Calcutta HC in the case of Arvind Kumar Munka Versus The Union of India

Citations:
Arnesh Kumar –Vs- State of Bihar & Anrs
Rini Johar & Anrs – Vs- State of Madhyapradesh & Ors
Hussainara Khatoon and Ors. 
U.O.I. through C.B.I. vs Nirala Yadav @ Raja Ram 
Rajnikant Jivanlal Patel & Anr. vs Intelligence Officer Narcotic Control Bureau New Delhi
Uday Mohanlal Acharya vs State Of Maharashtra
Sayed Mohd. Ahmad Kazmi case [(2012) 12 SCC (Cri) 488] 
Pragyna Singh Thakur case [(2011) 10 SCC 445: (2012) 1 SCC (Cri) 311] 
Union Of India vs Arviva Industries (I) Ltd. 
Sidhharam Satlingappa Mhetre Vs. State Of Maharashtra
P.V. Ramana Reddy –VsUnion of India
Vikas Goel –Vs- Deputy Director, Directorate General of GST Intelligence, Gurugram
Sanjay Kumar Bhuwalka vs Union of India

IN THE HIGH COURT AT CALCUTTA 
CRIMINALREVISIONAL JURISDICTION 
APPELLATE SIDE
Present : The Hon’ble Justice Shivakant Prasad
CRM10075 of 2019 
Arvind Kumar Munka 
–Vs.—
The Union of India
For the Petitioner : Mr. Sekhar Basu Mr. Rajdeep Mazumder Mr. Mayukh Mukherjee
For the U.O.I. : Mr. K.K. Maiti
Heard On : 16.12.2019
Judgment On : 24.12.2019
This is an application for bail under Section 439 of the Code of Criminal Procedure, 1973 on behalf of the petitioner who has prayed for his enlargement on bail on any conditions. The petitioner has been arraigned as an accused along with other accused persons in connection with the Case No. C 3179 of 2019 arising out of V(12) 75/AE/CGST/GR-VII/KOL-NORTH/2019 under Sections 69 read with Section 132(1) of the Central Goods and Services Tax Act, 2017, now pending before the learned Chief Judicial Magistrate, Alipore.
The petitioner case is that he is a Chartered Accountant and his office is situated at Room 2H, 56 Metcalfe Street, Kolkata-700012 and is no way connected with the instant case and has been falsely arraigned as an accused on the allegation that the petitioner in connivance with the other accused persons,namely, Sanjay Kumar Pandit, Nagendra Kumar Dubey alias Sandip Dubey, and Mr. Vijay Rajpuriya along with other persons had allegedly issued GST invoices without any supply of the goods to the buyers on commission basis causing loss of more than 98 crores approximately.
It is submitted that the petitioner was arrested and produced on 6.06.2019 before the Learned Chief Judicial Magistrate, Alipore, who vide order dated 6.06.2019 rejected his prayer for bail remanding him to judicial custody, although, he was rendering his cooperation with the investigating agency prior to his arrest. Then the petitioner moved an application under Section 439 Cr.P.C. for his release on bail before learned Sessions Judge Alipore, but by order dated 20.08.2019 the bail prayer was rejected on considering the nature and magnanimity of unlawful act done by the accused persons including the petitioner as revealed from the final report of the investigating agency and on consideration that there shall have every possibility to influence the witness to destroy the evidence or evade the process of further investigation and trial.
Being aggrieved by the order of rejection of application under Section 439 Cr.P.C., the petitioner has prayed for enlarging him on bail on the grounds, inter alia, that the learned Courts below have committed an error by not granting bail on 61st day in terms of Section 167 of the Criminal Procedure Code; the learned Chief Judicial Magistrate has recorded order of detention of the petitioner without adhering to the directives of the Hon’ble Supreme Court in the case of Arnesh Kumar –Vs- State of Bihar & Anrs, reported in 2014 (8) SCC 273 as well as the observation in the case of Rini Johar & Anrs – Vs- State of Madhyapradesh & Ors, reported in 2016 (11) SCC 703; that the offence under Section 132 of CGST Act, 2017 is bailable; and that without previous sanction by the Commissioner for filing charge sheet the proceeding as a whole is rendered otiose.
