The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 & I.A. No. 1430 of 2023 and I.A. No. 1431 of 2023 (In the matter of applications under Section 439 of the Code of Criminal Procedure). Subash Kandulna (In BLAPL No. 13103 of 2023) Chhatar Singh @ Niku Singh (In BLAPL No.10652 of 2023) Ram Bharose Shaw (In BLAPL No.11209 of 2023) Dhanman Shaw (In BLAPL No. 11210 of 2023) … Petitioners Mr. P.K. Mishra, Advocate (BLAPL No.13103 of 2023) Mr. B. Nayak, Advocate (BLAPL No.10652 of 2023) Mr. R.P. Kar, Sr. Advocate (BLAPL Nos.11209 & 11210 of 2023) -versus- State of Odisha … Opposite Party Mr. S. Mishra, SC(for CT-GST) CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :22.03.2024 DATE OF JUDGMENT:27.03.2024 G. Satapathy, J. 1. Since all these four bail applications arise out of one and same case record in 2(c) CC Case No. 27 of 2022, for convenience, the same are heard together BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 1 of 30 and disposed of by this common order with consent of the learned counsel for the respective parties. 2. These are the bail applications U/S. 439 of Cr.P.C. by the Petitioners for grant of bail in connection with 2(c) CC Case No. 27 of 2022 arising out of CT & GST Enforcement Unit, Rourkela PR No. 3/2022-23 of the Court of learned J.M.F.C., Rourkela for commission of offence U/Ss. 132(1)(b)(c) & (l) of the OGST Act. 3. The allegations as set out in the prosecution report which eventually led to institution of complaint by the Additional Commissioner of CT & GST, Rourkela, are that on the basis of confidential information of involvement of Directors as well as Ex-Directors of three companies namely, M/S. Sairam Ingot Private Limited, M/S. Swastik Ingot Private Limited and M/S. Sunayana Metal Industries Limited and others for wrongfully claiming, utilizing and passing bogus input tax credit(ITC) on the strength of forged documents purportedly issued in the name of non-existent and ghost business entities created and operated by them, without physical receipt and supply of goods, the local BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 2 of 30 Authorities under GST Act started investigation, in the course of which, the petitioners Dhanman Shaw, Ram Bharose Shaw, Niku Singh, Subash Kandulna and others were found to have committed offences U/Ss. 132(1)(b)(c)(f) & (l) of the OGST Act for individually as well as jointly and severally in collusion with each other by issuing invoices or bills without physical supply/receipt of goods or services leading to wrongful availment or utilization of input tax credit by using such invoices or bills and fraudulently availing input tax credit without any invoices or bills and falsification of financial records including books of account and thereby, the petitioners and others have wrongfully gained huge financial benefits. It is claimed in the investigation that M/S. Sairam Ingot Private Limited is a physically non-existent company having no business activities in operation at its registered place of location, but the petitioner Dhanman Shaw and his family members continued to control its activities and utilized the said company for passing of bogus input tax credit to two others existing companies under the seal and BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 3 of 30 signature of Directors of the company, and the petitioner Dhanman Shaw was alleged to have operated the activities of said non-existent company and caused evasion of GST running to crores of Rupees. It is also alleged that the remaining two existing companies M/S. Swastik Ingot Private Limited and M/S. Sunayana Metal Industries Limited were primarily manufacturing units for producing iron and steel goods and petitioner Ram Bharose Shaw and his brother petitioner-Dhanwan Shaw, although stated to have resigned as Directors with effect from 01.06.2019, but it is claimed that documentary evidence reveals that petitioner Dhanwan Shaw and his family members continue to act as de- facto Directors/Operators of the above two companies and the four petitioners along with others have used false tax invoices issued in the name of non-existent and ghost business entities for wrongfully passing of bogus input tax credit and for that purpose, the petitioners have collected identity documents such as Pan Card, Aadhar Card and Passport from different innocent persons unconnected with business of the BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 4 of 30 companies and obtained registration in their name under GST Act fraudulently by misusing the said documents and wrongfully obtained financial benefits accrued out of trading with the help of such fake invoices by using these documents. It is also alleged that the petitioners and others have operated as many as 25 numbers of non-existent and fictitious business entities in the name of men of no means by misusing their personal identity documents without their knowledge and consent. The petitioners were alleged to have issued forged tax invoices in the name of these fictitious business entities disclosing fake supply of iron and steel goods which have been mostly used by the existing companies M/S. Swastik Ingot Private Limited and M/S. Sunayana Metal Industries Limited. It is also alleged that petitioner Dhanman Shaw was the creator and operator of 19 numbers of non-existent ghost business entities and have effected purchase of goods from different registered and un-registered tax payers without obtaining purchase invoices from them and without payment of tax and he by arranging forged BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 5 of 30
