Case Law Details
Kabir Kumar Vs Directorate General of GST Intelligence, Gurugram (Delhi High Court)
The petitioner vide the present petition seeks the setting aside of the order dated 22.12.2021 of the Court of the learned CMM in case ‘Directorate General of GST Intelligence, Gurugram vs Kabir Kumar’ and also seeks restoration of the bail granted to the petitioner vide order dated 05.12.2020 till the pendency of this petition and also seeks stay of the operation of the impugned order.
Submissions have been made on behalf of either side.
As per record, the petitioner was granted bail vide order dated 05.12.2020 subject to terms and conditions to the effect:
“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 witness which will be examined by the department during investigation.
3. That accused shall not leave the country without the permission of the Court.
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 stand disposed off.
It was inter alia observed vide this order to the effect:
“In the given facts, accused is a young man apparently having clean antecedents as no evidence has been brought forth by the department to show that he has previously been involved/engaged in similar offences. Further, the conduct of the accused seems to be reasonable during investigation as it has not come from the department , that he evaded arrest or remained defiant to the directions of the IO. The accused is in custody since 29.10.2020 and during this time the department has got ample opportunity to interrogate him. However, same was not done by the department which makes it clear that his custodial interrogation is no more required and it is pertinent to note that the time line for filing the chargesheet is drawing near, however, despite this no request has come from the department to seek his interrogation. The frail health of the mother of the accused and his own bad health are relevant consideration in the backdrop of the fact that he never acted as an obstructionist during investigation. Being sole bread earner and provider ·of the family is also a valid consideration for seeking bail where it is found that on account of his incarceration the entire family is subjected to hardship. 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, the investigating agency is having the possession of all the documentary evidence collected so far and all other relevant material which is in the form of stamps, cheque books, debit cards, digital signatures and other material like invoices which they can scrutinize and for such scrutiny which is time consuming the further, detention without any justification seems to be unreasonable. At the same time, interest of the department can be safeguarded by putting conditions on the accused so that he should not come in the way of fair and proper investigation in future also.”
The respondent in the present petition is indicated thereafter to have filed an application seeking cancellation of bail granted vide order dated 05.12.2020 by the learned CMM, New Delhi, which application was declined vide order dated 18.01.2021 by the learned ASJ-02, New Delhi observing to the effect:
“Perusal of the record reveals that accused was granted bail not only on account of his age, cooperative behaviour and his criminal antecedents but he was also granted bail considering the time of incarceration and the fact that department is in possession of all incriminating material and no fruitful purpose would be served by detaining the accused behind the bars. Evidently, in the case at hand, there is no material available on record to suggest that accused is attempting to interfere with the course of administration of justice or he is attempting to evade the proceedings. No plausible explanation has been cited for cancellation of bail of accused. The instant application seems to be more ornamental than having any legal substance in it. The instant application is bereft of any merits and is accordingly dismissed.”
Another application seeking cancellation of regular bail was again filed by the respondent submitting to the effect that the applicant / petitioner herein had flouted the condition no.4 of the order dated 05.12.2020, which reads to the effect that the accused shall not indulge in similar offence in future. It is submitted in the said application that whilst taking forward its investigation, the applicant / department has arrested two associates of the applicant herein i.e. the respondent to the application seeking cancellation of bail named Manish and Vikas who were then in judicial custody (who have since been granted bail as submitted on behalf of the respondent and the petitioner in reply to a specific Court query).
The averments in ground-II of the second application seeking cancellation of bail further mentions to the effect that the voluntary statements of these persons Vikas and Manish had been recorded under Section 70 of the CGST Act, 2017 and it was stated that the respondent to that application i.e. the present petitioner was still engaging himself in issuance of fake paper invoices and thereby passing of fake / ineligible ITC running into crores of rupees and the said statements were specific in nature and give the exact details of the manner in which the respondent /accused i.e. the present petitioner was functioning and that the statements have also not been retracted till date despite a considerable period of time having elapsed. It was further averred vide ground-III to the effect that the illegal actions of the accused led to generation of black money and hawala transactions, which were further used to fund anti-national activities and which was a threat to the society and the nation, that the accused was at the helm of a well established network of defrauding the exchequer and was the perpetrator of a grave economic crime and was destroying the framework of the nation’s economy.