Mr. Sekhar Basu learned Senior Advocate appearing for the petitioner submitted that the purpose of arrest, when the petitioner was cooperating, poses a question regarding the malicious intent of the prosecuting authority because while rendering his cooperation, the petitioner was coerced into signing several blank documents by the investigating agency. It is pointed out that offences under Section 132 (1) (a), (b) and (c) of the CGST Act, 2017 provides for a maximum punishment for 5 years and is triable by the learned Magistrate of First Class. The petitioner is in custody since 06.08.2019 and no further detention is warranted. He is not a responsible person either as a proprietor or a person responsible for the running of any proprietary concern and no notice was issued under Section 73 of the CGST Act, 2017 and has been falsely entangled in this case.
Mr. Basu further submitted that the instant prosecution has been lodged without the sanction of the Commissioner contrary to mandate provided under Section 134 of CGST Act. The Commissioner has only authorized the Investigating Officer to arrest under Section 69 read with Section 132(1) of the CGST Act but has not granted Sanction under Section 134 of the CGST Act and as such the instant prosecution is not maintainable and precisely raised the following points germane to the application for bail:-
1) Whether the learned Trial Court has committed an error by not granting bail on 61st day in terms of Section 167 of the Criminal Procedure Code?
2) Whether the direction made in the case of Arnesh Kumar –Vs- State of Bihar & Anrs, reported in 2014 (8) SCC 273 as well as the observation in the case of Rini Johar & Anrs – Vs- State of Madhyapradesh & Ors, reported in 2016 (11) SCC 703 is required to be complied with?
3) Whether the offences mentioned under Section 132 of the CGST Act, 2017 is bailable?
4) Whether the Commissioner can issue the order for arrest on the basis of commitment of offence by the petitioner?
5) Whether any previous sanction has been issued by the Commissioner for filing Charge Sheet has not been disclosed?
On the point no. 1, it is argued that the learned Magistrate has failed to comprehend the significance and purport of Section 167 (2) of the Code of Criminal Procedure, thereby acting in a manner which annuls the rudimentary requirements stipulated in Section 167(2) of the Code of Criminal Procedure which provides that the Magistrate to whom an accused is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction.
Plain reading of the provision allows that a person may be held in custody of the police for a period of 15 days on the orders of a Magistrate and the learned Magistrate is empowered to authorize detention of the accused in custody pending investigation for an aggregate period of 90 days in cases where the investigation relate to offence punishable with death, imprisonment for life or imprisonment for not less than 10 years or more and in other cases the period of 60 days has been kept.
Mr. Basu relied on a decision in case of Hussainara Khatoon and Ors. reported in (1980)1 SCC 108 to argue that in the landmark judgement SupremeCourt has cast a bounden duty upon the Magistrate to point out to an under trial about his indefeasible right being accrued, provided the investigation is not concluded within the stipulated period and that an accused is entitled of being released on bail if he is ready to furnish the bail. Reliance to observation in para 21 of a decision in case of U.O.I. through C.B.I. vs Nirala Yadav @ Raja Ram reported in AIR 2014 SC 3036 has been placed to submit that the accused acquires statutory right of his release on bail in default of submission of charge sheet by the Investigating Officer on 60 days of judicial custody. It has been precisely held that if the charge-sheet is filed subsequent to the availing of the indefeasible right by the accused, then that right would not stand frustrated or extinguished and, therefore, if an accused is entitled to be released on bail by application of the proviso to sub-section (2) of Section 167 Cr.P.C., makes the application before the Magistrate, but the Magistrate erroneously refuses the same and rejects the application and then the accused moves the higher forum and while the matter remains pending before the higher forum for consideration a charge sheet is filed, the so-called indefeasible right of the accused would not stand extinguished thereby, and on the other hand, the accused has to be released on bail
In case of Rajnikant Jivanlal Patel & Anr. vs Intelligence Officer Narcotic Control Bureau New Delhi reported in (1989)3 SCC 532 it has been observed that the right to bail under Section 167(2) proviso (a) is absolute. It is a legislative command and not Court's discretion. If the investing agency fails to file charge sheet before the expiry of 90/60 days, as the case may be, the accused in custody should be released on bail. At that stage, merits of the case are not to be examined. In fact, the Magistrate has no power to remand a person beyond the stipulated period of 90/60 days. He must pass an order of bail and communicate the same to the accused to furnish the requisite bail bonds.
