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TMI Blog2020 (7) TMI 581X X X X Extracts X X X X X X X X Extracts X X X X ..... . - Criminal Miscellaneous No. 73325 of 2019 - - - Dated:- 18-6-2020 - Ahsanuddin Amanullah, J. For Appellant: Sanjay Kumar, Advocate For Respondents: S.D. Sanjay, ASG (Senior Advocate), Kumar Priya Ranjan, CGC (Advocate) and Ashok Kumar, APP (Advocate) JUDGMENT Ahsanuddin Amanullah, 1. The matter has been heard via video conferencing due to lockdown imposed on account of the COVID-19 pandemic. 2. Heard, in extenso, Mr. Sanjay Kumar, learned counsel for the petitioner; Mr. S.D. Sanjay, learned Additional Solicitor General of India (hereinafter referred to as the 'ASG') along with Mr. Kumar Priya Ranjan, learned Central Government Counsel for the Union of India and Mr. Ashok Kumar, learned Additional Public Prosecutor (hereinafter referred to as the 'APP'), for the State. 3. The petitioner is in custody in connection with Special Trial No. (PMLA) 4 of 2016 arising out of Complaint No. 01 of 2015 dated 24.03.2015/Supplementary Complaint Case No. 04 of 2016 in ECIR No. PTZO/04/2013 dated 16.05.2013 instituted under the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the 'Act'), for commission of offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned by the petitioner, he is party to such modus operandi in connivance with the Bank officials and other co-accused and getting such government money fraudulently transferred into various accounts, which gave a colour of legitimacy to such money, which clearly amounts to money laundering, as defined under Section 3 of the Act. Mr. S.D. Sanjay, learned ASG submitted that the petitioner has also given his statement under Section 50 of the Act, which is admissible as evidence in law, accepting his involvement and also describing his role in such activity, which clearly shows that he is an active member of the gang which indulges in such crime. He further submitted that the petitioner is involved in cases of similar nature in other states also, as has been stated in the counter affidavit filed on behalf of the Union of India in the present matter. It was submitted that the Act contemplates satisfaction of twofold conditions for grant of bail, under Section 45 of the Act. Mr. S.D. Sanjay, learned ASG submitted that the same envisages that the Court has to be satisfied that on the basis of materials, there are reasonable grounds for believing that the petitioner is not guilty of such of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not be very relevant for considering the prayer for bail. Drawing the attention of the Court to Section 24 of the Act which places the burden of proof, with regard to not being involved in money-laundering, on the accused i.e., the petitioner in the present case, he submitted that this also goes against him and fortifies the case of the prosecution. Mr. S.D. Sanjay, learned ASG relied on a recent decision in the matter of Moti Lal @ Moti Lal Patwa v. Union of India in Criminal Miscellaneous No. 73052 of 2019, since reported as , where the prayer for bail of the petitioner therein, who was also accused in a case under the Act, has been rejected by this Court on 11.06.2020. Mr. S.D. Sanjay, learned ASG also referred to the judgments of the Hon'ble Supreme Court which have been adverted to in Moti Lal @ Moti Lal Patwa (supra), viz. Rohit Tandon v. Enforcement Directorate, since reported as (2018) 11 SCC 46 AIR 2017 SC 5309; Gautam Kundu v. Directorate of Enforcement (Prevention of Money-Laundering Act), since reported as (2015) 16 SCC 1; and Y.S. Jagan Mohan Reddy v. CBI, since reported as (2013) 7 SCC 439. Learned ASG further submitted that recently the Hon'ble Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 302] and post Nikesh Tarachand [Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2018) 2 SCC (Cri.) 302] reads as under: Section 45-Prior to Nikesh Tarachand Shah Section 45--Post Nikesh Tarachand Shah 45. Offences to be cognizable and non-bailable. (1) 45. Offences to be cognizable and non-bailable.--(2) Notwithstanding contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be 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 (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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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. Explanation.--For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under Section 19 and subject to the conditions enshrined under this section.' 12. A learned Single Judge of the Bombay High Court in Sameer M Bhujbal v. Assistant Director, Directorate of Enforcement in Bail Application No. 286 of 2018 granted bail and held: '7. At the outset, it is to be noted here that, the Supreme Court in the case of Nikesh Shah (supra) has in unequivocal terms held in Para 44 that 'we have struck down Section 45 of the Act as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 03.06.2020 passed by the Hon'ble Supreme Court in Directorate of Enforcement, New Delhi v. Upendra Rai being Special Leave Petition (Criminal) Diary No. 5150 of 2020, which arises out of Upendra Rai v. Directorate of Enforcement (supra), assumes relevance, reading: 'Delay condoned. Issue notice. Until further orders, there shall be a stay of operation of the impugned order passed by the High Court of Delhi if the respondent has not already been released on bail.' (emphasis supplied) 17. In Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association CSI Cinod Secretariat, Madras, since reported as (1992) 3 SCC 1, the Hon'ble Supreme Court held: '10. o?=While considering the effect of an interim order staying the operation of the order under challenge, a distinction has to be made between quashing of an order and stay of operation of an order. Quashing of an order results in the restoration of the position as it stood on the date of the passing of the order which has been quashed. The stay of operation of an order does not, however, lead to such a result. It only means that the order which has been stayed would not be operative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compulsorily retired with effect from 10-1-1989. As the appellant had retired with effect from 10-1-1989, on the day prosecution was launched, no sanction was required.' (emphasis supplied) 19. As the judgment of the Delhi High Court in Upendra Rai v. Directorate of Enforcement (supra) stands stayed by the Hon'ble Supreme Court vide order dated 03.06.2020 (supra), the views of the Delhi High Court in Upendra Rai v. Directorate of Enforcement (supra) and of the High Courts of Bombay, Madhya Pradesh and this Court in Sameer M Bhujbal (supra), Dr. Vinod Bhandari (supra), and Ahilya Devi (supra) respectively, being essentially to the same effect as Upendra Rai v. Directorate of Enforcement (supra), especially qua the twin conditions under Section 45, in the opinion of this Court, are not required to be looked into at the moment, in view of order dated 03.06.2020 (supra), considering the law enunciated in Shree Chamundi Mopeds Ltd. (supra) and V.P. Sheth (supra) by the Hon'ble Supreme Court. Even though the order dated 03.06.2020 (supra) concludes with 'if the respondent has not already been released on bail.', in the opinion of this Court, the effect of the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal interest. 24. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... canvassed by the learned counsel, it should be noted that there is no straitjacket formula for consideration of grant of bail to an accused. It all depends upon the facts and circumstances of each case. The Government's interest in preventing crime by arrestees is both legitimate and compelling. So also is the cherished right of personal liberty envisaged under Article 21 of the Constitution. Section 439 of the Code of Criminal Procedure, 1973, which is the bail provision, places responsibility upon the courts to uphold procedural fairness before a person's liberty is abridged. Although bail is the rule and jail is an exception is well established in our jurisprudence, we have to measure competing forces present in facts and circumstances of each case before enlarging a person on bail. xxx 13. o?=It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail [Nimmagadda Prasad v. CBI, (2013) 7 SCC 466; Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439]. Usually socio-economic offence has deep-rooted conspiracies affecting the moral fibre of the society and causing irreparable harm, need ..... X X X X Extracts X X X X X X X X Extracts X X X X
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