In reply to a specific Court query to the senior Standing Counsel representing the respondent as to apart from the disclosure statement recorded of the stated accused Manish and Vikas as mentioned in para 2 of the second application seeking cancellation of bail that had been filed before the learned CMM, New Delhi whether there was any further incriminating evidence that had been collected in relation to any further offence committed after the date 05.12.2020 by the applicant, to which, presently the response is in the negative submitting to the effect that investigation is in progress.
It has been submitted on behalf of the applicant that the mere disclosure statements by the accused Manish and Vikas per se would not suffice to allege to the effect that the applicant had committed any offence. The said contention presently appears to be correct in view of the response of the respondent also by the Senior Standing Counsel to the effect that presently apart from the disclosure statements of the accused Vikas and Manish (both as submitted on behalf of either side have since been granted bail) there is no other material to incriminate the applicant / petitioner herein in relation to any further commission of offence beyond the date 05.12.2020, though presently, the investigation is still in progress
In these circumstances, the observations in the impugned order dated 05.12.2020 to the effect that the applicant/ petitioner herein named as the respondent in the order dated 05.12.2020 had indulged in similar commission of offence after release on bail and the condition no.4 of the order dated 05.12.2020 had been defied with the impunity cannot be accepted.
As regards the other submissions that have been made on behalf of the respondent to the present petition that the applicant / petitioner had not been appearing before the learned CMM on each and every date of hearing in terms of condition no.5 of the order dated 05.12.2020 and the observations of the learned trial Court vide the impugned order dated 05.12.2020 spelt out to the effect that the conduct of the applicant has been unsatisfactory and defiant as despite the specific direction, he failed to appear before the learned trial Court which is also a violation of the condition of the bail whereby he was obligated to appear before the Court as and when directed and baseless and untenable grounds were taken to avoid Court appearance which spoke volumes of his conduct, it has been submitted on behalf of the petitioner that the application dated 21.12.2021 was filed on behalf of the applicant submitting to the effect that the Court had directed the applicant to appear on 20.12.2021, which has been so directed vide order dated 16.12.2021 with it having been submitted on behalf of the respondent to the present petition that the order dated 09.12.2021 directing the appearance of the applicant and clarification on 16.12.2021 indicate directing the presence of the petitioner / accused herein and not the respondent, applicant of the application seeking cancellation of bail of the present petitioner as sought to be contended on behalf of the petitioner herein to the effect that it was the presence of the respondent to the application seeking cancellation of bail as directed vide order dated 09.12.2021 for the date 16.12.2021, which appears to be correct in view of the proceedings dated 23.10.2021 of the Court of the learned CMM, which reads to the effect:
“23.10.2021
Proceedings conducted through video conferencing on Cisco Webex.
Present: Mr. Harpreet Singh, Ld. SPP for the department through VC .
None for the respondent/accused through VC.
On behalf of applicant, nobody is appearing, however, in the interest of justice, last opportunity is granted to address arguments on behalf of respondent on 28.10.2021.
Copy of this order be also sent to all the parties through email/Whatsapp.
It is certified that the connection during hearing (through Cisco Webex was uninterrupted and the voice and video was clear and the Ld. APP for the State and Ld. Counsel for the parties appearing through VC did not raise any objection regarding the quality of V/C.”
The same indicates thus that though on that date, the SPP for the department was present through VC, there was none for respondent / accused through VC and it was mentioned further in the said order: “On behalf of the applicant nobody is appearing however, in the interest of justice, last opportunity was granted to address arguments on behalf of respondent on 28.10.2021”, which makes it thus implicit that the proceedings dated 09.12.2021 directing the appearance of the applicant on 16.12.202 1 relate to the accused i.e. the petitioner herein.
The proceedings of the date 16.12.2021 indicate that there was no one present and the accused was directed to appear in person on 20.12.2021. The proceedings of the date 20.12.2021 are not on record. However, it is brought forth on behalf of the respondent by senior Standing Counsel that on the date 20.12.2021 in as much as there was a change of counsel on behalf of the applicant / petitioner herein as prayed on behalf of the applicant / petitioner, the matter had been renotified by the learned CMM to the date 21.12.2021 for the personal presence of the applicant.
