Mayurkumar Jaysukhlal Gohel vs. The Union Of INDIA And Anr
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The applicant, Mayurkumar Jaysukhlal Gohel, was granted bail by the JMFC Belapur, Vashi, on January 19, 2023. A condition of the bail was that he surrender his passport and not leave the country without court permission. The applicant claims to have complied with all bail conditions. He sought permission to travel to Dubai for business and family reasons, stating his wife and minor son reside there and he conducts business in Dubai. He filed an application before the trial magistrate seeking return of his passport and permission to travel between March 1, 2023, and March 15, 2023. The trial magistrate rejected this application on March 6, 2023. The applicant appealed this rejection to the High Court, arguing that the right to travel abroad is a fundamental right. The respondents opposed the application, citing the seriousness of the allegations (issuance of invoices without goods supply, availing input tax credit of Rs. 18.79 Crores), alleged non-cooperation, and non-attendance of summonses. They also highlighted that they had filed an application for cancellation of the applicant's bail before the Sessions Court.
Held
The High Court dismissed the applicant's request for permission to travel abroad at this stage. The Court refrained from making any observations on the contentious issues, including the applicant's entitlement to travel abroad or the possession of his passport. The primary reason for rejecting the request was the pendency of the bail cancellation application filed by the department before the Sessions Court. The Court reasoned that the outcome of the bail cancellation application was uncertain and could potentially lead to the applicant being taken into custody, which would complicate the implementation of any order allowing him to travel abroad. Therefore, the Court deemed it improper to consider the travel request while the bail cancellation application was pending. The Court clarified that its observations would not prejudice either party. The applicant was granted liberty to move again if the bail cancellation application was rejected. The Court also directed that the hearing of the bail cancellation application should be taken up on priority by the Sessions Court.
Key Issues
1. Whether the applicant is entitled to permission to travel abroad, considering his fundamental right to personal life and liberty, and the circumstances of his bail. 2. Whether the applicant's passport was indeed surrendered to the department at the time of his arrest, as claimed by the applicant, or if this is disputed by the respondent. Contentions of the Applicant: The applicant argued that the right to travel abroad is a fundamental right related to personal life and liberty, relying on judgments such as Paravez Noordin Lokhandwalla Vs. State of Maharashtra, Satish Chandra Verma Vs. Union of India, Jitsingh Kalirai, Asstt. Collr. Of C. Ex. Vs. Kulbir Singh Ahuja, and Shawn Anthony Mendonca Vs. State of Maharashtra. He also submitted correspondence to show his cooperation with the department. Contentions of the Respondent: The respondent opposed the application, citing the seriousness of the allegations involving a significant amount of input tax credit. They contended that the applicant had not cooperated and had failed to attend summonses. Furthermore, they pointed out that an application for cancellation of the applicant's bail was pending before the Sessions Court, and the outcome of that application was uncertain. They also disputed the applicant's claim that his passport was in the custody of the department.
AI-generated summary — verify with the full judgment below
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ***** Mr. Vikram Sutaria a/w Mr. Agastya Desai - Advocate for the Applicant Mr. Y. Y. Dabke- APP for the Respondent-State J. B. Mishra a/w Ram Ochani - Advocate for the Respondent No. 1 ***** CORAM : S. M. MODAK, J. DATE : 05th APRIL, 2023 P. C. :-
Heard learned Advocate for the Applicant-accused and learned Advocate for the Respondent.
The present Applicant is released on bail by the Court of the 11th Joint CJJD and JMFC Belapur, Vashi as per Order dated 19/01/2023. There is an allegation that the present Applicant through his Company namely M/s. Euphoria Technologies Private Limited, has indulged into issuance of the invoices without actual supply of the goods and availed benefit of the input tax credit to tune of Rs. 18.79 Crores. Seema 1/7 SEEMA KSHITIJ YELKAR KSHITIJ YELKAR Date: 2023.04.12 15:42:10 +0530
After hearing both the sides, the Court was pleased to grant bail to the Applicant. One of the condition is as follows:- “The Applicant will surrender his passport in the present court and shall not leave the Country without prior permission of this Court.”
