TMI Blog2023 (7) TMI 814X X X X Extracts X X X X X X X X Extracts X X X X ..... them till seeking of such judicial remand and till date, no request has been made by the Department before the Court that they need the petitioner for any interrogation. Prima facie , the conduct of the Department shows that they are satisfied with the interrogation made by them and they may not be interested to further interrogate the petitioner. Moreover, assurance has been given by the petitioner that he will cooperate in the investigation and will not, in any manner, hamper the same. The law laid by the Apex Court in SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION ANR. [ 2022 (8) TMI 152 - SUPREME COURT] and Arnesh Kumar [ 2014 (7) TMI 1143 - SUPREME COURT ] very specifically state about the investigation and arrest of a person. Further, this law has been duly followed by all the courts. Thus, the petitioner has made out a case for proper construction of Section 69 of the Act, 2017 and the issues concerning violation of statutory and constitutional procedural safeguards in the matter of arrest, do merit consideration and in the meantime, a case for bail is also made out. It is directed that petitioner, Ashish Kakkar, be released on bail on furnishing a personal bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner that forcibly his confession was recorded and he was compelled to sign the same. On 27.6.2023, based on the proposal of the Investigating Team, an order was passed by the Principal Commissioner/Commissioner on 27.6.2023, agreeing with the proposal and arriving at reason to believe that the petitioner has committed offences specified under clause (b), clause (c), clause (d), clause (l) of Section 132 (1) of CGST Act and then the petitioner was arrested. On 27.6.2023, a formal arrest memo was served upon the petitioner by the Investigating Officer authorized by the Principal Commissioner, a copy whereof has been filed along with writ petition. On 28.6.2023, the petitioner was produced before the Special Chief Judicial Magistrate, Meerut, to obtain judicial custody for a period of fourteen days. As his confession was already recorded, no custodial interrogation was sought by the Department. 5. The ground taken by the petitioner is that the sanction order dated 27.6.2023 is silent regarding the requirement specified in Section 41 (1) of Cr PC or the Arrest Memo does not record any satisfaction and opinion regarding the 'necessity to arrest' and whatever reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and which are under investigation, shall deposit a sum of Rs. 10 crores with respondent Nos.2 and 3 which shall be without prejudice to his rights and contentions; 6) after the said amount is deposited, the petitioner or any of the companies in which he has a substantial interest and which are under investigation shall deposit a further amount of Rs. 15 crores before respondent Nos.2 and 3 within 30 days of the first deposit which again shall be without prejudice to his rights and contentions; 6.1) However, the last two conditions shall be executed by the petitioner upon his release which shall not be a ground for delaying his release. 7. The aforesaid order was assailed before the Apex Court and by affirming the same, it has been observed by the Apex Court: The petitioner would contend that payment of substantial sum as has been ordered cannot be a pre-condition for grant of bail and bail prayer has to be considered on the basis of the merit of the petition. On the above legal projection on the conditional bail order, the learned ASG submits in tandem that bail application has to be considered on its own merits and deposit of large sum of money cannot be pre-condition for bail. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Apex Court: 100. In conclusion, we would like to issue certain directions. These directions are meant for the investigating agencies and also for the courts. Accordingly, we deem it appropriate to issue the following directions, which may be subject to State amendments.: 100.1. The Government of India may consider the introduction of a separate enactment in the nature of a Bail Act so as to streamline the grant of bails. 100.2. The investigating agencies and their officers are dutybound to comply with the mandate of Section 41 and 41A of the Code and the directions issued by this Court in Arnesh Kumar (supra). Any dereliction on their part has to be brought to the notice of the higher authorities by the court followed by appropriate action. 100.3. The courts will have to satisfy themselves on the compliance of Section 41 and 41A of the Code. Any noncompliance would entitle the accused for grant of bail. 100.4. All the State Governments and the Union Territories are directed to facilitate standing orders for the procedure to be followed under Section 41 and 41A of the Code while taking note of the order of the High Court of Delhi dated 07.02.2018 in Writ Petition (C) No. 7608 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tax Credit (ITC) to the tune of Rs. 88 crores. Searches of the premises of 16 such firms have confirmed that they are unoperational. Statement of the petitioner was recorded on 26.6.2023 and 27.6.2023 and on the basis of incriminating evidence, the petitioner has been arrested. The petitioner can always apply for regular Bail before the Court below and is not entitled to any indulgence by this Court. The case laws relied upon by the petitioner are distinguishable in as much as they predominantly do not pertain to GST Act. He, thus, apprehend that the petitioner may not cooperate in the investigation and will tamper the evidence and influence the witnesses. He placed reliance upon the judgment of the Supreme Court in The State of Kerala vs. Mahesh , Criminal Appeal No.343 of 2021, decided on 19.3.2021. 15. In view of the aforesaid, we are of the view that there is no force in the argument raised by the Department that the release of the petitioner by this Court may hamper the investigation. Undisputedly, the Department has merely asked for judicial custody of the petitioner and it appears that they were satisfied with the interrogation held by them till seeking of such judicial rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elf before the Investigating Team as and when required except in unavoidalble circumstances. (ii) The petitioner shall not make any effort or attempt to influence any witness or tamper with any documents. (iii) The petitioner shall deposit his Passport before the Court concerned after his release on bail, within one week, and shall not leave the Country without leave of the Court. (iv) The petitioner shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (v) The petitioner shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C. (vi) In case, the petitioner misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if the petitioner fails to appear before the court on the date fixed in such proclama ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
