Vivek Kumar Gupta v. The State of Assam and Anr

ORDER

26.09.2023

Heard Mr. M.K. Choudhury, learned Senior Counsel assisted by Mr. A. Page No.# 2/4 Barkataki, learned counsel for the applicant and Mr. P. Borthakur, learned Additional Public Prosecutor for the State respondent.

¶2Apprehending arrest in connection with BI [EO] P.S. Case No. 15/2023, under Sections 120[B]/419/420/468/471 of the IPC, this application under Section 438 of the Code of Criminal Procedure, 1973, is preferred by applicant namely, Vivek Kumar Gupta for grant of pre-arrest bail.

¶3It is to be noted here that the aforementioned case has been registered on the basis of one FIR lodged by one Naba Kumar Deka, Assistant Commissioner of State Tax, Guwahati, Unit-D. The essence of allegation against the accused is that during the period of December 2022 to March 2023, the accused approaches the proprietors of farms, namely, M/s Donyi Lella Enterprise, M/s G.T. Enterprise, M/s Zee Engineering and Construction, M/s Zee Engineering, M/s Neelam Sanju etc. and induced them to receive and accept fake invoices in the name of a firm in the name and style of M/s Deepak Enterprise from him and later submitted those invoices to avail illegal tax benefits as against those invoices no physical movement of goods actually taken place and he, in connivance with Vivek Kr. Gupta, Proprietor of M/s Sab Trading and M/s Noth East Enterprise, furnished fake invoices in the name of the farm M/s Deepak Enterprise and claimed illegal tax benefits without physical movement of goods.

¶4Mr. Choudhury, learned Senior Counsel for the applicant submits that the name of the applicant is not mentioned in the FIR and he has been implicated by one Atish Kumar Tiwari, who has been arrested herein this case and that entire matter relates to documents and that the relevant documents have already been collected by the IO as reflected in the order dated Page No.# 3/4

01.09.2023, in BA No. 3029/2023, by which this Court was pleased to grant bail to the accused, Atish Kumar Tiwari. Mr. Choudhury further submits that the applicant has received notice from the IO for production of the documents and he had already furnished the same. Mr. Choudhury also submits that the allegation relates to defrauding of GST and as per Section 122 of the GST Act the offences below five crore is bailable offence and only to make the offences non-bailable the case has been registered under the IPC and that he is ready to cooperate with the investigating agency, and therefore, it is contended to allow the petition.

¶5On the other hand, Mr. Borthakur, learned Additional Public Prosecutor, has produced the case diary before this court and vehemently opposed the petition on the ground that the applicant has not been absconding and custodial interrogation of the applicant is very much necessary to unearth the conspiracy and that the IO has collected sufficient incriminating materials against the applicant and therefore, it is contended to dismiss the petition.

¶6Having heard the submissions of learned Advocates of both sides, I have carefully perused the petition as well as the documents placed on the record and also perused the case diary with the assistance of learned Additional Public Prosecutor.

¶7It appears from the case diary that that the IO has achieved substantial progress in the investigation and that the entire matter relates to documents, which have already been collected and seized by the IO of this case. The applicant also sent the documents to the Io as asked for. Moreover, the allegation relates to defrauding of GST, but the case has not been registered under the GST Act, rather the case is registered under the IPC. Page No.# 4/4

¶8Having regards to above and also having regards to the materials collected so far in the case diary as well as the progress of investigation, custodial interrogation of the applicant seems to be unwarranted herein this case.

¶9Accordingly, it is provided that in the event of arrest of the applicant, in connection with BI [EO] P.S. Case No. 15/2023, under Sections 120[B]/419/420/468/471 of the IPC, he shall be enlarged on pre-arrest bail on his executing a bond of Rs. 50,000/- only with one surety of like amount to the satisfaction of the arresting authority.

¶10The above privilege is, however, subject to the following conditions:

(i) that the applicant shall make himself available for interrogation by the Investigating Officer as and when required;

(ii) that the applicant shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; and

(iii) that the applicant shall not leave the jurisdiction of the learned CJM, Kamrup [M] at Guwahati, without prior permission.

¶11In terms of above, this AB stands disposed of.

¶12The case diary be returned.

JUDGE Comparing Assistant

Page No.# 1/4 GAHC010210662023 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : AB/3208/2023 VIVEK KUMAR GUPTA S/O SHRI BHAULI PRASAD GUPTA R/O E SECTOR, KENNA TOWER NAHARLAGUN, ARUNACHAL PRADESH-791110 VERSUS THE STATE OF ASSAM AND ANR REP. BY THE PP, ASSAM 2:ASSISTANT COMMISSIONER OF STATE TAX GUWAHATI UNIT-D NEW KAR BHAWAN DISPUR-0 Advocate for the Petitioner : MR. M K CHOUDHURY Advocate for the Respondent : PP, ASSAM BEFORE HONOURABLE MR. JUSTICE ROBIN PHUKAN