Interim Order 8

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
IA No. 01/2024 and IA No.02/2024
State vs Raj Singh & Narender Kumar Saini
FIR No.5/2023
PS Anti-Corruption Branch
File is taken up today on applications for bail on behalf of accused persons
Raj Singh and Narender Kumar Saini.
29.11.2024
Present : Sh. Manoj Kumar Garg, Ld. PP for State.
Sh Kartik Jain Ld. Counsel for applicant/accused appearing through
VC.
1. The applications for bail filed by accused persons Raj Singh and Narender
Kumar Saini are proposed to be decided by this common order.
2. The submissions advanced by the respective accused persons are as follows:
a. that they are law abiding citizens;
b. that the applicants have been falsely implicated;
c. that the nephew of the applicants have been arrested on 14.02.2023
for involvement in operation of non-functional firms;
d. that the family members of the nephew were alleged to be concerned
in wrongful availment of GST refunds;
e. that the present FIR was separately registered for the offence under
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Prevention of Corruption Act;
f. that the applicants filed applications for anticipatory bail in the Crime
Branch case;
g. that the applications were disposed off by citing absence of notice to
join investigation with directions that prior notice be given for commencing
investigation in the present FIR;
h. that during the investigation by Anti-Corruption Branch, the applicant
cooperated with the Investigating Officer;
i. that there was no necessity to arrest the applicants;
j. that the charge-sheet has been filed;
k. that there is hardly any possibility of early conclusion of trial.
3. The applicants have relied on judgments reported as Prabir Purkayastha v
State (NCT of Delhi) Crl. A. Diary No.42896/2023 dated 15.05.2024, Manish
Sisodia v Directorate of Enforcement (2024) SCC OnLine SC 1920, P.
Chidambaram v Directorate of Enforcement (2020) 13 SCC 791, Siddharth v
State of Uttar Pradesh & Another (2022) 1 SCC 676, Arvind Kejriwal v CBI
Criminal Appeal No.3816 of 2024 dated 13.09.2024 and Sanjay Chandra v
Central Bureau of Investigation (2012) 1 SCC 40.
4. Reply to the abovesaid applications have been filed separately by the
Investigating Officer. In the replies, the facts of the case were set out and the
allegations were outlined. It is also mentioned that the names of accused Raj
Singh and accused Narender Kumar Saini have figured in several documents;
that accused Raj Singh has been found to have exploited poor people and to
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have victimised them by creating bogus firms in their names; that three files
pertaining to one of the entities Pratibha Industries was seized from the office
of accused Raj Singh; that accused Raj Singh used bank account of his wife
to seek GST refund by rotation of money; that as per statements, the
applicant used to ask for medicines for bogus firms; that accused Raj Singh
used to take blank good receipts from transporters and used to forge them;
that the applicant used to take new SIM cards and mobile phones for making
fraudulently claims of GST refunds which he used to destroy after exposure of
the scam; that accused Narender Kumar Saini was partner/authorized
signatory in five firms namely Uttam Pharma Industries, Ruchi Pharma
Industries, Radhika Pharma Industries, Midway Pharmaceuticals and
Sadhana Pharma Industries; that accused Narender Kumar Saini had
received substantial GST refunds in the name of his own firms as well as in
associated firms by rotation of money; that in matters of exports also accused
Narender Kumar Saini had received refunds based on forged invoices
prepared at the instance of accused Narender Kumar Saini; that forged rent
agreements were also prepared by accused Narender Kumar Saini with the
aid of co-accused Manoj Kumar; that further investigation is still pending and
a large number of persons are to be traced; that the applicants are likely to
influence witnesses and their release will hamper investigation.
5. I have gone through the record. I have heard arguments advanced by Ld.
Public Prosecutor and by Ld. Counsel for accused persons.
6. The case was registered on the complaint of GST Department regarding
refunds sanctioned by GST Officer Babita Sharma. It was alleged that GST
Officer Babita Sharma was transferred from Ward 6 to Ward 22. 53 firms
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applied for migration to Ward 22. A majority of these firms were with Smt.