Facts
invoices from non-existing and dummy firms availed bogus input tax credit worth Rs.96.26 crores on the strength of fake invoices and defrauded the State Exchequer and similarly, petitioner-Ram Bharose Shaw by allegedly creating and operating 17 numbers of non- existent and ghost business entities had secured bogus input tax credit worth Rs.78.87 crores on the strength of fake invoices and thereby, defrauded the State Exchequer and similarly petitioner-Niku Singh allegedly by creating and operating 10 numbers of non-existent and ghost business entities could manage to avail bogus input tax credit worth Rs.49.09 crores and defrauded the State Exchequer. It is also alleged in the prosecution report that petitioner Dhanwan Shaw, Ram Bharose Shaw and along with others have managed to secure bogus input tax credit of Rs.212.88 crores, whereas petitioner Niku Singh in collusion with others could manage to get bogus input tax credit of Rs.105.77 Crores and petitioner Subash Kandulna in collusion with others had allegedly defrauded Rs.110.79 Crores to the State Exchequer and all the four BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 6 of 30 petitioners were accordingly arrested on 06.07.2022 and produced before the learned S.D.J.M., Panposh on the same day and in the meantime, prosecution report was submitted before the Court. However, on receipt of record on transfer and upon examination of 10 witnesses before charge, the learned J.M.F.C., Rourkela finding grounds for presuming the petitioners to have committed the offences framed charge against the petitioners and proceeded with the trial in the case and in the meantime, the learned J.M.F.C., Rourkela has already examined 13 witnesses till 28.02.2024 in the trial. 4.
Legal Reasoning
prima facie case or not against the petitioners for grant or refusal of bail to them, but the allegation on record clearly demonstrates a case of defrauding the State Exchequer to the tune of Rs.316 Crores by the petitioners in a cool and calculated manner and thereby, causing hindrance to Nation’s growth. It is further submitted by Mr. Mishra that the present petitioners except Subash Kandulna had earlier unsuccessfully approached this Court and just after 25 days of their becoming unsuccessful in getting bail, they have approached this Court again without any supervening or changed circumstance to consider their bail applications and thereby, the bail applications of the aforesaid petitioners is not maintainable. Mr. Mishra by taking this Court through the allegation on record has further submitted that the petitioners in collusion with other accused persons had evaded a huge chunk of GST/Revenue by claiming, utilizing and passing bogus ITC on the strength of fake invoices issued in the BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 12 of 30 name of non-existent and ghost business entities which were found to have been created and operated by them and the modus of operandi of the petitioners in conducting such fictitious business operations through forge invoices and transferring the illegal benefits to the three companies namely, M/S Sairam Ingot Private Ltd. (non-existing) as well as existing business entities M/S Swastik Ingot Private Ltd. and M/S Sunayana Metal Industries itself speaks in volume with regard to intention of the petitioners to defraud the State Exchequer. It is also assiduously submitted by Mr. Mishra that the petitioners and other accused persons in this case have defrauded an amount of Rs.316.33 Crores approximately, out of which, the ill-gotten share of petitioner-Niku Singh is assessed at Rs.105 Crores, of petitioner-Subash Kandulna is assessed at Rs.59 Crores, of petitioner Ram Bharose Shaw is calculated at Rs.78.87 Crores and that of Dhaman Shaw is calculated at Rs.96.29 Crores and therefore, release of the petitioners on bail would give rise to reasonable apprehension that they may abscond. Lastly, Mr. BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 13 of 30 Mishra has submitted that since the trial is on full swing and 13 out of 23 witnesses have been examined till the end of February, 2024, there is every likelihood that the trial would be concluded in near future and therefore, the bail application of the petitioners merits no consideration at this stage, since there is an apprehension that the petitioners may abscond to avoid to face legal consequence and sufficient evidence has been adduced to secure the conviction of the petitioners. In summing up his argument, Mr. Mishra has prayed to reject all the four bail applications of the petitioners. 