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TMI Blog2020 (8) TMI 344X X X X Extracts X X X X X X X X Extracts X X X X ..... y been filed and no recovery was made from any of the Applicants. No departmental proceeding has been initiated against any of the Applicants nor has any show cause notice been issued against them. No case regarding acquisition of any disproportionate property has been registered against them. Out of 212, about 153 witnesses have already been examined. Despite the fact that the 18 Applicants are officers of Indian Administrative Services, there is no allegation levelled against them that they ever influenced any of the witnesses or tampered with any evidence. ECIR case was registered against them in the year 2019. Notice was issued to them for the first time in the ECIR case in the month of March, 2020. The delay in issuance of notice has not been explained. The benefit of anticipatory bail provided to the Applicants - both the applications for grant of anticipatory bail are allowed. - M.Cr.C.(A) No.469 of 2020 - - - Dated:- 14-8-2020 - Shri Justice Arvind Singh Chandel For the Applicants : Shri Avi Singh and Shri Aayush Bhatia, Advocates For the Respondents : Shri B. Gopa Kumar, Assistant Solicitor General And Dr. Saurabh Kumar Pande, Advocate C.A.V. ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs of quintals of poor quality of rice were procured and a system of regular collection of crores of rupees was developed and systematic accounts of district-wise collection were also maintained and inter-districts transportation was done contrary to government orders. Further case of the Respondents is that statements of Girish Sharma and Jeetram Yadav recorded under Section 50 of PMLA reveal that some expenses like airline tickets, taxi payments, hospital payments, forex exchanges, institute/club payments, LIC payments were also made by Girish 4 Sharma on behalf of both the Applicants and it also reveals that both the Applicants had allowed movement of rice against the prevalent guidelines of NAN and they had also unauthorisedly allowed Shiv Shankar Bhatt to put up files relating to transportation of rice, whereas M.N. Prasad Rao was authorised to deal with those files. On 13.3.2020, the Directorate of Enforcement issued summons to the Applicants for production of records. Therefore, apprehending their arrest the Applicants have moved the instant applications for their release on anticipatory bail. 4. Learned Counsel appearing for the Applicants jointly submitted that both ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bout collection and distribution of illegal money. It was further submitted that all the allegations are baseless, concocted and devoid of merit. There is no direct evidence against any of the Applicants. The events leading to the NAN scam relate to a period of 4-5 years ago. Therefore, the question of Applicants influencing any witness or tampering with any documentary evidence does not arise. Both the Applicants are 6 officers of All India Administrative Services and working with the Government of Chhattisgarh. They belong to respected families. They have no criminal antecedent. It was further submitted that during pendency of these bail applications, as directed by this Court, they have fully cooperated with the investigation and during the period of pandemic Covid-19 on being summoned by the Respondents both visited Delhi and the Directorate of Enforcement have interrogated them for 3 days at Delhi and both the Applicants have given their statements before the Directorate of Enforcement. Case of the Respondents is based only on the contents of the pen drive seized from Girish Sharma. There is no direct evidence against any of the Applicants. In the predicate offence also, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther submitted by Learned Assistant Solicitor General that apart from the statements of Girish Sharma and Jeetram Yadav recorded under Section 50 of PMLA, from the data retrieved from the pen drive and voice transcripts of conversation took between Girish Sharma and Anil Tuteja and his son Yash Tuteja recorded by the 8 ACB, it is also evident that Girish Sharma delivered a sum of Rupees Twenty Seven Lakhs to Yash Tuteja, the son of Applicant Anil Tuteja in the month of January, 2015 as per the instructions of Applicant Anil Tuteja. Therefore, sufficient material is available against both the Applicants. Learned Assistant Solicitor General further referred to various judgments of the Supreme Court and submitted that granting anticipatory bail is extra ordinary in character and only in exceptional cases wherein it appears that a person is falsely implicated or frivolous case is lodged against him or there are reasonable grounds for holding that a person accused of offence is not likely to abscond or otherwise misuse his liberty while on bail, such power should be exercised. The present case involves laundering of huge money. Therefore, it was prayed that the present applications for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2020 SCC OnLine SC 98, it was submitted that even in cases of economic offences grant of anticipatory bail is neither excluded nor it is required to be visited with any different approach. (iv) Regarding requirement of custodial interrogation, it was submitted that in the present case, the 10 Respondent/Directorate of Enforcement has utterly failed to state even one reason/ground with any cogent material as to why they require custodial interrogation of the Applicants. The investigation of predicate offence has already been completed 5 years