9911796707
TMI Blog2024 (12) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 04.05.2023 under Sections 420, 467, 468, 471, 120-B IPC, Police Station Noida Sector-20, Gautam Buddh Nagar, the informant Saurabh Dwivedi is a journalist and works as an Editor of the Lallantop internet news portal and India Today Hindi Magazine. He came across two GST registrations viz. 03AUSPD7067N1Z3 and 27AUSPD7067N1ZT obtained in the State of Punjab and Maharashtra respectively w.e.f. 20.03.2023. These have been applied on informant's PAN AUSPD7067N (Exhibit 1) and bear his name, Saurabh Dwivedi as legal name of the business entity. The details of both the registrations from GST portal are enclosed as Exhibit 2 to the complaint. The registered address mentioned for the given two registrations are as under - (a) 03AUSPD7067N1Z3 having registered address as 787, Ground Floor, Railway Office, ATI Road, Ludhiana, Punjab, 141008, (b) 27AUSPD7067N1ZT having registered address as 172, Sau Alakatal Uttamrao Nikalaje Path, Solapur, Solapur, Maharashtra, 413003. These have not been obtained with his consensus and he is totally unaware of the person who applied for these registrations and whose contact details are updated in these GST registrations. It is also mentioned that the two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguments in the following manner: (i). The applicant is innocent and has been falsely implicated in the present case. Applicant is not named in the FIR. He further submits that name of applicant neither came into light in any statement of co-accused and in any re-statement of co-accused. The applicant has absolutely no nexus with the aforesaid alleged crime and no fake bills/invoices or fake firm has been created by the applicant. He further submits that one complaint was filed against the applicant in Gurugram, Haryana, under Section 132(1)(b), (c) and (1) of CGST Act, 2017 on 12.07.2023, in which the applicant was granted bail on 13.09.2023. In the present case, the Investigating Officer arrested the applicant on 20.03.2024 and one mobile phone has been recovered from the possession of the applicant. He further submits that applicant has no concern with the aforesaid mobile and the police in order to show good work has falsely implicated the applicant in the present case. (ii). Absolutely no incriminating material exists on record to prove that the applicant committed the alleged offence or he is beneficiary of alleged fraud. The alleged fictitious firms are also not known t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of these fake firms, a transaction is being done with the Company, of which Sanjay Dhingra is a Director. Each and every transaction is separate set, for this they have to submit separate return. Applicant has committed offence of separate nature, so GST Rules will not apply, but it will not take them out of the offence that has been committed under Indian Penal Code, 1860 (IPC). 4. Elaborating the points, learned Additional Advocate General has placed following arguments: A. He submits, insofar as involvement of the applicants in the offence is concerned, that they formed a syndicate and their modus operandi configures four segments: (i) assignment of job of collection of SIM Cards and personal data of people that have been uploaded on the portal of Goods & Services Tax; (ii) to use personal data for creation of fake firms by uploading it on GST Portal; (iii) there will be one actual firm which will be working and money transaction will flow to this actual firm and the input tax credit will be availed; and (iv) distribution of monetary benefits amongst all. He has very strenuously argued that to divulge the involvement of the applicants, the dots are required to be join ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, (ii) Impact, if the person is released on bail or the person is detained, and (iii) Interest of the Nation. It is argued that economic offence is not possible at the hands of one person and the present case is an organized crime where crores of government money has been siphoned by registration of fake firms in which all applicants are connected in one or the other way. H. With respect to consideration of bail in offences related to GST, learned AAG has placed reliance on various judgements of the Apex Court in the cases of Yogesh Jagish Kanodia v. State of Maharashtra and another, [(2021) 90 GSTR 402 : 2021 SCC OnLine Bom 154 : (2021) 2 Bom CR (Cri) 112] Ajay Khanna v. State Tax Anti Evasion Bureau, Jabalpur (M.P.) [(2020) 73 GSTR 296 2019 SCC OnLine MP 2130 : (2019) 30 GSTL 44], Rajesh Jindal v. Commissioner