6. After having considered the rival submissions upon perusal of record, admittedly it appears that this is the second journey of all the petitioners except the petitioner Subash Kandulna to this Court for grant of bail. Since the petitioners Ram Bharose Shaw and Dhanman Shaw have filed interlocutory applications praying therein to call for certain documents relating to this case, it needs to be clarified here that for the limited purpose of considering the bail application of a BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 14 of 30 person accused of an offence, neither it is desirable nor is it necessary to weigh the evidence meticulously. At the stage of bail, the Court should assign the reason while allowing or rejecting the application for bail of the accused, but a detailed reasoning touching upon the merit of the matter should be avoided in order to ensure a fair trial to the accused. What is necessary is that the order should not suffer from non-application of mind, but at the stage of considering the bail application, a detailed examination of evidence and elaborate documentation of the merit of the case should be avoided. It is of course true that the Court can make some reference to the materials on record, but it should avoid to make a detail and in-depth analysis of materials to record findings on their acceptability or otherwise, which is essentially a matter of trial. Keeping in view the aforesaid principle that detailed examination of evidence and elaborate documentation of merit of the case at the stage of considering bail application is not the mandate of law, this Court reasonably believes that calling for the BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 15 of 30 records as sought for by the petitioners Ram Bharose Shaw and Dhanman Shaw and making a in-depth analysis of such documents for the purpose of grant of bail would undeniably have affect on the fair trial in this case, which the petitioners have right under the Constitution of India. Further, calling for the records at this stage would protract the bail proceedings further and when the trial has already progressed substantially with examination of little more than half of the PR witnesses, this Court considers it undesirable to call for the records as sought for by the petitioners Ram Bharose Shaw and Dhanman Shaw. Accordingly, the interlocutory applications in I.A. No. 1430 of 2023 and I.A. No. 1431 of 2023 as filed by the petitioners Ram Bharose Shaw and Dhanman Shaw respectively to call for the assessment orders in Form GST DRC 07 along with case records merits no considerations and it is left open to those petitioners to raise the aforesaid pleas in the trial of the case. 7. In considering bail application of a person accused of an offence, neither it is desirable nor is it BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 16 of 30 necessary to weigh the evidence meticulously, rather it is to be considered whether there exists any prima facie materials or accusation against such accused persons and the accused has otherwise made out a case for grant of bail in his favour. It is indisputable that the personal liberty of a person is a priceless treasure and it has been founded on the backdrop of Constitutional right. The sanctity of liberty is the fulcrum of any civilized society and deprivation of liberty of a person has enormous impact on his mind as well as body. The fundamental principle of bail jurisprudence emanates from Article 21 of the Constitution of India which mandates that no person shall be deprived of his life or personal liberty except according to the procedure established by law. In addition, the presumption of innocence is a human right and thereby, liberty of a person should not ordinarily be interfered with, unless there exists cogent grounds and reason therefore and a person should not be deprived of his liberty except for a distinct breach of law. If there is no substantial risk of the accused fleeing from the course of Justice, the BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 17 of 30 fundamental liberty of the person should not be ordinarily curtailed by keeping him in custody for prolong period. The basic rule is to release the accused on bail, unless there are circumstances suggesting the possibility of his fleeing from justice or thwarting the course of justice. It is also undisputed that the paramount object of bail is to secure the appearance of the accused person at the trial by reasonable amount of bail and the object of bail is neither punitive nor preventive and the principle that punishment begins after the conviction. On the other hand, some time necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial, but in such case “necessity is the operative test”. Additionally, the question of prevention of commission of crime being the object of refusal bail, one should not forget that imprisonment before conviction has a substantial punitive content. While considering the bail application either U/S. 437 or 439 of Cr.P.C., the object of bail has to be respected and the principle that bail is the rule, but jail is the BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 18 of 30 exception has to be considered in a pragmatic way, no matter, liberty of an individual is not an absolute rule since exception also flows from Article 21 of the Constitution of India. 