Final Order 1

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF SPECIAL JUDGE (PC ACT) (ACB)-02,
ROUSE AVENUE DISTRICT COURTS, NEW DELHI
Presided Over by: Ashish Aggarwal, DHJS
Bail Application Nos. 285/2024, 286/2024, 04/2025, 05/2025, 10/2025, 11/2025
IA No. 4/2024, IA No. 10/2024.
FIR No. 5/2023 and FIR No. 22/2024
PS Anti-Corruption Branch.
State v (1) Imran, (2) Akram Ali, (3) Hanzala, (4) Intezar, (5) Ankur Saluja
(6) Parmod Kumar. (7) Manoj Goyal, (8) Manoj Kumar.
14.01.2025 (04:00 pm)
File is taken up today on applications for bail filed by accused persons Imran,
Akram Ali, Hanzala, Intezar, Ankur Saluja, Parmod Kumar, Manoj Goyal and
Manoj Kumar.
Present : Sh. Manoj Kumar Garg, Ld. Public Prosecutor for State.
Sh Mohd. Asif, Ld. Counsel for applicant Akram Ali, Hamzala and
Interzar.
Sh. Ankit Bhatia, Ld Counsel for applicant Manoj Goyal.
1. This order shall decide the applications for bail filed by accused persons
Imran, Akram Ali, Hanzala, Intezar, Ankur Saluja, Parmod Kumar, Manoj
Goyal and Manoj Kumar.
2. The submissions advanced by Ld. Counsels for accused persons are set forth
as follows:
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(a) that co-accused persons Mukesh Kumar Saini, Surjeet Singh, Raj
Singh, Narender Kumar Saini, Vishal Kumar and Lalit Kumar have been
granted bail;
(b) that the order of taking cognizance has been stayed by order dated
10.12.2024 passed by the Hon’ble High Court of Delhi and the custody
of applicants Manoj Kumar and Manoj Goyal now is illegal;
(c) that the charge-sheet makes mention of 96 firms which had already
obtained GST refund from the same GST officer but the applicants are
not owners of the firms;
(d) that no action has been taken against the owners or authorized
signatory of the firms;
(e) that the applicants cooperated in investigation and had joined
investigation as and when called by the investigating officer;
(f) that the investigating officer has left out certain individuals and entities
whose involvement is writ large from the record for reasons best known
to him;
(g) that disclosure statements of co-accused persons is the basis of the
case built up by the prosecution but the same is a weak piece of
evidence;
(h) that the applicants are poor persons with limited means;
(i) that the applicants are not a flight risk;
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(j) that the case of the prosecution is based on documents which have
already been seized by the investigating officer;
(k) that the applicants cannot be kept in custody as a punitive measure;
(l) that the applicants satisfy the triple test for grant of bail;
(m) that as against accused Manoj Kumar and Manoj Goyal, there are 191
witnesses and voluminous documents running into thousands of pages
and the trial is not likely to be completed any time soon, whereas as
against other accused persons charge-sheet has not been filed and is
unlikely to be filed any time soon while ninety days since arrest have
been completed;
3. Ld. Public Prosecutor has opposed the applications for bail. The Public
Prosecutor has not been able to respond to the query of the Court as to how
accused persons Manoj Kumar and Manoj Goyal can be kept in custody after
stay of the order of cognizance.
4. I have gone through the record.
5. Co-accused Mukesh Kumar Saini, Surjeet Singh, Raj Singh, Narender Kumar
Saini, Vishal Kumar and Lalit Kumar have been granted bail. The applicants
have sought bail on the ground of parity. It is not the case of the prosecution
that the role played by the applicants was greater than that of co-accused
persons who have been granted bail. The grounds of bail apply to the
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applicants as well. The reasons for grant of bail are extracted from order dated
18.12.2024, as under:
“The only ground that subsists which the prosecution is canvassing
in order to stymie the prayer for bail is the gravity of the offence.
However, as held in the case of P. Chidambram (supra) and Sanjay
Chandra (supra), this ground alone cannot preclude the grant of
bail.
One can also not lose sight of the fact that cognizance of the
offences has been taken by order dated 08.11.2024. However, the
order of taking cognizance has been stayed by order dated
10.12.2024 passed by Hon’ble High Court of Delhi in WP(Crl.)
