TaxTMI 
TaxTMI 
2020 (9) TMI 76
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....ons envisaged under Section 438 Cr.P.C., apart from directions not to influence or threaten the witness of the prosecution. Counsel for the petitioner, thus, has argued that the said onerous conditions resulted in practically denying the grant of bail to the petitioner as he is not in a position to pay the said outstanding amount. It is further submitted that there is a presumption of innocence against the accused and a finding has to be recorded by a competent Court of jurisdiction that the petitioner is guilty and since a complaint has been filed under the relevant provisions, the said condition is on the wrong prior assumption that the petitioner is guilty. Vide the impugned order, direction has, thus, been issued for recovery of the amount which is not permissible as it amounts to prejudging the issue. He has relied upon the judgment of the Apex Court in Sumit Mehta Vs. State of N.C.T. of Delhi (2013) 1 SCC 570 in this regard, which pertains to the provisions and conditions imposed in a petition under Section 438 in a FIR lodged under Section 420, 467, 468 & 471 IPC, wherein while granting anticipatory bail, the Delhi High Court had directed that a sum of Rs. 1 crore be depo....
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.... Court in Sanjay Kumar Bhuwalka Vs. Union of India 2018 (362) ELT 568 passed on 09.07.2018. The observations made in para No.33 of the said judgment were taken into consideration whereby a sum of Rs. 50,00,000/- was fixed as the bail bond amount with a condition to deposit Rs. 39 crores to the Government Exchequer, since it was a cognizable offence and posed a serious threat to the economy of the country. It was thus held that the applicant cannot be put behind the bars during the entire investigation and the trial in the complaint. Thus, directions were issued for release on bail, subject to onerous conditions, as noticed above. Firstly, it was not brought to the notice of the Trial Court that the said judgment imposing similar conditions stood modified by the same Bench on a subsequent occasions. The second order was passed on 12.07.2018 whereby the Learned Single Judge had come to the conclusion that the two applicants had evaded Rs. 27 crores & Rs. 12 crores and therefore, they would deposit 50% of the amount as a condition to obtain bail. The amount of bail bonds was also reduced to Rs. 10 lakhs each. On an application filed for modification, in view of the fact that the pe....
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....under the Act is to be kept in mind. The power of arrest lies under Section 69 of the Act whereby the Commissioner has reasons to believe that the person had committed any offence specified under the provisions of Clauses (a), (b), (c) & (d) of Sub-section (1) of Section 132 which is punishable under Clauses (i) & (ii) or Sub-section (2) of the said section he may authorize any officer of State Tax to arrest such person. Under Section 69(2), the person has to be produced before the Magistrate within 24 hours when he is arrested under Section 132 (1) & (5) and has to be informed of the ground of arrest. Under Sub-section (3), he is to be admitted to bail, if he is arrested under Sub-section (1), for any offence specified under Sub-section (4) of Section 132 and in default of bail, forwarded to the custody of the Magistrate. Sections 69 & 132 read as under: "69. (1) Where the Commissioner has reasons to believe that a person has committed any offence specified in clause (a) or clause (b) or clause (c) or clause (d) of subsection (1) of section 132 which is punishable under clause (i) or (ii) of sub-section (1), or sub-section (2) of the said section, he may, by order, author....
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....e to confiscation under this Act or the rules made thereunder; (i) receives or is in any way concerned with the supply of, or in any other manner deals with any supply of services which he knows or has reasons to believe are in contravention of any provisions of this Act or the rules made thereunder; (j) tampers with or destroys any material evidence or documents; (k) fails to supply any information which he is required to supply under this Act or the rules made thereunder or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; or (l) attempts to commit, or abets the commission of any of the offences mentioned in clauses (a) to (k) of this section, shall be punishable-- (i) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or the amount of refund wrongly taken exceeds five hundred lakh rupees, with imprisonment for a term which may extend to five years and with fine; (ii) in cases where the amount of tax evaded or the amount of input tax credit wrongly availed or utilised or th....
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....re offence is specified in Clauses (a), (b), (c) & (d) of Sub-section (1) of Section 132 and is punishable under Clause (i) of that Sub-section, the same shall be cognizable and non-bailable. In fact, the prosecution seeks to bring it within the ambit of the said provisions, to detain the petitioner on the ground that he has evaded tax of Rs. 80 crores and therefore, the term of punishment may extend to 5 years in his case. Reading of the above provision would also go on to show that imprisonment is provided for a period ranging from 6 months upto 3 years wherein a lessor offence is committed, directly correlated with the quantum of financial implications upto Rs. 200 lakhs, it is upto one year. If it is between Rs. 200 lakhs to Rs. 500 lakhs, it is upto 3 years with fine. Sub-section (5) of Section 132 further provides that for the cases where the input tax wrongfully filed exceeds Rs. 500 lakhs only, the offence is to be cognizable and non-bailable. Section 134 provides that the Court shall take cognizance of the offence punishable under the Act, only with the sanction of the Commissioner and no Magistrate inferior to the Magistrate of First Class shall try such offence. Section ....
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....on 83 reads as under: "83. (1) Where during the pendency of any proceedings under section 62 or section 63 or section 64 or section 67 or section 73 or section 74, the Commissioner is of the opinion that for the purpose of protecting the interest of the Government revenue, it is necessary so to do, he may, by order in writing attach provisionally any property, including bank account, belonging to the taxable person in such manner, as may be prescribed. (2) Every such provisional attachment shall cease to have effect after the expiry of a period of one year from the date of the order made under sub-section (1)." Thus, in the opinion of this Court, there are sufficient remedies available to the State to recover the amount by other modes also and to protect the interest of revenue. As noticed, by putting conditional order of directing the petitioner to pay an amount of Rs. 1,94,78,017/- would amount to recovery of the amount. It is not disputed that the State has already filed a complaint under Section 132 of the Act read with Section 20 of the Integrated Goods and Services Tax Act, 2017, which was also placed on record. It has been averred in the same that a d....
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.... investigation was already complete and the charge-sheet had already been filed before the Special Judge, CBI. It was noticed that the punishment could go upto 7 years and therefore, the order of the Special Judge and the Delhi High Court refusing bail, was modified, subject to various conditions. Relevant paras read as under: "13) The appellants are facing trial in respect of the offences under Sections 420-B, 468, 471 and 109 of Indian Penal Code and Section 13(2) read with 13(i)(d) of Prevention of Corruption Act, 1988. Bail has been refused first by the Special Judge, CBI, New Delhi and subsequently, by the High Court. Both the courts have listed the factors, on which they think, are relevant for refusing the Bail applications filed by the applicants as seriousness of the charge; the nature of the evidence in support of the charge; the likely sentence to be imposed upon conviction; the possibility of interference with witnesses; the objection of the prosecuting authorities; possibility of absconding from justice. 14) In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused....
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....ruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan-(2005) 2 SCC 42, observed that "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unles....