of Central Tax GST, Delhi (West) [2018 SCC OnLine Del 1344 : (2019) 21 GSTL 471], Jagdish Kanani v. Commissioner of CGST & Central Excise, Indore [2019 SCC OnLine MP 7108 : (2019) 12 GSTL 460], Ranjeet @ Ranjeet Singh v. Union of India [2018 SCC OnLine All 6085 : (2018) 17 GSTL 381]. I. It has also been argued that the Supreme Court has viewed the matters of economi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ep Goyal, Archit Goyal, Mayur alias Mani Nagpal, Charu Nagpal and Deepak Singhal. Consequently, Section 120B IPC was added. (iv) C.D. Parcha No. 11 shows supplementary statement of accused persons in judicial custody, who said to assist in recovery of incriminating articles from concerned place and persons. (v) C.D. Parcha No. 14 contains majid-statement of Yaseen Sheikh, Rajiv Jindal and Deepak Murjhani, who disclosed names of Rajiv Maheshwari and Rahul Gupta. In the same parcha the aforesaid accused persons including accused Ashwani Pandey, Vishal and Akash, all of them disclosed the complicity of Rajiv Maheshwari, Rahul Gupta, Gaurav Singhal and Gurmeet Singh Batra alias Sahil and confessed that they used to generate fake GST bills/ invoices in the names of registered fake firms on the basis of fake SIM and IDs. (vi) C.D. Parcha No. 15 shows that at the instance and pointing out of Deepak Murjhani, Ashwani Pandey and Yaseen Sheikh, arrest of Gaurav Singhal and Gurmeet Singh Batra was effected on 10.06.2023 from the residence of Gaurav, i.e., House No. 2/214, Sector-16, Rohini, Delhi, along with huge recovery of incriminating articles. Whereafter, the investigating team rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogether in this GST fake registrations and for earning undue monetary benefit. (xi) In C.D. Parcha No. 24 (29.06.2023) the Investigating Officer found that the fake mobile no. 8800966916, which has been used in registration of GST firms with PAN Number, mentioned in the FIR, was found to have been used in four different mobile sets bearing different IMEI Numbers, therefore, the CDR/CAF report reveals that one of the IMEI in which the aforesaid mobile number was used, it was recovered from the possession of accused Yaseen Sheikh on 01.06.2023 as mobile set Nokia 1423. CDR and CAF reports are enclosed in the parcha, making evident the complicity of accused Yaseen along with all other accused persons. (xii) Parcha No. 25 shows (11.07.2023) the Investigating Officer found that fake GST firm - Tam Traders mentioned in the FIR does not exist at given address of Maharashtra and the documents shown were found to be forged. (xiii) Parcha No. 29 shows (07.07.2023) the details of persons in whose names SIM Cards were procured, have been recovered from the accused Yaseen and Deepak Murjhani. (xiv) Arrest of accused Ajay alias Mintu, Amit alias Montu and Mahesh was made, which is mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed information that the mobile (IMEI) recovered from accused Yaseen Sheikh was used in 92 GST registration firms, from Vishal Singh and Akash Saini in 53 GST firms, from Atul Sengar in 45 GST firms, and mobile (IMEI) recovered from Deepak Murjhani was used in 139 fake GST firms. (xxiv) In C.D. Parcha No. 72 the Investigating Officer has referred the letter sent to DGGI (Director General of GST Intelligence), Unit Ghaziabad, in response thereto he had relied that total 2528 GSTIN fake firms were identified which are involved in ITC of Rupees Four Thousand Crore, in respect to the same different Zonal Units have arrested accused, namely, Tushar Gupta, Sanjay Dhingra, Rishabh Jain, Shubham Jindal, Tarun Jindal, A. Suresh Kumar, Sanjay Jindal and Ajay Sharma. (xxv) In C.D. Parcha No. 75 the Investigating Officer has requested DGGI, Meerut Unit, Ghaziabad to provide entire details along with charge sheet with regard to Sanjay Dhingra, controller of M/s Good Health Industries. (xxvi) In C.D. Parcha No. 76, a report from DGGI, Meerut Unit was received along with charge sheet filed against Sanjay Dhingra, which reveals that Inspector, DGGI Office, Ghaziabad has informed that accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence. (xxxi) C.D. Parcha No. 82 shows the entry of bank account of accused persons wherein concerned GST ITC transaction was found, as such the accounts were requested to be ceased by the Bank under Section 102(1) Cr.P.C. (xxxii) In C.D. Parcha No. 84 the I.O. shows arrest of accused Praveen Kumar with the recovery of mobile phone, Debit Card of Atul Gupta and two tax invoices. In his confessional statement he admitted complicity in the offence with other accused persons including Rajiv