No.3859/2024. Since the order of cognizance has been stayed, the
applicant cannot be remanded to custody under Section 309 of
Code of Criminal Procedure. Nor can Section 167(2) of Code of
Criminal Procedure be pressed into service since investigation qua
the applicant is reported to be complete and also because the
period prescribed under Section 167(2) Proviso of Code of Criminal
Procedure has expired.
Another factor that needs to be taken into consideration is that
owing to further investigation which is pending, the trial of the
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applicant cannot commence. If the applicant is left to languish in
custody for the said further investigation to be completed, it would
frustrate the objective of Section 167(2) Proviso of Code of Criminal
Procedure which guarantees to the accused the right not to be
detained beyond ninety days on account of pendency of
investigation.
It has been stressed by Ld. Counsel for applicant/accused that
there are several persons against whom the investigating officer did
not proceed despite the fact that their role was identical to that of
the applicant. Ld. Counsel for applicant/accused has alleged
discriminatory treatment on the part of the investigating officer.
The charge-sheet discloses the role played by Akhilesh Kumar
Pandey. Yet he has not been made an accused. An exculpatory
statement has been recorded suggesting that somebody may have
forged the signatures of the said person but no attempt has been
made to find out whether the signatures were actually forged and if
so what was the identity of the forger. It is not even the case of the
prosecution among the allegations enlisted in the charge-sheet that
the signatures have been forged by somebody else. It appears that
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it is nobody’s case that signatures of the said person were forged
and there is also no explanation as to why the said person would
submit his identity related documents to somebody else. This
person has not been arrayed as an accused without any
explanation. He is not the only person so left out. There are scores
of persons who have neither been arrested nor proceeded against
although the allegations point towards their involvement to an
extent greater than those indicted.
In the charge-sheet, there are details of ninety-six firms that were
sanctioned undue refund allegedly in connivance with the same
GST officer. However, only a handful of those firms have been
proceeded against by the Anti-Corruption Branch and regarding the
others there is a studied silence. Even among the firms that have
been so chosen, there are only some of the persons in their
management who have been arrested by the investigating officer.
The only entity with which the applicant is shown to be associated
is M/s. S. Satyam Aviation Pvt. Ltd. As per the statement of the
applicant which is part of the charge-sheet, there are three directors
in the said entity. The other directors in the company are stated to
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be Harshit Saini and Sanket Mahesh Patil. Neither of them have
been arrested and it is nowhere stated that the said directors were
unaware of the business and operations of the said entity.
It does not behove an investigating officer to randomly pick up one
person or one entity in the chain of money trail and foist
responsibility for the crime upon him, while leaving out the prime
offender who directly committed the offence. In case of Chandra
Prakash Khandelwal v Directorate of Enforcement Bail Application
No.2470/2022 dated 23.2.2023, the Hon’ble High Court of Delhi,
while granting bail to the accused took note of the fact that no
action was taken against the intermediary company through which
the link had proceeded. The following passage is relevant:
“It is submitted the action was not taken upon
the intermediary companies then how can
action could be taken against an investment
company which is down in the line, more
specifically when the investment were
accepted prior to 2014 when till that time the
PACL was not declared as a corrective
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investment scheme.
xxx
Moreso, Ramchand Karunakaran, Managing
Director vs. Directorate of Enforcement in
CRL.A.1650/2022 decided on 23.09.2022; Dr.
Bindu Rana v Serious Fraud Investigation
Office in Bail Appln.3643/2022 decided on
20.01.2023, the bail was granted in PMLA and
SFIO cases where co-accused with similar
roles were not put to custody by the agency.
xxx
What weight the statements under Section 50
of PMLA would carry at the end of trial cannot
be tested at the stage of bail, more importantly
when the intermediary companies were never
made an accused in the present ECIR.”
In the case of Ramesh Manglani v Directorate of Enforcement, Bail
Application No.3611/2022 dated 30.05.2023, bail was granted by
taking into account that similarly placed co-accused persons had
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not been arrested by the investigating agency. The relevant
passage is extracted thus:
“Insofar as the ED not having arrested similarly
placed co-accused persons; and not even
having arraigned some other persons evidently
connected with the offending transactions as
accused in the prosecution complaint, though
these aspects would not be dispositive of a bail
plea one way or the other, they are also not
wholly irrelevant and the ‘doctrine of parity’ is
not immaterial. As held by this Court in Ashish
Mittal (supra) considering the nature of the
offence, where the gravamen of the offence is
that several persons acting in concert have
siphoned-off and ‘laundered’ monies, it is
manifestly arbitrary for the ED to have made
selective arrests and arraignments.”
