TMI Blog2022 (12) TMI 978X X X X Extracts X X X X X X X X Extracts X X X X ..... ORS. VERSUS UNION OF INDIA ORS. [ 2022 (7) TMI 1316 - SUPREME COURT] the Hon ble Apex Court was pleased to emphasise on the issue relating to a delicate balance between the merits of appreciation while deciding a case at the stage of acquittal or conviction and an application for bail. For this purpose the phrase reasonable grounds for believing was also emphasized in relation to the material collected by the prosecution at the time of considering the bail application. Considering that the order passed by the Learned Judge, Special (CBI), Court no.1, Calcutta in ML Case No. 11 of 2022 is in violation of the provisions of Section 45 of the PMLA, 2002, I am of the opinion that the said order calls for interference. Accordingly, the order dated 12.04.2022 granting bail to the accused Debabrata Halder is hereby set aside. Application disposed off. - CRM (SB) 93 of 2022 - - - Dated:- 20-12-2022 - HON BLE JUSTICE TIRTHANKAR GHOSH Mr. Arijit Chakraborty. ...For the applicant/Enforcement Directorate. Mr. Debasish Roy, Mr. Soumik Ganguly, Mr. Dilip Kumar Sadhu. ...For the Opposite Party no.1 Mr. Biswajit Hazra, Mr. Rajib Mukherjee, Mr. Archisman Sain....For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O/03/2018 dated 14.03.2018 under the PMLA, 2002 was registered for investigation. NSIC, a Government of India Enterprise which arranged for credit support through various Banks to MSME s, under the RMA Scheme. The RMA Scheme was aimed for helping MSME s by way of financing the purchase of essential raw materials which gives an opportunity to MSME s to focus better on their business prospects. In the case of Raw Materials, NSIC makes direct payment to the supplier/manufacturer of the Raw Material on specific request of the concerned MSME s. The assistance under RMA Scheme is provided against 100% security to Bank Guarantee of approved banks. (c) On an investigation, the modus operandi adopted by the accused for diversion of public money to the tune of Rs.173.50/- crore surfaced which are as follows: Duel set of Bank Guarantees, both in original stamp papers, were prepared for providing collateral security to avail credit facility from NSIC under RMA Scheme. One Bank Guarantee was submitted to NSIC as collateral security for availing credit facility under RMA Scheme and the other Bank Guarantee was kept with them. One of the syndicate members impersonated himse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be involved in the commission of offences of money laundering, by indulging in criminal conspiracy with bogus supplier, MSME units of Bank Officials to obtain proceeds of the crime with the aim of converting the illegal money into legitimate money. He was also found to be knowingly involved and a party in the process and activity connected with the proceeds of crime including its concealment, possession, acquisition, use and projecting/claiming the said proceeds of crime an untainted property deriving illegal monetary gains. In course of investigation it revealed that the accused Debabrata Halder was involved in the process of laundering of proceeds of crime and as such he was arrested under Section 19 of PMLA, 2002 on 17.11.2021 and was produced before the learned Special Court under PMLA, 2002, before the learned Judge, Special (CBI) Court No.1, Bichar Bhawan, Calcutta. The accused/opposite party no.2 was remanded from 17.11.2021on different dates till he was granted bail on 12.04.2022. In meantime on 15.01.2022 the Enforcement Directorate/prosecution filed its final report under Section 45 of the PMLA, 2002 against 13 accused persons including the accused Debabrata Halder a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orate submitted that the subject matter of the case related to a fraud amounting to a sum of Rs.173.50/- crore in respect of schedule offence and the Anti Cheating and Fraud Section, CID, West Bengal has submitted their charge-sheet before the competent Court for offences under Section 420/406/408/409/467/468/120B of the Indian Penal Code. The Enforcement Directorate considered the offence, the manner in which the proceeds of the crime were assimilated by the accused persons. On completion of initial investigation complaint was filed under Section 45 of the PMLA on 15th January, 2022 before the learned Special Court where the facts and circumstances constituting offence under Section 3 of the Act which is punishable under Section 4 of the Act so filed against 13 accused persons including the opposite party and the other accused have been set out in detail. In paragraph 21 of the said complaint the Enforcement Directorate craved leave to file supplementary complaint as the investigation is still continuing. The learned Special Court vide its order dated 15.01.2022 in M.L. Case No. 11/2021 took cognizance of the offence. According