TMI Blog2021 (9) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s Surgicoin Medequip Pvt. Ltd. During these searches several incriminating documents were seized. These documents included letters written by Naresh Grover, who was in judicial custody at that time, to his son Pankaj Grover directing him to manipulate the accounts and records to defeat the allegation of supply of material under NRHM Scheme at astronomical rates of profit as well as of short supply of the said material - the fact that Naresh Grover had directed Pankaj Grover in writing not to submit the original invoices and the ledgers of the sundry creditors and debtors to the ED as well as to manipulate the records of the genuine creditors with other fictitious entries establishes that he was wilfully and knowingly trying to frustrate the proceedings under the Act and was also attempting to deflect the process of investigation In socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of abscondance not within country but beyond country is more probable. Usually socio-economic offenders abscond to some other country and after that it becomes difficult to bring the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases in respect of the persons against whom prima facie cognizable offence is made out in accordance with law. 4. It is submitted that in pursuance to the aforementioned orders of the Court, five separate preliminary enquiries were registered in different branches of CBI. Preliminary Enquiry No.5(A)/2011/SC.II/CBI/New Delhi was registered on 19.11.2011 in respect of alleged irregularities in the utilization of funds of Government of India. On 02.01.2012, a first information report being R.C. No.1(A)/2012-C.B.I./SC II/New Delhi was registered by CBI under Sections 120-B r/w Sections 420, 409 of IPC and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act against several persons. Further, Directorate of Enforcement lodged Enforcement Case Information Report No.ECIR/01/PMLA/LZO/2012 dated 14.04.2012 against all the persons named in FIR No.RC-1(A)/2012-CBI/SC.II/New Delhi. Thereafter, Directorate of Enforcement passed order of Provisional Attachment dated 05.04.2017 and provisionally attached two of the properties. 5. It is further submitted that Directorate of Enforcement preferred Original Complaint on 11.05.2017 under Section 5(5) of the Prevention of Money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty shall be guilty of offence of money-laundering. 9. It is submitted that in the present case, the properties in question were acquired by the applicant in the year 2002 and 2001 and the alleged year of commission of crime is 2010-11. The properties in question were never owned by the applicant nor the sale consideration of the properties was paid by the applicant. Hence, no question of proceeds of crime arises. 10. Shri Singh has submitted that custodial interrogation is not required in the present case as the investigation has already been completed and complaint has been filed. 11. It is further submitted that the present complaint has been filed by the respondent after the lapse of eight years since lodging of ECIR and upon conclusion of enquiry, which was duly supported by the applicant as and when directed, hence, the custody of the applicant in any event is not required. It is also submitted that the maximum punishment provided for alleged commission of offence under Section 3 of PMLA is from 3 to 7 years in terms of Section 4 of PMLA and the Hon'ble Supreme Court in a catena of judgments while citing Section 41 and 41A of Cr.P.C. has held that where the ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to commit any offence. It is further submitted that though in Nikesh Tarachand Shah v. Union of India and Anr. - (2018) 11 SCC 1, Section 45(1) of PMLA, as it then stood, had been declared unconstitutional by the Hon'ble Supreme Court but the defect pointed out by the Hon'ble Supreme Court, which formed the basis to declare Section 45(1) as unconstitutional, had been cured by the Legislature through its Act No.13 of 2018. As per Act No.13 of 2018 the offending expression punishable for a term of an imprisonment of more than three years under Part A of the Schedule has been substituted with under this Act . In view of the aforesaid amendment the twin conditions prescribed under Section 45(1) of the PMLA stood revived. The amended Section 45(1) of the PMLA has not been challenged by the applicant and therefore, the applicant as also this Court is bound by the aforesaid twin conditions. 17. It is further submitted that in terms of the law laid down by the Hon'ble Supreme Court in the case of Nagaland Senior Government Employees Welfare Association and others vs. State of Nagaland and others - (2010) 7 SCC 643, a statute is deemed to be constitutionally valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the investigation has further revealed that out of the said Proceeds of Crime a sum of nearly ₹ 10 Crore has been paid by way of bribe/commission to various officials and ministers and their associates leaving the balance Proceeds of Crime of about ₹ 11 Crore in the hands of M/s Surgicoin Medequip Pvt. Ltd. However, the said sum has been siphoned off by manipulating records and showing fictitious transactions to frustrate the proceedings under PMLA. Moreover, the allegation in respect of the balance remaining out of the Proceeds of Crime in the hand of M/s Surgicoin Medequip Pvt. Ltd. is also contained in two other ECIRs registered by the Department bearing ECIR No.06-07/PMLA/LKZO/2012 both dated 14.04.2012 is nearly ₹ 8.65 Crore. Thus, the cumulative balance of the Proceeds of Crime in the hands of M/s Surgicoin Mediquip Pvt. Ltd. is over ₹ 19 Crore. 21. It is submitted that in the case of P. Chidambaram v. Directorate of Enforcement - (2019) 9 SCC 24 , the Hon'ble Supreme Court has held that the power under Section 438 Cr.P.C. was an extraordinary power and the same was to be exercised sparingly. It is also held that privilege of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re Section 45(1) of the PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. 