The above judgments apply on all fours since a reading of the
charge-sheet, supporting documents and statements under Section
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161 of Code of Criminal Procedure show that the Anti-Corruption
Branch has been proceeding against persons in a selective
manner. The liberty of a citizen cannot be left at the mercy of the
whims of the investigating officer.
In this background, it is also to be noted that the name of the
applicant does not figure in the list of twenty-four firms mentioned in
the charge-sheet as those chosen to be investigated and to whom
the GST refund was allegedly sanctioned. It is not the case of the
prosecution that any of the mobile phone numbers used for
registering the said firms belongs to the applicant.
Just because some money was received in the account of the
company in which the applicant was a director, it cannot be said
that the applicant was involved in making a false claim of GST
refund, more particularly when the GST refund was not claimed by
the entity owned by the applicant and when no action has been
taken against the entity which claimed the refund or its controller.
There is nothing to show that the applicant had committed any
forgery of a document. The standard required to be achieved
before one can be alleged to be involved in forgery is laid down by
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Hon’ble Supreme Court in the case of Sheila Sebastian V. R.
Jawaharaj & Anr. (2018) 7 SCC 581 wherein it was observed as
follows:
“Keeping in view the strict interpretation of
penal statue i.e. referring to rule of
interpretation wherein natural inferences are
preferred, we observe that a charge of forgery
cannot be imposed on a person who is not the
matter of the same. As held in plethora of
cases, making of a document is different than
causing it to be made.”
In the present case too the applicant is not alleged to be the maker
of the document. In the aforesaid decision, the Hon’ble Supreme
Court went on to conclude as follows:
“Law is well settled with regard to the fact that
however strong the suspicion may be, it cannot
take the place of proof. Strong suspicion,
coincidence, grave doubt cannot take the place
of proof. Always a duty is cast upon the Courts
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to ensure that suspicion does not take place of
the legal proof. In this case, the trial Court as
well as the appellate Court carried away by the
fact that accused is the beneficiary or the
executant of the mortgage deed, where the
prosecution miserably failed to prove the first
transaction i.e PoA as a fraudulent and forged
transaction. The standard of proof in a criminal
trial is proof beyond reasonable doubt because
the right to personal liberty of a citizen can
never be taken away by the standard of
preponderance of probability. This case on
hand is a classic example of poor prosecution
and shabby investigation which resulted in the
acquittal of the accused. The Investigating
Officer is expected to be diligent while
discharging his duties. He has to be fair,
transparent and his only endeavour should be
to find out the truth.”
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The concluding paragraph of the charge-sheet, not being
substantiated by the preceding paragraphs of the charge-sheet and
the supporting documents, has been demonstrated to be
hyperbole. The only evidence marshalled by the prosecution, apart
from the said money received in the account of the company in
which the applicant is director and which is stated to be legitimate
money, is confession of co-accused person which is not
substantive evidence as held in the case of Haricharan Kurmi v
State of Bihar (1964) 6 SCR 623 in the following words:
“As we have already indicated, this question
has been considered on several occasions by
judicial decisions and it has been consistently
held that a confession cannot be treated as
evidence which is substantive evidence against
a co-accused person.”
The most startling of facts is that the investigating officer has not
disclosed the aspect of illegal gratification in the charge-sheet. It
has not been asserted that bribe was paid, nor has any detail been
provided about the date and place of demand of bribe, or of
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acceptance of bribe. Nor has any such sum been recovered. Inspite
of this, the prosecution is trying to portray that a case under
Prevention of Corruption Act is made out against the applicant and
others. In the case of Neeraj Dutta v State (2023) 4 SCC 731, the
Hon’ble Supreme Court has held that for making out a case under
the Prevention of Corruption Act, the prosecution must prove both
demand and acceptance of illegal gratification.
