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2019 DIGILAW 127 (GUJ)

Sanjeev Gupta v. State of Gujarat

2019-02-14

VIPUL M.PANCHOLI

body2019
JUDGMENT : VIPUL M. PANCHOLI, J. 1. By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant-accused has prayed for anticipatory bail in connection with the FIR being C.R. No.I-4 of 2016 registered with CID Crime, Ahmedabad Zone Police Station, District Ahmedabad for the offenses punishable under Sections 406, 420, 467, 468, 471, 474, 120(B) of Indian Penal Code and Sections 85(1)(b)(c)(e),(f)(g), 85(2)(g) and 85(4) and 85(6) of Gujarat Value Added Tax Act, 2003. 2. Learned advocate for the applicant submits that the nature of allegations are such for which custodial interrogation at this stage is not necessary. He further submits that the applicant will keep himself available during the course of investigation, trial also and will not flee from justice. 3. Learned advocate Mr.Tanvish Bhatt appearing for the applicant has submitted that the applicant is not named in the FIR nor he is shown as accused in the charge-sheet which is filed against the co-accused. It is further submitted that the Investigating Officer has recorded the statement of the applicant thrice. Learned advocate Mr.Bhatt has, thereafter, referred to the order dated 13.10.2016 passed by this Court in the case of co-accused Rajendra @ Sonubhai Jethabhai Keshwani and Minesh Manubhai Vyas, whereby both the co-accused are released on anticipatory bail. Thereafter, learned advocate for the applicant referred to the order dated 13.6.2016 passed by the Additional Sessions Judge, Ahmedabad in the case of co-accused Amitbhai Arvindbhai Pancholi, whereby the said co-accused was released on regular bail. Learned advocate has, thereafter, placed reliance upon the order dated 28.8.2017, by which, this Court has entertained anticipatory bail filed by atleast eight co-accused. It is submitted that the said order was challenged by the State by filing SLP(Crl.)Dairy No.178 of 2018 before the Hon'ble Supreme Court. However, the said SLP was dismissed by the Hon'ble Supreme Court by order dated 16.2.2018. It is, therefore, urged that when the main co-accused are released on anticipatory bail, this Court may exercise discretion in favour of the applicant. At this state, he has also pointed out that the applicant is aged about 65 years and working as Vice-President(Sales) since many years in Dharmpal Satyapal Ltd. Company. 4. Learned advocate for the applicant has further submitted that for providing dump data as asked for by the Investigating Officer, technical personnel is required. However, the applicant is not technical personnel. At this state, he has also pointed out that the applicant is aged about 65 years and working as Vice-President(Sales) since many years in Dharmpal Satyapal Ltd. Company. 4. Learned advocate for the applicant has further submitted that for providing dump data as asked for by the Investigating Officer, technical personnel is required. However, the applicant is not technical personnel. He is Vice-President (Sales), therefore he is not in possession of dump data. It is further submitted that the data which was available with the applicant was already submitted/provided to the Investigating Officer. He, therefore, urged that this application be granted. 5. Learned advocate for the applicant has also produced on record the communication dated 15.9.2018 addressed by Anilkumar Mathur, officer of the company to the Investigating Officer. From the said communication, it is revealed that the said officer viz. Anilkumar Mathur has provided the entire dump data in hard copies to the Investigating Agency. Therefore also, the custodial interrogation of the applicant is not required and he may be granted anticipatory bail. 6. Learned advocate for the applicant, on instructions, states that the applicant is ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand. He further submits that upon filing of such application by the Investigating Agency, the right of applicant accused to oppose such application on merits may be kept open. Learned advocate, therefore, submitted that considering the above facts, the applicant may be granted anticipatory bail. 7. Learned Additional Public Prosecutor appearing on behalf of the respondent - State has opposed grant of anticipatory bail looking to the nature and gravity of the offence. Learned Additional Public Prosecutor Ms. Pathak has vehemently opposed this application and produced relevant material during the course of hearing and also referred to the statement of the concerned witnesses as well as correspondence between the Investigating Officer and officer of the company. From the said material, it is pointed out by the learned Additional Public Prosecutor that the applicant is working as Vice-President (Sales) of Dharmpal Satyapal Ltd. company. It is submitted that the entire incident is in two parts-first part of the incident is with regard to the refund of VAT whereas the other part is with regard to appointment of Consignee Sales Agents 'CSAs' for short). It is submitted that the entire incident is in two parts-first part of the incident is with regard to the refund of VAT whereas the other part is with regard to appointment of Consignee Sales Agents 'CSAs' for short). The applicant is involved in the second part of the incident in question. It is submitted that as per the information given by the company to the Investigating Officer, it was the duty of the applicant who was working as Vice-President (sales) to appoint CSAs. The 11 CSAs who are appointed by the applicant are not actual CSAs but are carrying on the activity as the driver, small time vendors, pan gallawalas etc. It is therefore, urged that the applicant is involved in the incident in question. It is further submitted that custodial interrogation of the applicant is required as dump data is not provided by him during the course of investigation. Learned Additional Public Prosecutor has, therefore, urged that this application may not be entertained looking to the role played by the applicant. 8. Having heard the learned advocates for the parties and perusing the material placed on record as well as considering the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, at this stage, I am inclined to grant anticipatory bail to the applicant. 