Crl.O.P Nos.5991 and 6461 of 2020 IN HIGH COURT OF JUDICATURE AT MADRAS DATED: 30.06.2020 CORAM HONOURABLE MR. JUSTICE A.D.JAGADISH CHANDIRA Crl.O.P.Nos.5991 and 6461 of 2020 Crl.O.P No.5991 of 2020 A.Mohideen S/o. Abdul Khader .. Petitioner Vs. Senior Intelligence Officer DGGI, Chennai Zonal Unit, C-3, C Wing, II Floor, Raj Bhawan, Besant nagar, Chennai-90 ..Respondent Crl.O.P No.6461 of 2020 J.Vinoth Kumar, Male aged 35 years S/o.Late Shri Jawari Lal No.74 Hunters Road, Choolai High Road, Choolai, Chennai-600 012. .. petitioner Vs. Senior Intelligence Officer DGGI, Chennai Zonal Unit, No.6, Tower II, 5th Floor, BSNL Building, Greams Road Chennai-6. .. Respondent Common Prayer: Criminal Original Petition filed under Section 439(1) of Criminal Procedure Code, against statutory bail order dated 19.02.2020 passed in Crl.M.P Nos.37 and 36 of 2020 in R.R.42 and 41 of 2019 respectively by Additional Chief Metropolitan Magistrate, EO-I, Egmore and partially modified by Principal Sessions Judge, Chennai by order dated 28.02.2020 in Crl.M.P Nos.4576 and 4575 of 2020. http://www.judis.nic.in 1 Crl.O.P Nos.5991 and 6461 of 2020 For Petitioners : Mr.Durai Kannan For Respondents : Mr.N.P.Kumar Special Public Prosecutor COMMON ORDER (The case has been heard through video conference) These petitions have been filed seeking to modify conditions imposed in statutory bail orders dated 19.02.2020 passed in Crl.M.P Nos.37 and 36 of 2020 in R.R.42 and 41 of 2019 respectively by Additional Chief Metropolitan Magistrate, EO-I, Egmore and which have been later partially modified by Principal Sessions Judge, Chennai by order dated 28.02.2020 made in Crl.M.P Nos.4576 and 4575 of 2020. 2. learned counsel for petitioner would submit that petitioners were arrested in R.R No.42 of 2019 in F.No.INV/DGGI/CZU/GST/110/2019 for offence under Section 132(1)(b) & (c) and 132(5) of CGST Act 2017 and in R.R No.41 of 2019 in F.No.INV/DGGI/CZU/GST/110/2019 respectively for offence under Section 132(1)(b) & (c) and 132(5) of CGST Act 2017. learned counsel for petitioner submitted that petitioners were arrested on 21.12.2019 and since final report was not filed by respondent police they applied for http://www.judis.nic.in 2 Crl.O.P Nos.5991 and 6461 of 2020 statutory bail and learned Additional Chief Metropolitan Magistrate, EO-I, Egmore, Chennai in Crl.M.P Nos.36 and 37 of 2020 was pleased to grant statutory bail to petitioners on 19.02.2020 with condition that petitioners shall deposit cash surety of Rs.5,00,000/- in deposit of Additional Chief Metropolitan Magistrate, (E.O I) Egmore, Chennai and execute bond for sum of Rs.50,000/- with two sureties for like sum in he respective cases. Further, learned Judge has also imposed condition that petitioners shall deposit title deeds of immovable properties which stands in petitioner's name worth not less than Rs.20 lakhs before Court. Since condition imposed to deposit Rs.5,00,000/- was onerous and unreasonable, petitioners were unable to deposit amount and come out on bail, despite statutory bail being granted on 19.02.2020. Further, since petitioners did not possess any property in their names, petitioners filed petition seeking for modification of condition before Court of Principal Sessions Judge in Crl.M.P No.4576 and 4575 of 2020 and learned Sessions Judge, by order dated 28.02.2020 partly modified condition that petitioners shall deposit cash of Rs.5,00,000/- and petitioners were also directed to deposit title deed of any other person worth about Rs.20lakh. http://www.judis.nic.in 3 Crl.O.P Nos.5991 and 6461 of 2020 3. learned counsel for petitioner would submit that even after modification, petitioners were unable to comply with condition and they are languishing in jail from 21.12.2019 and despite statutory bail granted on 19.02.2020 they were unable to come out. Court below have imposed condition which cannot be complied with. learned counsel for petitioner would further submit that indefeasible right given under Section 167(2) cannot be extinguished by imposing any onerous conditions. condition directing to deposit cash had indirectly defeated indefeasible right of petitioners and it had prevented petitioners from coming out on bail. petitioners are permanent resident of Chennai and continued detention of petitioners amounts to pre trial conviction. He would further submit that taking into consideration above and Covid-19 pandemic, prays for modification of condition. In support of his contention, learned counsel for petitioner relied on decision of this Court reported in 2019-1-LW(Crl.)387 in case of Umadevi V. State and referred to paragraph 18 of said judgment. 4. Mr.N.P.Kumar, learned Special Public Prosecutor appearing for DRI Cases filed counter and vehemently opposed to modify condition stating that petitioners have floated fake http://www.judis.nic.in 4 Crl.O.P Nos.5991 and 6461 of 2020 companies and filed E-way bill in name of one Amar jain and his wife name to tune of Rs.8.77 Crores and 15.16crores, approximately on invoice value of Rs.57.99crores and 90.84crores. It has also been admitted by petitioners in voluntarily statement dated 20.12.2019 that they have also produced fake Aadhar cards before authorities and total amount cheated by petitioners along with other accused work out to above Rs.122 crores. He would further submit that petitioners have offered to deposit Rs.5,00,000/- before Sessions Court. 