TMI Blog2024 (4) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... ions Judge for a total period of 81 days and he has surrendered to custody after expiry of interim bail on each occasion. It is also not disputed that the offence alleged against the petitioners is punishable up to five years, meaning thereby, the petitioners can be sentenced to a maximum period of five years in case of their conviction, but it is not sure as to whether the petitioners would be sentenced to the maximum imprisonment, even if on their conviction as the same is the discretion and domain of trial Court which can impose sentence by taking into relevant consideration in this case. As per the report of the learned trial Court and the affidavit filed on behalf of the petitioner Niku @ Chhatar Singh, 13 out of 23 PR witnesses have already been examined in this case, but the trial is yet to be concluded even after one year nine months of the custody of the petitioners. It is also clarified by the learned counsel for the CT, GST that out of the 10 remaining witness, one has already been expired and the whereabouts of another is not available and 3 out of the remaining 8 witnesses are official witnesses and rest are private witnesses and therefore, how much time would be requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses on conclusion of trial, but grant of bail to an accused is a process of transfer of custody of accused from the custody of law to the custody of surety on certain terms and conditions and the surety certainly has a duty to ensure appearance of the accused before the trial Court till conclusion of trial. In view of the undisputed logical sequitur of the discussions made hereinabove on the face of conspectus of materials placed on record including the long pretrial detention of the individual petitioners, which have punitive content, vis- -vis the maximum punishment prescribed for the offence alleged against the petitioners being not beyond five years, this Court is persuaded to take a lenient view in favour of the personal liberty of the petitioners to exercise its discretion to grant bail to the petitioners. Hence, the bail applications of the petitioners stand allowed and the petitioners namely Subash Kandulna, Chhatar Singh @ Niku Singh, Ram Bharose Shaw and Dhanman Shaw are allowed to go on bail on furnishing an unencumbered property surety of Rs. 50,00,000/- (Rupees Fifty Lakhs) each, in addition to bail bonds in the sum of Rs. 5,00,000/- (Rupees Five Lakhs) each with two s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and others have wrongfully gained huge financial benefits. It is claimed in the investigation that M/S. Sairam Ingot Private Limited is a physically non-existent company having no business activities in operation at its registered place of location, but the petitioner Dhanman Shaw and his family members continued to control its activities and utilized the said company for passing of bogus input tax credit to two others existing companies under the seal and signature of Directors of the company, and the petitioner Dhanman Shaw was alleged to have operated the activities of said non-existent company and caused evasion of GST running to crores of Rupees. It is also alleged that the remaining two existing companies M/S. Swastik Ingot Private Limited and M/S. Sunayana Metal Industries Limited were primarily manufacturing units for producing iron and steel goods and petitioner Ram Bharose Shaw and his brother petitioner-Dhanwan Shaw, although stated to have resigned as Directors with effect from 01.06.2019, but it is claimed that documentary evidence reveals that petitioner Dhanwan Shaw and his family members continue to act as de-facto Directors/Operators of the above two companies a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... credit of Rs. 105.77 Crores and petitioner Subash Kandulna in collusion with others had allegedly defrauded Rs. 110.79 Crores to the State Exchequer and all the four petitioners were accordingly arrested on 06.07.2022 and produced before the learned S.D.J.M., Panposh on the same day and in the meantime, prosecution report was submitted before the Court. However, on receipt of record on transfer and upon examination of 10 witnesses before charge, the learned J.M.F.C., Rourkela finding grounds for presuming the petitioners to have committed the offences framed charge against the petitioners and proceeded with the trial in the case and in the meantime, the learned J.M.F.C., Rourkela has already examined 13 witnesses till 28.02.2024 in the trial. 4. Mr. R.P. Kar, learned Senior Counsel appearing for petitioners Ram Bharose Shaw in BLAPL No. 11209 of 2023 and Dhanman Shaw in BLAPL No. 11210 of 2023 by taking this Court through the averments made in I.A. No. 1430 of 2023 and I.A. No. 1431 of 2023 has submitted and prayed to call for the assessment orders in Form GST DRC 07 along with its annexures as well as assessment case records of the 17 18 numbers of so called business entities resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng brought only to keep the petitioner behind the bar and the offence alleged against the petitioner being punishable up to five years, there would not be any reasoning to keep the petitioner in custody further, especially when the petitioners have already undergone imprisonment for a period of one and half years and the witnesses likely to be examined in this case are mostly official witnesses and the charge sought to be proved against the petitioners is mainly dependant on documentary evidence which cannot be tampered with by the petitioners and therefore, the petitioners may kindly be granted bail. Moreover, Mr. B. Nayak, learned counsel for the petitioner Niku @ Chhatar Singh by filing an affidavit has made a clear statement that no bail application of the petitioner is pending before any other forum. 