RATNAMBAR KAUSHIK versus UNION OF INDIA on 5 December 2022

ORDER

1. The petitioner is before this Court, assailing the order dated21.10.2022, passed by the High Court of Judicature at Rajasthan, Benchat Jaipur in S.B. Criminal Miscellaneous Bail Application No.12475 of2022. Through the said order the High Court has dismissed the applicationfiled by the petitioner hereunder under Section 439 of Code of CriminalProcedure[1] seeking bail in the proceedings for the offence alleged againsthim under Section 132(1)(a),(h),(k) and (l) read with Section 132(5) ofthe Central Goods and Services Tax Act, 2017[2] .

2. Heard Shri Mukul Rohatgi, Shri C.S. Vaidyanathan, ShriManinder Singh learned senior counsel for the petitioner and Shri BalbirSingh learned Additional Solicitor General for the respondent. In thatlight, we have perused the petition papers as also the counter affidavitfiled on behalf of the respondent.

3. The gist of the allegations against the petitioner in the prosecutioninitiated against him is that the petitioner had clandestinely transportedraw unmanufactured tobacco brought from Gujarat by 7 trucks weighing90,520 kgs. It is alleged that raw tobacco was cleared in the name of M/s Maa Ambey Enterprises, Bakoli from M/s Arihant Traders, Kheda,Gujarat but the said trucks went to Patparganj Area to M/s GalaxyTobacco in Delhi. It is further alleged that the said quantity ofunmanufactured tobacco has been apparently used in the clandestinemanufacture and supply of chewing tobacco without payment of leviableduties and tax. The petitioner contends that even if the tax is levied at28%, the value would be around 10,30,824/-. However, as per the caseof the respondent, the total tax/duty and cess involved would be15,57,28,345/-. The said contention has been raised on the basis of theprojected manufacture of zarda pouches from the said quantity ofunmanufactured tobacco. Thus on the projected number of pouches, thetax amount if taken into consideration, would be to that extent. It isfurther contended on behalf of the respondent that in the course of theinvestigation it has also come to light, apart from the 7 trucks, 287 moretrucks loaded with raw unmanufactured tobacco has been transportedas per the details obtained from the Toll/RFID data of NHAI, whichshows the movement of the trucks.

1 For short “Cr.P.C.”

2 For short “GST”

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A4. Insofar as the allegations made against the petitioner areconcerned, learned senior counsel for the petitioner while rebutting thesame would contend that at this juncture, such allegations made by therespondent against the petitioner are far-fetched. Even if one acceptsas correct, the allegation on which the proceedings is predicated, wherein90,520 kgs. of raw/unmanufactured tobacco in 7 trucks is taken note of,Bthe GST, if reckoned, comes to only 1,93,26,020/-. It is contended thatthe sum of 11,04,34,400/- shown as cess by the respondent is evenwithout the proof of manufacture of zarda and it has been done only toindicate the projected value of more than 15 Crores. Learned seniorcounsel for the petitioner therefore disputed the allegations and contendedCthat such allegations have been made only to allege cognizable and non-bailable offence against the petitioner so as to deny bail and take himinto custody.

5. Though allegations and counter allegations are made, at thisstage, it would not be necessary for us to advert to the details of the rivalDcontentions, since the matter in any event is at large before the trialcourt and any observations on merits herein would prejudice the case ofthe parties, therein. However, for the limited purpose of answering theprayer for the grant of bail, the contentions are taken note of. It is nodoubt true, that an allegation is made with regard to the transportation ofunmanufactured tobacco and it is alleged that such procurement ofEunmanufactured tobacco is for clandestine manufacture and supply ofzarda without payment of leviable duties and taxes. Though it is furthercontended that in the process of the investigation, the transportation of alarger quantity of unmanufactured tobacco weighing about 35,57,450kgs. is detected, these are all matters to be established based on theFevidence, in the trial.

6. In considering the application for bail, it is noted that the petitionerwas arrested on 21.07.2022 and while in custody, the investigation hasbeen completed and the charge sheet has been filed. Even if it is takennote that the alleged evasion of tax by the petitioner is to the extent asGprovided under Section 132(1)(l)(i), the punishment provided is,imprisonment which may extend to 5 years and fine. The petitioner hasalready undergone incarceration for more than four months andcompletion of trial, in any event, would take some time. Needless tomention that the petitioner if released on bail, is required to adhere to theconditions to be imposed and diligently participate in the trial. Further, inH

a case of the present nature, the evidence to be tendered by the respondentwould essentially be documentary and electronic. The ocular evidencewill be through official witnesses, due to which there can be noapprehension of tampering, intimidating or influencing. Therefore, keepingall these aspects in perspective, in the facts and circumstances of thepresent case, we find it proper to grant the prayer made by the petitioner.

7. Hence, it is directed that the petitioner be released on bail subjectto the conditions to be imposed by the trial Court, which among others,shall also include the condition to direct the petitioner to deposit hispassport. Further, such other conditions shall also be imposed by the trialCourt to secure the presence of the petitioner to diligently participate inthe trial. It is further directed that the petitioner be produced before thetrial Court forthwith, to ensure compliance of this order.

8. The special leave petition is allowed accordingly.

9. Pending applications, if any, shall stand disposed of.

Nidhi Jain

SLP allowed.

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