to the learned Advocate Explanation (ii) to Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh Tarachand Shah Vs. UOI Ors. reported in (2018) 11 SCC 1 revived in view of the legislative intervention vide Amendment Act 13 of 2018. Reliance was placed on Assistant Director, Enforcement Directorate -Vs. - Dr. V.C. Mohan wherein according to the applicant the mandate of Section 45 of the PMLA was emphasized. The learned Advocate also relied upon Assistant Director, Directorate of Enforcement Vs. N. Umashankar Ors. wherein the Hon ble Supreme Court was pleased to set aside the order granting bail passed by the Hon ble High Court of Madras on the ground that the High Court has not dealt with the relevant aspects of the matter including the statutory bar for grant of bail in cases relating to PMLA. Learned Advocate also relied upon the judgment of the Hon ble Supreme Court in Vijay Madanlal Choudhury Ors. Vs. Union of India Ors. which will be dealt with later. According to the learned Advocate for the applicant/Enforcement Directorate the learned trial Judge, enlarged the accused Debabrata Halder on bail without reasoning on the statutory bar under Section 45 of the PMLA Act, as such the said order dated 12.04.2022 is ex-facie bad in law. Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally it has been submitted that as the investigating agency did not exercise their powers to arrest in the instant case their bail may not be cancelled. It has also been submitted that the present accused persons are not similarly situated in respect of the alleged offence with Debabrata Halder and the accused no.9 namely, Pappu Halder was not implicated as an accused in the charge-sheet submitted by the CID which has been considered to be a schedule offence in respect of the investigation carried out by the Enforcement Directorate. Learned Advocate submitted that the accused persons would be prejudiced in case their bail is cancelled after about 8 months. Mr. Sayan De, learned Advocate appearing for the accused no.3 and 4 submitted that the complicity of the accused persons namely, Gopinath Bhattacharya and Manik Lal Das, if at all did not inspire the Investigating Agency to exercise their powers under Section 19 of the PMLA, 2002 as no incriminating materials in the nature relating to proceeds of crime could be recovered from them. It has been reiterated that the accused persons are law abiding citizens and as such on receipt of the summons they appeared before the learned Spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt by not evading the Investigating Agency or the Court and as such the learned Trial Court after being satisfied, that the rigors of Section 45 of PMLA is not applicable to the present accused was pleased to grant him bail. Learned Advocate submitted that any interference in theorder of bail would seriously prejudice the present accused in view of the fact that the accused was arrested by CID, West Bengal and was in custody for a considerable period of time, while on bail in the instant case for more than 8 months there were no allegations against him that he has misused the liberty granted to him. Mr. Manoj Malhotra, learned Advocate appearing for the accused no.7 and accused no.8 namely, Pradeep Kumar Gangopadhyay and Manik Mohan Mishra submitted that the accused persons were granted bail as they surrendered before the Special Court on the date fixed for appearance pursuant to the summons being received by them. Neither there is any allegation nor they had attempted to flee away from the process of law or tampered any witness/evidence in the instant case. It has also been pointed out that Pradeep Kumar Gangopadhyay is aged about 68 years, he was Senior Manager of Behala Bran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the learned Special Court was adhering to the conditions relating to Section 45 of the PMLA. It has also been submitted that the Enforcement Directorate did not feel it necessary for advancing any prayer for cancellation of bail for the present accused persons and/or there are any supervening circumstances that calls for interference by this Court. Additionally it has been submitted that by detaining the present accused persons in custody no fruitful purpose would be served as the present accused persons were neither beneficiaries to the proceeds of crime nor they are even alleged to be in possession of such proceeds of crime. In order to substantiate his argument Mr. Bhattacharjee relied upon Vijay Madanlal Chaudhury Ors. Vs. Union of India Ors. reported in 2022 SCC OnLine SC 929; Pratap Singh Vs. State of Jharkhand Anr. reported in (2005) 3 SCC 551; Maru Ram Vs. Union of India Ors. reported in (1981) 1 SCC 107;Mohd. Abdul Sufan Laskar Ors. Vs. State of Assam reported in (2008) 9 SCC 333; Sukh Ram Vs. State of Himachal Pradesh reported in (2016) 14 SCC 183. Mr. Bhattacharjee submitted that in this