TMI Blog2022 (12) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution of India, the powers under the PMLA in relation to the offences under the PMLA, have to be governed by the CrPC, if not expressly provided for alternatively in the PMLA. This is expressly recognized and acknowledged by Section 65 PMLA. Therefore, there exists absolutely no doubt with regard to the applicability of the procedural law in the case of the present nature. The Petitioner in the case at hand has been charged under Sections 4 of the PML Act which provides for a maximum punishment of seven years. Section 13 (1) (c) (d) of the Prevention of Corruption Act which provides for the maximum punishment of seven years and under Sections 120 B, 379,409, 411 and 420 of the IPC. A perusal of Section 2(y) of the PML Act provides for the scheduled offences thereunder and Paragraph 1 relates to offences under the IPC which are scheduled offences within the meaning of the PML Act. Section 409 of the IPC does not figure as a scheduled offence under the schedule to the act. Therefore, all the other offences including the offences under the IPC have a maximum punishment of up to 7 years imprisonment. The Petitioner in the present enforcement case has never been formally a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions as the arresting officer would deem fit and proper in the facts and circumstances of the present case. Anticipatory bail application allowed. - ABLAPL No.9695 of 2022 - - - Dated:- 25-11-2022 - JUSTICE A.K. MOHAPAT RA Petitioners : Mr. H.K. Mund, Advocate Opp. Party : Mr. G. Agarwal, Advocate ORDER 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. Heard Mr. Siddharth Luthra, learned Senior Advocate along with Mr. H.K. Mund, Advocate for the Petitioner and Mr. G. Agarwal, learned Special Counsel appearing for the Enforcement Department. Perused the records and materials placed before this court for consideration. 3. At the outset, the following precious words of Justice T.S. Thakur (former Judge, Supreme Court of India) expressed in the case of in Babubhai Bhimabhai Bokhiria vrs. State of Gujarat reported in (2013) 9 SCC 500, which redefined the criminal justice system in this Country, reverberates in the mind of this Court i.e. The essence of Article 21 of the Constitution of India lies not only in ensuring that no citizen is deprived of life and personal liberty except according to the procedure establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he has approached this Court nu filing the anticipatory bail application under Section 438 of the Criminal Procedure Code. 6. Before delving into the facts of the case in detail, this Court deems it proper to highlight the validity of the aforesaid legislation, namely, PMLS Act, 2002. It is pertinent to mention here that the Constitution validity of PMLA Act shall put to test in the case of Bijay Madanlal Choudhury and others vrs. Union of India in Special Leave Petition (Criminal) No.3634 of 2014 and a batch of other similar cases which were disposed of by Hon ble Supreme Court vide judgment dated 27.07.2022. The question that was involved and required adjudication by the Hon ble Supreme Court in the above noted case was with regard to the pleas concerning validity and interpretation of certain provision of PMLA Act, 2002 and the procedure followed by the Enforcement Directorate while enquiring into/investigating of offence under the PMLA Act, being violative of the Constitution mandate. The Hon ble Supreme Court after taking note of the facts of the cases and by referring to various judgments finally come to a conclusion which has been reflected in Paragraph-187 of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y knows as to when the same will be completed. After multiple bail applications and a lapse of almost about seven years, keeping in mind the time the Petitioner was already in judicial custody, the completion of investigation and him being in custody for the maximum punishment possible under most of the Sections he was charged with, this Court vide it s order dated 28.09.2020 in BLAPL No. 1042 of 2020 was pleased to grant him interim bail, which was further confirmed and made final by the Hon ble Supreme Court vide it s order dated 31.01.2022 in SLP (Crl.) No. 5544 of 2020 . At present the Petitioner is enlarged on bail. 9. In the instant bail application under section 438 Cr.P.C., this Court, however, is not concerned with the aforementioned T.R. Case No. 01 of 2014, but with the proceedings emanating from ECIR No. 01/2014/BSZO at Bhubaneswar Sub-Zonal Offices of Enforcement Directorate corresponding to Complaint Case (PMLA) No. 40 of 2018 for alleged offences under Section 3 r/w Section 4 of the Prevention of Money Laundering Act, 2002 (hereafter PMLA ), Section13(2) read with Section 13(1)(c)(d) of the PC Act and Sections 420, 411 read with Section 120-B of the IPC and fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led Complaint Case (PMLA) No. 40 of 2018 before the Court of the Learned Sessions Judge (Khurda) at Bhubaneswar under Section 45 of the PMLA against multiple accused persons including the present Petitioner. The Learned Sessions Judge (Khurda) took cognizance on 21.08.2018 and issued summons to the accused persons. Trial has since commenced but it appears, this trial as well is nowhere near completion. 