Delay in conclusion of trial is an important consideration when deciding bail applications: Gujarat High Court
The High Court of Gujarat affirmed that “in deciding bail applications, an important factor that the court should certainly take into account is the delay in the conclusion of the trial.”
Noting thus, the Formation composed Judge Gita Gopi granted bail to a defendant under the Central Goods and Services Act 2017.
“Here, given the investigative approach adopted by the Department, the evidence thus collected, the trial will take a considerable time and it may happen, in the event of refusal of bail, that police custody is extended beyond the legal duration of the sentence, which is five years,” he remarked.
The plaintiff accused here requested regular bail under Section 439 CrPC, in relation to the offenses referred to in Sections 132(1)(b), 132(1)(c) read with Section 132( 1)(i) and section 132(5) of the and section 132(1)(b), 132(1)(c) read with section 132(1)(i) and section 132(5) of the Gujarat GST Act, 2017 and Section 120(B) of the IPC.
The case concerned the creation of shell companies, passing on an ineligible input tax credit (“ITC”) by issuing invoices without any actual supply of goods. The plaintiff was accused of unauthorized receipt and use of Rs 10.29 million ITCs, passing fraudulent ITCs to his buyers by creating a chain of bogus businesses without physical receipt and supply of goods.
As a result, the Applicant was arrested in September 2021 under Article 69 of the CGST Law of 2017, in which he was placed in police custody. Subsequently, his request for bail was denied under Section 437 of the CrPC. Later, the criminal miscellaneous request was also rejected in October 2021.
The main contention of the Applicant was that he was arrested without any basis or evidence. In addition, he was engaged in the trade of scrap metal, iron, etc. and was registered under the old VAT regime and then under the GST regime under Section 139, which showed that he was a taxpaying citizen and that his business was not simply conducted on paper.
Even during the unsealing process, officers also found inventory containing scrap metal at the claimant’s business premises, which was supported by legal and valid documents and invoices. Another assertion was that the GST Act was a tax law and that the purpose of the law was to provide a mechanism to collect the amount payable to the government under section 69(1). Yet no such action has been taken by the government.
On the other hand, the Respondent Authority disputed that the scrap metal in the premises of the Claimant’s store did not have a stock register, which was mandatory under Article 35 of the CGST law. Therefore, the goods were seized under section 67 of the Act. Attempts were also made to locate the principal place of business, but the location could not be found. Therefore, it was concluded that this entity did not exist.
Initially, the Court noted that the trial in this case will take its own time to conclude.
Reiance was placed on Sanjay Chandra vs. CCR, [2012 1 SCC 40] where the Supreme Court observed that in deciding bail applications, “delay in the conclusion of the trial” should be considered a relevant factor.
The Chamber then referred to Article 138 of the CGST law which provides for the establishment of offenses even after the institution of proceedings, subject to payment by the person accused of the offence. In this context, the Court said,
“Considering the provisions of the law and the fact that the Commissioner has the authority to collect the amount owed and to propose to reduce the proceedings and that the trial will take its own time to complete, the Court considers that this is an appropriate case where discretion could be exercised in favor of the plaintiff.“
The bail plea was cleared subject to providing a personal surety of INR 1,00,000 along with a bond of a similar amount.
Case Title: MOHSIN SALIMBHAI QURESHI v STATE OF GUJARAT
Case No.: R/CR.MA/91/2022
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