Babita Sharma only earlier, in Ward 6. Most of these requests were
immediately approved by Smt. Babita Sharma. It was also revealed that huge
sums of money had been sanctioned as GST refund to various firms during a
short period of time. The firms were found to be non-existent and non-
functional on the ground.
7. The police investigation disclosed large scale fraudulent activity. It was
noticed that many different firms were being controlled by a handful of
persons and the persons who were put out on the front in the management of
the firms were actually neither aware nor involved in the said entities. It was
noticed that firms were existing only on paper and there was no business
activity being undertaken; that fake purchases had been shown on paper; that
exports were spurious and money had not been received; that forged invoices
had been generated; that forged e-way bills had been created to show
transportation of products which had actually not been transported; that
money was rotated between various firms so as to eventually reach the hands
of those who were actually controlling the firms. The applicants are shown to
be the real persons behind the aforesaid activity. Given the money trail and
the statements of different persons recorded during investigation and other
material which has been collected during investigation, I find that indeed a
prima facie case does exist showing involvement of the accused persons
named above in commission of the alleged offences. The circumstances do
show the existence of a planned conspiracy whereby the Government has
been cheated of Crores of Rupees and the accused persons have scooted
with tax payers’ money. Documents that qualify as “valuable security” have
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allegedly been forged which is punishable under Section 467 of IPC with
imprisonment for life.
8. It is not a solitary offence that has been committed. Similar offences have
been committed by the accused persons by entering into distinct conspiracies
over long spans of time.
9. The accused persons have repeatedly committed serious economic offences.
Economic offences have been held to be a distinct class for the purpose of
deciding bail applications and it has been consistently laid down that for such
offences bail should not be granted as a matter of course.
In the case of Y.S.Jagan Mohan Reddy v C.B.I 2013 (7) SCC 439, the
Hon’ble Supreme Court observed as under:
“Economic offences constitute a class apart and
need to be visited with a different approach in the
matter of bail. The economic offence having deep
rooted conspiracies and involving huge loss of
public funds needs to be viewed seriously and
considered as grave offences affecting the economy
of the country as a whole and thereby posing
serious threat to the financial health of the country.”
10. Given the nature of the case, there are chances that the accused persons
may, if released on bail, abscond in order to avoid the trial and to avoid the
prospect of receiving punishment.
11. It is also likely that those who have recurrently and almost habitually
committed such offences, may not be able to shed the chronic tendency and
may again resort to such crimes, if released.
12. Witnesses against the accused persons may include those who were
exploited and placed in the front while creating bogus entities. These persons
are vulnerable and can be influenced or threatened by the accused persons.
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Imposition of conditions will not be able to prevent this because this Court or
even the investigating officer cannot constantly monitor the acts of the
accused persons.
13. Interest of the State, and of the public, would be better served by declining
the relief of bail at this stage. In the case of Masroor v. State of U.P., (2009)
14 SCC 286, the Hon’ble Supreme Court observed as follows:
“There is no denying the fact that the liberty of an
individual is precious and is to be zealously
protected by the Courts. Nonetheless, such a
protection cannot be absolute in every situation. The
valuable right of liberty of an individual and the
interest of the society in general has to be balanced.
Liberty of a person accused of an offence would
depend upon the exigencies of the case. It is
possible that in a given situation, the collective
interest of the community may outweigh the right of
personal liberty of the individual concerned.”
14. The mere fact that investigation is complete does not necessarily confer a
right on the accused to be released on bail. It would be apposite to refer to
the decision of Hon'ble Supreme Court in the case of Virupakshappa Gouda
Vs. State of Karnataka, Criminal Appeal No. 601/2017, dated 28.03.2017. In
that case, taking note of the fact that investigation is no longer pending and
after referring to the judgment of Hon'ble Supreme Court in the case of
Sanjay Chandra Vs. Central Bureau of Investigation, 2012 CRI. L.J. 702, the
Trial Court allowed the bail application and released the applicant on bail.
