Judgment
BAIL APPL. NO. 5547 OF 2024 1 2024:KER:59591 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS WEDNESDAY, THE 7TH DAY OF AUGUST 2024 / 16TH SRAVANA, 1946 BAIL APPL. NO. 5547 OF 2024 CRIME NO.00/2024 OF KADAVANTHRA POLICE STATION, ERNAKULAM AGAINST THE ORDER/JUDGMENT DATED 27.06.2024 IN CRMC NO.1910 OF 2024 OF DISTRICT COURT & SESSIONS COURT, ERNAKULAM ARISING OUT OF THE ORDER/JUDGMENT DATED 14.06.2024 IN CMP NO.2846 OF 2024 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE (E&O),ERNAKULAM PETITIONER:
USMAN PULAKKAL, AGED 37 YEARS S/O MOITHEEN, PULAKKAL HOUSE, ONGALLUR, KONDOORKARA, PATTAMBI, PALAKKAD, KERALA, INDIA., PIN - 679303 BY ADVS.
Dheeraj Krishnan Perot FIDHA NAVAS(K/002215/2022) VINEETHA A.A.(K/000588/2023) RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM., PIN - 682031 2 THE INTELLIGENCE OFFICER, INTELLIGENCE UNIT – VI, KERALA STATE GST DEPARTMENT, SGST COMPLEX, THEVARA, ERNAKULAM DISTRICT., PIN - 682015 OTHER PRESENT:
SPCL PP SRI MOHAMMED RAFEEK THIS BAIL APPLICATION HAVING COME UP FOR ADMISSION ON 07.08.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BAIL APPL. NO. 5547 OF 2024 2 2024:KER:59591 ORDER
This application has been filed under Sec.439 of the Code of Criminal Procedure by the sole accused in file No.
EKMIU6/INT-26/2024-25 of the Kerala State Goods and Services Tax Department, Ernakulam which is registered against him for allegedly committing the offence punishable under Sec.132(1)(i) of the Central and State GST Act, 2017.
The petitioner was arrested and remanded to judicial custody on 06.06.2024.
2.
The crux of the prosecution case is that; the accused had obtained fake registration certificates in the names of several persons for the purpose of claiming input tax credit and evaded tax to the tune of Rs.15.91/- crore. Thus, he has committed the above offence under Sec.132(1)(i) of the Central and State GST Act, 2017.
3. Heard; Sri.Dheeraj Krishnan, learned counsel appearing for the petitioner and Sri.Mohammed Rafeek, learned Special Public Prosecutor.
4. The learned counsel for the petitioner submitted that the petitioner is totally innocent of the accusations
BAIL APPL. NO. 5547 OF 2024 3 2024:KER:59591 levelled against him. There is no material to substantiate that the petitioner has committed the above offence. The petitioner has been in judicial custody for the last 61 days, the investigation in the case is not complete and the final report has not been laid. The offence alleged against the petitioner is punishable up to a period of five years. Therefore, the petitioner is entitled to be enlarged on compulsive bail. Hence, the application may be allowed.
5. The learned Special Public Prosecutor opposed the application. The Investigating Officer has filed a Bail Objection Report, interalia, contending that there are incriminating materials to substantiate that the the petitioner has committed the above offence. If the petitioner is enlarged on bail, there is every likelihood of him tampering with the evidence and intimidating the witnesses. Hence, the application may be dismissed. Nonetheless, he did not dispute the fact that the petitioner has been in judicial custody for the last more than 60 days, the investigation of the case is not complete and the final report has not been laid.
6.
The prosecution allegation against the
BAIL APPL. NO. 5547 OF 2024 4 2024:KER:59591 petitioner is that he had fabricated registration certificates and claimed inadmissible input tax credit to evade payment of GST to the tune of Rs.15.91/- crore. Thus, the accused has committed the offence under Sec.132(1)(i) of the Central and State GST Act, 2017. The fact remains that the petitioner has been in judicial custody for the last 61 days, the offence alleged against the petitioner is punishable for a period of up to five years, investigation is not complete and the final report has not been laid.
7. Subsections (1) and (2) of Section 167 of the Code of Criminal Procedure, 1973 reads as follows:- 167. Procedure when investigation cannot be completed in twenty-four hours.
—(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by section 57, and there are grounds for believing that the accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused
BAIL APPL. NO. 5547 OF 2024 5 2024:KER:59591 person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: Provided that— 2 [(a) the Magistrate may authorise the detention of the accused person, otherwise than in custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding— (i) ninety days, where the investigation relates to an offence
punishable
with
death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;]
8. A three-Judge Bench of the Honourable Supreme Court in Uday Mohanlal Acharya v. State of Maharashtra
BAIL APPL. NO. 5547 OF 2024 6 2024:KER:59591 [(2001) 5 SCC 453], reiterated the legal proposition in Sanjay Dutt v. State through C.B.I., Bombay (supra). In paragraph 13 (3) it was opined thus:
"13. x x x x x x (3) On the expiry of the said period of 90 days or 60 days, as the case may be, an indefeasible right accrues in favour of the accused for being released on bail on account of default by the investigating agency in the completion of the investigation within the period prescribed and the accused is entitled to be released on bail, if he is prepared to and furnishes the bail as directed by the Magistrate.” (emphasis added).