case FIR relating to Bidhannagar (North) police sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Criminal Procedure. Learned Advocate in order to substantiate his contention relied upon Vijay Madanlal Chaudhury Ors. Vs. Union of India Ors. reported in 2022 SCC OnLine SC 929; Pratap Singh Vs. State of Jharkhand Anr. reported in (2005) 3 SCC 551; Maru Ram Vs. Union of India Ors. reported in (1981) 1 SCC 107 Mohd. Abdul Sufan Laskar Ors. Vs. State of Assam reported in (2008) 9 SCC 333; Sukh Ram Vs. State of Himachal Pradesh reported in (2016) 14 SCC 183; Reserve Bank of India Vs. Peerless General Finance and Investment Co. Ltd. reported in (1987) 1 SCC 424; Madhu Limaye Anr. Vs. Ved Murti Ors. reported in (1970) 3 SCC 739 and Union of India Vs. K.A. Najeeb reported in (2021) 3 SCC 713. Mr. Arijit Chakraborty learned Advocate appearing for the Enforcement Directorate narrated a synopsis of the role attributed by each of the accused persons in commission of the offence, the same are set out as follows: (1) Debabrata Halder (accused no.1): He is the main architect and conspirator of the whole offence and has enriched himself in the process of financial assistance under RMA scheme of NSIC by way of issuance and invocation of Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder RMA scheme. He was found to have knowingly assisted in the process/activity connected with the proceeds of crime and thus has committed offence under Section 3 of the PMLA and punishable under Section 4 of the said Act. (4) ManikLal Das (accused no.4): He was an associate of Debabrata Halder who was Manager of Salt Lake and Kolkata Branch of NSIC. His role was similar to that of Gopinath Bhattacharya i.e. processing of RMA assistance proposal, processed in the name of fictitious firms. He also received remuneration of Rs.15 lacs for each RMA proposals of Rs.3 crores. He was found to have indulged in recommendation for availing post-retirement services of Sudhangshu Kumar Halder for better control over diversion of public money, through RMA proposal in the name of fictitious/non-existent MSME firms. He was found to have committed offence under Section 3 of the PMLA and punishable under Section 4 of the said Act. (5) Jayanta Das (Accused No.5): His main work was to collect proposal of RMA assistance from the MSME firms and inspection of such firms to assess their business viability, existence and other related conditions. He was also instrumental in getting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayments of Rs.1-1.5 lacs for extending his post-retirement services regarding issuance and invocation of Bank Guarantee for each set of Bank Guarantees valued at Rs.3 crores. He was found to be associated with Debabrata Halder and has committed the offence under Section 3 of PMLA. (8) Manik Mohan Mishra (Accused No.8): He was successor of Pradeep Kumar Gangopadhyay in Jadavpur Vidyapeeth Branch of United Bank of India. He carried forward the whole process of issuance of dual Bank Guarantees favouring NSIC and further wrongful invocation thereof by Pradeep Kumar Gangopadhyay. Payment of Rs.10 lacs were also made to him for each set of Bank Guarantees valued Rs.3 crores. About 18 fake Bank Guarantees were also issued by him without entering their details into the software system of United Bank of India. Payment of Rs.17.5 lacs were made to him for issuance of each set of such fake Bank Guarantees of Rs.3 crores. He was found to have committed the offence under Section 3 of PMLA. (9) Pappu Halder (Accused No.9): He was one of the close associates of Debabrata Halder in all activities related to NSIC scam. He is elder son of Sudhangshu Kumar Halder who was working in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Payment of Rs.20-25 lacs were made to him for extending his services regarding issuance/confirmation/invocation of Bank Guarantee for each set of Bank Guarantees valued Rs.3 crores issued in favour of NSIC. Further, payment of Rs.30 lacs were also separately made for confirmation of 18 fake Bank Guarantees. He has also committed offence under Section 3 of the PMLA. Learned Advocate appearing for the Enforcement Directorate has relied upon the judgment of Vijay Madanlal Choudhury Ors. Vs. Union of India reported in 2022 SCC OnLine SC 929[para 115 to 136 at page 407 to 450]. Learned Advocate has also relied upon the judgment of the Hon ble Bombay High Court in Ajay Kumar Chandraprakash Baheti Vs. Directorate of Enforcement (through the Assistant Director, Sub-Zonal Office, Nagpur) reported in AIR Online 2021 BOM 5356 . Two judgments of the Hon ble Supreme Court in The Assistant Director Enforcement Directorate Vs. Dr. V.C. Mohan (Criminal Appeal No. 21 of 2022); The Assistant Director, Directorate of Enforcement Vs. - N. Umashankar Ors. arising from SLP (Crl) Nos. 7563-7565 of 2021; P. Chidambaram Vs. Directorate of Enforcement reported in AIR 2019 SC 41 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch period, as may be prescribed. (3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a [Special Court or] Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the [Special Court or] Magistrate's Court. S. 45. Offences to be cognizable and non-bailable.