5. At this juncture, learned counsel for petitioner would submit that though at that relevant time before Principal Sessions Court, petitioners had made offer to deposit cash security, due to present situation of Covid-19, family members are unable to raise funds and thereby they are unable to deposit amount. He would further submit that in lieu of not depositing cash sureties, petitioners in alternative are prepared to furnish two sureties each, who will be able to deposit title deeds of immovable properties for each of petitioners worth to value of Rs.20lakhs. learned counsel would pray that petitioners may be permitted to be released on their own bond and http://www.judis.nic.in 5 Crl.O.P Nos.5991 and 6461 of 2020 thereafter, time may be fixed for furnishing sureties before Court, after lockdown is lifted and normal functioning of Courts resumes. 6. Heard both sides and perused materials on record. 7. In decision of this Court reported in 2019-1- LW(Crl.)387 in case of Umadevi V. State this Court in paragraph 18 of order held that :- 18. Insofar second issue is concerned, this Court concurs with view expressed by this Court in its judgment in P.L.Jayaraj vs. State referred supra, where in this Court has categorically held that indefeasible right given u/s.167(2) cannot be extinguished by imposing any onerous conditions. In this case even though petitioner was granted bail, she was not able to come out on bail since she was not able to comply with condition directing her to make cash deposit of Rs.20lakhs. If very same condition of cash security is to be imposed on petitioner while considering Statutory Bail, it will indirectly defeat indefeasible right of petitioner and will prevent petitioner from coming out on bail. Court below failed to appreciate this fundamental aspect while http://www.judis.nic.in 6 Crl.O.P Nos.5991 and 6461 of 2020 dismissing bail petition filed by petitioner. It is seen from records that petitioner is permanent resident of Coimbatore, and all properties belonging to petitioner and her family is in and around Coimbatore and this Court is convinced that petitioner cannot abscond, if bail is granted by imposing reasonable conditions. 8. In this case, petitioners have been arrested on 21.12.2019 and since, final report was not filed by respondent they have been granted bail on 19.02.2020. Despite bail order being passed on 19.02.2020, petitioners are unable to come out since they are unable to comply with condition of payment of cash. Though before Principal Sessions Judge, they have offered to deposit cash of Rs.5lakh, it is contention of petitioners that due to Covid-19 pandemic, family members are unable to raise funds and deposit amount, further in lieu of non payment of cash, submission has been made by counsel for petitioners that two sureties will be able to deposit documents of immovable properties each worth Rs.20lakhs for each of petitioners within time frame fixed by this Court. http://www.judis.nic.in 7 Crl.O.P Nos.5991 and 6461 of 2020 9. In view of above, taking into consideration facts and circumstances of case and submissions made by learned counsel for petitioner, condition imposed by Additional Chief Metropolitan Magistrate, EO-I, Egmore, Chennai in Crl.MP.Nos.4576 and 4575 of 2020 dated 19.02.2020 directing each of petitioners to deposit cash of Rs.5lakh is hereby set aside. (a) Accordingly, petitioners are ordered to be released on bail on executing their own bond for sum of Rs.50,000/- (Rupees fifty thousand only) each, before Superintendent of concerned prison, in which petitioner has been confined and thereafter on their release; (b) each of petitioners shall furnish two sureties who shall deposit title deeds of immovable properties each to value of Rs.20lakhs before Additional Chief Metropolitan Magistrate (EO-I), Egmore, Chennai within four weeks from lifting of lock down or commencement of Court's normal functioning, failing which bail granted by this Court shall stand dismissed automatically; (c) sureties shall affix their photographs and Left Thumb Impression in surety bond and learned Magistrate may obtain copy of their Aadhar card or Bank pass Book to ensure their identity; http://www.judis.nic.in 8 Crl.O.P Nos.5991 and 6461 of 2020 (d) petitioner shall report before respondent police daily at 10.30a.m., until further orders. 10. With above directions, this Criminal Original Petitions are ordered. 30.06.2020 To 1.The Additional Chief Metropolitan Magistrate, EO-I, Egmore, Chennai 2. Principal Sessions Judge, Chennai 3. Superintendent, Central Prison, Chennai. 4 Senior Intelligence Officer DGGI, Chennai Zonal Unit, No.6, Tower II, 5th Floor, BSNL Building, Greams Road, Chennai-6. 5 Senior Intelligence Officer DGGI, Chennai Zonal Unit, C-3, C Wing, II Floor, Raj Bhawan, Besant nagar, Chennai-90. 5. Public Prosecutor High Court of Madras. http://www.judis.nic.in 9 Crl.O.P Nos.5991 and 6461 of 2020 A.D.JAGADISH CHANDIRA,J tsh Crl.O.P.Nos.5991 & 6461 of 2020 30.06.2020 http://www.judis.nic.in 10 A. Mohideen v. Senior Intelligence Officer DGGI, Chennai