Heard learned counsel for the applicant as well as Sri Santosh Kumar Mishra, learned learned A.G.A. for the State-respondent.

The submission of learned counsel for the applicant is that the applicant has been falsely implicated. It is submitted that the applicant is an employee of Stellar Capital Services Limited which is a separate Company all-together. It has further been stated that the salary of the applicant is paid by M/s Stellar Capital Services Limited and the copy of the bank statement where the salary of the applicant has been credited has been brought on record as Annexure No. 2.

The learned counsel for the applicant has further submitted that as per the allegations in the First Information Report, it is a case of tax evasion by the Company under the name and style of Cooperative Company Ltd., District Saharanpur. The allegation is that as from the said unit liquor was transported to various licensees in different districts of State and by using a duplicate GST invoice/bilty a different consignment was sent under an already exhausted GST Invoice/bilty and this has caused excise loss and revenue to the State.

It is submitted that in so far as the applicant is concerned, he is in no way connected with Cooperative Company Ltd., however, the only commonality is that the MD of Stellar Capital Services Limited and of Cooperative Company Ltd. are one and the same, however, in so far as the applicant is concerned, he has no connection either as an employee or concern in the management of Cooperative Company Ltd.

The further submission of the learned counsel for the applicant is that on the basis of certain confessional statement made by other co-accused, the name of the applicant has surfaced and he has been in Jail since 24.09.2021 apart from the fact that the applicant has no criminal history except the present case.

It has also been submitted that the charge sheet in the case has already been filed and there is no chance for the applicant either to influence any witness or tamper with the evidence.

In the aforesaid circumstances where the two other co-accused namely Arvind Kumar and Mange Ram Tyagi have already been enlarged on bail by a coordinate Bench of this Court by means of order dated 25.10.2021 passed in Bail Application No. 8489 of 2021 vide order dated 30.09.202 in Bail Application No. 9829 of 2021, accordingly, the applicant also deserves indulgence.

Sri Santosh Kumar Mishra, learned A.G.A. has vehemently opposed the bail application. It has been submitted that there is an entire caucus in a well planned manner huge excise revenue has been evaded. It has been submitted that apart from the applicant and other co-accused, there are certain officials of the Excise Department who are also involved. He has further submitted that the manner in which the entire conspiracy has been hatched which includes duplication of invoices, gate pass and other documents. It has resulted in evasion of excise apart from that the fact that there are certain electronic evidence available to indicate the complicity of the applicant with the with the entire transactions and his involvement in the said offence can be made out. The learned A.G.A. has also stated that the applicant was the sales head, his responsibility was primarily to achieve sales and in order to that he had links with the licensees. There are certain incriminating statements by the accountant of the firm and other persons who have clearly indicated the role of the applicant and in the aforesaid circumstances, the applicant is not entitled to bail.

Considering the submissions and from the perusal of the material on record, it is to be noted that in so far as the present applicant is concerned, there is ample materials to indicate that he is an employee of the different firm altogether namely Stellar Capital Services Limited. There is nothing to indicate that the services of the applicant were utilized by the Cooperative Company Ltd. Nothing has been pointed except for incriminating statement made by the co-accused that the applicant has been involved. Moreover, it also to be noticed that the applicant does not have any criminal history and this fact is not disputed. The charge sheet has been filed and there is no apprehension expressed that the applicant is in position to either influence or tamper with the evidence or is at the risk of fleeing from justice. No electronic evidence has been pointed out and in any case the matter is yet to be tested in trial.

Considering the material on record as well as considering the guidelines laid down by the Apex Court in the case of Dataram Vs. State of U.P. reported in 2018 (3) SCC 22 as well as the fact that the personal liberty of the applicant is a precious fundamental right which has to be balanced in the context of the punishment which may finally be awarded upon conclusion of trial.

Considering the rival submissions, the facts and circumstances of the case and the material available on record as well as considering the nature of allegations and accusation against the applicant, the severity of the punishment if convicted and the period of incarceration as well as the fact that no apprehension has been expressed by the learned AGA that the applicant is at the risk of fleeing justice or that he would tamper with evidence or influence any witness, hence, at this stage, without expressing any opinion on the merits of the case, this Court is of the view that the applicant is entitled to be released on bail.

Let the applicant Ashwani Upadhyay involved in Case Crime No. 03 of 2021 under Sections 120-B, 420, 467, 468, 471, 477- A I.P.C. & Section 60 (2) Excise Act, Section 66 of Information Technology Act Police Station S.I.T. District Lucknow be released on bail on his furnishing a personal bond with two reliable sureties each in the like amount to the satisfaction of the court concerned.

At the time of executing required sureties the following conditions shall be imposed in the interest of justice.

(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.

(ii) The applicant 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 of the Indian Penal Code.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

(v) The applicant shall neither influence any witness nor tamper with any evidence after his release.