9.
In the instant case, as the petitioner has been under judicial custody for the last 61 days, the investigation is not complete and the final report has not been laid, I am convinced that the petitioner is entitled to be released on statutory bail, since it is his indefeasible right under Sec.167(2) of the Code.
10.
In the result, the application is allowed, by directing the petitioner to be released on bail on him executing a bond for Rs.1,00,000/- (Rupees One lakh only) with two solvent sureties each for the like sum, to the
BAIL APPL. NO. 5547 OF 2024 7 2024:KER:59591 satisfaction of the court having jurisdiction, which shall be subject to the following conditions:
(i) The petitioner shall appear before the Investigating Officer on every Saturday between 9 a.m. and 11 a.m till the final report is laid. He shall also appear before the Investigating Officer as and when required;
(ii) The petitioner shall not directly or indirectly make any inducement, threat or procure to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any Police Officer or tamper with the evidence in any manner, whatsoever;
(iii)The petitioner shall not commit any offence while he is on bail;
(iv) The petitioner shall surrender his passport, if any, before the court below at the time of execution of the bond. If he has no passport, he shall file an affidavit to the effect before the court below on the date of execution of the bond;
(v) In case of violation of any of the conditions mentioned above, the jurisdictional court shall be empowered to consider the application for cancellation of bail, if any filed,
BAIL APPL. NO. 5547 OF 2024 8 2024:KER:59591 and pass orders on the same, in accordance with law.
(vi) Applications for deletion/modification of the bail conditions shall be moved and entertained by the court below.
(vii) Needless to mention, it would be well within the powers of the Investigating Officer to investigate the matter and, if necessary, to effect recoveries on the information, if any, given by the petitioner even while the petitioner is on bail as laid down by the Hon'ble Supreme Court in Sushila Aggarwal v.
State (NCT of Delhi) and Another [2020 (1) KHC 663].
sd/- C.S.DIAS JUDGE Nsd
BAIL APPL. NO. 5547 OF 2024 9 2024:KER:59591 APPENDIX OF BAIL APPL. 5547/2024 PETITIONER ANNEXURES Annexure A1 THE TRUE COPY OF THE FIR IN CRIME NO.
219/2024 OF INFOPARK POLICE STATION Annexure A2 THE TRUE COPY OF THE REGISTRATION CERTIFICATE DATED 06/12/2022 ISSUED BY THE SUPERINTENDENT, COMMERCIAL TAX OFFICE, PATTAMBI, KERALA Annexure A3 THE TRUE COPY OF INPUT TAX CREDIT AVAILABLE TO THE PETITIONER AS PER FORM GSTR - 2B IN THE GST PORTAL FOR THE YEAR 2020-2021 Annexure A4 THE TRUE COPY OF INPUT TAX CREDIT AVAILABLE TO THE PETITIONER AS PER FORM GSTR - 2B IN THE GST PORTAL FOR THE YEAR 2021-2022 Annexure A5 THE TRUE COPY OF INPUT TAX CREDIT AVAILABLE TO THE PETITIONER AS PER FORM GSTR - 2B IN THE GST PORTAL FOR THE YEAR 2022-2023 Annexure A6 THE TRUE COPY OF INPUT TAX CREDIT AVAILABLE TO THE PETITIONER AS PER FORM GSTR - 2B IN THE GST PORTAL FOR THE YEAR 2023-2024 Annexure A7 THE TRUE COPY OF THE ARREST MEMO DATED 06/06/2024 BEARING NO. EKMIU6/INT-26/2024-25 ISSUED BY THE 2ND RESPONDENT Annexure A8 THE TRUE COPY OF THE RETURN IN FORM GSTR – 3B FOR THE YEAR 2020-2021 AND 2023- 2024 ALONG WITH MONTHLY ABSTRACT Annexure A9 THE TRUE COPY OF THE ANNUAL RETURN IN FORM GSTR – 9 FOR THE YEAR 2021-2022 AND 2022-2023.
Annexure A10 THE TRUE COPY OF THE SUMMONS DATED 26/06/2024 ISSUED BY THE 2ND RESPONDENT ALLEGEDLY ISSUED TO THE PETITIONER.
Annexure A11 THE TRUE COPY OF THE ORDER DATED 14/06/2024
BAIL APPL. NO. 5547 OF 2024 10 2024:KER:59591 IN C.M.P NO. 2846/2024 PASSED BY THE ADDITIONAL CHIEF JUDICIAL MAGISTRATE (ECONOMIC OFFENCES) COURT, ERNAKULAM.
Annexure A12 THE TRUE COPY OF THE ORDER DATED 27/06/2024 IN CRL. M.C. NO.1910/2024 PASSED BY THE SESSIONS COURT, ERNAKULAM.