More than two months have passed after dismissal of the previous
bail application of the applicant. At that time, investigation was
pending. The charge-sheet has now been filed. In the case of Babu
Singh & Ors. V State of U. P. (19789) 1 SCC 579, Hon’ble
Supreme Court has held that the dismissal of previous application
for bail does not preclude filing of second application for bail on a
later occasion “giving more materials, further developments and
different considerations ”.
The case is not making any headway. There are 191 witnesses in
the list that has been sent so far. The total number of pages among
the charge-sheet and relied upon documents over 14,000. Trial,
whenever it commences (since further investigation is going on),
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will take substantial period. In the case of Manish Sisodia v
Directorate of Enforcement SLP (Crl.) No.8772/2024 dated
09.08.2024, bail was granted because there was no likelihood of
trial being concluded in the near future, given the volume of
documents.
The presence of accused at the trial can be secured by imposing
conditions. In my opinion, in light of the aforesaid circumstances,
the application for bail deserves to be allowed.”
6. Since the aforesaid grounds apply to the applicants, by applying the rule of
parity, the applicants too are entitled to be released on bail. In this behalf,
reference is made to the decision of Vishnu Ram Chandra Maheshwari v State
of M.P. (1999) 1 MPLJ 516 and Bajrang Gupta v CBI Bail Application
No.2497/2015. I also find that the decision of Kanchaman Yonjan v State
(2024) SCC OnLine Del 4734, in which it has been held that each day spent
in custody provides a new cause of action to seek bail, supports the
maintainability of the present bail applications.
7. It has also been noted by this Court by order dated 21.12.2024 that the
investigating agency has been arbitrary in the choice of who to indict as
accused and who is to be arrayed as witness regardless of the role surfaced
by the evidence on record. This runs foul of the decisions reported as Banu
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Singh v Emperor (1906) ILR 33 CAL 1353, Laxmandas Chaganlal Bhatia &
Ors. v State (1966) SCC OnLine BOM 17 and Laxmipat Choraria & Ors. v
State of Maharashtra AIR 1968 SC 938. It has been further noted in the order
dated 21.12.2024 that there is sufficient indication about involvement of
persons by name of Ravi Mehra, Tarun Verma, Ashwani Kumar Pandey,
Akhilesh Kumar Pandey, Vipin Kumar Singh, Rameshwar Kumar, Raj Kumar,
Sameer and several others (the identity of the forger of the document
mentioned in page 91 of the charge-sheet, those persons who gave incorrect
addresses in order to commit these offences, those who actually owned and
controlled the 96 firms which had already obtained GST refund and the
authorized signatory of the firms, those who had got sim cards issued which
were used in commission of the offences) and yet no action has been taken
against them.
8. The applicants are poor persons who are languishing in custody for about
ninety days. In light of the aforesaid circumstances, all the eight applications
for bail are allowed. Applicants Imran, Akram Ali, Hanzala, Intezar, Ankur
Saluja, Parmod Kumar, Manoj Goyal and Manoj Kumar are directed to be
enlarged on bail, on each furnishing personal bond in the sum of Rs.20,000/-
with one surety in the like sum and subject to the following conditions:
a. The applicants shall not leave the country without prior permission of
this Court.
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b. The applicants shall not misuse the benefit of bail by indulging in
commission of similar offences in future.
c. The applicants shall not contact any of the witnesses of the case or
extend, directly or indirectly, any inducement or threat to the witnesses.
d. The applicants shall appear before this Court on each and every date
of hearing.
e. The applicants shall intimate this Court in case of change of their
address.
9. If the applicants are found to be violating any of the above conditions, the
State shall be at liberty to move an application for cancellation of bail.
10. Copy of this order be given dasti to Ld. Counsel for applicants.
11. It is made clear that pursuant to the submissions of the investigating officer
recorded in a separate order dated 14.01.2025, accused persons Ankur Saluja
and Parmod Kumar are now in custody in the present FIR, and not in FIR No.
22/2024, PS Anti-Corruption Branch and hence the order of bail has been
passed in the present FIR. The said accused persons shall be deemed to be
released in FIR No. 22/2024 PS Anti-Corruption Branch.
12. Put up on date fixed i.e. 30.01.2025.
(Ashish Aggarwal)
Special Judge (PC Act)(ACB)-02
Rouse Avenue District Courts, New Delhi
14.01.2025
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