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TMI Blog2023 (11) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 transaction of cash money between Smt. Soumya Chourasiya and the main accused- Suryakant Tiwari. It is also case of the prosecution that object of Suryakant Tiwari to tamper and destroy the important documents as well as electronic gadgets and Suryakant Tiwari along with his brother, Rajnika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 against the present applicant and the role of the applicant has also been narrated. He would further submit that investigation has been conducted against the applicant which can be reflected from paragraph 9.2 of the ECIR wherein the role of the present applicant has been mentioned which have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Mahdoom Bava Vs. CBI, SLP No. 376 of 2021 (decided on 20.03.2023), Satender Kumar Antil Vs. CBI & another, in M.A. No. 2034/2022 in M.A. No. 1849/2021 in SLP Crl. No. 5191/2021 (decided on 21.03.2021), Satender Kumar Antil Vs. CBI & another, in M.A. No. 2034/2022 in M.A. NO. 1849/2021 in SLP Crl. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use 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 main associate and confidant of Suryakant Tiwari. As per the findings of the investigation under the PMLA, 2002 he was the keeper of the accounts and cash for the entire scam, he is responsible for acquisition, possession, concealment, use of the proceeds of crime. He has been claiming assets pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpede 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 influential individual in Chhattisgarh. Therefore, in case present applicant is granted anticipatory bail, the applicant may interfere in the investigation and influence the witnesses concerned in the present case. It has been further contended that various suspects in the present case have attempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel 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 considering the fact that as per Section 19 of the PMLA, 2002, it is for the authority who on the basis of material in their possession, and reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person. The authorities w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bility. 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 investigation, though the authorities have power to arrest but they have not arrested him. Thus, Point No. 1 is answered against the present applicant. Point No. 2 16. For better understanding, it is expedient for this Court to extract Section 45 of the PMLA, 2002, which reads as under:- "Section 45- Offences to be cognizable and nonbailab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt 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 is arrested, if he files any regular bail application, the same be considered in accordance with law and on its own merits and considering the material collected during enquiry/investigation of the case. Present appeal is accordingly allowed. No costs." 18. Hon'ble the Supreme Court in case of Y. S. Jagan Mohan Reddy Vs. Central Bureau of Investigation reported in (2013) 7 SCC 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, it was held as under:- "5. ....The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 facie reflects that many hand written entries in the diaries were made by the present applicant only. Thus, he was knowingly and actively participated in the extortion racket and acted as the accountant who managed the illegal cash. It is also revealed during the investigation by Enforcement Directorate that the applicant is the brother and a close associate of Suryakant Tiwari who is the mastermind behind the present ..... X X X X Extracts X X X X X X X X Extracts X X X X
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