned Retainer Counsel for CBI.
2. This application, under Section 439 of Cr.P.C., is preferred by accused, namely- Shri Mahabir Jain Shyamsukha, who has been languishing in jail hazoot in connection with CBI ACB Guwahati RC 7(A) 2022/CBI-GWH registered under section 120 (B) IPC read with section 7/7(A) of the Prevention of Corruption Act, 1988, since 29.09.2022.
3. The said case has been registered on the basis of one FIR lodged by Shri Chittaranjan Nath of Tezpur, on 14.09.2022, to the effect that being the proprietor of Pawan Enterprise, and a registered contractor of N.F. Railway, Maligaon and in connection with construction work he has submitted bills to the Chief Electrical Engineer (Con.), N.F. Railway, Maligaon. Then the Addl. Commissioner, Central Goods & Service Tax, Dibrugarh has raised a demand of Rs. 48,43,034/ vide letter No. 23.07.2021. But, service tax is not required to be paid and N.F. Railway also issued a certificate to that effect. Thereafter, being aggrieved, he preferred an appeal before the Commissioner (Appeals) CGST, Central Excise Customs, Guwahati against such adjudication order, dated 23.07.2021, on 10.10.2021. Then in the month of August, 2022 the Commissioner- Shri Raju Shakthivel demanded a sum of Rs. 4,50,000/ i.e.@ 10% of the demand of Service Tax, through conduits for a favorable order in the said appeal.
4. Upon the said FIR, CBI ACB Guwahati RC 7(A) 2022/CBI-GWH registered under section 120 (B) IPC read with section 7/7(A) of the Prevention of Corruption Act, 1988, has been registered and thereafter, CBI laid trap at Guwahtai on 29.09.2022, and arrested Raju Shakthivel from the office of the Commissioner (Appeals) CGST, Central Excise and Customs, GST Bhawan, Machkhowa, Guwahati and the present accused Mahabir Jain Shyamsukha.
5. The respondent CBI has submitted its written objection and vehemently opposed the petition filed by the accused. It is stated that the accused Mahabir Jain Shyamsukha was caught red handed while accepting illegal gratification of 3,83,000/ on behalf of accused Raju Sakthivel and as per his instruction the complainant has deposited the bribe amount. It is also stated that investigation is still going on and one of the accused is absconding, and if the accused is enlarged on bail it is highly probable that he may destroy the evidence. Therefore, it is contended to dismiss the petition.
6. A.M. Borah, learned senior counsel for the accused submits that the accused was arrested on 29.09.2022, and since then he has been languishing in jail hazoot, for last 49 days and his further custodial detention may not be required and that one of the co-accused has already been enlarged on bail by this court and therefore, it is contended to allow the petition.
7. On the other hand, Mr. M. Haloi, learned Retainer Counsel, CBI, has opposed the petition and producing the case diary before this court submits that the Investigating Officer has collected sufficient materials against the accused and one of the co-accused is still absconding and enlarging the present accused will hamper the investigation and there is also chance of absconding and therefore, Haloi, contended to dismiss this petition.
8. Having heard the submission of learned Advocates of both sides I have carefully perused the petition and the documents placed on record and also perused the case diary, so produced before the court, by Mr. Haloi, the learned retainer counsel for the CBI, and I find the following:-
(i) The FIR was registered on 14.09.2022 and the accused was arrested on 29.09.2022;
(ii) The accused is behind the bar for last 49 days;
(iii) A sum of Rs. 3,83,000/ was recovered from his possession, which was allegedly received by him on behalf of accused Raju Sakthivel;
(iv) One of the co-accused has already been enlarged on bail;
(v) Material part of investigation, so far the present accused is concerned, appears to be completed and as such there appears to be no chance of hampering investigation or tampering the witnesses;
(vi) The I.O. has not complied with the provision of section 41 and 41-A Cr.P.C. before effecting arrest of the accused, and as such there is clear violation of the dictum of Hon’ble Supreme Court, issued in the case of Arnesh Kumar vs. State of Bihar reported in (2014) 8 SCC 273;
(vii) Though Mr. Haloi, learned Retainer Counsel, CBI has expressed apprehension of absconding of the accused, if granted bail, yet, the same appears to be unsubstantiated;
9. It is to be mentioned here that the maximum punishment prescribed for the offence under section 7 of the P.C. Act may extend to five years and for the offence under section 7A of the P.C. Act may extend to 7 years. Nothing has been recorded by the arresting authority as to why the direction in the case of Arnesh Kumar (supra) could not be complied with. The learned court below has also failed to record its satisfaction on compliance or non compliance of section 41 and 41A Cr.P.C. and the observation made by Hon’ble Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation & Anr, reported in 2022 Live Law (SC) 577. Be it noted here that in paragraph No.73 (C) in the case of Satender Kumar Antil (supra) Hon’ble Supreme Court has held that- “The court will have to satisfy themselves on the compliance of section 41 and 41A of the Code. Any non-compliance would entitle the accused for bail.”
10. Having regards to above, and also having regards to the nature of accusation and the punishment prescribed for the same, as well as the submission of learned Advocates of both sides, more specially the period of detention, and further keeping in mind the dictum of Hon’ble Supreme Court in Satender Kumar Antil (supra), I am of the considered opinion that further custodial detention of the accused seems to be unwarranted herein this case, and it is a fit case where the privilege of bail can be extended to the accused.
11. Accordingly, it is provided that on furnishing a bond of Rs. 1,00,000/ (Rupees one lac) with two sureties of like amount, to the satisfaction of learned Special Judge, CBI, Assam, Chandmari, the accused be enlarged on bail. This privilege is however subject to the condition that:- (i) He shall not leave the territorial jurisdiction of learned Special Judge, CBI at Guwahati, and (ii) He shall surrender his passport to the I.O. forthwith.
12. In terms of above this B.A. stands disposed of.
Return the case diary.
