Rajasthan High Court
Khem Chand Thathera S/O Shri ... vs State Of Rajasthan on 3 January, 2023
Bench: Mahendar Kumar Goyal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 13823/2022
Khem Chand Thathera S/o Shri Nanagram Thathera, Aged About
46 Years, R/o 1710, Tahtheron Ka Rasta, Jaipur 302003 ( At
Present In J.C. and Confined in Central Jail Since 02.08.2022)
----Accused/Petitioner
Versus
State Of Rajasthan, Office Of State Goods And Service Tax
Department, Circle-A, Enforcement Wing-I, Rajasthan, Jaipur
Through Special P.p.
----Respondent
For Petitioner(s) : Mr. Siddharth Ranka assisted by
Mr. M. Iqbal
Mr. Saurav Harsh
Ms. Apeksha Bapna
Mr. Rohan Chatter
For Respondent(s) : Mr. Punit Singhvi assisted by
Mr. Ayush Singh
HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL
Order
03/01/2023
The present bail application has been filed under Section 439
Cr.P.C. The petitioner has been arrested in connection with Case
No. EW-I, Rajasthan/INS-01/27 registered at Office of Assistant
Commissioner, State Tax, Ward-I, Circle A, Enforcement Wing-1,
Rajasthan, Jaipur for the offence(s) under Section(s) 132(1)(B)
(C) of the Rajasthan Goods and Services Tax Act, 2017 (for brevity
"the Act of 2017").
It is contended by learned counsel for the petitioner that he
has falsely been implicated in this case. Learned counsel
submitted that there has been violation of mandatory provisions
(2 of 5) [CRLMB-13823/2022]
while effecting his arrest and its continuation as contained in the
Act of 2017. Learned counsel submits that till date, no notice for
adjudication of the tax liability as stipulated under Section 73 & 74
of the Act of 2017 has been served upon him. Learned counsel
submitted that the petitioner is in custody since 01.08.2022, after
conclusion of the investigation, charge-sheet has been filed on
30.09.2022, he has already deposited 10 per cent of the alleged
evaded tax amount, the maximum punishment which can be
awarded is five years, the offences are compoundable, he has no
criminal antecedents and prayed for his release on bail. Learned
counsel for the petitioner, in support of his submissions, relied
upon a judgment of Hon'ble Supreme Court of India dated
05.12.2022 passed in Special Leave to Appeal (Crl.)
No.10319/2022: Ratnambar Kaushik versus Union of India.
Per contra, learned counsel for the respondent would submit
that there is grave allegation against the petitioner of evasion of
tax amount to the tune of ₹20.83 Cr. He, therefore, prayed for
dismissal of the bail application. He, in support of his submissions,
relied upon judgment of Hon'ble Supreme Court of India in case of
Y.S. Jagan Mohan Reddy versus Central Bureau of Investigation:
(2013) 7 Supreme Court Cases 439 and the judgment dated
05.07.2021 in case of Ashok Kumar Sihotiya versus Union of
India: 2021 SCC OnLine Raj 2795 passed by a Coordinate
Bench of this Court and another judgment dated 07.09.2021
passed in SB Criminal Miscellaneous Bail Application
No.13042/2021: Lalit Goyal versus Union of India & Anr.
which was upheld by the Hon'ble Supreme Court of India vide its
(3 of 5) [CRLMB-13823/2022]
judgment dated 26.08.2022 in Petition for Special Leave to
Appeal (Crl.) No.3509/2022.
Heard. Considered.
Recently, the Hon'ble Supreme Court of India has, in case of
Ratnambar Kaushik (supra), held as under:-
"5. Though allegations and counter allegations
are made, at this stage, it would not be
necessary for us to advert to the details of the
rival contentions, since the matter in any
event is at large before the trial court and any
observations on merits herein would prejudice
the case of the parties, therein. However, for
the limited purpose of answering the prayer
for the grant of bail, the contentions are taken
note of. It is no doubt true, that an allegation
is made with regard to the transportation of
unmanufactured tobacco and it is alleged that
such procurement of unmanufactured tobacco
is for clandestine manufacture and supply of
zarda without payment of leviable duties and
taxes. Though it is further contended that in
the process of the investigation, the
transportation of a larger quantity of
unmanufactured tobacco weighing about
35,57,450 kgs. is detected, these are all
matters to be established based on the
evidence, in the trial.
6. In considering the application for bail, it is
noted that the petitioner was arrested on
21.07.2022 and while in custody, the
investigation has been completed and the
charge sheet has been filed. Even if it is taken
note that the alleged evasion of tax by the
petitioner is to the extent as provided under
Section 132(1)(l)(i), the punishment provided
(4 of 5) [CRLMB-13823/2022]
is, imprisonment which may extend to 5 years
and fine. The petitioner has already undergone
incarceration for more than four months and
completion of trial, in any event, would take
some time. Needless to mention that the
petitioner if released on bail, is required to
adhere to the conditions to be imposed and
diligently participate in the trial. Further, in a
case of the present nature, the evidence to be
tendered by the respondent would essentially
be documentary and electronic. The ocular
evidence will be through official witnesses, due
to which there can be no apprehension of
tampering, intimidating or influencing.
Therefore, keeping all these aspects in
perspective, in the facts and circumstances of
the present 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 subject to the conditions to be
imposed by the trial Court, which among
others, shall also include the condition to
direct the petitioner to deposit his passport.
Further, such other conditions shall also be
imposed by the trial Court to secure the
presence of the petitioner to diligently
participate in the trial. It is further directed
that the petitioner be produced before the trial
Court forthwith, to ensure compliance of this
order."
In present case, the petitioner is in custody since
01.08.2022, charge-sheet has been filed on 30.09.2022 and he
has already deposited about 10 per cent of the amount of alleged
evaded tax duty. In view thereof; but, without expressing any
(5 of 5) [CRLMB-13823/2022]
opinion on the merits of the case, this Court deems it just and
proper to enlarge the petitioner on bail.
Accordingly, the bail application is allowed and it is directed
that accused-petitioner Khem Chand Thathera S/o Shri
Nanagram Thathera shall be released on bail under Section 439
Cr.P.C. in connection with afore-mentioned FIR registered at
concerned Police Station, provided he furnishes a personal bond in
the sum of Rs.1,00,000/- (Rupees One Lac only) together with
two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand
only) each to the satisfaction of the trial court with the stipulation
that he shall comply with all the conditions laid down under
Section 437(3) Cr.P.C.
The petitioner is further directed to deposit his passport, if
any, with the learned trial Court and not to travel abroad without
its prior permission.
(MAHENDAR KUMAR GOYAL),J
Manish/28
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