The Applicant claims that he has complied with all the conditions imposed by the trial magistrate. The Applicant intends to travel to Dubai for business reason and for fulfilling his family commitments as his minor son and his wife are residing in Dubai. Whereas the Applicant is doing business in the Dubai and his company possesses a commercial license as per laws of that country. The Applicant and his minor son possessed the visa. The VISA granted to his minor son has expired on 08/03/2023 page no. 109. Whereas VISA granted to the Applicant expired on 18/01/2023 page no. 108. Various documents are annexed to show running business by the Applicant in Dubai.
My attention is invited to the observations made by the trial Magistrate in the order dated 06/03/2023. Said order is passed on the application of the present Applicant. He made following Seema 2/7 requests:- (i) To return the passport of the Applicant and (ii)Grant him permission to travel to Dubai from 01/03/2023 to 15/03/2023. 6. The trial Magistrate rejected request as per above said order. It is submitted that right to travel abroad is fundamental right relating to personal life and liberty. In support of said contention learned Advocate relied upon the following judgments:- (i) In order to rebut the contention of non co-operation of the Respondent, learned Advocate for the Applicant submitted that his client has co-operated and the correspondence made on his behalf is tendered. It is dated 11/03/2023, it is taken on record and marked as ‘Annexure-X’. 1 2020 10 SCC 77 2 2019 SCC Online SC 2048 3 1989 SCC Online Bom 487 4 2019 SCC Online Bom 9175 Seema 3/7
There is opposition to the grant of prayers on behalf of the learned Advocate for the Respondent. Affidavit-in-reply is taken on record. Various contentions are raised including seriousness of the allegation, non co-operation given by the Applicant and not attending various summonses issued (mentioned para no. 26 of the reply). Even visiting India during relevant period and not co- 2022 decided on 22/06/2022 by this Court.
Apart from the issue about entitlement to travel abroad, Seema 4/7 the other contentious issue is about possession of the passport. The Applicant claims that at the time of his arrest the department has taken into possession of his passport. This is disputed on behalf of the Respondent. My attention is invited to the pleadings in para no. 3 of the application made before the trial court. It is mentioned that the Applicant has already complied with the terms relating to surrender of the passport and reliance is placed on the copy of the acknowledgment annexed at Exh. ‘c’ of that application. The said annexure is on page no. 45 of the present Application. This is titled as application for production of documents. It relates to furnishing bank guarantee and other documents as directed by the trial Magistrate. While granting him bail, one of the averment is about possession of the passport. According to the Applicant, there are two passports and they are in the custody of the department Belapur from the date of arrest. Whereas learned Advocate for the Respondent invited my attention to the reply filed by them before the trial magistrate wherein they have denied that allegations. It is there in para no. H, page no. 102. 11. It is true that learned Magistrate has not made any observations about this contentious issue as who is possessing the Seema 5/7 passport. At this stage, I am refraining myself from making any observations on that disputed issue. The reason is I am not accepting the request for grant him permission to go abroad. I am rejecting the request only for one reason that the application filed by the department for cancellation of the bail is pending before the Court of the Sessions. One does not know what will be the order passed by that Court. Either that application may be rejected or it may be allowed. If that application is allowed then there will be difficulties in implementing that order because it results into taking Applicant into custody. So as long as that application is pending, I do not deem it proper to consider the request.
Hence I am refraining myself to make any observations about the contentions raised on behalf of both the sides. It is made clear that the Court of the Additional Sessions Judge seized of that application may decide that application as per its own merits. I do not think that the observations made herein will cause any prejudice to the Applicant or may favour the department. It is because this Court has not made any observations about the entitlement to travel abroad or even not made any observations as bail is required to be cancelled. Seema 6/7
With these observations, application is rejected at this stage.
The Applicant is at liberty to move again if application for cancellation of bail is rejected. It is made clear that when this Court has rejected the application to travel abroad, it is expected that hearing of that application needs to be taken on priority basis.
Let the Respondent to prosecute that application punctually and the Applicant may request that Court to hear that application as early as possible.
[S. M. MODAK, J.] Seema 7/7
Reproduced from the public record of the Bombay High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.