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TMI Blog2024 (6) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... arities in framing and implementation of Excise Policy of GNCTD for the year 2021-22. Thereafter, the petitioner/Directorate of Enforcement (hereinafter referred to as "ED") recorded ECIR bearing no. ECIR/HIU-II/14/2022 on 22.08.2022 and initiated investigation to trace out proceeds of the crime stated to have been generated due to alleged irregularities in formulation and implementation of Excise Policy 2021-22. CBI filed the charge-sheet in predicate offence on 25.11.2022. ED filed the Prosecution Complaint on 26.11.2022 and the Special Court has taken the cognizance vide order dated 20.12.2022. ED subsequently also filed 06 supplementary charge-sheets and cognizance was taken by the Special Court on these supplementary charge sheets accordingly. 1.1 ED issued 9 summon to the respondent which were stated to be replied by the respondent but the respondent did not appear before ED in response to the summons. ED filed complaints under section 174 of Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") bearing no. CT 02/2024 dated 02.02.2024 and CT 04/2024 against the respondent on which the cognizance was taken vide order dated 07.02.2024 and 07.03.2024 respecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1/2024 and regular bail application vide IA no. 92/2024 before the Special Judge. The Special Judge has dismissed IA no 91/2024 for grant of interim bail vide order dated 05.06.2024. ED and the respondent have handed over written notes during the course of arguments on the bail application bearing IA no. 92/2024. The Court of Ms. Niyay Bindu, Vacation Judge, (PC Act), CBI-13, Rouse Avenue District Courts, New Delhi (hereinafter referred to as "the Vacation Judge") vide order dated 20.06.2024 (hereinafter referred to as "the Impugned Order") granted bail to the respondent. 1.5 ED being aggrieved by Impugned Order filed the present petition bearing Crl. M.C. no. 4858/2024 under section 439 (2) read with section 482 of the Code to challenge the Impugned Order along with Crl. M.A. no. 18446/2024 with the prayer to grant ad interim ex parte stay of the operation of Impugned Order and said application is under disposal vide present order. The notice of Crl. M.C. no. 4858/2024 was ordered to be issued to the respondent which was accepted on behalf of the respondent and was ordered to be listed on 10.07.2024 before the Roaster Bench. This Court on 21.06.2024 heard the arguments at length ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in terms of order dated 21.06.2024 which are perused and considered. 4. Before averting to the arguments, it is necessary to reproduce the relevant paragraphs of the Impugned Order which were also referred by learned Senior Counsels for both the parties during course of arguments. The para nos. 16, 20, 24, 25, 26, 27, 29, 31 and 33 are reproduced verbatim as under:- 16. Although, various bulky documents and citations have been filed by both the parties, most of which were not even relevant in respect of the present application but it seems that both the parties have filed the same alongwith detailed oral arguments with the apprehension as to an order may be passed in favour of the opposite party. Admittedly, the present matter is a peculiar case wherein various accused, witnesses and stake holders are involved and neither ED nor the defense wants the order to be passed in favour of the other. However, it is not possible to go through these thousands of pages of the documents at this juncture but this is the duty of the court to work upon the matter whichever comes for consideration and pass the order in accordance with the law. Although, sometimes the courts refrain from passin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at statements of co-accused do not show any incriminating material against applicant. But, Ld. ASG stated that the statements of those co-accused/approvers is sufficient to establish the personal relation of the applicant with some of them and also the specific role and involvement of the applicant in the alleged offence. It may be possible that some known persons of the applicant are having involvement in an offence or being known to a third person, involved in the offence, but ED has failed to give any direct evidence against the applicant in respect of the proceeds of crime. 31. On the other hand, ED is silent of certain issues raised by the applicant such as that he was not named either in CBI case or in the ECIR FIR. Secondly, the allegations against the applicant have surfaced after the subsequent statements of certain coaccused. Thirdly, this is also an admitted fact that the accused has not been summoned by the court till date, yet, he is lying in the judicial custody at the instance of ED on the pretext of the investigation being still going on. 33. Interestingly, both the parties have relied upon the observations of Hon'ble Supreme Court as given in the celebrated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Appeal pending before the Hon'ble Supreme Court. The Hon'ble Supreme Court on 17.05.2024 has already heard the arguments and the judgment is reserved. The Supreme Court vide order dated 17.05.2024 has given the liberty to the respondent to file an application for grant of bail which was ordered to be considered and decided in accordance with law. Sh. S. V. Raju also referred the order dated 10.11.2023 passed in SLP (Crl) no. 14510/2023 titled as Sanjay Singh V Union of India and another wherein the liberty was given to the petitioner Sanjay Singh to apply for grant of regular bail which if filed will be considered and decided on its merits without being influenced by the impugned judgment and accordingly it was argued that no such observation was made by the Hon'ble Supreme Court in order dated 17.05.2024 while giving the liberty to the respondent to file an application for grant of bail. 5.3 Sh. S. V. Raju also argued that the Impugned Order is perverse being passed on irrelevant consideration and by ignoring relevant consideration. The Vacation Judge in Impugned Order has taken the contrary view pertaining to the issues which have already been considered and decided vide ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge has considered every aspect while passing the Impugned Order. If the present application is allowed, it would amount to cancellation of bail. Dr. Singhvi in support of his arguments cited Dolat Ram V State of Haryana, (1995) 1 SCC 349; Kanwar Singh Meena V State of Rajasthan, (2012) 12 SCC 180; Subhendu Mishra V Subhrat Kumar Mishra, 2000 SCC (Crl) 1580; Mahant Chand Nath Yogi V State of Haryana, (2003) 1 SCC 326 and Bhagirath Sinh V State of Gujarat, (1984) 1 SCC 284 and also the judgments delivered by other benches of this Court. 