Gujarat High Court
Ashok Amritlal Jain vs State Of Gujarat on 5 May, 2017
Author: N.V.Anjaria
Bench: N.V.Anjaria
R/CR.MA/367/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR ANTICIPATORY BAIL ) NO. 367 of
2017
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ASHOK AMRITLAL JAIN....Applicant(s)
Versus
STATE OF GUJARAT....Respondent(s)
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Appearance:
MR ND NANAVATY, SR ADVOCATE WITH MR PRAVIN GONDALIYA,
ADVOCATE for the Applicant(s) No. 1
MR MITESH AMIN, LD. PUBLIC PROSECUTOR WITH MR RUTVIJ OZA, APP
for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 05/05/2017
ORAL ORDER
Rule, returnable forthwith. Learned Additional Public Prosecutor Mr.Rutvij Oza waives service of Rule on behalf of the respondent-State. In the facts and circumstances of the case, the application was taken up for final consideration today.
2. It is in connection with the First Information Report bearing Crime Register No.I-04 of 2016 registered with Ahmedabad West Zone Police Station on 11th March, 2016 against the present applicant-accused for the offences under Sections 406, 420, 467, 468, 471, 474, 120B and 409 of the Indian Penal Code, 1860, as well as offence under Sections Page 1 of 9 HC-NIC Page 1 of 9 Created On Sat May 06 02:16:05 IST 2017 R/CR.MA/367/2017 ORDER 85(1)(b),(c),(f),(g), 85(2)(g), 85(4) and 85(6) of the Gujarat Value Added Tax Act, that this application under Section 438 of the Code of Criminal Procedure, 1973 is presented by the applicant.
3. The First Information Report was filed by the Commercial Tax Officer, Ahmedabad for the aforesaid offences. It is alleged in the F.I.R. that the present applicant who is shown as accused NO.25, along with other accused persons, entered into a criminal conspiracy to sell the products related to Pan Masala and Tobacco by projecting that the said products are sold outside the State of Gujarat but actually they were sold, as per the allegations, within the State of Gujarat. It is alleged that by such modus, the payment of tax was evaded. The products were sold by allegedly misusing the sales tax forms and by using false documents. It is stated that the firm of the present applicant procured refund of Rs.01,29,33,830/- and the company of the son of the applicant also procured refund to the tune of more than Rs.03.00 crores.
3.1 It is alleged that with a view to evade the tax, the present applicant had along with his son intentionally opened two different firms namely Vinayak Trexim and A.V.K. Marketing Private Limited; though he was not engaged in any business of purchasing and selling Pan Masala etc., he got various bills from one Samay Sales and later procured refund of taxes that were paid at the time of the said purchase. It is alleged that the present applicant Page 2 of 9 HC-NIC Page 2 of 9 Created On Sat May 06 02:16:05 IST 2017 R/CR.MA/367/2017 ORDER pretended as if he sold the said materials to the several vendors of Delhi against C-Form. It is further alleged that though the applicant is well aware that all that bills and documents are fabricated and has not done any business transactions, the applicant pretended as if he has sold the said materials to the forged firms at Delhi and has portrayed that as if he has purchased the said materials against 25% tax, he has falsely presented himself to be liable to get 23% refund on such tax by showing that he is liable to pay 2% tax on such inter-state sell. It is alleged that the applicant caused major loss to the government by getting the benefit of Rs.03,83,84,618/- in the name of A.V.K. Marketing Private Limited and Rs.01,29,33,830/- in the name of Vinayak Trexim by submitting such forged and fabricated documents before the government authorities.
4. Heard learned senior counsel Mr.N.D. Nanavaty with learned advocate Mr.Pravin Gondaliya for the applicant and learned Additional Public Prosecutor Mr.Mitesh Amin with learned Additional Public Prosecutor at length.
