NIRZAR S. DESAI, J.

1. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973, for regular bail in connection with File no. DCST/ACST4/ARREST/MAHAMADSAVJANI/2022-23/B.47 registered with Office of Deputy Commissioner of State Tax, Enforcement, Division-1, Ahmedabad, for offences under Sections 132(1)(b) of the Central Goods and Services Tax Act, 2017 & Section 132(1)(b) of the Gujarat Goods and Services Tax Act, 2017 by exercising powers under Section 69 of the Gujarat Goods and Services Tax Act, 2017.

2. Heard learned Sr. advocate Mr. Nirupam D. Nanavaty with learned advocate Mr. Chetan Pandya for the applicant and learned Public Prosecutor Mr. Mitesh Amin for the State.

3. Learned Senior Advocate Mr. N. D. Nanavaty submitted that vide order dated 19.04.2023 this Court had granted two months time to the State to carry out further investigation and if any material is found against the present applicant to file a detail report, the order dated 19.04.2023 reads as under;

"1. Heard the learned senior advocate, Mr.N.D.Nanavati with learned advocate, Mr.Chetan Pandya for the applicant and learned Public Prosecutor, Mr.Mitesh Amin assisted by the learned APP, Mr.Hardik Soni.

2. After arguing the matter for some time by relying upon the order of the Hon’ble Supreme Court in case of Sandeep Goyal vs. Union of India in Special Leave to Appeal (Criminal) No.1803 of 2023 order dated 17.04.2020 learned Public Prosecutor pointed out that, in that matter though the accused person was in jail since 1 year and 08 months, the Hon’ble Supreme Court granted three months’ time to the department to complete the investigation and also observed that within three months’ the investigation is not completed and report is not submitted, in that case, the applicant be released on bail on suitable conditions by the Trial Court.

2.1 He submitted that in the instant case also the investigation shall be over within a period of two months from today and a report shall be submitted on the next date of hearing.

3. Learned senior advocate, Mr.Nanavati, upon instruction, agrees that the matter be adjourned after two months and no further time shall be granted and matter be decided on the next date of hearing in case if, even if, the investigation is pending.

4. It is agreed upon between the parties that once the period of two months is over, irrespective of pendency of investigation, the Court shall consider application preferred by the applicant. 5. Learned Public Prosecutor, Mr.Amin assured this Court that even if the investigation is pending after a period of two months, without investing any further time in hearing the matter, this Court may consider the application of the present applicant on its own merit. 6. In view of that, Stand Over to 20.06.2023."

By drawing attention of this Court to the above order learned Sr. advocate Mr. Nanavaty stated that looking to the fact that till date no additional report is submitted by the Investigating Officer as also considering the fact that maximum punishment even if the present applicant is held guilty of the offence would be 5 years which is less than 7 years and there are catena of judgments that when the period of imprisonment is less than 7 years Court unless some exceptional circumstances are made out should enlarge the applicant on bail. As also considering the fact that as such whatever the material is there at present on record is subject matte of evidence at the stage of trial, if the present applicant denied the bail at this stage it would amount to pretrial conviction and learned sr. advocate give attention of this Court to the order dated 17.04.2020 of the Hon’ble Supreme Court in SLP(Cri) 1803 of 2020.

Learned Sr. advocate Mr. Nanavaty further drew attention of this Court to the fact that number of co-accused against whom also similar allegations are leveled are enlarged on regular bail by Co-ordinate bench of this Court and only difference was that they were accused of tax evasion of a different amount, except that role are of similar to the present applicant, those orders are produced with this application from page number 158 to 176 and from 177 to 218 and by referring to those orders senior advocate submitted that this is a fit case to enlarge present applicant on regular bail as even after the order dated 19.04.2023 where by two months time was given to the Investigating Officer to submit the additional report till date nothing is produced therefore, present applicant be enlarged on bail.

4. Learned Public Prosecutor Mr. Amin appearing on behalf of the respondent-State has vehemently opposed this application and submitted that investigation is still going on and looking to the magnitude of scam the same could not be over. However, learned Public Prosecutor Mr. Amin has submitted a report today, which is taken on record and on perusal of the report also what transpire is the fact that the investigation is still not over and it is going on and it can not be ascertain that how long the investigation even now on will go on. However learned Public Prosecutor Mr. Amin could not dispute the fact that co-accused are already enlarged on bail by co-ordinate bench and the role of the present applicant is not similar to those co-accused person who are already enlarged on bail by co-ordinate bench.