8. Bail is undoubtedly a discretionary jurisdiction of the Court in case of non-bailable offence, but there are certain checks and measures while authorizing the detention of a person accused of an offence in custody. Court must indicate brief reasons either for granting or refusing bail, but such reason must not be based on detail examination of evidence and elaborate documentation of the merits of the case, no matter the Court can make some reference to materials on record while considering the bail application. Besides, prolong detention of a person accused of an offence in custody not only frustrates the very object of Article 21 of the Constitution of India, but it also creates an concavity in the mind of sufferer. The pretrial detention would be an irreversible process which cannot be restored ante to the person accused of offence, if he is subsequently found to be innocent of the offences. The discretion as BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 19 of 30 granted to the Court in case of non-bailable offences should be ordinarily be exercised in favour of the person approaching the Court, unless there is prima facie reason for refusing the same. True it is that while considering the bail application of a person accused of economic offences of huge magnitude on prima facie accusation, no liberal approach should be adopted especially when the extent of economic offences runs to more than hundred of crores, but the Courts owe a responsibility to adhere to the fundamental right of personal liberty of a person as guaranteed under Article 21 of the Constitution of India, otherwise the structure built on the very foundation of the personal liberty would crumble, when the accused would be found not guilty of the offence after remaining in custody for the substantial period. Keeping in view the core values of personal liberty, when the present case is tested, it appears that there is allegation of wrongfully availing Input Tax Credit of Rs.316 crores against the petitioners and others. Out of the eight accused persons against whom PR was submitted, the present BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 20 of 30 petitioners are in custody since 06.07.2022. However, the petitioner Niku @ Chhatar Singh was released on interim bail by the order of the learned trial Court and by the order of learned Addl. Sessions Judge for a total period of 81 days and he has surrendered to custody after expiry of interim bail on each occasion. It is also not disputed that the offence alleged against the petitioners is punishable up to five years, meaning thereby, the petitioners can be sentenced to a maximum period of five years in case of their conviction, but it is not sure as to whether the petitioners would be sentenced to the maximum imprisonment, even if on their conviction as the same is the discretion and domain of trial Court which can impose sentence by taking into relevant consideration in this case. As per the report of the learned trial Court and the affidavit filed on behalf of the petitioner Niku @ Chhatar Singh, 13 out of 23 PR witnesses have already been examined in this case, but the trial is yet to be concluded even after one year & nine months of the custody of the petitioners. It is also clarified by the BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 21 of 30 learned counsel for the CT, GST that out of the 10 remaining witness, one has already been expired and the whereabouts of another is not available and 3 out of the remaining 8 witnesses are official witnesses and rest are private witnesses and therefore, how much time would be required to complete the trial is eventually a guess in this situation. 9. In the peculiar facts and circumstances of the situation, especially when the prolong custody of the petitioners which frustrates the right to speedy trial and the maximum punishment that is provided for the offence is five years, out of which one year & nine months has already been suffered by the petitioners as a pretrial detention and taking into account a hypothetical consideration that the personal liberty of the petitioners cannot be restored back if the prosecution fails to bring home the charge against them on the face of the prolong incarceration generally militates against the most precious fundamental right as guaranteed under Article 21 of the Constitution of India and already 13 witnesses having examined in this BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 22 of 30 case and the decision of the case revolves around documentary evidence and thereby, further detention of the petitioners in custody reasonably may not be in the interest of justice. 10. In case of P. Chidambaram Vs. Directorate of Enforcement, (2020) 13 SCC 791, the Apex Court in para-23 has observed as under:- from cumulative perusal of “23. Thus the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 23 of 30 regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial”. Further, the apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation; (2012) 1 SCC 40, at paragraphs-21 to 24 has held as under: In bail applications, generally, it has been “21. laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 24 of 30 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to some unconvicted persons should be held in custody pending trial to secure their attendance at the trial time, necessity demands that in liberty, save but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at the most extraordinary circumstances. 