4.1 Learned senior counsel for the applicant inter alia submitted that none of the documents submitted for procuring the refund was forged. It could be submitted that the refund was obtained after due process and that the amount was credited by the Commercial Tax Department directly to the bank account of the company of the applicant. It was next submitted that all the purchases were made by making advance Page 3 of 9 HC-NIC Page 3 of 9 Created On Sat May 06 02:16:05 IST 2017 R/CR.MA/367/2017 ORDER payment to the firm called Samay Sales and through RTGS method. The assessment order was served, it was submitted, only after 20 days of filing of the F.I.R. which was lodged on 31st March, 2016. Learned senior counsel submitted that the said assessment order is challenged and the subject matter of appeal, which is pending. It was also pointed out that co-accused Rajendra @ Sonubhai Jethabhai Keshwani-accused No.27 has been enlarged on anticipatory bail and other co- accused are also granted bail.
4.2 Learned senior counsel invited attention of the Court to the observations in paragraph 9 of the order in Rajendra @ Sonubhai Jethabhai Keshwani v State of Gujarat being Criminal Miscellaneous Application No.24697 of 2016 to point out that position reflected therein still remain in operation.
"9. Since the scope of these applications is grant/ refusal of protection to these two applicants, wider issues are not gone into by this Court. It is left only by observing that - on one hand, there is very serious narration in the complaint against the Company viz. Dharmpal Satyapal Ltd., quantifying the alleged fraud to the tune of approximately two hundred crores of rupees (as referred in the FIR), the Directors and other responsible persons of the said company are accused Nos.1 to 9 in the FIR in question and still, not only there is no motivation on the part of the State to bring them to justice, but there is complete facilitation qua them at their terms. It is for the State to take a call. Suffice it to hold that the present applicants need to be protected against this exercise of powers by the State and the investigating agency. These applications therefore need to be allowed."
4.3 On the other hand, learned Public Prosecutor submitted that the applicant herein was a participant in the modus operandi to evade the huge amount of tax.
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R/CR.MA/367/2017 ORDER
It was submitted that the offence was serious
involving the public revenue avoidance. He then
submitted that the applicant could not claim parity with accused No.23 or even accused No.27 who is released on bail.
5. The Court considered the allegations in the F.I.R. as well as nature and seriousness thereof in the context of the role played by the applicant. From the facts of the case and from the submissions of the parties, the role of the applicant-accused could be comprehended. Submission on behalf of the applicant could not be brushed aside lightly that all the purchases were made after making advance payment and the refund orders were given by the authority after verification by the Value Added Tax officials. In any view, the investigation of the case could be said to be based on the documentary material. It cannot be said that custodial interrogation of the applicant is indispensable or imperative in the facts and circumstances.
5.1 Furthermore, accused No.23 is stated to be the main accused who is granted anticipatory bail. It was pointed out that the State filed Special Leave Petition against the order which was dismissed on the ground of delay. Similarly, accused No.25 is also released on anticipatory bail by the competent court.
5.2 It may also be noted that accused No.26 happens to be the son of the applicant. He is granted regular bail. While granting regular bail, in condition No.(g) it is provided that the applicant Page 5 of 9 HC-NIC Page 5 of 9 Created On Sat May 06 02:16:05 IST 2017 R/CR.MA/367/2017 ORDER shall deposit Rs.01.00 lakh within a period of six- and-half months before the trial court in the manner and in the installments indicated in the condition, which was a condition voluntarily and unilaterally got imposed by the said accused. The relevance thereof to the present case and in consideration of plea for anticipatory bail for the present applicant, is that the amount is secured.
5.3 Therefore, looking to all the aforesaid aspects, further looking to the allegations and the nature thereof as well as severity of punishment, prayer for anticipatory bail deserves to be favourably consider. It was pointed out that as far as the offence under Section 85 of the Gujarat Value Added Tax Act is concerned, punishment provided is for six months. As noted above, the investigation would be on the basis of documentary material. It is trite that denial of anticipatory bail should result into a punishment.