12. The Petitioner herein has filed the present petition under Section 438 of the Criminal Procedure Code, 1973 seeking anticipatory bail in the event of his arrest in connection with Complaint Case (PMLA) No. 40 of 2018 pending before the Court of the Learned Sessions Judge (Khurda) at Bhubaneswar subject to the condition that he will abide by the terms and conditions likely to be imposed by this Court in the event of his release on pre-arrest bail and further subject to condition that he shall cooperate with the trial court for an early conclusion of the trial. 13. Per contra, Mr. G. Agarwal, learned Special Counsel appearing for the Enforcement Directorate opposes the release of the petitioner on pre-arrest bail by referring to the provisions contained in Section 45 of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Enforcement Directorate (with or without) a legitimate remand order. The maximum punishment prescribed being 7 years as stipulated in Section 4 of the PMLA, the present Anticipatory Bail petition ought to be allowed, keeping in view the Enforcement Directorates contention that a NBW has been issued, although the same has been denied by the Petitioner, which gives rise to genuine apprehension of arrest. d. Investigation in the matter has concluded and no new facts remain to be unearthed by the Enforcement Directorate which may require the custodial interrogation of the Petitioner. In fact, the alleged evidence unearthed in the course of investigation which the Opposite Party relies upon in its present Affidavit already finds mention in the Complaint Case (PMLA) No. 40 of 2018 filed on 11.04.2018 in Paragraph 7 i.e. Brief discussion of evidence relating to offence of money laundering . e. The Petitioner has already been subjected to rigorous custodial interrogation by E.D. and no useful purpose is going to be served by remanding the Petitioner to custody at this stage. Merely because trial has commenced and the Petitioner is enlarged on bail is not an ipso facto cause to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA that provides an alternative procedure, the provisions and procedure of CrPC shall apply to the cases registered and tried under the PMLA. Section 65 of the PMLA states that: The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act. Given the mandate of Articles 21 and 22 of the Constitution of India, the powers under the PMLA in relation to the offences under the PMLA, have to be governed by the CrPC, if not expressly provided for alternatively in the PMLA. This is expressly recognized and acknowledged by Section 65 PMLA. Therefore, there exists absolutely no doubt with regard to the applicability of the procedural law in the case of the present nature. 17. In matters pertaining to bail, the Hon ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) SCC OnLine SC 825 recently was of the opinion that: Liberty is one of the most essential requirements of the modern man. It is said to be the delicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apprehending or having a belief that they may be arrested for any non-bailable offence. The Law Commission was seized of the necessity for granting anticipatory bail arose because, at times, influential individuals tried to implicate their rivals in false cases for the purpose of disgracing them or for other purposes, by detaining them in jail for a couple of days. It was also observed that, with the accentuation of political rivalry, the aforesaid tendency showed signs of a steady increase. The Law Commission also suggested that it may not be practical to exhaustively enumerate conditions under which anticipatory bail may be granted, as the same may have been construed as prejudging the entire case. Hence, this was left to the discretion of the courts, without any fetters on such discretion in the statutory provision. 19. Accordingly, taking into consideration the Law Commission s report (and the need of the hour), the Parliament, while enacting the Code of 1973, introduced a provision for anticipatory bail under Section 438, under the heading Direction for grant of bail to person apprehending arrest . Section 438 of the Criminal Procedure Code reads as follows: 438. Dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in (1980) 2 SCC 565 , which laid down the prevailing law of the land on this issue, along with some guiding principles on the concept of anticipatory bail. The Supreme Court, while considering personal liberty as a fundamental right under Article 21, declared that any provision of law, which deals with personal liberty of an individual cannot be unduly whittled down by reading restrictions into it, especially the ones, which find no mention in the statute itself. This judgment of the Hon ble Supreme Court drew inspiration from the judgment passed in Maneka Gandhi v. Union of India reported in AIR 1978 SC 597 , which upheld the primacy of an individual s personal liberty and mandated all laws having an interface with personal liberty to be just, fair and reasonable . 