TMI Blog2023 (11) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... as not opted for this option which was available with them, but it does not mean that the right of arrest to a person who is involved in the commission of offence under the PMLA, 2002 has come to an end. This can be exercised by them as and when the reasons are available with them for arresting. Thus, the submission that arresting of the present applicant has not been done by the Enforcement Directorate, therefore, the present applicant is entitled to be released on anticipatory bail. Thus, the applicant cannot claim anticipatory bail on the strength that during investigation, he has joined the investigation, though the authorities have power to arrest but they have not arrested him. Whether the twin conditions for grant of bail under Section 45 of the PMLA, 2002 are available on record to release the applicant by granting anticipatory bail? - HELD THAT:- In the present case, prima facie the Enforcement Directorate has collected certain material against the applicant, particularly the role played by him as he was an active member of the extortion syndicate and was focal point as all the extorted cash was deposited, stored and subsequently dispatched for utilization as per t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of Enforcement, Zonal Office, Raipur (C.G.) for the offence punishable under Sections 186, 204, 353, 120B, 384 of IPC, Sections 3 4 of the Prevention of Money Laundering Act, 2002 (for short the PMLA, 2002 ). 2. The case of the prosecution is that during a search and seizure investigation under Section 132 of the Income Tax Act conducted on 30.06.2022 and one Mr. Suryakant Tiwari at a hotel room of Hotel Shereton Grand, Bengaluru, certain incriminating materials are said to have been found, based upon which a complaint was lodged by the Income Tax Department at the Kadugodi, Police Station Bengaluru alleging offences under Sections 186, 204 and 353 read with Section 120B of the IPC which led to the registration of the FIR. Based upon the further investigation the Enforcement Directorate registered ECIR No. RPZO/09/2022 and further investigation was conducted. In the course of the investigation, main accused- Suryakant Tiwari was summoned and was arrested on 13.10.2022. 3. It is further case of the prosecution that the prosecution has recovered diaries from the possession of Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari, from which it would reveal transa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there is no further possibility of the applicant misusing the bail or would influence in any manner the investigation or tampering of the evidence nor is there any possibility of the present applicant absconding either. 6. Learned Senior Advocate appearing for the applicant would submit that the FIR was registered on 12.07.2022 under various Sections and on 03.12.2022 Section 384 of the IPC has been added which is a schedule offence. The Directorate of Enforcement registered the ECIR and started investigation. The present applicant was directed to appear on 19.10.2022 and 02.11.2022. He would further submit that he was summoned to join the investigation wherein he has appeared in the investigation. He would further submit that on 19.12.2022, a complaint was filed against 7 persons including the present applicant and thereafter on 30.01.2023 another complaint was filed against 8 persons including present applicant. He would further submit that from bare perusal of reply filed by the ED (Annexure R/6), it would be clear that various allegations have been made against the applicant and would submit that from bare perusal of ECIR (Annexure R/6) certain allegations were levelled ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, he is legally entitled to be considered for grant of anticipatory bail and he would further submit that if a person is not arrested during investigation against whom chargesheet has to be filed, he has to be released on bail as a matter of right and would submit that since charge-sheet has already been filed in the month of September, 2022, he may be released on bail. 7. He would further submit that provisions of Section 45 of the PMLA for grant of bail is also applicable for grant of anticipatory bail and the applicant fulfills the requisite conditions for grant of bail under Section 45 of the PMLA, 2002 thus, he is entitled to get anticipatory bail. To substantiate his submission, learned senior counsel for the applicant would refer to the judgment rendered by Hon'ble the Supreme Court and High Courts in case of Court on its own Motion Vs. CBI ILR (2004) I Delhi 47, Court on its own Motion Vs. State, 2018 SC Online Delhi 12306, Dataram Singh Vs. State of UP, (2018) 3 SCC 22, Siddharth Vs. State of UP, (2022) 1 SCC 676, Amanpreet Singh Vs. CBI, 2021 SCC Online 941, Satender Antil Vs. CBI, (2021) 10 SCC 773, Satender Antil Vs. CBI another, (2022) 10 SCC 51, Mahd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tiwari used to maintain date of coal delivery order and payment of illegal levy of Rs. 25 per tonne on coal and after collection of levy, they used to hand over such cash amount along with collection date to Rajnikant Tiwari (present applicant), Nikhil Chandrakar and Roshan Kumar Singh at the house of Suryakant Tiwari i.e. I-34, Anupam Nagar, Raipur. At, I-34, Rajnikant Tiwari (present applicant), Nikhil Chandrakar and Roshan Kumar Singh used to maintain consolidated data of this illegal levy collection, to collect the cash and kept here and thereafter, from there, this illegal cash was being used for making bribes to Saumya Chaurasia, other senior bureaucrats and politicians, for incurring Misc. Political Expenses Election campaign, purchasing immovable properties and coal washeries by Suryakant Tiwari other members of coal syndicate, Misc. expenses of Suryakant