1. This is second application on behalf of applicants under Section 439 of Code of Criminal Procedure, 1973 for grant of regular bail as applicants are in custody since 25.1.2021 in connection with Crime/DDGI Case No.124/2020-21 registered in the office of the Directorate of GST Intelligence, GST, Raipur for commission of offence punishable under Section 132 (1) (b) (c) of the Goods and Services Tax Act, 2017 (henceforth ‘the GST Act’).
2. Case of non-applicant Department, in brief, is that based on GST Intelligence report, non-applicant started investigation, during course of investigation it revealed that M/s Manoj Enterprises, Raipur had never made any kind of purchase from any entity, it is non-existent firm at the registered address. It further revealed that applicants have formed forged firms in Chhattisgarh, Jharkhand, Madhya Pradesh, West Bengal and Maharashtra; availed illegal benefits of input tax credits and thereby caused loss of Rs.258 Crore approximately to the government ex-chequer during financial years 2018-19, 2019- 20 & 2020-21. Applicants were arrested by non-applicant Department on 25.1.2021. After part investigation, complaint case was filed before the Court of Magistrate on 25.3.2021. Application for grant of bail filed by applicants before the Court below came to be rejected vide order dated 13.8.2021.
3. Mr. B.P. Sharma, learned counsel for applicants would submit that non-applicant/department has not placed any document along with complaint connecting applicants with alleged offence. Documents placed along with complaint are only procedural drafting with regard to preparing panchnama etc. and list of documents. There is no evidence to show involvement of applicants in taking benefit of illegal input tax credits. Applicants are in jail since 25.1.2021 and till date charges are not framed. There is delay in trial and therefore, this second bail application be allowed. In support of his contention, learned counsel relied upon decision of Hon’ble Supreme Court passed in Criminal Appeal Nos.164-165/2022 dated 1.2.2022.
4. On the other hand, Mr. Maneesh Sharma, learned counsel for non-applicant Department opposing submissions of learned counsel for applicants, would submit that allegations against applicants are that they created fake firms and caused loss of Rs.258 Crores approximately to the government ex-chequer during financial years 2018-19, 2019-20 & 2020-2021. First bail application of applicants was considered and rejected on merits vide order dated 18.1.2022, hence submission of learned counsel for applicants on merit that there is no substantial material against applicants, cannot be considered. Voluminous documents are filed before Court below showing prima facie involvement of applicants in commission of offence. Fake invoices are generated to beneficiaries, most of them are located in Maharashtra and the DDGI, Mumbai Zonal Unit has already initiated investigation against those firms. Applicant No.1 in his statement recorded under Section 70 of the GST Act, 2017 admitted to have availed input tax credits by issuing invoices. He submits that documents of the case, which is pending before Court below, are with him, which are in 3-4 bundles. He places his reliance on the order dated 17.4.2020 passed in SLP No.1803/2020, parties being Sandeep Goyal vs. Union of India [reported in (2012) 1 SCC 40].
On specific query being put to learned counsel for nonapplicant with respect to stage of investigation, he replied based on instructions that investigation with respect to present applicants is complete.
5. I have heard learned counsel for parties and perused the documents placed on record.
6. First bail application of application of applicants was rejected on merits on 18.1.2022. On the said date, investigation was not complete, as stated by learned counsel for non-applicant. There is allegation of causing loss of Rs.258 Crore approximately to the government ex-chequer by applicants. However, this Court cannot overlook the fact that by now applicants have been in custody for about 23 months and they cannot be indefinitely detained in custody pending trial. Maximum sentence which can be imposed upon applicants under Section 132 of the GST Act, 2017 is of five years. Charges against applicants has yet not been framed and during course of arguments, learned counsel for non-applicant on instructions submitted that investigation, so far as present applicants are concerned, is complete. Perusal of list of witnesses (Annexure A-1) would reflect that most of witnesses belong to non-applicant department i.e. government servant.
7. In case of Sandeep Goyal (supra) Hon’ble Supreme Court has held thus:-
“46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.”
8. In case of Paresh Nathalal Chauhan (supra) Hon’ble Supreme Court was dealing with appeal seeking relief of bail in an offence alleged against applicant therein under Section 132 of the GST Act, 2017 and considering the period of detention of applicant therein has allowed appeal and granted bail to applicant observing thus:-
“On conspectus of the aforesaid matter, we are of the view that the appellant cannot be indefinitely detained in custody more so having already undergone a period of 25 months of custody when he can be sent behind bars for maximum five years. It is almost 50% of the sentence. Complaint has been filed.
9. Considering the above decisions of Hon’ble Supreme Court and the facts and circumstances of case at hand, particularly the fact that respondent filed complaint, applicants are in jail since 25.1.2021, maximum sentence which can be imposed is upto five years and no minimum sentence is prescribed under Section 132 of GST Act and investigation is complete, as submitted by learned counsel for non-applicant, without entering into merits of the case, I am inclined to grant regular bail to applicants herein.
10. Accordingly, this second bail application of applicants is allowed and it is directed that applicants shall be released on bail on their furnishing a personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh only) each with one local surety in the like sum to satisfaction of trial Court concerned on the conditions that;
• they shall appear before trial Court concerned regularly on each & every date unless exempted from appearance.
• they shall not, in any manner, tamper with the prosecution witnesses.
• If they are found involved in similar offence in future, it will be open for the State to apply for cancellation of bail.
Certified copy as per rules.