2020 (9) TMI 426

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....hoever commits, or causes to commit and retain the benefits arising out of, any of the following offences ....."He also argued that accused is in JC since 26.08.2020 and neither any custodial interrogation is required nor any further recovery is to be made from the accused. He also submits that accused is ready and willing to join the investigation. Ld. Counsel relied upon the judgment titled as Commission of Customs Vs. M/s. Spice Telecom, Banglore (Civil Appeal No. 1695/2006 and Union of India & Ors Vs. M/s. Ganesh Das Bhojraj [Civil Appeal No.6071/1999]. He also argued that the amendment if any has to be read prospectively and cannot be read retrospectively against accused. 3. On the other hand Ld. Sr. Standing Counsel strongly opposed the application and argued that accused Amit Kumar Jain @ Amit Jain is the mastermind who is operating various non-existing firms i.e. M/s Dev Singh Corporation, M/s K. N. Enterprises and M/s Fusion Impexs etc. He further submits that when accused was informed by Manish Jain that his statement has been recorded by GST officers, accused Amit Kumar Jain deleted his Whatsapp chat and contact details with the malafide intention to remove / temper w....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....he personal liberty is a priceless treasure for a human being. It is founded on the bed rock of constitutional right and accentuated further on human rights principle   The sanctity of liberty is the fulcrum of any civilized society. Deprivation of liberty of a person has enormous impact on his mind as well as body. Further article 21 of the Constitution mandates that no person shall be deprived of his life or personal liberty except according to procedure established by law. Further India is a signatory to the International Covenant on Civil And Political Rights, 1966 and, therefore, Article 21 of the Constitution has to be understood in the light of the International Covenant on Civil And Political Rights, 1966. Article 21 in view of its expansive meaning not only protects life and liberty, but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefore. The fundamental principle of our system of justice is that a person should not be deprived of his liberty except for a distinct breach of law. The basic rule is to release him on bail unless there arc circumstances suggesting the possibility o....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d on bail, (v) Character and behavior of the accused, (vi) Means, position and standing of the accused in the Society, (vii) Likelihood of the offence being repeated, (viii) Reasonable apprehension of the witnesses being tampered with, (ix) Danger, of course, of justice being thwarted by grant of bail, (x) Balance between the rights of the accused and the larger interest of the Society/State, (xi) Any other factor relevant and peculiar to the accused. (xii)   While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, but if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. 12.  Furthermore, in the landmark judgment of Gurucharan Singh and others V. State (AIR 1978 SC 179), it was held that there is no hard and fast rule and no inflexible principle governing the exercise of such discretion by the courts. It was further held that there cannot be any inexora....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....) deals with falsification or substitution of financial records by fake documents with the intention to evade the payment of tax dues under the Act. 16.  The sub section 5 of Section 132 provides that offences specified in Clause (a), (b), (c) and (d) of sub section (1) are cognizable and non bailable. The accused   Amit Kumar Jain is alleged to have not only falsified the financial records by preparing fake invoices but also availed wrongful input tax credit even though no actual supply of goods or services have been made through the firms / companies   and he is the ultimate beneficiary of such wrongful availement. The piercing of the veil attempted by the GST department has revealed that all such sham transations are being done at the behest of accused Amit Kumar Jain. Therefore, the arguments of the Id. Counsel that the offences alleged against the accused are bailable is humbly rejected. 17.  Ld. counsel also laid stress on the point that all the documentary based and available on the GST Portal and therefore there is no scope of tampering being committed to such evidence. He also pointed out that accused is in JC since 26.08.2020 and depart....