A Full Bench decision in case of Uday Mohanlal Acharya vs State Of Maharashtra reported in (2001) 5 SCC 453 has been referred and reliance is placed on majority view of the Hon’ble Apex to urge that the accused is entitled to statutory bail and as long as the majority view occupies the field it is a binding precedent. That apart, it has been followed by a three-Judge Bench in Sayed Mohd. Ahmad Kazmi case [(2012) 12 SCC (Cri) 488] which is based on threeJudge Bench decision in Uday Mohanlal Acharya case [(2001) 5 SCC 453: 2001SCC(Cri) 760] and contended that the principle laid in case of Pragyna Singh Thakur case [(2011) 10 SCC 445: (2012) 1 SCC (Cri) 311] does not state the correct principle of law
In rebuttal Mr. K.K. Maity submitted that the right of an accused to be released on bail after expiry of the maximum period of detention is provided under Section 167 of the Code of Criminal Procedure. Section 167 deals with power of the police to investigate in criminal offence which starts with lodging of information in cognizable cases under Section 154 of Cr.P.C. and ultimately culminate in submission of report on completion of investigation under Section 173 of Cr.P.C. The learned Magistrate is empowered to take cognizance of the offence on the basis of final report/charge sheet filed before the Magistrate but when final report is submitted, the custody of the accused is no longer required to be dealt with under Section 167 of the Cr.P.C. It is argued that the dispute regarding default bail has been dealt with by the Hon’ble Supreme Court in the case of Uday Mohan Lal Acharya –Vs- State of Maharashtra reported in (2001) AIR (SCW) 1500 wherein the case of Sanjay Dutt reported in 1994 AIR (SCW) 3857 was considered and it was observed that the indefeasible right for grant of bail on the expiry of the initial period of 180 days for completing the investigation or the extended period prescribed by Section 20(4)(bb) of TADA as held in Hitendra Vishnu Thakur is a right of the accused which is enforceable only up to the filing of the Challan anddoes not survive for enforcement on the Challan being filed in the Court against him. In this context it is submitted that admittedly the petitioner was arrested on 06.06.2019 and on the same date the petitioner was produced before the learned Chief Judicial Magistrate but after considering the gravity of the case, remanded the petitioner to Judicial Custody. On 61st day from the date of arrest a bail application was moved on 06.08.2019 and the very date the prosecution had filed the charge sheet. So the learned CJM by its order dated 06.08.2019 rejected prayer for bail holding that the default bail does not arise and an application under section 439 of the Code was also rejected by the learned Session Judge by the impugned order.
In respect of point no 2, Mr. Basu relied in case of Union Of India vs Arviva Industries (I) Ltd. reported in (2014) 3 SCC 159 to contend that the petitioner should not be deprived of his liberty and be released on bail on any condition in drawing my attention to the observation that arrest involves deprivation of liberty of a person arrested and therefore infringes the basic human right of liberty. Personal liberty is one of the cherished objects of the Indian Constitution and deprivation of the same can be in accordance with law and in conformity with the provisions thereof, as stipulated under Article 21 of the Constitution and further submitted that in the instant case , even though the offence stipulates a maximum term of imprisonment upto five years, yet, none of directions enshrined in para 11 of the decision in case of Arnesh Kumar vs State of Bihar (supra) has been adhered thereto which reads thus: 
“Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the IPC isregistered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.
All police officers be provided with a check list containing specified subclauses under Section 41 (1)(b)(ii).
The police officer shall forward the check list duty filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention.
The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention.
The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing.
Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing.
Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of Court to be instituted before High Court having territorial jurisdiction.
Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.”
Thus it is contended that the petitioner was neither served with a notice under section 41A of the Code nor did the learned Magistrate record his satisfaction with regard to the arrest while remanding the petitioner to custody which is evident from the order dated 06.06.2019 and further placed reliance in case of Rini Johar & Anr. (supra) to submit that the Hon’ble Apex Court has taken a stern view with regard to non-compliance to the directions in case of Arnish Kumar (supra).
