Rakesh Kumar Chaudhary v. State (Central Excise)

(1) JCC 522; 2002 (1) JCC 465; 2002 (61) DRJ 670 (SC). The Petition is opposed by the learned counsel for the State (Central Excise) on the ground that there was an evasion of excise duty to the tune of Rs.1.[5] crores and, therefore, no fault can be found in the order of the learned Addl. Sessions Judge whereby the Petitioner was directed to deposit a sum of ? 30,00,000/- towards penalty, which might be imposed. In fact, learned Addl. Sessions Judge has gone into the aspect of penalty and observed that the loss to the Government could be to the extent of ? 45,00,000/- and that is why he imposed the condition of deposit of ? 30,00,000/- as a condition for grant of bail. In Raj Kumar Aggarwal v. Director General, Central Excise, New Delhi & Anr., 2008 (1) JCC 522 the Division Bench oif this Court analysed various judgments on the subject and held that a condition for deposit of any amount cannot be imposed. I would like to extract para 17 ofthe report hereunder: - "77. Considerable arguments had been generated on the question of imposition of conditions by the learned Single Judge. Our attention has been drawn to the use of these words inter alia under Sections 437 (3) and 438 (l)(b)(2) ofthe Cr.P.C. We see no reason to make a distinction between the word conditions of hail or terms ofbail either in the context ofSection 167(2) or Chapter-

XXXIII. They have been employed as synonymous of each other.

In Sreenivasulu Reddy v. State of Tamil Nadu, IV (2000) CCR 96, the accused had already deposited, a sum of f 35 crore out ofthe f 50 crore imposed in the Bail Order. Their Lordships had emphasized that while exercisingjurisdiction under Section 438(2) of the Cr.P.C., the Court ought only to impose such conditions/ terms for enlarging an accused on bail as would ensure that the accused does not abscond. These conditions should not be intended or calculated to carry out and effect recoveries from the accused. In Sandeep Jain v. State ofDelhi, I (2000) CCR 92 (SC), a direction to deposit f 2 lacs apartfromfurnishing ofa bond of f 50,000/- with two solvent sureties was held to be unreasonable. In Seikh Ayub v. State of M.P., (2004) 13 SCC 457, the Supreme Court deleted the direction to deposit a sum of f[2],50,000/-, which was the amount allegedly misappropriated by the accused. Similarly, in Shyam Singh v. State, (2006) 9 SCC 169, the condition that the accused should make a payment of f 1,00,000/per month after his release on bail was found by the Apex Court not to be justified. Their Lordships observed that while it is of course open to a Court to grant or refuse bail it was impermissible for it to assume that an offence has been committed even at the stage of grant of bail and to direct repayment of any amount is both onerousand unwarranted. The condition ofdepositing a sum of f 1,00,000/- wasstruckdown. In Amarjit Singh v. State (NCTof Delhi), 2002 (61) DRJ 67, after adverting to Sandeep Jain, the Supreme Courthad recordedthat we have no hesitation in coming to the conclusion that the imposition of condition to deposit the sum of f15,00,000/- in theform ofan FDR in the Trial Court is an unreasonable condition and, therefore, we set aside the condition as a conditionprecedentfor granting anticipatoiy bail A Division Bench of this Court in M.R. Narayanan v. State, 103 (2003) DLT 434, applying the ratio in Sreenivasulu Reddy also concluded that conditions akin to deposit of money ought not to be imposedas a groundfor grant ofbail; that conditions/terms are imposedsolely to ensure thepresence ofthe accused, at the time oftrial The only situation where money may be deposited in fact arises fi'om the volition of the accused. This is where the requiredperson by any Court to execute a bond instead elects, under Section 145 of the Cr.P.C., to seek permission from the Court to deposit a sum of money or Governmentpromissory notes in lieu of executing a bond. This is so because a mere deposit of money may in some cases prove to defeat the purpose behind sureties being made available since the source of the monetary deposit is untraceable and an accused can abscond if hefinds the deposit to be trivially incommensurate to hisfreedom.'' In the facts and circumstances, the order of learned Addl. Sessions Judge imposing condition for deposit of X 30,00,000/- is modified. The Petitioner is directed to be released on furnishing a personal bond in the sum of ? 50,000/with two sureties in the like amountto the satisfaction of Trial Court. Application stands disposed of Dasti under the signature of Court Master. (G.P. MITTAL)

VACATION JUDGE JUNE 17, 2011 hs