AMITKUMAR HASMUKHLAL TAKKAR Versus State of Gujarat>2018(12)LCX0026

2018(12)LCX0026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

HONOURABLE MR.JUSTICE A.Y. KOGJE

AMITKUMAR HASMUKHLAL TAKKAR

Versus

State of Gujarat

R/CRIMINAL MISC.APPLICATION NO. 22332 of 2018 decided on 20/12/2018

Advocated By -

MR YS LAKHANI, SENIOR ADVOCATE assisted by M/S.DIGANT B KAKKAD and SURAJ A SHUKLA for the PETITIONER(s)
MR MITESH AMIN, PUBLIC PROSECUTOR(2) for the RESPONDENT(s)

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with order dated 22.10.2018 bearing No.AC/U-26/ARREST/2018-19/B by the Assistant Commissioner of State Tax, Himmatnagar for offence under Section 132(1)(i) of the Central Goods and Sales Tax Act, 2017.

2. Learned Senior Advocate appearing on behalf of the applicants submits that considering the nature of the offence, the applicants may be enlarged on regular bail by imposing suitable conditions.

2.1 It is submitted that the applicants were, even prior to arrest, summoned on several occasions and they have complied with and cooperated with investigation by producing to the investigating agency the entire record of their firm. It is submitted that no further investigation is pending qua the applicants and therefore, no useful purpose will be served in detaining the applicants behind bars.

2.2 It is submitted that the brokerage firm of the applicants is liable for only service tax, which the applicants have regularly paid.

2.3 It is submitted that maximum sentence that can be imposed for the offence is five years.

3. Learned Public Prosecutor appearing on behalf of the respondent-State has opposed grant of regular bail looking to the nature and gravity of the offence.

3.1 It is submitted that the offence is wide-spread and the magnitude is of transaction worth more than Rs.400/- crores. It is submitted that the investigation is complicated one and involves more than 98 companies /firms. It is submitted that prima facie, evidence is found against the applicants and therefore, complaint under the provisions of GST Act is already filed against the applicants.

4. I have heard the learned Advocates appearing on behalf of the respective parties and perused the papers.

4.1 The Court has considered that the applicants were running brokerage agency and allegations against the applicants are that the applicants used to generate purchase orders for commodity from out of State and the commodity never reached the applicants or their principals, but was disposed of in gray market without being assessed for GST.

4.2 The investigating agency has found the brokerage agency of the applicants indulging in creating fake purchase orders by using seals and letters-pads of various companies, perhaps for whom the applicants were acting as brokers.

4.3 Insofar as revenue is concerned, provisions of the GST Act are sufficient to initiate proceedings for assessment and recovery of the same.

5. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in [2012]1 SCC 40.

6. Learned Advocates appearing on behalf of the respective parties do not press for further reasoned order.

7. In the facts and circumstances of the case and considering the nature of the allegations made against the applicants in the FIR, without discussing the evidence in detail, prima facie, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicants on regular bail.

8. Hence, the present application is allowed. The applicants are ordered to be released on regular bail in connection with order dated 22.10.2018 bearing No.AC/U26/ARREST/2018-19/B by the Assistant Commissioner of State Tax, Himmatnagar, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) each with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that they shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave India without prior permission of the Sessions Judge concerned;

[e] shall state out of Gujarat for a period of six months, however, remain present before the investigating agency as and when called for. During their stay out of Gujarat, shall furnish address details and contact numbers to the IO;

[f] mark presence before the concerned Police Station on alternate Monday of every English calendar month for a period of six months between 11:00 a.m. and 2:00 p.m.;

[g] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;

9. The authorities will release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter.

10. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions, in accordance with law.

11. At the trial, the trial Court shall not be influenced by the observations of preliminary nature qua the evidence at this stage made by this Court while enlarging the applicants on bail.

12. Rule is made absolute to the aforesaid extent.

Direct service is permitted.