It is pointed out that on the scrutiny of the complaint, it would be apparent that the petitioner on the 29th of May, 2019, had joined the investigation, and cooperated with the investigating agency, which is why after his interrogation, the petitioner was allowed to leave. However, once again the investigating agencysummoned the petitioner and accordingly the petitioner went to the Investigating Officer on 06.06.2019 on which date he was arrested in a mechanical manner, without having any regard to the law laid down by the Hon’ble Apex Court. It is further submitted that in spite of the petitioner joining the investigation, and rendering his cooperation to the investigating agency yet he was arrested and such conduct manifest the malicious determination of the investigating agency. A reference to a decision in case of Sidhharam Satlingappa Mhetre Vs. State Of Maharashtra reported in (2011) 1 SCC 694 has been relied on to argue that the conduct of the Investigating Officer speaks a volume so far as the malicious intention of the investigating agency. It has been held that in cases where the Court is of the considered view that the accused has joined investigation and he is fully cooperating with investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. In the said judgment the direction has been laid down to the following effects – 
“In case, the State consider the following suggestions in proper perspective then perhaps it may not be necessary to curtail the personal liberty of the accused in a routine manner. These suggestions are only illustrative and not exhaustive.
1) Direct the accused to join investigating agency, then only the accused be arrested. 
2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused. 
3) Direct the accused to execute bonds.
4) The accused may be directed to furnish sureties of number of persons which according to the prosecution are necessary in view of the facts of the particular case.
5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
6) Bank accounts be frozen for small duration during investigation.”
Thus, it is argued that the Hon’ble Apex Court has loathed the arrest of the person when he has joined the investigation.
Contradicting the submission the said contention, Mr. Maity referred to a decision of the Hon’ble Supreme Court in the case of P.V. Ramana Reddy –VsUnion of India reported in 2019 (26) GSTL J(175) SC wherein it has been categorically held that though Section 69(1) of CGST Act, 2017 which confers powerupon the Commissioner to order arrest of a person for cognizable and non-bailableoffence does not contain safeguard incorporated in Section 41 and 41A of the Codeof Criminal Procedure, 1973 in view of provision of Section 70(1) of the said Acsame must be kept in mind before arresting a person. However, Section 41A(3) ofthe Code of Criminal Procedure does not provide an absolute irrevocable guaranteeagainst arrest.
The High Court held that the enquiry by the GST Commissioner under Central Goods and Services Tax Act, 2017 is a judicial proceedings and not a criminal proceedings. It was held that if the reasons to believe that a person committed any offence under clauses (a), (b), (c) or (d) of Section 132(1) of CGST Act, 2017 warranting his arrest thought found in the file but not disclosed in the order authorising the arrest, the same is enough and is not required to be recorded in order of authorization.
Accordingly Mr. Maity contended that Section 41 and 41A of Cr.P.C. has been complied with by obtaining statements from the petitioner on 22.05.2019, 30.05.2019 and 31.05.2019 in terms of said provision of the CGST Act which is axiomatic from the Charge Sheet. The arguments of the petitioner is that Section 70 is not pari materia with Section 41A of Cr.P.C. but pari materia with section 91 of the Cr.P.C. The provision of Section 91 of Cr.P.C. provides for summons to produce document or other thing whereas Section 70 of the CGST Act provides power to summon persons to give evidence and produce documents. Therefore, the said Section 70 of the CGST Act, 2017 is not pari materia with Section 91 of Cr.P.C.
 In reply Mr. Basu invited my attention to term pari materia as per Blacks Law Dictionary 6th edition which means, of the same matter, on the same subject; as laws pari materia must be construed with reference to each other and argued thaton a reading of the aforesaid definition of pari materia it becomes evident thatSection 41A of the Code of Criminal Procedure can by no stretch of imagination betreated as pari materia to Section 70 of the CGST Act and further submitted that ona bare reading of the aforesaid sections it would become absolutely clear that thesubject matter envisaged in the respective sections are not the same and thestructural edifice of the aforesaid sections are completely different from oneanother. Instead Section 70 of the CGST Act is pari materia to Section 91 of theCode of Criminal Procedure as the subject matter in Section 70 of the CGST Actand Section 90 of the Code of Criminal Procedure are the same.
I am of the view that Mr. Basu reply as to pari materia provision has been answered in case of P.V. Ramana Reddy (supra). Moreover, the case of Rini Jhoaris in point of violation of Article 21 of the Constitution of India. In the present case violation of Article 21 does not and cannot arise as the petitioner has lost hisdefault right of bail on 06.08.2019 as on the same date the prosecution had filedthe charge sheet and the learned Court considering the merits of the case rejectedthe bail.