-(1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless-] (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money-laun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Others reported in 2022 SCC OnLine SC 929, the following paragraphs are relied upon for the purpose of the present case which are set out below: 325. The safeguards provided in the 2002 Act and the preconditions to be fulfilled by the authorised officer before effecting arrest, as contained in Section 19 of the 2002 Act, are equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgment about the necessity to arrest any person as being involved in the commission of offence of money-laundering even before filing of the complaint before the Special Court under Section 44(1)(b) of the 2002 Act in that regard. If the action of the authorised officer is found to be vexatious, he can be proceeded with and inflicted with punishment specified under Section 62 of the 2002 Act. The safeguards to be adhered to by the jurisdictional police officer before effecting arrest as stipulated in the 1973 Code, are certainly not comparable. Suffice it to observe that this power has been given to the high-ranking officials with further conditions to ensure that there is objectivity and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith a similar provision prescribing twin conditions in MCOCA, this Court in Ranjitsing Brahmajeetsing Sharma, held as under: 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act . If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable doubt. Relying on the observations made by the Hon ble Apex Court in the aforesaid judgment it can be stated that the Enforcement Directorate exercised its discretion and authority under Section 19 of the PMLA, 2002 to arrest a person wherein they found higher standard of evidence relating to proceeds of crime which were available with them and the custodial detention of the accused was thought to be necessary in the background of the object and purpose of the PMLA, 2002. Needless to state that such powers are vested with the superior officers of the Enforcement Directorate and there are rigors on the exercise of the powers which have been thrusted on them, so that the authorised officers, arresting officer are to comply with the rules framed under Section 73 of the Act, which warrants the forwarding of a copy of the warrant of arrest of the person along with material to the adjudicating authority and the purpose of detention. Thus, the applicability of the twin conditions under Section 45 of the PMLA, 2002 for granting bail is to be satisfied in case of release of such an accused. In Vijay Madanlal Choudhary and Ors.(supra) the Hon ble Apex Court was pleased to emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. No purpose will be served if the accused is kept in the custody for an indefinite period.... In Y.S. Jagan Mohan Reddy Ors. Vs. CBI reported in (2013) 7 SCC 439 it has been observed by the Hon ble Supreme Court that economic offences constitute a class apart and need to be visited with different approach in the matter of bail. Paragraph 34 and 35 of the said judgment is relevant for the purpose of consideration of this case, as such the same is set out below: 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he prayer for bail and as such it was incumbent upon the learned Special Court to satisfy itself regarding the broad probabilities relating to the existence of reasonable grounds for believing that the accused was not guilty of the offence alleged under the PMLA, 2002 while he was being released on bail. The learned Special Court without adhering to the merits of the case and the provisions of law proceeded to allow the prayer for bail on reasons which are not applicable in respect of the offences under the PMLA, 2002. The complaint filed by the prosecution itself contained prayer for further investigation but the learned Special Court observed that there was no prayer for further investigation. It would be apposite to state that an investigating agency is not required to pray for permission for further investigation of the case which is a settled principle of law and the same is prerogative of the investigating agency. The duty of the investigating agency is to the extent of informing the Court which the investigating agency in this case has done by informing the Court in the complaint filed before it. Considering that the order dated 12.04.2022 passed by the Learned Judge, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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