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TMI Blog2023 (3) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... ens to be erstwhile Director in Amrapali Group of Companies (here-in-after referred to as "AGC") which was into real estate and allied business in Noida/ Greater Noida, Uttar Pradesh. The role of the present applicant being qualified Civil Engineer by qualification was limited to conceiving Architectural Planning and Engineering thereof and was not involved in financial planning of the Company. The present applicant on account of being Director in Ultra-Home Construction Pvt. Ltd. i.e. flagship company of AGC was drawing salary and was receiving professional fee from other companies on account of rendering professional services related to their project being permissible under law. So many buyers of the said company feeling themselves aggrieved as they have not been provided the flats/ plots despite those buyers deposited their huge amount in the company, as many as 30 F.I.Rs. have been registered against the Directors of the Company including the present applicant under Sections 406, 420, 409 & 120-B I.P.C. in the year 2018 and the Economic Offences Wing, Delhi Police (in short EOW) has arrested the Directors of the Company including the present applicant. The present applicant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore than half of the sentence and in the second situation the present applicant has served about half of the sentence. 8. Learned Senior Advocate for the applicant has further submitted that the present applicant is in judicial custody with effect from 11.10.2018 for the same allegations in the same issue, however, the agencies are different. Therefore, his total custody period may be considered as more than four years and four months. If the progress of trial remains the same, there is likelihood that the present applicant will have to serve the maximum period of punishment i.e. seven years. 9. Sri Singh has apprised that the present applicant was granted an interim bail by the Apex Court vide order dated 22.08.2022 passed in Writ Petition (Cril.) No.311 of 2022; Shiv Priya vs. N.C.T. Delhi and another and he remained on interim bail till 07.11.2022. Thereafter, he surrendered before the Court of C.M.M. East District, Karkardooma Court, Delhi. He did not misuse the the liberty of interim bail granted by the Apex Court. He is again under custody with effect from 07.11.2022. Sri Singh has referred Annexure No.RA-3 which is a custody certificate of the present applicant relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the presence of statutory restrictions like Section 43-D (5) of UAPA per se does not oust the ability of the Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial." 11. Sri I.B. Singh, learned Senior Advocate for the applicant has also referred the dictum of Apex Court rendered in re:- Ramchand Karunakaran vs. Directorate of Enforcement & anr. (Criminal Appeal No.1650 of 2022, arising out of SLP (Crl.) No.6061 of 2020) dated 23.09.2022 by subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 66 of 2017, 118 of 2018, 70 of 2018, 219 of 2018, 783 of 2017, 44 of 2018, 213 of 2017, 767 of 2017 and 123 of 2018. The copy of the ECIR is already on record and filed as Annexure No.4 of the bail application. The applicant has not been arrested in any of the predicate offence as the chart to that effect is already on record and filed as Annexure No.20 of the bail application. 15. Per contra, Sri Rohit Tripathi, learned counsel for the E.D. has submitted that the applicant by means of the instant application has prayed for bail in Session Case No.1266 of 2020, arising out of ECIR/06/PMLA/LKZO/2019. He has also submitted that the inquiry/ investigation in the present matter was initiated/ monitored by the Hon'ble Supreme Court of India by means of Writ Petition (Civil)No.940 of 2017; Bikram Chaterjee vs. UOI and others. It has also been submitted that the bail application of the co-accused, namely, Anil Kumar Sharma has been rejected by this Hon'ble Court on three occasions despite the fact that the said applicant had extensively pleaded medical grounds. On that Sri I.B. Singh, learned Senior Advocate has submitted that his bail applications were rejected either during inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties and perused the material available on record. 20. At the very outset, it is clear that I am not entering into merits of the issue inasmuch as this is a domain of the learned trial court to look into the entire issue, contentions of the parties and perused the entire material and evidences available on the record. The consideration and observation of this order would only be confined to disposal of the bail application. Therefore, the learned trial court shall not influence from any observations or findings of this order and shall conduct and conclude the trial independently strictly in accordance with law with expedition without giving any unnecessary adjournment to any of the parties by fixing short dates and if any of the parties do not co-operate in the trial proceedings properly any appropriate coercive steps which are permissible under law may be taken. 21. In the present case, undoubtedly, the present applicant was taken into custody on 11.10.2018 for the same allegations for which the E.D. has filed ECIR in question. However, EOW of Delhi Police has taken custody of the present applicant on 26.10.2019 and the E.D. has taken custody on 03.12.2019. Therefore, for all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in re: K.A. Najeeb (supra). 24. In the subsequent judgment of Apex Court rendered in re: Ramchand Karunakaran (supra) wherein the case is relating to the offence of PMLA wherein the complaint has been filed by the E.D. The Apex Court has granted bail to the accused persons considering the fact that the said accused persons have completed more than three years of actual custody in connection with offence of PMLA. One more fact may be considered that the present applicant was granted interim bail by the Apex Court and as soon as the period of interim bail expired, he immediately surrendered before the trial court and during the period of his interim bail he did not misuse the liberty of bail and has abide by all terms and conditions of bail order. 25. At this stage, I am not considering the arguments of learned Senior Advocate Sri I.B. Singh that more than actual amount has already been recovered from the applicant inasmuch as the said amount has been determined by the Forensic Auditor in compliance of order of Apex Court and those things shall remain subject matter of the trial proceedings. Therefore, what is the actual amount and what is to be recovered from the present applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclude the trial with expedition inasmuch as there are total 150 prosecution witnesses and only two prosecution witnesses have been examined by now. The Apex Court in para-86 of the dictum of Satender Kumar Antil vs. CBI and others, Special Leave to Appeal (Criminal) No.5191 of 2021 has held as under:- "Special Acts (Category C) 86. Now we shall come to Category C. We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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