TMI Blog2020 (8) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... party. But on careful consideration of the evidence on record, it is considered appropriate to allow the petition, therefore, without commenting on merits of the case, the petition is allowed. The bail application is allowed and it is directed that in the event of the petitioner's arrest or surrender before the police within a month of this order, the petitioner shall be released on bail on his furnishing a personal bond of ₹ 10,00,000/- with one solvent surety of the like amount to the satisfaction of Station House Officer of the Police Station concerned. - M.Cr.C. No. 25945 of 2020 - - - Dated:- 13-8-2020 - Virender Singh , J. Shri Vikas Singh, learned Senior Counsel with Shri J. P. Mishra and Shri Pranav Diesh, learned Counsels for the petitioner-Nitesh Wadhwani Shri Vikramjit Banerjee, learned Additional Solicitor General along with Shri Prasanna Prasad, learned counsel for the respondent/Union of India ORDER 1. This is the first application under section 438 of the Cr.P.C. seeking anticipatory bail in crime no.23/2020 registered under section 132(1)(a)(i) of the Goods and Services Tax Act (hereinafter referred to as GST Act ), Ss. 409, 46 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therwise recorded involuntarily under the threat and pressure of the officials of the department, therefore, they cannot be relied upon at this stage. Otherwise also, looking at the provisions of Section 136 of the Act itself, much weight can not be attached to such statements during the life time or availability of the author. Lastly, it is contented that these statements didn't lead to any recovery. No supporting evidence either documentary or oral could be collected during investigation. Therefore, on the basis of such statements, no adverse inference can be drawn against the petitioner at least at this stage. 5. A significant amount of time has been spent by both the parties to convince the Court or to counter that the procedure prescribed in Chapter XII of the CR.P.C. has not been complied with or followed in the present case, therefore, the very initiation of the proceeding is void and contrary to the law. 6. It is not disputed that the petitioner is one of the Director of media company Dabang Dunia but it is contended that they are neither concerned nor responsible for he unauthorized use of any sticker or ID card by any vehicle or driver implicated in the clandest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department and to answer all the questions/queries of the department. It is proposed that any suitable direction of his periodical appearance before the investigation officer may be given by the Court itself and he is ready to comply with them. 10. It is explained that when the officers came to his house, the petitioner or any other male member was not at home and the officials of the department were trying to enter the house forcibly without disclosing their identity. When they were asked to show the same, they misbehaved with the women of the house and hence faced rebuttal from the family. It is further alleged that the FIR has been lodged only to pressurize the petitioner and now it cannot be used as a tool to oppose his prayer for bail. 11. It is impressed that this Court does not possess the power to grant anticipatory bail as the provisions of Section 438 Cr.P.C. are not applicable in cases registered under the GST Act. 12. Admittedly, the question of applicability/nonapplicability of the provisions of Section 438 Cr.P.C. is still open and is under consideration of the Hon'ble Supreme Court. 13. Learned Senior Counsel for the petitioner submitted that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing or refusing the protection of a pre-arrest bail. It is nowhere stated that the anticipatory bail is barred by law or cannot be granted in a case registered under the GST Act. 16. Other arguments of both the parties are on similar lines, which were raised and considered earlier while deciding the bail petitions of co-accused Amit Bothra and Ashok Daga. These arguments as well as the facts of the case can be borrowed from order dated 27.07.2020 passed in M.Cr.C. Nos.21628/2020 and 21618/2020, respectively. Relevant part of this order is being reproduced below:- 1. Both these petitions have arisen out of the same crime number of the same office/police station, therefore, they are heard together and are being decided by this common order. 2. These are the first applications under section 439 of the Cr.P.C. in crime no.23/2020 registered under section 132(1)(a)(i) of the Goods and Services Tax Act (hereinafter referred to as GST Act ), Ss. 409, 467, 471, 120-B of the IPC by the Department of Revenue Intelligence and Directorate General of Goods and Services Tax Intelligence Central Excise Office, District Indore (here-in-after referred to as the Department ). 