Jindal. He further disclosed the fact that with regard to the fake invoices GST Department has initiated proceedings against the accused, in which penalty of Rs. 12 lacs was recovered from the company. (xxxiii) C.D. Parcha No. 85 shows that IMEI of the mobile phones recovered from the accused persons was got run on surveillance of concerned service providers, from where it was found that those IMEI numbers were used in 83 mobile number/ SIMs. (xxxiv) C.D. Parcha No. 98 refers about the report of one of the DGGI Zonal Units i.e. DGGI Gurugram Zonal Unit. It reveals that from the list of about 2600 fake GST firms which was recovered from the accused persons, out of these 20 companies were fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rjit Goyal, (4) Baldev alias Balli, (5) Rohit Nagpal proceedings of Non-Bailable Warrants, declaration under Sections 82 and 83 Cr.P.C. have been completed and lookout circular (LOC) has been issued as such there is less chances of arrest of the mentioned accused so charge sheet was filed against them under Sections 420, 467, 468, 471, 120-B IPC. Meaning thereby that accused have fled away from the proceedings of law, hence, shows their guilt. (xxxix) C.D. Parcha No. 126 (11.03.2024) shows that during the course of investigation accused Kunal Mehta was in judicial custody as such vide judicial permission the statement of accused Kunal Mehta alias Goldi was recorded in jail, wherein he stated to effect the recovery of forged documents from the office of Balli situated in Rohini, Delhi. (xl) C.D. Parcha No. 128 (15.03.2024) indicates the recovery of documents relating to fake GST firm from accused Kunal Mehta alias Goldi. (xli) C.D. Parcha No. 131 (21.03.2024) shows that during investigation it was found that accused Ajay Sharma and Sanjay Jindal, who were arrested by DGGI, Gurugram Unit amongst 8 other persons and also involved in the registration of 2600 fake GST firms, whose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Unit, Jaipur, Rajasthan, wherein on 30.08.2023 names of Rishabh Jain, Shubham Jindal and Tarun Jindal came to light in the present offence. The report of DGGI indicates that the computerised data obtained discloses that aforesaid accused persons have received ITC benefits by way of forged GST firms by creating fake bills and invoices. (xlvii) C.D. Parcha No. 158 (19.05.2024) refers the arrest of accused Rishabh Jain and Tarun Jindal from House No. 105, Prashant Vihar, Rohini, Sector-14 and from their possession recovery of 2 mobile phones, 1 laptop and list of fake GST firms was made. In their confessional statement, said accused stated that they along with Deepak Murjhani, Yaseen, Anchit and Arjit and others have created these forged and fabricated GST firms. In the same parcha, it has been mentioned that accused Shubham Jindal was also arrested from Rajasthan by another team on 18.05.2024, from whose possession 3 mobile phones, 2 laptops and a list of fake GST firms were recovered. It is mentioned that copy of recovery memo was given to accused persons. (xlviii) C.D. Parcha No. 161 (25.05.2024) shows that confessional statements of accused Anshul Goyal were recorded, wherein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate but also interstate supply. 9. It has been established through investigation that crime has been committed by the accused persons by making fraudulent firm by using PAN Card and Aadhaar Card, Mobile Number for creating fake firms and through fake invoices, they breached supply chain of ITC and got benefit through fake gains which have been created by them. Thus, in so many words, the said case is started with registration of fake firms using PAN Card and Aadhaar Card of the informant for consequential benefits of claiming ITC. 10. The next finding in the case of recovery and use of fake PAN Cards has to be understood by analysing the purpose of issuing a PAN Card. The PAN card is issued to keep a track of financial activity of a person and a PAN is integral for all forms of payments. A PAN Card number is located to a needful and contains information such as Aadhaar number, date of birth and address. Similar is the use of Aadhaar Card which is now linked with the account of individual in favour of whom it has been issued. The PAN Card contains details of Aadhaar also. The PAN Card can be used for availing utility connections like electricity, telephone, LPG and internet. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible in evidence. From the aforesaid, the scope of Section 27 of the Act, 1872 is that it applies to any information given by the person accused of an offence, which leads to the discovery of a fact. The Section states that "so much information" given by the accused that distinctly relates to the fact discovered may be proved. The exception to rule of admissibility is that normally confessions made to a police officer or while in police custody are inadmissible under Sections 25 and 26 of the Indian Evidence Act, however, Section 27 allows for an exception where information received from the accused leads to discovery of a fact. The Section makes only that part of the statement relevant, which directly leads to the discovery of facts. It does not make the entire statement of the accused inadmissible. 15. The condition for applicability of the aforesaid Section is that the person giving the information must be an accused in police custody. The information provided must lead directly to the discovery of the material fact and only that portion of information which directly leads to the discovery is admissible. For example, if an accused, while in custody, reveals the location of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery or theft of GST was found. Thus, that part of the discovery of fact is admissible as per Section 27 of the Act. 19. The principal of "bail is the rule, jail is the exception" is a fundamental concept in criminal law, where the criminal justice system recognizes the importance of personal liberty and the presumption of innocence until proven guilty. This principal emphasizes that an accused should ordinarily be granted bail unless there are compelling reasons to detain him in custody. But there are exceptions to the aforesaid principal. While, the general rule favours granting bail, there are several exceptions where courts may deny bail due to specific circumstances. These exceptions are based on factors that indicate a potential risk to society, the judicial process, or the investigation. Some points that should be kept in mind while granting bail are; the nature and gravity of the offence, likelihood of flight risk, risk of tampering with the evidence of witnesses, repeated offenders or habitual criminals, danger to society or the victim, possibility of committing another offence while on bail, interference with justice, specific statutory provisions like the Narcotic Drugs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on while considering bail applications. Relevant paragraph of the said judgement are quoted herein below: "24. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 23. Hon'ble Apex Court in the case of Directorate of Enforcement v. M. Gopal Reddy and ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t includes the object found, the place from which it was produced and the knowledge of the accused as to its existence. To this extent, therefore, factum of discovery combines both the physical object as well as the mental consciousness of the informant accused in relation thereto. In Mohmed Inayatullah v. State of Maharashtra [(1976) 1 SCC 828], elucidating on Section 27 of the Evidence Act, it has been held that the first condition imposed and necessary for bringing the section into operation is the discovery of a fact which should be a relevant fact in consequence of information received from a person accused of an offence. The second is that the discovery of such a fact must be deposed to. A fact already known to the police will fall foul and not meet this condition. The third is that at the time of receipt of the information, the accused must be in police custody. Lastly, it is only so much of information which relates distinctly to the fact thereby discovered resulting in recovery of a physical object which is admissible. Rest of the information is to be excluded. The word 'distinctly' is used to limit and define the scope of the information and means 'directly', 'indubitably ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt." 29. Law on consideration of the Court to grant or refusal of bail has been settled by the Apex Court in a catena of decisions. In the case of Kalyan Chandra Sarkar v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectorate of Enforcement [(2020) 13 SCC 791 : (2020) 4 SCC (Cri) 646], held that precedent of another case alone will not be the basis for either grant or refusal of bail though it may have bearing on principle and the consideration will have to be on caseto- case basis on facts involved therein and securing the presence of the accused to stand trial. Paragraph-23 of the said judgement reads thus: "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 "gr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
