Heard Mr. S. Rajganesh, learned counsel for the accused and also heard Mr. M. Haloi, learned Retainer Counsel for CBI.
2. This application, under Section 439 of Cr.P.C., is preferred by accused, namely- Shri Raju Sakthivel, who has been languishing in jail hazoot in connection with CBI ACB Guwahati RC 7(A) 2022/CBI-GWH registered under section 120 (B) IPC read with section 7/7(A) of the Prevention of Corruption Act, 1988, since 29.09.2022.
3. The said case has been registered on the basis of one FIR lodged by Shri Chittaranjan Nath of Tezpur, on 14.09.2022, to the effect that being the proprietor of Pawan Enterprise, and a registered contractor of N.F. Railway, Maligaon and in connection with construction work he has submitted bills to the Dy. Chief Electrical Engineer (Con.), N.F. Railway, Maligaon. Then the Addl. Commissioner, Central Goods & Service Tax, Dibrugarh has raised a demand of Rs. 48,43,034/ vide letter No. 23.07.2021. But, service tax is not required to be paid and N.F. Railway also issued a certificate to that effect. Thereafter, being aggrieved, he preferred an appeal before the Commissioner (Appeals) CGST, Central Excise Customs, Guwahati against such adjudication order, dated 23.07.2021, on 10.10.2021. Then in the month of August, 2022 the Commissioner- Shri Raju Shakthivel demanded a sum of Rs. 4,50,000/ [email protected] 10% of the demand of Service Tax, through conduits for a favorable order in the said appeal.
4. Upon the said FIR, CBI ACB Guwahati RC 7(A) 2022/CBI-GWH registered under section 120 (B) IPC read with section 7/7(A) of the Prevention of Corruption Act, 1988, has been registered and thereafter, CBI laid trap at Guwahtai on 29.09.2022, and arrested Raju Shakthivel from the office of the Commissioner (Appeals) CGST, Central Excise and Customs, GST Bhawan, Machkhowa, Guwahati.
5. The respondent CBI has submitted its written objection and vehemently opposed the petition filed by the accused. It is stated that one Mahabir Jain Shyamsukha was caught red handed while accepting illegal gratification of Rs. 3,83,000/ on behalf of accused Raju Sakthivel. It is also stated that investigation is still going on and one of the accused is absconding, and therefore, it is contended to dismiss the petition.
6. Mr. S. Rajganesh, learned counsel for the accused submits that the accused was arrested on 29.09.2022, and since then he has been languishing in jail hazoot. Mr. S. Rajganesh further submits that Nothing has been recovered from the possession from the possession of the accused and that before arrest, the accused has never been served any Notice under section 41A Cr.P.C. and on account of failing to comply with this provision, the accused is entitled to be released on bail as held by Hon’ble Supreme Court in the case of Satender Kumar Antil vs. Central Bureau of Investigation & Anr, reported in 2022 LiveLaw (SC) 577. Mr. Rajganesh further submits that on account of non compliance of the provision of section 41A Cr.P.C. this court has released one accused on bail in BA No. 1940/2022 vide order dated 07.09.2022, and that the accused is behind the bar for last 42 days and his further custodial detention may not be required and therefore, contended to allow the petition.
7. On the other hand, Mr. M. Haloi, learned Retainer Counsel, CBI, has opposed the petition and producing the case diary before this court submits that the Investigating Officer has collected sufficient materials against the accused and one of the co-accused is still absconding and enlarging present accused, who is the main culprit of the offence, will accused hamper in investigation. Mr. Haloi, however, fairly submits to a pointed query of this court about non-compliance of the provision of the section 41 A Cr.P.C. as the offence is serious in nature and there was chance of absconding in such event. Mr. Haloi, therefore, contended to dismiss this petition.
8. Having heard the submission of learned Advocates of both sides I have carefully perused the petition and the documents placed on record and also perused the case diary, so produced before the court, and the case law referred by Mr. Rajganesh, the learned counsel for the accused, and I find the following:-
(i) The FIR was registered on 14.09.2022 and the accused was arrested on 29.09.2022.
(ii) The accused is behind the bar for last 42 days.
(iii) The accused was working as the Commissioner (Appeals) CGST, Central Excise and Customs, GST Bhawan, Machkhowa, Guwahati.
(iv) The accused had demanded a sum of Rs. 4,50,000/ [email protected] 10% of the demand of Service Tax, through conduits for a favorable order in one appeal preferred by Shri Chittaranjan Nath of Tezpur, before arrest.
(v) One Mahabir Jain Shyamsukha was caught red handed while accepting illegal gratification of Rs. 3,83,000/ on behalf of accused Raju Sakthivel.
(vi) Investigation is still going on and one co-accused is yet to be arrested.
(vii) The I.O. has not complied with the provision of section 41 and 41-A Cr.P.C. before effecting arrest of the accused, and as such there is clear violation of the dictum of Hon’ble Supreme Court, issued in the case of Arnesh Kumar vs. State of Bihar reported in (2014) 8 SCC 273.
(viii) Though Mr. Haloi, learned Retainer Counsel, CBI has made an attempt to explain as to why the same could not be complied with yet such an explanation is found to be far from satisfactory.
9. It is to be mentioned here that the maximum punishment prescribed for the offence under section 7 of the P.C. Act may extend to five years and for the offence under section 7A of the P.C. Act may extend to 7 years. Nothing has been recorded by the arresting authority as to why the direction could not be complied with. The learned court below also failed to record its satisfaction on compliance or non compliance of section 412 and 41A Cr.P.C. and the observation made in the case of Satender Kumar Antil (supra). Be it noted here that in paragraph No.73 (C) in the case of Satender Kumar Antil (supra) Hon’ble Supreme Court has held that-
“The court will have to satisfy themselves on the compliance of section 41 and 41A of the Code. Any non-compliance would entitle the accused for bail.”
10. Having regards to above, and also having regards to the nature of accusation and the punishment prescribed for the same, as well as the submission of learned Advocates of both sides, more specially the period of detention, and further keeping in mind the dictum of Hon’ble Supreme Court in Satender Kumar Antil (supra), I am of the considered opinion that further custodial detention of the accused seems to be unwarranted herein this case, and it is a fit case where the privilege of bail can be extended to the accused.
11. Accordingly, it is provided that on furnishing a bond of Rs. 1,00,000/ (Rupees one lac) with two sureties of like amount, to the satisfaction of learned Special Judge, CBI, Assam, Chandmari, the accused be enlarged on bail.
12. In terms of above this B.A. stands disposed of.
Return the case diary.