TMI Blog2023 (9) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... il was meant to be incorporated in Section 45 of the Act, but it has erroneously been placed just above Section 45. The aforesaid Acts deal with heinous offences like hijacking of aero planes, unlawful acts against safety of civil aviation, maritime piracy, unlawful acts against safety of maritime navigation and fixed platforms on continental shelf, and offences relating to manufacture and sale of adulterated or spurious drugs, which would affect a very large number of population, and the offences carry punishment upto death. All the Acts contain restrictions of Courts power to grant bail to an accused person, which are similar to the restriction provided in Section 45 (1) and (2) of PMLA. All the acts provide that the aforesaid restrictions can be waved by the Special Courts in case of a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, like the provision contained in the proviso appended to Section 45 (1) of PMLA. The restriction contained in Section 45 of PMLA that bail cannot be granted to a person accused of an offence under the PMLA without recording a prima facie satisfaction of innocence of the applicant, is not applicable to the Con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceive coal from Northern Coal Fields Ltd. (NCL) for manufacture of Special Smokeless Fuel (SSF) and instead of processing the coal, the companies sold it in black market at a high premium causing wrongful loss to the government and wrongful gain to the accused persons. 3. On 13.04.2011, the C.B.I/ACB Lucknow filed 5 F.I.Rs. under Sections 120-B, 420 of I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 for causing wrongful gain to the companies by diverting the coal received from NCL to open market without processing to SSF. RC 4(A) 2011 was filed against M/s Swastik Products Ltd., RC 5 (A) 2011 against M/s Fertico Marketing Investment Pvt. Ltd., RC 6(A) 2011 against M/s Jai Durga Industries, RC 7 (A) 2011 against M/s Sri Ram Fuels and RC 8 (A) against Ms Drolia Code Industries Pvt. Ltd. Unknown officials of District Industries Centre (DIC) and unknown officials of NCL have also been made accused in all the F.I.Rs. The C.B.I. filed five different charge-sheets dated 31.05.2012 in respect of the aforesaid 5 F.I.Rs. 4. The particulars of the cases in respect of which the aforesaid 8 applications have been filed, are being mentioned below: - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the coal for any other purpose whatsoever and it would be treated as a material breach of the agreement. In the event of the purchaser engaging or planning to engage in any resale of coal, the seller (NCL/CIL) would terminate the agreement forthwith without any liability or damages whatsoever payable to the purchaser. 8. Upon joint inspection of the factories, it was found that the factories were non-functional and they had sold away the coal in breach of the condition contained in clause 4.4 of the FSA, without processing the same into SSF. 9. Regarding Ramji Singh - the applicant in Anticipatory Bail Application Nos. 1518 of 2023, 1523 of 2023 and 1602 of 2023, it is stated in the complaints filed by E.D. that he and Yogendra Nath Pandey - another officer of the DIC, had misused their official positions by certifying falls/fabricated reports prepared by the companies regarding proper utilization of coal received from NCL and about functioning of SSF manufacturing units without proper physical inspection. Their act facilitated continuous supply of coal from NCL, which resulted in generation of wrongful gain. The applicant Ramji Singh and Yogendra Nath Pandey were indirectly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and M/s Trishul Industries, which had purchased coal from M/s Fertico Marketing and Investment Pvt. Ltd., without the same having been processed into SSF. The complaint records the statement of the applicant that the coal so purchased from M/s Fertico Marketing and Investment Pvt. Ltd. was further sold to other purchasers. The entire amount towards purchase of coal was paid through cheques and bank transfers, except an amount of Rs.1,00,000/- which was paid in cash. 15. Subhash Chandra Tulsian, the applicant in Anticipatory Bail Application Nos. 1636 of 2023 and 1638 of 2023, is the owner of M/s Tulsian Coal Syndicate and M/s Purnagiri Holding Pvt. Ltd. The allegation against him is that during year 2010-11 M/s Swastik Cement Products and M/s Fertico Marketing and Investments Pvt. Ltd. had purchased the coal from NCL under FSA for processing and converting it into special smokeless fuel (SSF) but they wrongfully sold the coal in open market without processing the same to M/s Tulsian Coal Syndicate and M/s Purnagiri Holding Pvt. Ltd. It is alleged that some sale transactions appeared to be fake. Subhash Chandra Tulsian has been charged as being involved in criminal conspiracy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is exempted; (ii). That the applicant shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence; (iii). That the applicant shall not leave India without the previous permission of the court; (iv). That the applicant shall not pressurize/ intimidate the prosecution witness. 21. The other applicants have also been granted interim anticipatory bail on similar terms. 