6.2 Dr. Singhvi further argued that the Hon'ble Supreme Court in SLP (Crl) 5154/2024 titled as Arvind Kejriwal V Directorate of Enforcement vide order dated 10.05.2024 has granted leave to the respondent against the judgment dated 09.04.2024 passed in W.P.(Crl) 985/2024 and as such the judgment dated 09.04.2024 is under active consideration of the Hon'ble Supreme Court. Dr. Singhvi also referred para no. 15 of the order dated 10.05.2024 passed by the Hon'ble Supreme Court whereby the respondent was granted interim bail and order dated 17.05.2024 whereby liberty was granted to the respondent to file an application for grant of bail. Dr. Singhvi furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n against the respondent. However, PSR was granted pardon by the Special Judge on 29.05.2024 i.e. after 20 days from the grant of bail on 08.05.2024 by this Court as grant of bail was not objected by ED. ED issued 9 summon to the respondent but the respondent was not arrested till March, 2024. 8.1 In the written submissions besides arguments advanced by learned Senior Counsels for the respondent, it is also stated that issue pertaining to cancellation of bail is completely different from issue pertaining to grant or rejection of bail. ED is seeking cancellation of bail on the ground of perversity and not on the ground of misuse of liberty, tampering of evidence, influencing the witnesses etc. The Impugned Order passed by the Vacation Judge is not only reasoned and passed on basis of contentions and arguments of the parties but is also reflective of application of judicial mind. The Vacation Judge in impugned order considered the relevant material which is contrary to arguments advanced on behalf of ED. ED was given sufficient opportunity by the Vacation Judge to advance arguments. The Vacation Judge also recorded finding that conduct of ED was mala fide. The Vacation Judge was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passing the Impugned Order has considered the entire material brought on record. The observation made by the Vacation Judge in Impugned Order is uncalled for, unwarranted and out of context. The Vacation Judge should refrain from making such observations in the Impugned Order. The Vacation Judge was required to consider every important and relevant document at time of passing of Impugned Order. 10.1 The Vacation Judge in para nos. 1 to 6 has mentioned the contentions of the parties i.e. ED and the respondent and the arguments advanced by their respective counsels but the perusal of Impugned Order is reflecting that the Vacation Judge did not discussed and considered said contentions and the arguments in impugned order. It is also worth mentioning that ED submitted a written note in the concerned Special Court/Vacation Judge in support of the argument wherein the petitioner has raised various points as detailed therein for consideration but the Vacation Judge has not considered the said points/issues as mentioned in the written note submitted by ED before the Special Court/Vacation Judge. 11. Dr. Singhvi vehemently argued that the grant of bail and cancellation of bail are two dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under certain guidelines and legal procedures. Sh. S.V. Raju argued that the trial court should have satisfied itself with the twin conditions as laid down under section 45 of PMLA but the Vacation Judge in the Impugned Order has not considered the twin conditions as per section 45 of PMLA. Dr. Singhvi has countered this argument by stating that the Vacation Judge in Impugned Order has considered correct proposition of section 45 of PMLA. It is correct that the Hon'ble Supreme Court in Vijay Madan Lal Choudhary V Union of India (supra) which is also referred by Dr. Singhvi has observed that at the stage of consideration of application for grant of bail, it is expected to consider the question from the angle as to whether the accused was possessed of the requisite mens rea and the court is not required to record a positive finding that the accused had not committed an offence under the Act. It was further observed that the Court ought to maintain a delegate balance between a judgment of acquittal and conviction and order granting bail much before commencement of trial. The Court is not supposed to weigh the evidence meticulously. However, the Vacation Judge in the Impugned Order has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned Order that there was mala fide on the part of ED particularly in light of observation made in judgment dated 09.04.2024 as referred herein above. 16. Sh.S.V. Raju also argued that ED during the hearing of bail application subject matter of Impugned Order has raised issue of vicarious liability qua the respondent as per section 70 of PMLA but the said issued was not dealt by the Vacation Judge in the Impugned Order. The perusal of written note submitted by ED before the Special Judge/Vacation Judge reflects that the issue regarding the role of respondent for vicarious liability was taken by ED by mentioning that the role of the petitioner in vicarious liability was specifically examined and established after 30.10.2023 but said issue did not find any place in the Impugned Order. 17. Dr. Singhvi argued that that the personal liberty of a person is supreme and mentioned that the respondent did not misuse the interim bail granted for about 20 days. It is also stated in written submissions submitted on behalf of the respondent that Hon'ble Supreme Court vide order dated 10.05.2024 passed in SLP (Crl) 5154/2024 granted interim bail to the respondent after taking into consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further legality and validity of arrest is under challenge before the Hon'ble Supreme Court. Accordingly, the respondent was granted interim bail till 01.06.2024 in background of the 18th Lok Sabha General Election on conditions as detailed in para no. 18 of the order dated 10.05.2024. Although, there is no allegation of misuse of interim bail by the respondent but one fact cannot be lose sight is that the respondent was not granted interim bail on merit but in background of 18th Lok Sabha General Elections. Accordingly, arguments advanced by Dr. Singhvi do not provide much help to the respondent. There is also no force in argument advanced by Dr. Singhvi that if the present petition under section 439 (2) of the Code is dismissed then the respondent can be again remanded to judicial custody particularly in view of the fact that Impugned Order passed by the Vacation Judge is under serious challenge and grounds of challenge as raised by ED requires consideration of concerned court. 18. Dr. Singhvi after referring para no. 24 of the Impugned Order stated that no recovery of proceeds of crime was traced to the respondent. The Vacation Judge in para no. 24 of the Impugned Order observ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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