26. In the case of Okram Ibobi Singh Vs. The Directorate Enforcement - 2020 SCC OnLine Mani 365 , the High Court of Manipur at Imphal has held that it can be easily deciphered, on comparative reading of Section 45 (1) of the PMLA, pre-amendment and post amendment, that Clause (ii) of sub- Section (1) remained as it stood before amendment. The issue which arises for consideration is as to whether the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah (supra) can be said to have lost its significance because of the aforesaid amendment in Section 45(1) of the PMLA. The Court after considering submission of both sides and the law laid down in case of Nikesh Tarachand Shah (supra), and also referring to several decisions has held that the Hon'ble Supreme Court has taken into consideration the illustrations while arriving at a conclusion that the twin conditions is unconstitutional. It was observed that the Hon ble Supreme Court has clearly held that indiscriminate applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present nature and also that the Court should be loathed in grant of bail/pre-arrest bail in respect of persons indicted in economic offences has been elaborated by the Hon'ble Supreme Court in P. Chidambaram's case (supra) as follows: 76. In Siddharam Satlingappa Mhetre v. State of Maharashtra (supra), the Supreme Court laid down the factors and parameters to be considered while dealing with anticipatory bail. It was held that the nature and the gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made and that the court must evaluate the available material against the accused very carefully. It was also held that the court should also consider whether the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. 77. After referring to Siddharam Satlingappa Mhetre judgment and observing that anticipatory bail can be granted only in exceptional circumstances, in Jai Prakash Singh v. State of Bihar, the Supreme Court held as under : (SCC p.386, para 19) 19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the national economy and national interest . 81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, the Supreme Court held as under: 34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the Accused, circumstances which are peculiar to the Accused, reasonable possibility of securing the presence of the Accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 82. Referring to Dukhishyam Benupani, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xt is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, Clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 70. Likewise, in Directorate of Enforcement v. Deepak Mahajan 40 this court referred to Maxwell on Interpretation of Statutes, Tenth Edn., to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid is the contention of the learned counsel for the applicant. The Hon'ble Supreme Court in different decisions, however, held that economic offences constitute a class apart, the Court need to visit the same with a different approach in the matter of bail/anticipatory bail and should be loathed while extending the benefit of bail/pre-arrest bail to a person accused of such offences. The aforesaid is also the view of the Hon'ble Supreme Court in the case of P. Chidambaram (supra). 33. Now, coming to the other contention of learned counsel for the respondent that since custodial interrogation is much more fruitful for collection of further evidence, and the interrogation of the applicant is required to unveil the larger conspiracy in the aforesaid heinous and serious offence in which crores of rupee has been collected by the company, of which money trail was found with the applicant, prearrest bail should not be granted to him. 34. In the case of Gurbaksh Singh Sibbia (supra), the Hon'ble Supreme Court in paragraph-19 has held as under:- 19. A great deal has been said by the High Court on the fifth proposition framed by it, according to which, inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng these searches several incriminating documents were seized. These documents included letters written by Naresh Grover, who was in judicial custody at that time, to his son Pankaj Grover directing him to manipulate the accounts and records to defeat the allegation of supply of material under NRHM Scheme at astronomical rates of profit as well as of short supply of the said material. In the statements recorded under Section 50 of PMLA, 2002 both Pankaj Grover as well as Mr. Rajendra Kaul have admitted that the profit margin on procurement/manufacture of certain items ranged up to 200%. Moreover, the fact that Naresh Grover had directed Pankaj Grover in writing not to submit the original invoices and the ledgers of the sundry creditors and debtors to the ED as well as to manipulate the records of the genuine creditors with other fictitious entries establishes that he was wilfully and knowingly trying to frustrate the proceedings under the Act and was also attempting to deflect the process of investigation 37. A perusal of the voluminous oral and documentary evidence collected during the course of investigation has revealed that Naresh Grover, Director of M/s Surgicoin Medequip P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no criminal self image, further by societal members there is no labelling which affect seriously pursuits to cope with crime and criminality. Economic offenders are only concerned with their personal gain even at the cost of irreparable and serious loss to society which provided socialization and made him a human being, provided status and position, provided respect and reputation, provided stature and means. 39. In State of Gujarat v. Mohanlal Jitamalji Porwal - (1987) 2 SCC 364, the Hon'ble Supreme Court observed: [ ] the entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court. The accused was remaining in custody for longer period since his surrender on 24.10.2002. The Hon'ble Supreme Court decided that having regard to huge amounts involved in the systematic fraud, there is danger of the appellants absconding, if released on bail, or attempting to tamper with the evidences by pressurizing witnesses. The Hon'ble Supreme Court refused to grant bail. In socioeconomic offences always the court considers monetary position of the accused and amount involved in criminal case. More the accused is economically sound and more the amount involved in criminal case; it cause more the chance of affecting the requirements of criminal justice, more the accused is unfit for bail, thereby, more the chance of refusal to grant bail. 42. In socio-economic offences proceed of crimes are larger and further, offenders are economically sound, therefore, in releasing them on bail/anticipatory bail probability of abscondance not within country but beyond country is more probable. Usually socio-economic offenders abscond to some other country and after that it becomes difficult to bring them back and complete the criminal proceeding against them. Further, their ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
