Allahabad High Court
Vishal Gupta vs Union Of India And Another on 11 October, 2023
Author: Sanjay Kumar Pachori
Bench: Sanjay Kumar Pachori
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:195953 Court No. - 83 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43453 of 2023 Applicant :- Vishal Gupta Opposite Party :- Union Of India And Another Counsel for Applicant :- Abhinav Gaur,Sr. Advocate Counsel for Opposite Party :- Parv Agarwal Hon'ble Sanjay Kumar Pachori,J.
1. Heard Shri Anoop Trivedi, learned Senior Counsel assisted by Sri Abhinav Gaur, learned counsel for the applicant and Shri Parv Agarwal, learned counsel for the opposite party nos. 1 and 2 and perused the material on record.
2. Present Bail Application has been filed on behalf of the applicant Vishal Gupta under Section 439 of the Code of Criminal Procedure, with a prayer to release him on bail in Case No. 2143 of 2020 for offence punishable under Sections 132(1)(b), 132(1)(c), 132(1)(i), of the Central Goods and Service Tax Act, 2017, Department DGGI, Meerut, during pendency of the trial, after rejecting the bail application of the applicant by Special Judge (Anti Corruption Act)/ Additional Sessions Judge, Meerut vide order dated 25.10.2021
3. Learned counsel for the applicant submits that the applicant is innocent and has been falsely implicated in the present case. It is further submitted that the applicant has been arrested without assigning any reason to believe nor any satisfaction to justified his arrest as provided in the Code. It is further submitted that offences as alleged are punishable up-to 5 years imprisonment. It is further submitted that no notice for recovery of G.S.T. has been issued against the applicant and he is illegally arrested. It is further submitted that till date penalty or taxes has not been ascertained as per Act. It is further submitted that the offences are compoundable in nature and triable by Magistrate. The applicant is on interim bail since 26.5.2021. In support of his submission, he relied upon the judgment of Apex Court in Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2021) 10 SCC 773.
4. Learned counsel for the applicant further submits that the applicant is in the custody till today and he has appeared before the trial court on every date as per definition of word custody as defined in Black's Law Dictionary, (5th Edn. 2009)
5. In Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623, the Hon'ble Supreme Court discussed the meaning of the word ''custody' in the following words: -
"8. ...CrPC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. ... We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well-established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Sessions Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word "custody" the same or closely similar meaning and content as arrest or detention....
Meaning of custody
9. Unfortunately, the terms "custody", "detention" or "arrest" have not been defined in CrPC, and we must resort to few dictionaries to appreciate their contours in ordinary and legal parlance:
9.1. Oxford Dictionary (online) defines "custody" as imprisonment, detention, confinement, incarceration, internment, captivity; remand, duress, and durance.
9.2. Cambridge Dictionary (online) explains "custody" as the state of being kept in prison, especially while waiting to go to court for trial.
(emphasis supplied) 9.3. Longman Dictionary (online) defines "custody" as "when someone is kept in prison until they go to court, because the police think they have committed a crime".
9.4. Chambers Dictionary (online) clarifies that custody is "the condition of being held by the police; arrest or imprisonment; to take someone into custody to arrest them".
9.5. Chambers' Thesaurus supplies several synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration.
9.6. Collins Cobuild English Dictionary for Advance Learners states in terms that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court or if someone is being held in a particular type of custody, they are being kept in a place that is similar to a prison.
9.7. Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us.
9.8. Corpus Juris Secundum under the topic of "Escape & Related Offenses; Rescue" adumbrates that "custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over another to confine the other person within certain physical limits or a restriction of ability or freedom of movement."
9.9. This is how "custody" is dealt with in Black's Law Dictionary, (5th Edn. 2009):
"Custody.--The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority.
The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term ''custody' within statute requiring that petitioner be ''in custody' to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. US ex rel Wirtz v. Sheehan 319 F Sup 146. Accordingly, persons on probation or released on own recognizance have been held to be ''in custody' for purposes of habeas corpus proceedings."
6. Per contra, learned counsel for opposite party nos. 1 and 2 has supported the order passed by the Session court and vehemently opposed the prayer for grant of bail to the applicant and submits that the allegations involved are very serious in nature. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he will again indulge in similar activities and will misuse the liberty of bail.
7. After considering the facts of the present case it prima facie appears that;
(a) The applicant has been arrested without assigning any reason to believe nor any satisfaction to justified his arrest as provided in the Act;
(b) Offences as alleged are punishable up-to 5 years imprisonment;
(c) No notice for recovery of G.S.T. has been issued against the applicant and he is illegally arrested;
(d) Till date penalty or taxes has not been ascertained as per Act;
(e) Offences are compoundable in nature and triable by Magistrate;
8. It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.
9. Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.
10. Let applicant, Vishal Gupta be released on bail in the aforesaid case crime number on his furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:
(i) The applicant shall not directly or indirectly make any inducement, threat, or promise 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.
(ii) The applicant shall not pressurize/intimidate the prosecution witnesses.
(iii) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.
(iv) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.
(v) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel.
(vi) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
11. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. If in the opinion of the trial court that absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.
12. The trial court may make all possible efforts/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, if there is no other legal impediment.
13. It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
14. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant along-with a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
15. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 11.10.2023 Ishan