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stine purchase is not possible. Rest of the raw material is purchased from the open market but only from the traders duly registered under the GST through invoices. Therefore, there has never been any scope to evade the tax. 5. It is asserted that the petitioners have never confessed anything before the officials. Their statements were recorded under threat and pressure. They retracted them immediately after coming out of the fear. 6. It is further averred that the petitioners were doing their business honestly and were paying GST to the tune of ₹ 7 crore per month regularly, but due to unprecedented circumstances of spread of COVID- 19 pandemic and complete lockdown pursuant thereto; there was some delay in paper work and submission of the invoices etc. Taking advantage of this beyond control peculiar circumstance, the officials of the department abused their authority, presumed the tax evasion and assessed the amount only on the basis of their conjecture and surmises as there was no production during the period of lockdown. Nil electricity consumption establishes the fact of closure of the factory during this period. Therefore, the allegation of evasion of tax i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his amount to the State exchequer. About 150 workers are working in the firm of the petitioners. In case of their detention, the work of the firm will be at a halt and hence, affect the survival of the families of those 150 workers. The offence is punishable with maximum 5 years imprisonment and is triable by the Judicial Magistrate First Class. The petitioners are ready to abide by the terms and conditions to be imposed by this Court, therefore, it is prayed that they be granted bail. 12. The petitioners have relied upon Joti Prasad Vs. State of Haryana 1993 supp. SCC 497, P. Chidambaram Vs. Directorate of Enforecement 2019 Lawsuit (SC) 1947, D.K. Sethi Vs. Central Bureau of Investigation, Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Anr (2010) Vol.14 SCC 496, Sandeep Kumar Bafna Vs. State of Maharashtra and Anr (2014) 16 SCC 623, C. Pradeep Vs. The Commissioner of GST and Central Excise Selman and Anr SLP 6834/2019, Madhav Gopaldas Shah Vs. State of Gujarat, Prasad Purshottam Mantri Vs. UOI and Ors, Sanjay Kumar Bhuwalka Vs. UOI 2018 SCC Online Cal 4674, Mohit Vijay Vs. UOI (Rajasthan High Court), Lalit Kumar Gandhi Vs. State of MP and Make My Trip Vs. UOI and Ors Delhi H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on detected is more than five crores rupees, the offence is cognizable and non-bailable. There is every likelihood of the petitioners affecting the investigation and tampering with the witness. The officials of the DGGI were assaulted when they tried to search the house of Kishore Wadhwani for which an FIR is lodged with Police Station-Juni, Indore. 16. In the case of P. V. Ramana Reddy Vs. UOI W.P. No.4764 of 2019 at paras 56 and 57, the Telangana High Court has observed that the object of arrest is to prevent a person from committing any offence or from causing the evidence of the offence to disappear or tempering with such evidence in any manner or to prevent such person from any inducement, threat or promise to any person acquainted with the facts of the case and to do proper investigation or inquiry. The Hon'ble Supreme Court in SLP (Crl.)4430/2019 has upheld this observation of the High Court of Telangana. 17. The Hon'ble Supreme Court in Cr.A. No.730/2013 decided on 9th May, 2013 in the case of Y. S. Jagan Mohan Reddy Vs. Central Bureau of Investigation has observed in para 34 that the Economic Offences constitute a class apart and need to be visited with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all submit their passports, if any, before the Trial Court and shall not leave India without prior permission of this Court. 17. I have carefully gone through the documents produced before the Court as well as the statements recorded under Section 70 of the G.S.T. Act. Elaborate discussion of all this evidence, which is otherwise confidential, would not be appropriate as it may affect the case of either party. But on careful consideration of the evidence on record, I am of the considered opinion that it would be appropriate to allow the petition, therefore, without commenting on merits of the case, the petition is allowed. 18. Accordingly, the bail application is allowed and it is directed that in the event of the petitioner's arrest or surrender before the police within a month of this order, the petitioner Nitesh Wadhwani S/o Late Shri Ashok Wadhwani shall be released on bail on his furnishing a personal bond of ₹ 10,00,000/- (Rupees Ten Lakhs Only) with one solvent surety of the like amount to the satisfaction of Station House Officer of the Police Station concerned. The petitioner would abide by the conditions mentioned in Section 438 (2) Cr.P.C. Further subj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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