21. Additionally, the Hon ble Supreme Court held that courts should lean against imposition of unnecessary restrictions on the scope of Section 438 of the Code when no such restrictions have been imposed by the legislature. Further, the Hon ble Supreme Court also stated that courts are entitled to impose restrictive conditions as they deem fit, but due consideration should be given to the seriousness and nat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nement, imprisonment, durance. 3. Guardianship. 24. It is clear that the meaning of the word custody has to be taken with reference to the context in which it is used. The question as to what would constitute arrest and custody has been the subject matter of decisions of different High Courts. This issue was grappled with by the Full Court of the High Court of Madras in the case of Roshan Beevi v. Joint Secretary to Government of Tamil Nadu reported in 1983 SCC OnLine Mad 163, wherein the Hon ble High Court was pleased to observe as follows: 16. From the various definitions which we have extracted above, it is clear that the word arrest , when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng principles of bail jurisprudence were laid down and which have been consistently followed by all courts including this court in the cases of Satindra Kumar Yadav v. State of Odisha reported in (2022) SCC Online Ori 90; Gurdit Dang v. State of Odisha reported in 2021 SCC Online Ori 2361 and in the case of Tareque Ahmad v. State of Odisha reported in 2016 SCC Online Ori 835. 26. In Sundeep Kumar Bafna v. State of Maharastra and Ors. reported in (2014) 16 SCC 623 the Hon ble Supreme Court has concluded that custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigating agency is of the opinion that the detainee or person in custody is guilty of the commission of a crime, he is charged of it and thereupon arrested. This pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; (ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter; (b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him; (c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 28. Sub-section (1) says that when a person is arrested and detained in custody and it appears that investigation cannot be completed within 24 hours fixed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce it is mandated that the arrested person shall be released on bail if he is prepared to and does furnish bail. It may be a different position if the same accused was found to have been involved in some other offence disconnected from the offence for which he was arrested. In such an eventuality the officer investigating such second offence can exercise the power of arresting him in connection with the second case. But if the investigation into the offence for which he was arrested initially had revealed other ramifications associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167(2) would remain unextendable. 29. Therefore, the position of law is very clear that if during the course of the investigation any further ramification comes to the notice of the police then the period will not be extendable. In CBI v. Anupam J. Kulkarni reported in (1992) 3 SCC 141 the Hon ble Supreme Court observed as follows: In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll issue a P.T warrant for the production of the accused in court. When the accused is so produced before the court, in pursuance of the P.T. warrant, the police officer will be at liberty to make a request for remanding the accused, either to police custody or judicial custody as provided under Section 167 (1) of the Code of Criminal Procedure. At that time, the Magistrate shall consider the request of the police, peruse the case diary and the representation the accused and then pass an appropriate order either remanding the accused or declining to remand the accused. It is of course needless to state that while considering the request for remand, the Magistrate is required to hold a summary enquiry and it is a very serious judicial act be performed by the magistrates while remanding the accused as the personal liberty of the individual is curtailed. The second more which the police officer may adopt is to effect a formal arrest in prison has stated in the case of CBI v. Anupam J Kulkarni reported in (1992) 3 SCC 141 and thereafter to make a request to the jurisdictional magistrate for issuance of PT warrant for the production of the accused. When the accused is so produced befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te shall pass appropriate orders under Section 167(1) of the Code of Criminal Procedure. (5) If the Police Officer decides not to effect formal arrest, it will be lawful for him to straightaway make an Application to the Jurisdictional Magistrate for issuance of P.T. Warrant for transmitting the Accused from prison before him for the purpose of remand. On such request, if the Magistrate finds that the requirements of Section 267 of the Code of Criminal Procedure are satisfied, he shall issue P.T. Warrant for