The Hon'ble Supreme Court held that bail should not have been granted and
the filing of charge-sheet is not a circumstance that tilts the scales in favour of
the accused in grant of bail. The Hon'ble Supreme Court also held that its
observations in the Sanjay Chandra case (ibid) “cannot be made applicable
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in each and every case for grant of bail.” The following extract of the decision
of Hon'ble Supreme Court is relevant:
“Needless to say, filing of the charge-sheet does
not in any manner lessen the allegations made
by the prosecution. On the contrary, filing of the
charge-sheet establishes that after due
investigation the investigating agency, having
found materials, has placed the charge-sheet for
trial of the accused persons.”
It is thus concluded that mere filing of charge-sheet is not a circumstance
inviting favourable consideration of the application for bail.
15. The judgments cited by the accused persons are not applicable. They have
already been distinguished while dealing with bail applications of co-accused
persons. The relevant passage is being quoted herein since it applies to the
present applications for bail too:
“The case of Prabir Purkayastha v State Crl.
A. Diary No.42896/2023 dated 15.05.2024,
relied upon by Ld. Counsel for accused is not
applicable since it has not been pointed out
which mandate laid down in the said decision
has been violated. In the present case, as
has already been observed in the orders of
remand, all the accused persons were
provided with grounds of arrest at the time
when they were arrested. The specific
reasons comprising of the role played by the
accused persons and the details which
necessitated their arrest have been spelled
out. Copies of FIRs were provided to the
accused persons. The accused persons were
able to advance detailed submissions through
their counsel to resist the prayer for remand.
In the case of Manish Sisodia v Directorate of
Enforcement 2024 SCC OnLine SC 1920,
bail had been granted on the ground that the
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trial had not commenced despite eight
months of the accused being in custody. In
the present case, there is no question of
commencement of trial since investigation
itself is pending. Bail had been granted in that
case on the ground of delay in trial and I do
not see any reason why Ld. Counsel for
accused has placed reliance on this
judgment.
In the case of Ranjitsing Brahmajeetsing
Sharma v State of Maharastra (2005) 5 SCC
294, the practices to be adopted by the Court
while dealing with an application for grant of
bail were laid down. It was held that at the
stage of dealing with a bail application,
detailed examination of evidence and
elaborate documents on merit is not to be
undertaken, but prima facie reasons are to be
disclosed to show that the Court has applied
its mind to the allegations put forth by the
investigating agency. This judgment too does
not show that the case is fit for grant of bail.
In the case of P. Chidambaram v Directorate
of Enforcement (2020) 13 SCC 791 too, the
factors to be considered for grant of bail were
outlined. The decision does not help the
accused persons. In that case it was held that
where there are no chances of tampering of
evidence or influencing witnesses, bail can be
granted. It was laid down that in economic
offences, bail is not to be mandatorily
declined in each and every case. In that case,
bail was granted since there was no
possibility of tempering of evidence or
influencing of witnesses. That is not the case
here.
In the case of Siddharth v State of Uttar
Pradesh and Anr (2022) 10 SCC 51, it was
laid down by the Hon’ble Supreme Court that
an investigating officer does not have to
necessarily arrest the accused before filing
the charge-sheet. This judgment is not
applicable to the facts of the case.
Also, the judgment of Satender Kumar Antil v
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CBI SLP (Crl.) 5191/2021 dated 11.07.2022
does not buttress the case of the
accused/applicants. In that case, the Hon’ble
Supreme Court stressed that the provisions
of Section 41 and 41A of Code of Criminal
Procedure must be complied with. In the
present case, Section 41(1)(b) is not
applicable since the offence is punishable
with imprisonment of over seven years.
Section 41A is also not applicable since,
clearly, this is not a case where “The arrest of
the person would not be required under the
provisions of Section 41(1)”.
The decision of Arnesh Kumar v State of
Bihar & Anr. (2014) 8 SCC 273, is also
similarly not applicable since the facts of the
case attract the offence under Sections 467
of IPC because forgery of valuable security
has been alleged and the said offence is
punishable with upto imprisonment for life.