Mr. Maity learned Advocate appearing for Union of India submitted inviting my attention to the Final Report which reveals that Shri Sandip Dubey @ NagendraKumar Dubey in connivance with the petitioner is operating several trading unitsand the petitioner is also operating two companies under the name and style M/SAlvina Suppliers Pvt. Ltd., and M/S Vaidika Impex Pvt. Ltd. in connivance withShri Bijay Kumar Agarwal and Shri Ramesh Giri. In the voluntary statement ShriNagendra Dubey informed that he has provided assistance of various businesspersons under the GST Laws and provided their registration details to thepetitioner and the petitioner used to pay the persons for the same. He also statedthat the petitioner was engaged in issuing bills or invoices in the name of thebusiness concerns or persons and payment against invoices are being taken care ofby the petitioner. This work related to movement of goods is supervised bypetitioner and one Sanjay Pandit and as per Nagendra Dubey’s knowledge therewas no movement of goods against the invoice issued and the petitioner filed theGST Returns of the Firms. Pursuant to his statement, the business premises of thepetitioner was searched and on search various incriminating documents wererecovered including PAN Cards of numerous people, Bank Cheque Books ofdifferent Banks, Banks Statements, Digital Signature Keys, Stamp, seal, pendrives, mobile handset, ATM cards of various Banks, invoices, mobile SIM cardswith the names of various Firms, Laptops, Kaccha Bills etc. It also revealed oninvestigation that another person namely, Sanjay Kumar Pandit has issued bills tovarious parties from M/s. Alvina Suppliers Pvt. Ltd., and M/s. Vaidika Impex Pvt.Ltd. and filed the GST Returns on the direction of the petitioner. He also admitted that there was no supply of goods or service in cases of bills issued by him and hejust printed the bills and placed the stamp of the parties and signed and issued thebills and also admitted about receipt of huge cash related to fake invoicetransaction and they used cash counting machine to count the cash. The cash ispaid after deducting the commission by the petitioner to various parties.
The petitioner on 29.05.2019 appeared in terms of summons under Section 70 of CGST Act, and tendered his statement. He admitted that audit file, PAN Card,Digital Signature for filing documents, Cheque Books of parties, GST Invoices of theparties are kept in his office and that he had issued bills to various parties fromM/s. Alvina and M/s. Vaidika. In this two companies GST Bills for ITC (Input TaxCredit) has been given from various firm. He also admitted that he did not registerany parties as mentioned in the Charge Sheet and invoices were issued for goodsand service but there was no movement/supply of goods or services in cases ofBills issued by him without movement of goods or service. The manner of paymentagainst invoices is RTGS. RTGS given by parties goes to another account andagainst RTGS they received cash which was returned to parties after deducting thecommission. They kept about 1% of the commission because they had madearrangements of the parties to take bills from M/s. Alvina and M/s. Vaidika.Therefore, prima facie on the basis of documentary evidence the petitioner alongwith other persons have caused a huge loss to the Government Exchequeramounting to Rs. 141,76,46,639/-. So obviously, the Commissioner has reason tobelieve that the petitioner has committed offence under Section 132 of the CGSTAct, 2017 and as such authorized the concerned officer to arrest the petitionerunder Section 69 of the CGST Act.
I have respectfully gone through the Full Bench decision in case of Uday Mohan Acharya (supra) in respect of indefeasible right for being released on bail in default in filing challan/final report/charge sheet within prescribed time. In thecited decision, the accused was remanded to judicial custody by order of theMagistrate on 17.6.2000 in a case instituted against him under Sections 406 and420 of the Indian Penal Code read with MPID Act. So the period of 60 days for filingof charge sheet was completed on 16.8.2000. On the next day on 17.8.2000, anapplication for being released on bail was filed alleging that non filing of challanwithin 60 days entitles the accused to be released on bail under proviso to Section167(2) of the Code of Criminal Procedure but the Magistrate had rejected the bailconcluding that the said provision was not applicable to cases pertaining to MPIDAct. In the cited case the charge-sheet was filed on 30th August, 2000.
In my humble opinion, ratio of decision is not well nigh within the facts and circumstances of the instant case as the accused petitioner was remanded incustody after his arrest on 6.6.2019 and bail application was filed on 6.8.20019,i.e., on the same day of submission of Final report, ergo, indefeasible right underproviso to Section 167(2) of the Code of Criminal Procedure for release of thepetitioner in default in filing challan within prescribed time does arise in view of theConstitution Bench decision of the Hon’ble Supreme Court to the effect that theindefeasible right accruing to the accused in such a situation is enforceable onlyprior to the filing of the challan and does not survive or remain enforceable on thechallan being filed, if already not availed of.