the production of the Accused on or before a specified date. (6) When the Accused is so transmitted and produced before the Magistrate in pursuance of the P.T. Warrant from prison, the Police Officer will be entitled to make a request to the Magistrate for authorising the detention of the Accused either in Police custody or in judicial custody. On such request, after following the procedure indicated above, the Magistrate shall pass appropriate orders either remanding the Accused either to judicial custody or Police custody under Section 167(1) of the Code of Criminal Procedure or dismissing the request after recording the reasons. (7) Before the Accused is trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill result in the violation of the fundamental right guaranteed under Article 21 of the Constitution of India. 33. The question of applicability of Cr.P.C. to the PML Act has been dealt with by the Hon ble Supreme Court in the case of Ashok Munilal Jain v. Directorate of Enforcement, reported in (2018) 16 SCC 158 has held as follows: 3. We have gone through the orders passed by the trial court as well as by the High Court. We may state at the outset that insofar as the High Court is concerned, it has not given any reasons in support of its aforesaid view except endorsing the view of the trial court to the effect that the provisions of Section 167(2) CrPC are not applicable to the cases under the PMLA Act. This position in law stated by the trial court does not appear to be correct and even the learned Attorney General appearing for the respondent could not dispute the same. We may record that as per the provisions of Section 4(2) CrPC, the procedure contained therein applies in respect of special statutes as well unless the applicability of the provisions is expressly barred. Moreover, Sections 44 to 46 of the PMLA Act specifically incorporate the provisions of CrPC to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MCOC Act, 1999 is pari materia to the bar contained in Section 45(1) of the PMLA. In Ranjitsingh Sharma (supra) the Supreme Court elaborately narrated the approach to be adopted in arriving at the satisfaction as to whether the accused is not guilty of such offence and that the accused is not likely to commit any offence while on bail . The relevant paragraphs are quoted hereunder: 35. Presumption of innocence is a human right. [See Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699, para 31 ] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-Section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of Sub-section (4) of Section 21 must be given a proper meaning. 36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby. 37. Interestingly, the Hon ble Supreme Court even in the case of Vijay Choudhary (supra) has observed as follows: 400. It is important to note that the twin conditions provided under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 4.10.2022 which was disposed of by the Hon ble Supreme Court recently vide it s order dated 11.10.2022. 38. The Petitioner in the case at hand has been charged under Sections 4 of the PML Act which provides for a maximum punishment of seven years. Section 13 (1) (c) (d) of the Prevention of Corruption Act which provides for the maximum punishment of seven years and under Sections 120 B, 379,409, 411 and 420 of the IPC. A perusal of Section 2(y) of the PML Act provides for the scheduled offences thereunder and Paragraph 1 relates to offences under the IPC which are scheduled offences within the meaning of the PML Act. Section 409 of the IPC does not figure as a scheduled offence under the schedule to the act. Therefore, all the other offences including the offences under the IPC have a maximum punishment of up to 7 years imprisonment. 39. Now reverting back to the facts of the present case, the core allegation which forms the foundation of the alleged offence is that the petitioner along with the other accused persons performed illegal mining in the Uliburu Iron Ore Mines and in that process amassed and mobilized illegal monies by defrauding the state exchequer and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad undergone a period of about six years and the maximum quantum of punishment was about seven years will have no consequence, insofar as the enforcement case is concerned. 41. A thorough scrutiny of the factual background of the present case indicates that the petitioner herein had been taken into custody and not arrested by the Opposite Party is evident from a perusal of the orders passed by the special court PMLA, Bhubaneswar. Orders dated 3.07.2014, 10.07.2014 and 14.07.2014 would indicate that the Petitioner had been taken into custody at the request of the opposite party by moving an application and upon such request, they were granted remand of the petitioner by the court concerned for a period of seven days and thereafter for an additional period of 10 days. 42. The analysis of the various judicial pronouncements in the preceding paragraphs with regard to the concept of arrest and custody unequivocally demonstrate that the Petitioner in the present enforcement case has never been formally arrested by the Enforcement Directorate but has been remanded to their custody for the purposes of investigation. In the said context, the argument advanced before this court b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce case had been granted by this court and affirmed by the Hon ble Supreme Court that too the petitioner was detained in custody for almost 6 years out of maximum quantum of punishment that could be inflicted for the scheduled offences is 7 years, therefore, this court deems it proper and justified to consider the question of bail with regard to the Enforcement case from the standpoint of collective and combined view of the whole issue on conspectus of all the facts involved and the law applicable thereto. 