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TMI Blog2023 (9) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... 08.2023. The docket order uploaded in the Court website read as below:- "1. The petitioner/Accused (A1) required to surrender/deposit his passport before this court custody until further orders. 2. Petitioner/Accused (A1) enlarged on bail, on his execution of bond for Rs.1 lakh and two such sureties for the like sum each and the sureties shall be his blood relatives and sureties required to produce sufficient solvency certificates. 3. The petitioner/Accused (A1) on his enlargement on bail, shall appear before this Court on all working days and to sign before this Court daily at 10.00 AM until further orders without fail. 4. The petitioner shall not leave the Chennai City limit until further orders. 5. The petitioner required to make his appearance regularly for future hearings of this case and required to extend his fullest cooperation for the early disposal of this case. 6. The petitioner shall be made available for interrogation by the respondent as and when required, without fail. The petitioner required not to indulge in any activities of tampering of witnesses, records and evidences." 2. The Special Public Prosecutor appearing for the Enforcement Directorate, on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g order:- The respondent is a NRI, domiciled at Singapore. He is the Director of M/s.Coastal Energyen (P) Limited and Power Plant under the name and style of M/s.Mutiara Thermal Power Plant, Tuticorin with 1200 MW capacity and few other group of Companies. The respondent and his Company came under the scanner of Directorate of Revenue Intelligence (DRI), when the coal imported from Foreign for conversion of coal into thermal energy, the price were inflated and the inflated sale price was transferred to intermediary Form-B in Foreign Country. The supplier Company was paid only the actual price. The difference between the inflated price and the actual price been retained by the intermediary Company. The modus operandi suspected by DRI was price for superior quality coal has been collected from Indian buyer, mainly Public Sector coal based Thermal Generating Co., but coal of inferior quality for low cost purchased from the foreign Company. The difference in price been retained by intermediary. DRI issued show cause notice to the respondent under the provisions of Customs Act, 1962 and proceeded against the respondent company and other Companies which imported coal of inferior quality ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner in prison is inevitable, else he may secret away the documents, taking advantage of his liberty." 8. This order was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court in its order [Special Leave to Appeal (Crl.) No.5476 of 2022], dated 05.12.2022 observed that, they do not find any ground to release the petitioner on bail at this stage as it might hamper the ongoing investigation. The Hon'ble Supreme Court in its order had further observed as below:- "2. However, once the investigation is complete, the petitioner shall be at liberty to approach the Trial Court for his release on bail, and such a petition shall be considered as per its own merit without being influenced by the orders passed by the High Court or this Court. 3. The respondent is directed to expedite the investigating process and make an endeavour to complete the same within three months. 4. With the aforesaid directions, the Special Leave Petition is disposed of. 5. As a result, pending interlocutory applications also stand disposed of." 9. Alleging there was no progress in the investigation till 04.03.2023, the respondent had filed bail petition in Crl.M.P.No.1320 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this court under section 305 Cr.P.C. to gain support that he did not commit any offence either under the schedule or under Section 3 of PMLA." 10. The respondent/accused, soon thereafter had filed bail petition under Section 167(2) of Cr.P.C before the trial Court in Crl.M.P.No.2784 of 2023 on the premise the complaint filed by Enforcement Directorate and taken on file as Special C.C.No.1 of 2022 is an incomplete report. Referring that before the Hon'ble Supreme Court, the Enforcement Directorate promised to complete the investigation and file final report within 3 months but had not filed any report therefore to be enlarged on statutory bail under Section 167(2) of Cr.P.C. 11. The trial Court taking note of the fact that the complaint of Enforcement Directorate dated 23.04.2022 already taken cognizance and taken on file by the Principal Sessions Judge, Chennai. Subsequently, the case transferred to the Special Court for C.B.I case which is the Court notified to deal cases under PMLA. On transfer, Special C.C.No.1 of 2022 assigned and copies under Section 207 and Section 208 of Cr.P.C was readily available. After receiving summons on behalf of other accused which are shell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence which has led to the complaint by Enforcement Directorate in F.No.ECIR/CEZ/01/2018. The respondent on taking up the investigation had conducted search and seizure operation under the provisions of PMLA Act, in the premises connected to the petitioner. The search operation dated 12.09.2019 and 13.09.2019 had led to recovery of incriminating material. Based on the complaint, the offence under Sections 3 and 4 of PMLA Act, been taken cognizance by the Court designated to try offences under PMLA Act. 17. According to the complaint, above 564 crores of rupees alleged to have been laundered. The accused being a successful bidder in the tender floated by public sector undertaking through MMTC Limited for supply of coal had supplied coal of lower quality at the bid price of higher quality of coal. The difference in price siphoned through entities having its base outside the country. Considering the gravity of the crime and the recur of Section 45(2) of PMLA Act, Court had been dismissing the bail petition of this accused on all the earlier occasion as narrated above. 18. The contention of the accused/petitioner is that, DRI which initiated proceedings suspecting the transaction of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 21.08.2023 and served to the prosecution. The detailed order of the trial Court for granting bail also does not give reason for satisfaction to grant bail. 22. The learned Special Public Prosecutor specifically contended that this is a case investigated by the Enforcement Directorate regarding siphoning of Indian money more than Rs.550 Crores to Foreign country and the proceeds of crime being scattered across the border. Steps are taken by the Enforcement Directorate to trace the trail of the money and bring back the money. In pursuant to this action letter of request been issued through the trial Court to the Republic of Mauritius and United Arab Emirates on 03.10.2022. The response from these two countries are awaited. In spite of actions taken by Enforcement Directorate and same form part of the records in the trial Court, the learned trial Judge in the impugned order dated 16.08.2023 had made a baseless remark against Enforcement Directorate that no piece of paper in respect of further investigation towards the case has been received by this Court, further respondent also not chosen to speak about the present status of predicated offence. 23. The learned Special Public Pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... express his opinion. On perusal, the petitioner who is aged about 50 years had been repeatedly applying for bail and he suffers back pain owing to his old age from very inception of taking cognizance, the summons to co-accused A2-A7 not yet been served and the case being posted every 15 days for extension of remand. The custodial interrogation of the petitioner also been completed and his petition seeking default bail also dismissed in view of the complaint filed on 22.04.2022. Therefore, considering the incarceration of accused for nearly one and half years, the petitioner is entitled for bail on stringent condition. 26. The documents relied by the prosecution and the petitioner/accused perused. After examining the earlier order of this Court, the order of the Hon'ble Supreme Court on appeal and trial Court orders passed subsequently, this Court is constrained to interfere in the bail order for the following reasons:- (i) The trial Court patently erred in passing a docket order on 16.08.2023 and thereafter, the detailed order which was made ready to the parties only on 21.08.2023. (ii) On 17.08.2023, the learned Special Public Prosecutor moved this Court for stay of the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o issue letter of rogatory and the trial Court had issued letter of request on 03.10.2022 to two countries. The responses from those countries are awaited. While so, it is incorrect to say that the Enforcement Directorate has not taken any steps to proceed with its investigation in respect of offshore entities. (vi) The delay in completing the investigation by the CBI, Delhi cannot be a ground to presume that accused is not guilty of money laundering offence. Closure of investigation in a similar case also cannot be a reason to presume that the present case will also end in closure report. Ifs and buts cannot be an adequate reason to hold this petitioner, not prima facie guilty of the alleged offence. No doubt personal liberty is a fundamental right of a person, yet, subject to reasonable restriction. Prolonged trial or incarceration pending trial is antithesis to fundamental right. However, the reasonable restriction and the interest of nation cannot be ignored while taking note of the fundamental right of individual. (vii) This Court is conscious of the dictum that, it is not the expectation of law that Court must arrive at a positive finding that applicant for bail has not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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