22. The respondent E.D. has filed counter affidavits in ABAIL Nos. 1518 of 2023, 1523 of 2023, 1602 of 2023, 1617 of 2023 1636 of 2023. It has not been disputed in the counter affidavits that the applicants have cooperated with the investigation and they were not arrested during investigation, but it has been stated that these facts are hardly relevant for deciding the application. The counter affidavits state that the proceeds of crime need not be relatable or traceable to any particular accused so long as the same is identifiable and can be related with the case. 23. The counter affidavits refers to the law laid down by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upplied) 27. In Rohit Tandon v. Directorate of Enforcement , (2018) 11 SCC 46, during a raid conducted jointly by the Crime Branch and the Income Tax Department at the office premises of the appellant sometime after demonetization, currency of Rs 13.62 crores was recovered, including new currency in the denomination of Rs 2,000/- amounting to Rs 2.62 crores. In addition, the appellant had surrendered Rs 128 crores during the raids conducted by the Income Tax Department in his office and residential premises. The bail application of the appellant was rejected by the High Court. The appellant preferred second bail application before the High Court of Delhi and he filed an application for his interim release on the assertion that his mother was seriously ill and she required immediate medical attention. The Second Bail Application was dismissed as withdrawn on the request of the applicant, yet the High Court granted interim bail to the appellant for 3 weeks, taking into account the period of incarceration of the petitioner, submission of the charge-sheet in the main case and the illness of the mother of the petitioner. In the aforesaid factual background, the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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-laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs: Provided further that * * * (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. * * * (Emphasis supplied) 31. It is relevant to note that Section 44 of the PMLA contains the following provision: - 44. Offences triable by Special Courts . (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) an offence punishable under Section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that section includes also a reference to a Special Court designated under Section 43. (Emphasis supplied) 32. Surprisingly, Section 45 of the PMLA, which contains certain restrictions on the Courts power to grant bail, does not contain any provision saving the special powers to grant bail conferred upon the High Courts by Section 439 Cr.P.C., whereas Section 44 of the PMLA, which confers jurisdiction for trial of offences under the Act upon Special Courts and which does not contain any provision which may affect the powers of any Court regarding grant of bail, provides that nothing contained in Section 44 shall affect the High Court s special powers regarding bail under Section 439 Cr.P.C. 33. It appears that the provision contained in Section 44 (2) of PMLA saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 45 of the Act, but it has erroneously been placed just above Section 45. This conclusion is supported by a study of similar provisions contained in other Statutes which are being referred to in the following paragraphs. 34. Section 12 (1) and 12 (2) of the Anti-Hijacking Act, 2016 contains a provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1974), or any other law for the time being in force on granting of bail. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) . 37. Section 3 of the Maritime Anti-Piracy Act, 2022 provides that the offence of piracy will carry a maximum punishment of imprisonment upto life and in case the person committing piracy cause death of any person or attempts to cause death, he may be punished with death. Section 12 of the aforesaid Act provides that: - 12. Provisions as to bail . (1) Notwithstanding anything contained in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless (a) the Public Prosecutor has been given a reasonable opportunity to oppose the application for such release; and (b) 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. (2) Nothing contained in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, may be released on bail, if the Special Court so directs. (2) The limitation on granting of bail specified in clause (b) of subsection (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to Magistrate in that section includes also a reference to a Special Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceeding fifteen days in the whole where such Magistrate is a Judicial Magistrate and seven days in the whole where such Magistrate is an Executive Magistrate: Provided that in cases which are triable by the Special Court where such Magistrate considers (i) when such person is forwarded to him as aforesaid; or (ii) upon or at any time before the expiry of the period of detention authorised by him; that the detention of such person is unnecessary, he shall order such person to be forwarded to the Special Court having jurisdiction; (c) the Special Court may exercise, in relation to the person forwarded to it under clause (b), the same power which a Magistrate having jurisdiction to try a case may exercise under Section 167 of the Code of Criminal Procedure, 1973, in relation to an accused person in such case who has been forwarded to him under that section; (d) a Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll affect the High Court s special powers regarding bail under Section 439 Cr.P.C. 45. It appears that the provision contained in Section 36-A(3) of NDPS Act regarding special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 37 of the Act, but it has erroneously been placed just above Section 37. 46. From the aforesaid study of pari materia provisions contained in several Statutes dealing with heinous offences carrying punishment upto death, the only irresistible conclusion that can be drawn is that the provision contained in Section 44 (2) of PMLA saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 45 of the Act, but it has erroneously been placed just above Section 45. In present times of use of computers, such errors are commonly referred to as the copy-paste errors . 47. In paragraph 274 of the judgment in the case of Vijay Madanlal Chaudhary (Supra), the Hon ble Supreme Court referred to a King s Bench judgment in the case of Seaford Court Estates ld., which is as follows: - 274. We may profitably advert to the judgment in Seaford Court Estates ld. [1949] 2 K.B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on contained in Section 44 (2) of the PMLA redundant or otiose. 