23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. In the instant case, we have already 24. noticed that the "pointing finger of accusation" against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 25 of 30 is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice." 11. One of the important tests for grant or refusal of bail is the tripod test which prescribes three tests; (i) whether the accused poses a flight risk? (ii) whether the accused is capable of influencing prosecution witnesses and lastly (iii) whether the accused is capable of tampering prosecution evidence? In this case, the petitioners appears to be resident of different place of Sundargarh District and their apprehension of posing flight risk can be curtailed by imposing appropriate conditions by directing them to surrender Passport or in the event, they are not having any Passport, they may be asked to file an affidavit before the trial Court. Additionally, the petitioner Niku @ Chhatar Singh having surrendered to custody on earlier occasions after expiry of interim bail granted to him also indicative of his not posing any flight risk to some extent. Further, examination of 13 witnesses without BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 26 of 30 any adverse report against the petitioners for tampering their evidence, the apprehension of tampering of evidence can be prima facie ruled out at this stage. Similarly, prosecution report having already been submitted, there is hardly any question of influencing witnesses by the petitioners. Further, the grant of bail to an accused pending trial should not be confused with his acquittal of the criminal charges, which is of course to be decided by the criminal Court on appreciation of evidence tendered by the witnesses on conclusion of trial, but grant of bail to an accused is a process of transfer of custody of accused from the custody of law to the custody of surety on certain terms and conditions and the surety certainly has a duty to ensure appearance of the accused before the trial Court till conclusion of trial. 12. In view of the undisputed logical sequitur of the discussions made hereinabove on the face of conspectus of materials placed on record including the long pretrial detention of the individual petitioners, which have punitive content, vis-(cid:224)-vis the maximum BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 27 of 30 punishment prescribed for the offence alleged against the petitioners being not beyond five years, this Court is persuaded to take a lenient view in favour of the personal liberty of the petitioners to exercise its discretion to grant bail to the petitioners. 13. Hence, the bail applications of the petitioners stand allowed and the petitioners namely Subash Kandulna, Chhatar Singh @ Niku Singh, Ram Bharose Shaw and Dhanman Shaw are allowed to go on bail on furnishing an unencumbered property surety of Rs.50,00,000/- (Rupees Fifty Lakhs) each, in addition to bail bonds in the sum of Rs.5,00,000/- (Rupees Five Lakhs) each with two solvent sureties for the like amount to the satisfaction of the learned Court in seisin of the case, on such terms and conditions as deem fit and proper by it with following conditions:- (i) the petitioners shall not commit any offence while on bail, fail unless (ii) the petitioners in the course of trial shall attend the trial Court on each date of posting their attendance are without dispensed with. In case the Petitioners fail without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 28 of 30 the Petitioners against for offence U/S.229-A of IPC in accordance with law and the petitioners shall not (iii) the jurisdiction of the trial Court without prior permission till disposal of the case by giving their present address of stay. leave providing (iv) the petitioners shall inform the Court as well as the concerned GST Office at Rourkela as to their places of residence during the trial by number(s), residential address, e-mail, if any, and other in support of proof of their documents residence. The petitioners shall not change their address of residence without intimating to the Court and GST Office, their mobile (v) in case the petitioners misuses the liberty of bail and in order to secure their presence, proclamation U/S.82 of Cr.P.C. is issued and the petitioners fail to appear before the Court on the date fixed in such proclamation, then, the learned trial Court is at liberty to initiate proceeding against them for offence U/S.174-A of the IPC in accordance with law. the shall (vi) the petitioners shall appear before the GST Office at Rourkela as and when required and further cooperate with investigation in the present case. (vii) the petitioners shall surrender their passports, if any, in the Court in seisin of the case till conclusion of trial, unless they are permitted to take back such passports to use for specific purpose during the pendency of the case and in case, the petitioner(s) is/are not having any passport, he/they shall file an affidavit before the trial Court indicating the same. BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 29 of 30 It is clarified that the Court in seisin of the case will be at liberty to cancel the bail of the petitioners without further reference to this Court, if any of the above conditions are violated or a case for cancellation of bail is otherwise made out. In the wake of aforesaid, the subsequent involvement of the petitioners in future for similar type of offences on prima facie accusations may be treated as a ground for cancellation of bail in this case. 14. Accordingly, the BLAPL Nos.13103, 10652, 11209
Arguments