As regards point nos. 3, 4 and 5, Mr. Basu adverted to the provision of Section 132 of the CGST Act, 2017 contending that offence alleged is bailable innature for the reason that prima facie there is allegation of attempt to issue fakeinvoices without the supply of goods or services as the petitioner is by profession aChartered Accountant who only works for the companies as his clients. It is pointedout that preceding the application of Section 134 of the CGST Act, is the provisions of law contained in Section 132(6) of the Act, which enjoins that a person shall not be prosecuted for any offence under this section except with the previous sanction ofthe Commissioner.
The legislative intent as stemming from the aforesaid section is clear,distinct and leaves nothing to supposition except that the authority who isempowered to interfere with the liberty of a person by issuing an order of arrest onreasonable belief about necessity of arrest under Section 69(1) of the CGST Act, isalso statutory obligated to decide, albeit on logical assessment of facts, that theperson concerned is to be ‘prosecuted’. Such requirement of ‘sanction’ must beevident from the records and as the indispensable procedure of law mandates,must be backed by reasons which are prima facie intelligently acceptable. Thus, itis contended that no document reflecting compliance with Section 132(6) andSection 134 of the CGST Act has been placed before this Hon’ble Court to show the Sanction of the commissioner to prosecute the petitioner. So the learned MagistrateCourt is barred from taking cognizance of the offence in a case where no validsanction has been obtained under Section 132(6) of the CGST Act.
Mr. Maity, on the contrary , submitted that the offence committed by the petitioner is cognizable and non-bailable and relied on a decision of the Hon’ble Punjab and Haryana High Court in the case of Vikas Goel –Vs- Deputy Director, Directorate General of GST Intelligence, Gurugram, reported in 2019 (28) GSTL (590) wherein it has been held that issuance of bogus invoices/bills withoutactual sale/transportation of goods and deriving wrong benefit of more than 80/crores on account of such paper transaction being economic offence of hugemagnitude and serious in nature, the petitioner, who was the main accused wasnot entitled to regular bail.
In the present case loss caused to Government Exchequer amounts to Rs.141,76,46,639/-. Therefore in such a huge economic offence he should not beenlarged on bail.
Mr. Basu referred to a decision in case of Sanjay Kumar Bhuwalka vs Union of India reported in 2018(362) ELT 568(Cal) and submitted that thisHon’ble Court had enlarged the petitioners on bail on condition on the principle oflaw that grant of bail is a rule and rejection is an exception and in respectfulconsideration of the principles laid down in the cited decision and further in view oflatest decision of the Hon’ble Apex Court that the courts cannot extendinvestigation period under Section 167 of the Code of Criminal Procedure.Accordingly, this Court was pleased to relax the conditions of bail imposed by thisCourt’s order dated July 12, 2018 so as to enable their release on bail as they havestatutory right to be released and further bearing in mind the principles as topresumption of innocence and the right of liberty guaranteed under Article 21 ofthe Constitution of India.
The cited decision was authored by this Court holding that in regard to Section 134 and 138 of CGST Act, the object and reason of this Act is obviously torealize the revenue to the government exchequer and bearing in mind the provisionof compounding nature of the offence under Section 138 of the Act, this Courtrelaxed the bail condition to deposit Rs. 39 Crore to the Government Exchequerbut, in particular, on the finding that the prosecuting agency had failed andneglected to submit final report/charge sheet against the petitioners and even noextension of time to complete the investigation was sought for by them. Therefore,the bail privilege was granted in favour of the petitioners in the cited case adhering to the principles laid down by the Hon’ble Apex Court in respect of proviso to Section 167(2) of the Code of Criminal Procedure. Thus, I find that the judgment in case of Sanjay Kumar Bhuwalka (supra) is distinguishable from the facts andcircumstances of the instant case.
For the reasons stated above and in consideration of the gravity of the economic offence and bearing in mind the principle laid down in case of P.V. Ramanna Reddy (supra), the petitioner is not entitled to be enlarged on bail,however, the petitioner is at liberty to approach the authority for compounding ofthe offence under Section 138 of CGST Act.
Accordingly, the CRM 10075 of 2019 is hereby dismissed.
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