5.4 This Court considered and applied the principles and parameters laid down by the Supreme Court in the decisions of Shri Gurbaksh Singh Sibbia v State of Punjab [(1980) 2 SCC 565] and Siddhram Stalingappa Mehtre v State of Maharashtra [(2011) 1 SCC 694] and applied them to the facts and circumstances operating in the present case.
6. In the facts and circumstances obtained and the cumulative aspects operating as above, interest of justice would be served if, by imposing stringent conditions including the condition of keeping the Page 6 of 9 HC-NIC Page 6 of 9 Created On Sat May 06 02:16:05 IST 2017 R/CR.MA/367/2017 ORDER right of the police open to ask for remand of the applicant-accused, if required; powers under Section 438 are exercised.
7. As a result of above facts and aspects, present application is allowed and it is directed that in the event of the applicant's arrest in connection with the F.I.R. bearing Crime Register No.I-04 of 2016 registered with Ahmedabad West Zone Police Station on 11th March, 2016, he shall be released forthwith on condition of his execution a personal bond of Rs.03,00,000/- (Rupees Three Lakhs Only) and also similarly furnishing solvent surety of the equivalent amount.
7.1 The anticipatory bail granted by this Court shall be further governed and regulated by the following conditions.
[i] The applicant shall cooperate with the investigation. He will make himself available for interrogation and for all investigative purposes whenever required;
[ii] The applicant shall not obstruct the process of investigation in any manner. He shall not directly or indirectly induce threat or extend promise to any witness so as to dissuade and prevent such witness from disclosing such facts as may be required, to the Court or Police Officer;
[iii] The applicant shall at the time of execution of bond, furnish full address of his residence and Page 7 of 9 HC-NIC Page 7 of 9 Created On Sat May 06 02:16:05 IST 2017 R/CR.MA/367/2017 ORDER stay to the Investigating Officer as well as to the Court concerned. He shall not change the residence without prior intimation to the Court concerned during the pendency of the prosecution in the criminal case;
[iv] The applicant shall not travel beyond the territory of the State of Gujarat without prior permission of the Court concerned;
[v] The applicant shall surrender passport, if any he is holding, before the Court concerned immediately;
[vi] The applicant shall appear before the concerned Police Station on 10th May, 2017 between 11.00 am and 02.00 pm. [vii] It shall remain open to the Investigating Officer to seek and file application for remand of the applicant, if in his discretion he considers the asking for remand of the applicant to be just and proper for the purpose of investigational needs. If such application for remand is made by the Investigating Officer, the learned Magistrate concern would consider the same on merits without being influenced by the anticipatory bail granted.
8. It is clarified that despite this order, the investigating agency is not precluded from applying before the competent Magistrate for police remand of the applicant. It is further provided that the applicant shall remain present before the Magistrate concerned on the first day of such application, if Page 8 of 9 HC-NIC Page 8 of 9 Created On Sat May 06 02:16:05 IST 2017 R/CR.MA/367/2017 ORDER made, and on all such subsequent occasions as may be directed by the learned Magistrate in such proceedings. This would be sufficient to treat the accused as in judicial custody for the purpose of entertaining the application for remand by the prosecution.
8.1 The liberty available to the prosecution to seek remand shall be without prejudice to the rights of the accused to contend against or to seek stay against the remand. It is further clarified that the applicant even if remanded to the police custody, after completion of the remand period; shall be set at liberty immediately, subject to other conditions of this anticipatory bail order, to be complied with.
8.2 It is clarified that the observations made in this order are for the purpose of granting pre- arrest protection only. It is further clarified that the trial court shall not be influenced by any of the observations made in this order and the same shall be treated for the purpose of dealing with the present application only.
9. The present application is allowed in the aforesaid terms. Rule is made absolute.
Direct service is permitted.
(N.V.ANJARIA, J.) Anup Page 9 of 9 HC-NIC Page 9 of 9 Created On Sat May 06 02:16:05 IST 2017