4.2. Mr. Pramod Kumar Mishra, learned counsel appearing for the petitioner in BLAPL No. 13103 of 2023 while reiterating the submissions advanced for rest of the petitioners has further submitted that trial having already commenced with examination of 13 witnesses after charge and 10 witnesses before charge, no fruitful purpose would be served by keeping the petitioner in custody a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra that the petitioners and other accused persons in this case have defrauded an amount of Rs. 316.33 Crores approximately, out of which, the ill-gotten share of petitioner-Niku Singh is assessed at Rs. 105 Crores, of petitioner-Subash Kandulna is assessed at Rs. 59 Crores, of petitioner Ram Bharose Shaw is calculated at Rs. 78.87 Crores and that of Dhaman Shaw is calculated at Rs. 96.29 Crores and therefore, release of the petitioners on bail would give rise to reasonable apprehension that they may abscond. Lastly, Mr. Mishra has submitted that since the trial is on full swing and 13 out of 23 witnesses have been examined till the end of February, 2024, there is every likelihood that the trial would be concluded in near future and therefore, the bail application of the petitioners merits no consideration at this stage, since there is an apprehension that the petitioners may abscond to avoid to face legal consequence and sufficient evidence has been adduced to secure the conviction of the petitioners. In summing up his argument, Mr. Mishra has prayed to reject all the four bail applications of the petitioners. 6. After having considered the rival submissions upon perusal of record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits no considerations and it is left open to those petitioners to raise the aforesaid pleas in the trial of the case. 7. In considering bail application of a person accused of an offence, neither it is desirable nor is it necessary to weigh the evidence meticulously, rather it is to be considered whether there exists any prima facie materials or accusation against such accused persons and the accused has otherwise made out a case for grant of bail in his favour. It is indisputable that the personal liberty of a person is a priceless treasure and it has been founded on the backdrop of Constitutional right. The sanctity of liberty is the fulcrum of any civilized society and deprivation of liberty of a person has enormous impact on his mind as well as body. The fundamental principle of bail jurisprudence emanates from Article 21 of the Constitution of India which mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In addition, the presumption of innocence is a human right and thereby, liberty of a person should not ordinarily be interfered with, unless there exists cogent grounds and reason therefore and a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion as granted to the Court in case of non-bailable offences should be ordinarily be exercised in favour of the person approaching the Court, unless there is prima facie reason for refusing the same. True it is that while considering the bail application of a person accused of economic offences of huge magnitude on prima facie accusation, no liberal approach should be adopted especially when the extent of economic offences runs to more than hundred of crores, but the Courts owe a responsibility to adhere to the fundamental right of personal liberty of a person as guaranteed under Article 21 of the Constitution of India, otherwise the structure built on the very foundation of the personal liberty would crumble, when the accused would be found not guilty of the offence after remaining in custody for the substantial period. Keeping in view the core values of personal liberty, when the present case is tested, it appears that there is allegation of wrongfully availing Input Tax Credit of Rs. 316 crores against the petitioners and others. Out of the eight accused persons against whom PR was submitted, the present petitioners are in custody since 06.07.2022. However, the petitioner Niku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in para-23 has observed as under:- 23. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offence and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. 24. In the instant case, we have already noticed that the pointing finger of accusation against the appellants is the seriousness of the charge . The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the petitioners stand allowed and the petitioners namely Subash Kandulna, Chhatar Singh @ Niku Singh, Ram Bharose Shaw and Dhanman Shaw are allowed to go on bail on furnishing an unencumbered property surety of Rs. 50,00,000/- (Rupees Fifty Lakhs) each, in addition to bail bonds in the sum of Rs. 5,00,000/- (Rupees Five Lakhs) each with two solvent sureties for the like amount to the satisfaction of the learned Court in seisin of the case, on such terms and conditions as deem fit and proper by it with following conditions:- (i) the petitioners shall not commit any offence while on bail, (ii) the petitioners in the course of trial shall attend the trial Court on each date of posting without fail unless their attendance are dispensed with. In case the Petitioners fail without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed against the Petitioners for offence U/S. 229-A of IPC in accordance with law and (iii) the petitioners shall not leave the jurisdiction of the trial Court without prior permission till disposal of the case by giving their present address of stay. (iv) the petitioners shall inform the Court as w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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