50. Apparently, Section 44(2) was inserted by the Parliament with the intention to save the special power of the High Courts under Section 439 Cr.P.C., which intention cannot be fulfilled due to an erroneous placement of the provision as pointed above. This Court has to interpret the provisions contained in Sections 44 and 45 of PMLA collectively so as to give force and life to the intention of the legislature behind inserting Section 44(2) in the Act. Undoubtedly, if the makers of the Act had themselves come across this jumbling of the provisions in Sections 44 and 45 due to a copy-paste error, they have surely have straightened it out by reading Section 44(2) and Section 45 in conjunction with each other. Therefore, in order to correct the defect without altering the provisions of the Statute, the provisions of Sections 44 and 45 have to be read together and interpreted harmoniously so that Section 44(2) does not become redundant or otiose. 51. The only irresistible conclusion that can be drawn from the foregoing discussion, is that the intention of the Legislature was clear and unambiguous while making the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s prima facie involvement of the applicants in commission of the scheduled offence and this Court cannot go into the question whether the applicants are prima facie guilty of commission of the scheduled offence. 54. As has already been held in the preceding paragraphs, the restriction contained in Section 45 of PMLA that bail cannot be granted to a person accused of an offence under the PMLA without recording a prima facie satisfaction of innocence of the applicant, is not applicable to the Constitutional Courts in view of the harmonious interpretation of Sections 44 and 45 of PMLA and, therefore, irrespective of the fate of the applications under Section 482 Cr.P.C., this Court need not record a prima facie satisfaction of innocence of the applicants. However, I proceed to consider the submission regarding effect of rejection of the applications under Section 482 Cr.P.C. on the anticipatory bail application. 55. The scope of scrutiny required for deciding an application under Section 482 Cr.P.C. and the scope of scrutiny required for deciding an application for anticipatory bail, are entirely different. 56. In State of Haryana v. Bhajan Lal , 1992 Supp (1) SCC 335, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations. 58. In P. Chidambaram v. Directorate of Enforcement , (2020) 13 SCC 791, the Hon ble Supreme Court stated in the context of economic offences that: - 23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Sections 437 and 439 is the stages at which the bail order is passed. The bail order under Section 438 CrPC is prior to his arrest and in anticipation of his arrest and the order of bail under Sections 437 and 439 is after a person is arrested. 61. After taking into consideration various precedents on the point of grant of anticipatory bail in economic offences, in Sushila Aggarwal (Supra), the Hon ble Supreme Court held that: - 75. For the above reasons, the answer to the first question in the reference made to this Bench is that there is no offence, per se, which stands excluded from the purview of Section 438, except the offences mentioned in Section 438(4). In other words, anticipatory bail can be granted, having regard to all the circumstances, in respect of all offences. At the same time, if there are indications in any special law or statute, which exclude relief under Section 438(1) they would have to be duly considered. Also, whether anticipatory bail should be granted, in the given facts and circumstances of any case, where the allegations relating to the commission of offences of a serious nature, with certain special conditions, is a matter of disc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to consider the facts of the case. 64. In the present case, the joint surprise check was carried out on 25.03.2011. The C.B.I/ACB Lucknow filed 5 F.I.Rs. on 13.04.2011 and it submitted 5 charge-sheets on 31.05.2012. The E.D. has filed the complaints on 12.07.2018, 03.06.2019 and 24.06.2013, i.e. after more than 7 to 12 years since lodging of the F.I.Rs. and after more than 6 to 11 years since submission of the charge-sheets by the C.B.I. The Special Court has registered the complaints as a Session Cases in the year 2023. 65. The applicants claim that the allegations made in the FIRs. make out a case of merely breach of the conditions of FSAs, which was a bilateral commercial agreement between two parties. The consequence of such a breach can only be cancellation of the agreements, as provided in Clause 4.4 of the agreement. The coal was supplied at the notified rates and no subsidy was paid in response to information sought under the Right to Information Act, the Coal India Ltd. has admitted that no subsidy or financial support is given by any Government and the price of Coal was fixed and notified by the Coal India Ltd. Therefore, prima facie it appears that no loss was oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant Jai Narayan Agarwal and none of his properties has been attached. 69. Subhash Chandra Tulsian, the applicant in Anticipatory Bail Application Nos. 1636 of 2023 and 1638 of 2023, is the owner of M/s Tulsian Coal Syndicate and M/s Purnagiri Holding Pvt. Ltd. The allegation against him is that M/s Swastik Cement Product and M/s Fertico Marketing and Investments Pvt. Ltd. had sold coal to M/s Tulsian Coal Syndicate and M/s Purnagiri Holding Pvt. Ltd. during year 2010-11, and some sale transactions appeared to be fake. He has been charged as being involved in criminal conspiracy of illegal diversion of coal by showing fake purchase of SSF. M/s Swastik Cement Products and M/s Fertico Marketing and Investments Pvt. Ltd. had purchased the coal under FSA from NCL for processing and converting it into special smokeless fuel (SSF) but they wrongfully sold the coal in open market without processing the same. The coal so purchased was further sold to other purchasers. The entire consideration for the coal was paid through cheques only. Neither any proceeds of crime have been recovered from the applicant Subhash Chandra Tulsian nor any of his properties has been attached. 70. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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