Placed on record is an application dated 21.12.2021 filed on behalf of the petitioner before the learned trial Court placed as Annexure P8 at page 107 of the present petition submitting to the effect that in as much as the applicant had Covid- 19 symptoms since the last few days and therefore he got his RTPCR test done on 19.12.2021 and though the test result came out to be negative but the applicant was still suffering from high fever, cold, headache and other related symptoms of COVID- 19 and due to conspicuous symptoms of COVID-19, the doctor had advised him to isolate himself for at least 10 days to avoid any transmission and for medical care, the applicant was unable to put in appearance before the learned trial Court in person and sought to appear virtually through the Court VC link and authorized his counsel to argue the matter in his absence and prayed for marking of his presence through VC.
Vide order dated 21.12.2021, the said prayer made by the applicant to join the proceeding through VC on 21.12.2021 was disposed off with observations to the effect:
“An application has been filed on behalf of respondent/ accused Kabir Kumar submitting that applicant was directed to appear in person, however, he got Covid test done on 19.12.2021 and his Covid test report is negative, however, he is suffering from high fever, cold, headache and other related symptoms of Covid-19. It is submitted that Doctor has advised him to isolate himself for next 10 days. It is submitted that he may be allowed to appear through virtual means.
Application is opposed on behalf of the prosecution submitting that accused is deliberately not appearing before the Court. It is submitted that accused had adopted the similar ways to debunk ongoing investigation which necessitated filing of instant application as the very conditions of the bail was flouted by him. Ld. SPP for the department submits that conduct of the accused may be noted down.
Heard. Perused.
From the facts, it is apparent that accused is trying to avoid his presence before the Court and taking baseless excuses. On 20.12.2021 , despite being directed to appear in person, he did not appear even through VC on the pretext of Covid 19 test. Today, despite he has been detected negative for the Covid 19, he failed to appear before the Court physically and appeared through VC and took the pretext of advise of his doctor which is apparently to avoid appearance. Accordingly it is directed to the accused to remain physically present before Court on 22.12.2021 at 10:00 am as last opportunity as it is amply clear that accused is avoiding appearance intentionally despite specific directions.”
In reply to a specific Court query, it is informed on behalf of the petitioner that the petitioner could not put in appearance on 20.12.2021 in view of his suffering from fever and that it was the reason that the petitioner could not appear in terms of order dated 16.12.2021 of the learned CMM directing the appearance of the petitioner on the date 20.12.2021.
Taking into account the factum that in view of the observations hereinabove, it is held that presently it cannot be observed to the effect that the applicant/ petitioner had violated the condition no.4 of the order dated 05.12.2020 in as much as investigation in the matter qua any future commission of the offence after 05.12.2020 is still in progress as submitted on behalf of the respondent and presently there are only disclosure statements of two accused Manish and Vikas against the petitioner qua further alleged commission of offence after 05.12.2020, the condition no.4 of the order dated 05.12.2020 cannot be held to be violated presently.
The absence of the accused on the date 20.12.202 1 and 21.12.2021 in the circumstances put forth appears to have been explained.
In view thereof though the order dated 22.12.2021 of the learned CMM, New Delhi, PHC setting aside the grant of bail granted vide order dated 05.12.2020 is set aside, it is essential to observe that direction dated 22.12.2021 of the learned CMM, New Delhi whilst disposing of the application seeking cancellation of bail as filed by the respondent herein before the learned CMM, New Delhi after the cancellation of bail granted to the applicant vide order dated 05.12.2020 directing the applicant/petitioner to surrender by 23.12.2021 has not been complied with, qua which, it is submitted on behalf of the petitioner by learned senior counsel for the respondent that the petitioner did not surrender because of the pendency of the present petition, apparently, the petition has been listed for hearing today and there was no stay of the operation of the order dated 22.12.2021 at any time granted. Thus though the order of the learned CMM, New Delhi is set aside, the same is set aside subject to deposit of the costs of Rs. 1 lac (Rs.1,00,000/-) in the Delhi High Court Legal Services Committee during the course of the day by the petitioner with direction to place on record the receipt of said cost before the learned CMM/ New Delhi/ Link MM by 3 pm today.
The petition is disposed of.