44. In Anokhi Lal v. State of Madhya Pradesh reported in (2019) 20 SCC 196 it has been reiterated that expeditious disposal of criminal matters should not be at the expense of basic elements of fairness and opportunity to the accused. In the case of Sanjay Chandra v. CBI reported in (2012) 1 SCC 40 while dealing with a matter involving a public scam which was extremely prejudicial in nature, the Hon ble Supreme Court sounded a word of caution while dealing with such matters and had that in cases where under trial prisoners are detained in jail custody indefinitely, Article 21 of the Constitution stands violated. In matters involving scams it was noted that usually a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA (Section 43D), Companies Act (Section 212 (6), POCSO etc. while dealing with Section 436A of the code which has been inserted by Act 25 of 2005 the object of the amendment was gone into by the Hon ble Apex court. The provision provides that when a person has undergone detention for a period extending to of the maximum period of imprisonment specified for that offence, he shall be released by the court on his personal bond with or without securities. It has been noted that that the word shall clearly denotes the mandatory compliance of this provision. It has been noted therein that in cases where the provision applies the power has to be exercised sparingly with the principle governing the presumption of innocence of the accused has the provision is a substantive one, facilitating liberty being the core of the intendment of article 21. In fact the Hon ble Supreme Court has also taken note of the earlier directions passed by it in the case of Bhim Singh v. Union of India reported in 2015 SCC 605 on the very same lines. Finally, the Hon ble Supreme Court has concluded that with regard to category C of cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... try . Since the aforementioned judgment, hardly any mining leaseholder has been proceeded against criminally and even from amongst the handful who have been, nobody has been convicted yet of offences under IPC or the PML Act. 48. In light of the discussion made here in above coupled with a conspectus of the surrounding facts and circumstances of the present case as well as the fact that the petitioner was in custody for almost 6 years in connection with the vigilance case which forms part of scheduled offence for the present case under PML Act and the fact that the custodial interrogation of the petitioner is over and the E.D. s statement before court that custody of the petitioner is no more required and above all the fact that the petitioner was not formally arrested by the E.D. in the present case since the institution of the case by registering the ECIR further considering the factual background of this case with the touchstone of the test enunciated in the case of Ranjitsingh Sharma (supra), this court is persuade to form a prima facie opinion that, in all probabilities, the Petitioner may not be ultimately convicted especially as none of the other mining leaseholders who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 438 CrPC and to grant anticipatory bail to the present Petitioner and accordingly it is directed that the petitioner be released on bail in the event of his arrest by the E.D. officials in connection with Complaint Case (PMLA) No. 40 of 2018 pending before the Ld. Special Judge, Special Court, Bhubaneswar, Khurdha subject to such terms and conditions as the arresting officer would deem fit and proper in the facts and circumstances of the present case. Further, the release of the petitioner on pre arrest bail shall also be subject to following additional terms and conditions; a. The Petitioner shall appear before the Ld. Special Judge, Special Court, PMLA, Bhubaneswar on each and every date the case is posted to without fail. In case of default in appearance for any insufficient reason it is open for the Ld. Trial Court to issue NBW against the Petitioner. b. While on pre arrest bail the Petitioner shall not make any attempt whatsoever to tamper with or destroy the prosecution evidence. c. While on pre arrest bail, the Petitioner shall not make any attempt whatsoever to threaten, influence, induce, gain over any of the prosecution witnesses. d. The Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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