Mr.R.P.Kar, learned Senior Counsel appearing for petitioners Ram Bharose Shaw in BLAPL No. 11209 of 2023 and Dhanman Shaw in BLAPL No. 11210 of 2023 by taking this Court through the averments made in I.A. No. 1430 of 2023 and I.A. No. 1431 of 2023 has submitted and prayed to call for the assessment orders in Form GST DRC 07 along with its annexures as well as assessment case records of the 17 & 18 numbers of so called business entities respectively on the ground that BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 7 of 30 the allegation against the petitioners Ram Bharose Shaw and Dhanman Shaw about wrongfully availing Input Tax Credit (ITC) without physical receipt and supply of goods to aforesaid business entities which were claimed to be ghost and non-existence are unfounded and misconceived since the aforesaid business entities are registered person/traders under OGST Act and they have been assessed under the provisions of OGST Act where tax demands under OGST and CGST Acts have been made along with levy of penalty and interest under the provisions of the GST Act and therefore, the allegations against the petitioners are false. Mr. Kar, however, has further submitted that since trial having commenced after submission of PR which thereby is suggestive of no custodial interrogation being required, further incarceration of the petitioners would be unnecessary merely on the ground that the offence alleged against the petitioners is economic offence. It is further submitted by him that the punishment prescribed for the offence is five years and the petitioners having BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 8 of 30 already been in custody for one and half years, no fruitful purpose would be served by keeping the petitioners in custody further. It is also submitted that since the witnesses appearing against the petitioners are official witnesses, it can safely be said that the prosecution evidence cannot be tampered with. Mr. Kar has also submitted that in this aforesaid situation, the petitioners can be considered to have satisfied the tripod test for being not posing flight risk as well as being not in a position to tamper prosecution evidence and the PR having already been submitted, there is no question of tampering the witnesses. In summing up his argument, Mr. Kar has prayed to grant bail to the petitioners. Further, learned counsel for the petitioners Ram Bharose Shaw and Dhanman Shaw by filing an affidavit has made a clear statement that no bail application of the petitioners is pending before any other forum. 4.1. Mr. Biswajit Nayak, learned counsel appearing for the petitioner in BLAPL No. 10652 of 2023 has submitted that although there is an allegation against BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 9 of 30 the petitioner and other co-accused persons to have wrongfully availed ITC and defrauded the Government for a sum of Rs.316.33 Crores by creating 18 numbers of ghosts and non-existence of business entities, but the allegation having brought only to keep the petitioner behind the bar and the offence alleged against the petitioner being punishable up to five years, there would not be any reasoning to keep the petitioner in custody further, especially when the petitioners have already undergone imprisonment for a period of one and half years and the witnesses likely to be examined in this case are mostly official witnesses and the charge sought to be proved against the petitioners is mainly dependant on documentary evidence which cannot be tampered with by the petitioners and therefore, the petitioners may kindly be granted bail. Moreover, Mr.B.Nayak, learned counsel for the petitioner Niku @ Chhatar Singh by filing an affidavit has made a clear statement that no bail application of the petitioner is pending before any other forum. BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 10 of 30 4.2. Mr. Pramod Kumar Mishra, learned counsel appearing for the petitioner in BLAPL No.13103 of 2023 while reiterating the submissions advanced for rest of the petitioners has further submitted that trial having already commenced with examination of 13 witnesses after charge and 10 witnesses before charge, no fruitful purpose would be served by keeping the petitioner in custody any further, especially when the petitioners have already spent one and half years in custody pending trial and such custody of the petitioners being violative of their right to speedy trial, they could have been released on bail. In summing up his argument, Mr. Mishra has prayed to allow the bail application of the petitioners. 5. Mr. Sunil Mishra, learned counsel appearing for CT-GST has submitted that there is no need to call for the assessment orders in Form GST DRC 07 along with its Annexures as well as the assessment case records of the business entities as prayed for by the petitioners Dhanman Shaw and Ram Bharose Shaw, since the trial is in full swing and witnesses have already been BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 11 of 30 examined in this case and in particular, when it is to be seen from the record as to whether there exists any
Decision
& 11210 of 2023 stand disposed of. Judge (G. Satapathy) Orissa High Court, Cuttack, Dated the 27th day of March, 2024/Kishore Signature Not Verified Digitally Signed Signed by: KISHORE KUMAR SAHOO Designation: Secretary Reason: Authentication Location: High Court of Orissa Date: 28-Mar-2024 10:35:12 BLAPL Nos.13103, 10652, 11209 & 11210 of 2023 Page 30 of 30