In the case of the State of Bihar and Anr vs
Amit Kumar @ Bachcha Rai (2017) 3
DLT(CRL) 860, the Hon’ble Supreme Court
held as follows:
“When the seriousness of the offence is
such mere fact that he was in jail for
however long time should not be the
concern of the Courts. We are
conscious of the fact that the accused
is charged with economic offences of
huge magnitude and is alleged to be
the kingpin/ring leader.
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“Although there is no quarrel with
respect to the legal propositions
canvassed by the learned counsels, it
should be noted that there is no straight
jacket formula for consideration of grant
of bail to an accused. It all depends
upon the facts and circumstances of
each case. The Government's interest
in preventing crime by arrestees is both
legitimate and compelling. So also is
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the cherished right of personal liberty
envisaged under Article 21 of the
Constitution. Section 439 of The Code
of Criminal Procedure, 1973, which is
the bail provision, places responsibility
upon the courts to uphold procedural
fairness before a person’s liberty is
abridged. Although ‘bail is the rule and
jail is an exception’ is well established
in our jurisprudence, we have to
measure competing forces present in
facts and circumstances of each case
before enlarging a person on bail.
We are of the considered opinion that
the case of Sanjay Chandra (supra), as
relied upon by learned counsel for
respondent, is distinguishable from the
case at hand as the charges in that
case carried a maximum punishment
for a term which may extend to seven
years. In the present case, charge
sheet has been submitted, inter alia, for
the offences under section 409, 465,
467, 468, 471, 188, 201, 212 and 120B
of Indian Penal Code, 1860 and
Section 8, 9, 13 (1)(c)/(d) read with
13(2)of Prevention of Corruption Act,
1988. Therefore the case of Sanjay
Chandra (supra) provides no
assistance for the respondent herein.
We are also conscious that if any
undeserving candidates are allowed to
top exams by corrupt means, not only
will the society be deprived of
deserving candidates, but it will be
unfair for those students who have
honestly worked hard for one whole
year and are ultimately disentitled to a
good rank by fraudulent practices
prevalent in those examinations. It is
well settled that socio-economic
offences constitute a class apart and
need to be visited with a different
approach in the matter of bail. Usually
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socio-economic offence has deep
rooted conspiracies affecting the moral
fiber of the society and causing
irreparable harm, needs to be
considered seriously.”
The Hon’ble Supreme Court thereby
distinguished its decision in the Sanjay
Chandra case (supra) which has been relied
upon here too. It has been noted that Sanjay
Chandra case would have no application
where the offence is punishable with
imprisonment of more than seven years.
Moreover, perusal of the Sanjay Chandra
decision itself shows that in that case bail
was granted only because investigation had
been completed and charge-sheet has been
filed. In that case, there was no contention of
the State that the accused persons could
tamper with evidence. In this case, this has
been specifically urged by State in order to
resist the grant of bail. Thus, the decision of
Sanjay Chandra does not help the applicants.
Other judgments cited by accused persons
are also similarly not applicable.”
16. In the case of Arvind Kejriwal v CBI Criminal Appeal No.3816 of 2024 dated
13.09.2024, the Hon’ble Supreme Court granted bail after noting that CBI had
not arrested the accused when the accused had been arrested by ED. It was
also noted that the accused therein had not been named in previous charge-
sheets and it was felt that the purpose of the arrest was only to deprive the
accused therein of the benefit of bail which had been granted in the case
booked by ED. The facts of this case are quite distinct.
17. For the abovestated reasons, I do not deem it fit to grant bail to the applicants
Raj Singh and Narender Kumar Saini at this stage. The applications for bail
moved by accused Raj Singh and Narender Kumar Saini are hereby
dismissed.
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18. Nothing stated hereinabove shall be construed as an observation on merits.
The observations are prima facie in nature and based on the material placed
before the Court.
19. Copy of the order be given to Ld. counsel for accused persons. Another copy
shall be sent to the IO.
20. Put up on date fixed i.e. 30.01.2025.
(Ashish Aggarwal)
Special Judge (PC Act)(ACB)-02
Rouse Avenue District Courts, New Delhi
29.11.2024
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