Tiwari and other syndicate members etc. It has also been stated in the reply that part of collected illegal cash was also being transferred to house of present applicant and Laxmikant Tiwari in Mahasamund for safe keeping. It has also been contended that the present applicant, elder brother of Suryakant Tiwari is the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant had been non-cooperative and evasive in his replies. It is further submitted that as the investigation in the present case is ongoing and the applicant s custodial interrogation may be required for question during the course of further investigation, the grant of bail at this stage may impede the investigation being conducted by the Directorate. It has been further contended that it is not as if the investigation in the present case is complete. The investigation is ongoing and the Directorate is trying to establish the money trial and identify the proceeds of crime. Therefore, the applicant may still be required during the course of further investigation, the grant of bail at this stage, during the pendency of investigation may have detrimental effect on investigation being conducted by the Directorate. It has been further contended that the applicant is the brother and a close associate of Shri Suryakant Tiwari who is the mastermind behind the present illegal coal levy scam at ground level and is having strong links with politicians and businessmen in the State of Chhattisgarh. Shri Suryakant Tiwari being closely associated with Ms. Saumya Chaurasia, who is a highly inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submit that since the applicant was not arrested and applicant joined the investigation and thus cooperating with the investigation, statement has already been recorded, thus, he may be granted anticipatory bail on the conditions that he will cooperate with the investigation. To substantiate this submission, learned senior counsel for the applicant has forcefully referred to the order dated 29.08.2022 rendered by Coordinate Bench of this Court in MCRCA No. 892/2022 wherein Coordinate Bench of this Court has granted anticipatory bail to the accused on the pretext that there is no apprehension of the applicant absconding or tampering with the evidence or influencing the witness and that conclusion of the trial likely to take time, therefore, he should be released on anticipatory bail. This was opposed by the learned counsel for the respondent/Enforcement Directorate contending that though the applicant has joined the investigation but looking to the gravity of the offence and involvement of other co-accused persons who are the influenced bureaucrats, the applicant may tamper the witnesses, therefore, the anticipatory bail may be rejected. 14. Considering the submission and also c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorised officers to ensure fairness, objectivity and accountability. Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code 56 can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra and Others, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be. 15. Thus, the applicant cannot claim anticipatory bail on the strength that during investigation, he has joined the investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 6.3 From the aforesaid, it can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences alleged against respondent No. 1. As per the catena of decision of this Court, more particularly, observed in the case of P. Chidambaram (supra) in case of economic offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.PC. 7. Considering the overall facts and circumstances of the case and the reasoning given by the High Court and as observed hereinabove, the rigour of Section 45 of the Act, 2002 shall be applicable even with respect to the application under Section 438 Cr.PC and therefore, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 herein in connection with F. No. ECIR/HYZO/36/2020 dated 15.12.2020 is unsustainable. Consequently, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is hereby quashed and set aside. Respondent No. 1 be dealt with in accordance with law. However, it is observed and made clear that after respondent No. 1 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the huge magnitude of the case and also the request of the CBI asking for further time for completion of the investigation in filing the charge sheet(s), without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct the CBI to complete the investigation and file the charge sheet(s) within a period of 4 months from today. Thereafter, as observed in the earlier order dated 05.10.2012, the appellant is free to renew his prayer for bail before the trial Court and if any such petition is filed, the trial Court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal. 19. Hon ble the Supreme Court while considering the gravity of economic offence in case of P. Chidambaram Vs. Directorate of Enforcement, reported in (2019) 9 SCC 24 has held at paragraph 78 to 81 as under:- 78. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... patory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent- Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail. 20. The judgment cited by learned Senior counsel for the applicant is distinguishable from the facts of the present case as in the present case, prima facie the Enforcement Directorate has collected certain material against the applicant, particularly the role played by him as he was an active member of the extortion syndicate and was focal point as all the extorted cash was deposited, stored and subsequently dispatched for utilization as per the instructions of Suryakant Tiwari. The material so collected by the investigation prima ..... X X X X Extracts X X X X X X X X Extracts X X X X
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