9. The Court has also considered the following aspects: (i) the applicant is aged about 65 years. (ii) the main co-accused viz. Rajendra @ Sonubhi Jethabhai Keshwani is released on anticipatory bail by this Court. The other co-accused viz. Minesh Manubhai Vyas is also released on anticipatory bail by this Court. (iii) Another co-accused viz. Amitbhai Arvindbhai Pancholi is released on regular bail by the Sessions Court. (iv) Other eight co-accused are released on anticipatory bail by this Court by order dated 28.8.2017. The said order is not interfered with by the Hon'ble Supreme Court. (v) The applicant is not a technical person and therefore the dump data which is required by the Investigating Officer cannot be provided by the applicant. The data which was available with the applicant was already handed over to the Investigating Officer. (vi) From the material produced on record i.e. the affidavit of the applicant before the VAT authority, it is revealed that the co-accused Rajendra Keshwani has appointed 11 CSAs. The data which was available with the applicant was already handed over to the Investigating Officer. (vi) From the material produced on record i.e. the affidavit of the applicant before the VAT authority, it is revealed that the co-accused Rajendra Keshwani has appointed 11 CSAs. (vii) The prosecution has placed reliance upon the statement of the co-accused-Amitbhai Arvindbhai Pancholi. In fact, the said co-accused has admitted that he has appointed 11 CSAs and therefore for the appointment of bogus CSAs, the applicant is in noway involved. (viii) Even if the statement of the witness viz. Nilesh Thakkar who is one of the CSAs is carefully examined, he has not named the applicant in his statement. On the contrary, he has submitted that Amitbhai Arvindbhai Pancholi has given him loan. (ix) When inquired from the learned Additional Public Prosecutor, she has fairly submitted that in none of the statement of the CSAs, the name of the applicant is reflected. (x) Reliance placed by the learned Additional Public Prosecutor dated 13.4.2017 addressed by the authorized signatory of the company to the Investigating Officer is misconceived. As stated in the communication, the applicant is sales head of the company and responsible for the sales of the company. It is also stated in the said letter that sales head is responsible for sales functioning of the company which includes appointment of dealers/distributors/stockists/consignees/sales agents etc. However, from the material produced during the course of hearing, as observed hereinabove, none of the CSAs has given statement against the applicant that they are appointed by the applicant. On the contrary, from the material placed on record, it is revealed that the main accused viz. Rajendra Keshwani and Amitbhai Pancholi have appointed CSAs and therefore reliance placed by the prosecution on the said letter is misconceived. (xi) From the letter dated 16.1.2018 addressed by the Investigating Officer to the officer of the company viz. Anilkumar Mathur, it is revealed that the Investigating Officer has requested the said officer to provide technically knowledgeable person from the side of the company to assist the Investigating Officer to assess the data. In response to the said letter, Mr.Anilkumar Mathur has informed the Investigating Officer by communication dated 18.1.2018 that all the data is already provided to the Investigating Officer. In response to the said letter, Mr.Anilkumar Mathur has informed the Investigating Officer by communication dated 18.1.2018 that all the data is already provided to the Investigating Officer. It is required to be noted that the applicant is not a technical person, but as confirmed by the learned Additional Public Prosecutor, after taking instructions from the Investigating Officer, he is a Vice-President(Sales). Therefore, the applicant cannot be said to be a technical person who can provide the technical assistance for the dump data to the Investigating Officer. (xii) Learned advocate for the applicant contended that the applicant is ready and willing to cooperate with the investigating agency and he will provide data which is available with him. (xiii) At this stage, it is required to be noted that the learned Sessions Judge has not accepted the case of the prosecution qua other submissions but the application of the applicant filed under Section 438 of the Code of Criminal Procedure was rejected only on the ground that dump data is required to be collected from the applicant, for which custodial interrogation is required. However, in view of the above reasons, this Court is of the view that even for collecting dump data from the applicant, no custodial interrogation is required. 10. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors. as reported at, (2011) 1 SCC 694 , wherein the Hon'ble Apex Court reiterated the law laid down by the Constitution Bench in the case of Shri Gurubaksh Singh Sibbia & Ors. as reported at, (1980) 2 SCC 565 . 11. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No.I-4 of 2016 registered with CID Crime, Ahmedabad Zone Police Station, District Ahmedabad on his executing a personal bond of Rs. as reported at, (1980) 2 SCC 565 . 11. In the result, the present application is allowed. The applicant is ordered to be released on bail in the event of his arrest in connection with a FIR being C.R. No.I-4 of 2016 registered with CID Crime, Ahmedabad Zone Police Station, District Ahmedabad on his executing a personal bond of Rs. 10,000/- (Rupees Ten Thousand Only) with one surety of like amount on the following conditions: (a) shall cooperate with the investigation and make himself available for interrogation whenever required; (b) shall remain present at concerned Police Station on 21.2.2019 between 11.00 a.m. and 2.00 p.m.; (c) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (d) shall not obstruct or hamper the police investigation and not to play mischief with the evidence collected or yet to be collected by the police; (e) shall at the time of execution of bond, furnish the address to the investigating officer and the court concerned and shall not change his residence till the final disposal of the case till further orders; (f) shall not leave India without the permission of the Court and if having passport shall deposit the same before the Trial Court within a week; and (g) it would be open to the Investigating Officer to file an application for remand if he considers it proper and just and the learned Magistrate would decide it on merits; 12. Despite this order, it would be open for the Investigating Agency to apply to the competent Magistrate, for police remand of the applicant. The applicant shall remain present before the learned Magistrate on the first date of hearing of such application and on all subsequent occasions, as may be directed by the learned Magistrate. This would be sufficient to treat the accused in the judicial custody for the purpose of entertaining application of the prosecution for police remand. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. This is, however, without prejudice to the right of the accused to seek stay against an order of remand, if, ultimately, granted, and the power of the learned Magistrate to consider such a request in accordance with law. It is clarified that the applicant, even if, remanded to the police custody, upon completion of such period of police remand, shall be set free immediately, subject to other conditions of this anticipatory bail order. 13. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order. 14. Rule is made absolute to the aforesaid extent. Direct service is permitted.