By the Court :
Instant application has been preferred under Section 439 of Code of Criminal Procedure, 1973 for grant of regular bail to the petitioner, namely Ratnambar Kaushik in a case arising out of Complaint Case No.DGGI/INT/COMP/GEN/62/2022-Gr-J O/0 DD-DGGI-RU-Udaipur registered at DGGI, Jaipur Zonal Unit, Jaipur for offences punishable under Sections 132 (1) (a), (h), (k) and (l) of the Central Goods & Services Tax Act, 2017 (hereinafter referred to as the ‘Act of 2017’) readwith Section 132 (5) of the Act of 2017.
It is submitted by learned counsel appearing for the accused-petitioner that the trading of raw tobacco is being done under the aegis of non-existent firms and shipped from the State of Gujarat to Delhi and Noida by some non-existent firms and the purported transportation is allegedly being done by one M/s. Singhal Transport Company, whereas the petitioner is engaged in trading of raw tobacco under the name & style of M/s Galaxy Tobacco, Patparganj Industrial Area, Delhi.
It is contended by learned counsel appearing for the accused-petitioner that perusal of judicial remand application makes it apparent that the allegations levelled therein, are prima-facie not against the petitioner. As per Section 132 of the Act of 2017, the maximum punishment provided for the offence is five years of imprisonment and triable by First Class Magistrate as complaint case. It is further contended that the petitioner cannot be said to have evaded the duty of Rs.15 Crores, as the petitioner is neither a manufacturer nor he has been shown as a manufacturer in the remand application.
It is argued by learned counsel appearing for the accusedpetitioner that admittedly, the petitioner is engaged in trading of raw tobacco, which is classified under Chapter Heading 2401 and is subjected to levy of 28% of GST with Cess 72%. The said contention has been admitted by the Department in its judicial remand application and even if the tax is calculated @ 28% with Cess 72% it would be Rs.6,83,31,285/-. It is further argued that the statement of Sh. Sharad Kocchar, employee of petitioner, was recorded under immense pressure, threat and coercion and said statement was retracted forthwith after being released. Learned A.C.M.M. (Economic Offence) Court, vide its order dated 04.08.2022 has granted permission to the Department to record the statement of the petitioner in jail.
It is submitted by learned counsel appearing for accusedpetitioner that as per Panchnama dt.19.07.2022 no documents/ records or device have been seized from the premises. It is further submitted that the petitioner is behind the bars since 21.07.2022, after investigation, the complaint has already been filed and the trial of the case will take a long time. Hence, it is prayed that the petitioner may be enlarged on bail.
During the course of arguments, learned counsel appearing for the accused-petitioner, has placed reliance upon the following judgments :- (i) Satender Kumar Antil Vs. Central Bureau of Investigation, 2022 SCC Online SC 825, (ii) Ramchandra Vishnoi Etc. Vs. Union of India, CRLA No.1742-1743/2022, SC dt. 10.10.2022, (iii) Dipanshu Gupta Vs. Union of India, CRLMB No.3399/2022 RHC dt.13.04.2022, (iv) Ronak Kumar Jain Vs. Union-of-India, 2021 (10) TMI 1309, (v) Saurabh Kumar Jain Vs. Union-of-India, 2021 (8) TMI 117, (vi) Rajesh Arora Vs. State, CRLM 4th Bail No.3987/2020, RHC dt.26.05.2020 (vii) Lakshya Agarwal Vs. DGGI, CRLMB No.20392/2021 RHC dt.08.03.2022, (viii) Nitin Verma Vs. Union-of-India and another, CRLMB No.54497/2021 High Court of Allahabad dt.03.08.2022 and (ix) Pravin Jangir Vs. Union-of-India, CRLMB No.16092/2021 RHC 04.10.2021.