back and chargesheet has already been filed. In that case, no recovery was made from any of the Applicants. Statements of Girish Sharma and Jeetram Yadav have already been recorded. The Applicants have also given their statements before the Directorate of Enforcement. They have fully cooperated with the Respondents during investigation. Now, nothing is left in the matter requiring custodial interrogation of the Applicants. Both the Applicants are officers of the Indian Administrative Services and they are working with the Government of Chhattisgarh. There is no possibility of their absconding. There is also no allegation against them that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Solicitor General, even after amendment in the provision of Section 24 of PMLA, the burden of proof is on the present Applicants to prove their innocence. Contrary to this, Learned Counsel appearing for the Applicants submitted that burden of proof lies on the Applicants only after framing of a charge against them. In this regard, reliance was placed on the speech of the then Finance Minister, who had introduced the Prevention of Money-Laundering (Amendment) Bill, 2012 in the Rajya Sabha on 17.12.2012 (at pages 435-436), which is extracted below: Then, the question was asked that by using the word charged , whether we are shifting the burden of proof even at the stage of the report under 173(8). The answer is: obviously, no. Under 173(8), what is filed is a report after investigation. The word charge occurs for the first time in the Criminal Procedure Code under section 211, Every charge under this Code shall state the offence with which the accused is charged . So, we borrow the language of 211 and say, replace the word accused and say when a person is charged with an offence, that is when the court frames a charge against him under section 211 . Only at that sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 45 of the 2002 Act. All these examples show that manifestly arbitrary, discriminatory and unjust results would arise on the application or non-application of Section 45, and would directly violate Articles 14 and 21, inasmuch as the procedure for bail would become harsh, burdensome, wrongful and discriminatory depending upon whether a person is being tried for an offence which also happens to be an offence under Part A of the Schedule, or an offence under Part A of the Schedule together with an offence under the 2002 Act. Obviously, the grant of bail would depend upon a circumstance which has nothing to do with the offence of money laundering. On this ground alone, Section 45 would have to be struck down as being manifestly arbitrary and providing a procedure which is not fair or just and would, thus, violate both Articles 14 and 21 of the Constitution. 42. Another conundrum that arises is that, unlike the Terrorist and Disruptive Activities (Prevention) Act, 1987, there is no provision in the 2002 Act which excludes grant of anticipatory bail. Anticipatory bail can be granted in circumstances set out in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the time of grant of anticipatory bail are therefore, overruled. Similarly, the observations in Mhetre that the courts should not impose restrictions on the ambit and scope of section 438 Cr.P.C. which are not envisaged by the Legislature. The court cannot rewrite the provision of the statute in the garb of interpreting it is too wide and cannot be considered good law. It is one thing to say that as a matter of law, ordinarily special conditions (not mentioned in Section 438(2) read with Section 437(3) should not be imposed; it is an entirely different thing to say that in particular instances, having regard to the nature of the crime, the role of the accused, or some peculiar feature, special conditions should not be imposed. The judgment in Sibbia itself is an authority that such conditions can be imposed, but not in a routine or ordinary manner and that such conditions then become an inflexible formula which the courts would have to follow. Therefore, courts and can, use their discretion, having regard to the offence, the peculiar facts, the role of the offender, circumstances relating to him, his likelihood of subverting justice (or a fair investigation), likelihood of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem. Out of 212, about 153 witnesses have already been examined. Despite the fact that the 18 Applicants are officers of Indian Administrative Services, there is no allegation levelled against them that they ever influenced any of the witnesses or tampered with any evidence. ECIR case was registered against them in the year 2019. Notice was issued to them for the first time in the ECIR case in the month of March, 2020. The delay in issuance of notice has not been explained. The ECIR case has been registered against them only on the basis of statements of Girish Sharma and Jeetram Yadav. The pen drive has also been seized from Girish Sharma. Statements of both the Applicants have also been recorded and the Directorate of Enforcement has already interrogated the Applicants for about 3 days. Why their custodial interrogation is required has also not been duly explained. 17. Thus, considering the totality of the case, the entire facts and circumstances and the discussions made hereinabove, I am inclined to extend benefit of anticipatory bail to the Applicants. Accordingly, both the applications for grant of anticipatory bail are allowed. 18. It is directed that in the event ..... X X X X Extracts X X X X X X X X Extracts X X X X
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