5. Learned Advocate appearing on behalf of the respective parties do not press for further reasoned order.

6. Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, without discussing the evidence in detail, this Court is of the opinion that this is a fit case to exercise the discretion and enlarge the applicant on regular bail.

7. This Court has considered the following aspects:-

(a) the applicant is in jail since 16.10.2022;

(b) though investigation is going on and last time vide order dated 19.04.2023 also a time of two months was granted to complete the investigation and submit the additional report, the investigation is still going on.

(c) co-accused namely Mahmad Abbas Rafikali Meghani was already enlarged on regular bail vide order dated 29.03.2022 by co-ordinate bench of this Court in Criminal Miscellaneous Application No. 72 of 2022,

co-accused namely Afjal Sadikali Savjani was already enlarged on regular bail vide order dated 29.03.2022 by co-ordinate bench of this Court in Criminal Miscellaneous Application No. 1722 of 2022,

co-accused namely Minaben Rangitsinh Rathod was already enlarged on regular bail vide order dated 29.10.2021 by co-ordinate bench of this Court in Criminal Miscellaneous Application No. 15509 of 2021.

co-accused namely Kirtiraj Pankajbhai Sutariya was already enlarged on regular bail vide order dated 14.09.2022 by co-ordinate bench of this Court in Criminal Miscellaneous Application No. 14349 of 2022,

co-accused namely Irfan Mohamadfirdos Kothi was already enlarged on regular bail vide order dated 28.02.2022 by this Court in Criminal Miscellaneous Application No. 18813 of 2021,

co-accused namely Niraj Jaidev Arya was already enlarged on regular bail vide order dated 16.03.2022 by co-ordinate bench of this Court in Criminal Miscellaneous Application No. 23127 of 2021,

co-accused namely Nileshbhai Natubhai Patel was already enlarged on regular bail vide order dated 05.08.2022 by co-ordinate bench of this Court in Criminal Miscellaneous Application No. 11390 of 2022,

though the officers from state GST department are present could not be distinguished as to how the present applicant’s role is different from the role of other co-accused who are already enlarged on bail.

(d) I have perused two sets of order where by co-accused have been enlarged on bail by co-ordinate bench of this Court however learned Sr. advocate Mr. Nananvaty by drawing attention of this Court to the orders where by the condition to deposit the amount was not there, subsequently states that since in some of the orders condition was imposed upon accused person to deposit certain amount as aforesaid condition was not approved by Hon’ble Supreme Court, in subsequent orders no such condition were imposed and therefore, while enlarging present applicant on bail I do not impose any condition to deposit any further amount but to ensure free and fair investigation applicant shall not be allowed to enter into Bhavnagar District for the period of six months and he shall not leave state of Gujarat for the period of six months from today except for attending the Court work or as and when he is called by Investigating Officer in respect of present case or any other matter.

In the facts and circumstances of the present case, I am inclined to consider the case of the present applicant.

8. This Court has also taken into consideration the law laid down by the Hon'ble Apex Court in the case of Sanjay Chandra Vs. Central Bureau of Investigation, reported in [2012] 1 SCC 40.

9. Hence, the present application is allowed. The applicant is ordered to be released on regular bail in connection with File no. DCST/ACST4/ARREST/MAHAMADSAVJANI/2022-23/B.47 registered with Office of Deputy Commissioner of State Tax, Enforcement, Division-1, Ahmedabad, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial Court and subject to the conditions that he shall;

[a] not take undue advantage of liberty or misuse liberty;

[b] not act in a manner injurious to the interest of the prosecution;

[c] surrender passport, if any, to the lower court within a week;

[d] not leave the India without prior permission of the concerned trial court;

[e] mark presence before the Office of Deputy Commissioner of State Tax, Enforcement, Division-1, Ahmedabad once in a month between 11:00 a.m. and 2:00 p.m. till trial is not over;

[f] furnish the present address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the concerned trial court;

[g] applicant shall not be allowed to enter into Bhavnagar District for a period of six months and he shall not leave state of Gujarat for a of six months from today except for attending the Court work or as and when he is called by Investigating Officer in respect of present case or any other matter;

10. The authorities shall adhere to its own Circular relating to COVID19 and, thereafter, will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower Court having jurisdiction to try the case. It will be open for the concerned Sessions Court to delete, modify and/or relax any of the above conditions, in accordance with law.

11. At the trial, the Trial Court shall not be influenced by the prima facie observations made by this Court in the present order.

12. Rule is made absolute to the aforesaid extent. Direct Service is permitted.