Learned counsel appearing for the respondent/Union of India, has strongly opposed the bail application and submitted that during investigation, search was also made at M/s Millitrek Technologies Pvt. Limited and M/s Sanskar Security Solutions, which have provided GPS tracking services to M/s Singhal Transport Company for tracking movement of their trucks between Gujarat and Delhi and GPS Data from March, 2022 to May, 2022 has been obtained. Further, toll Data has been obtained from NHAI and RFID Data has also been downloaded from e-wall bill server. GPS Data contains actual location/ coordinates of the places where the vehicles have moved. On analysis of said GPS data vis-a-vis E-way Data pertaining to seven trucks containing raw tobacco brought from Gujarat, it was found that these seven trucks although were cleared in the name of M/s Maa Ambey Enterprises, Bakoli but actually went to M/s Galaxy Tobacco, 500 FIA, Patparganj, Delhi. This clearly indicates that Shri Ratnamber Kaushik was actively indulged in clandestine procurement as well as supply of raw tobacco with an intent to facilitate the actual manufacturer for unaccounted manufacture and supply of Jarda in contravention of the applicable GST/CE law with mala-fide intent to evade the duty levied by the Government. The details of said seven vehicles were sent to Shri Kaushik’s premises have been mentioned in Para-vii of reply. The said quantity of 90,520 kgs. of unmanufactured tobacco apparently has been used in clandestine manufacturing and supplying of Jarda by Tobacco manufacturing companies without payment of leviable duties and taxes.
Following details of approximate duty/taxes, so evaded have been mentioned :-
“. Quantity of raw tobacco procured/supplied clandestinely: 90520 kgs.
Number of Jarda pouches of MRP 1, which can be manufactured by using said quantity: 22,63,00,000 (90,52,00,00 Gms/0.4 Gms) as 0.4 Gms raw tabacco is used in one pouch of Jarda of Rs.1/- MRP)
Taxable Value of Jarda which can be manufactured with said quantity of raw tabacco: Rs.6,90,21,500 (Approx. Rs.0.305 per pouch)
Total tax/duty involved in said pouches: Rs.15,57,28,345/- (including Central Excise @ 0.5 on MRP basis – Rs.5,09,175/-, NCCD @ 25% on MRP basis – Rs.2,54,58,750/-, GST – Rs.1,93,26,020/- and CESs – Rs.11,04,34,400/-)”
It is further argued and prayed that looking to the contents of the Complaint, the bail application of the petitioner may kindly be rejected.
During the course of arguments, learned counsel appearing for the respondent/Union-of-India, has placed reliance upon following judgments:- (i) Lalit Goyal Vs. Union-of-India & another, SLA (CRL) No.3509/2022 dt.26.08.2022 & (ii) Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation, AIR 2013 SC 1933.
Heard. Perused the material made available on record as well as the judgments cited at the bar.
The petitioner is behind the bars since 21.07.2022. Complaint has been filed on 17.09.2022. Under Section 132 of the Act of 2017 alleged offence is punishable with imprisonment for a term, which may extend to five years and with fine.
As per Para No.8.4 of Complaint and Para No.vii of reply, alleged total tax/duty evaded against the petitioner is Rs.15,57,28,345/-.
Hon’ble Apex Court in the case of Lalit Goyal (supra) did not interfere with the impugned order dt.07.09.2021 passed by Coordinate Bench of this Court in S.B. CRLMB No.13042/2021, whereby the bail application of petitioner therein was dismissed in which he was arrested 22.02.2021. Submission made by learned counsel for the respondent was that the petitioner and other persons had taken part in various firms and also claimed Input Tax Credit of Rs.18.91 Crores without any transportation of goods. However, Hon’ble Apex Court decided the aforesaid Case on 26.08.2022 and since then the accused had remained in custody for a period of about one year and six months. Hon’ble Apex Court in the case of Y.S. Jagan Mohan Reddy (supra) in Para Nos.15 & 16, held as under :-
“15) Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.
16) 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”
Judgment relied upon by the learned counsel appearing for the accused-petitioner in Ramchandra Vishnoi etc. (supra) fails to advance the case of present petitioner as in that case the appellants had completed the custody of nearly fourteen months and co-accused Pravin Jangir was granted bail by Co-ordinate Bench of this Court on 04.10.2021 and another co-accused Hemant Tyagi was granted bail by Hon’ble Apex Court on 18.05.2022.
In another judgment i.e. Satender Kumar Antil (supra), relied upon by learned counsel appearing for accused-petitioner, Hon’ble Apex Court, in Para No.66, had held as under :-
“66. What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with by this Court in the case of P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis.” (Emphasis supplied).
In the present case, the allegation against the petitioner pertains to an amount of Rs.15,57,28,345/- and custody period is about three months, therefore, looking to the above facts, circumstances, nature and gravity of the offence, this Court deems it not proper to enlarge the accused-petitioner on bail.
Resultantly, instant bail application is dismissed.