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TMI Blog2022 (12) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure ensures both fairness and expeditious conclusion of the trial." Therefore, it is apt to begin this judgment by prefacing it with Article 21 of the Constitution of India which states that no person shall be deprived of his right or his personal liberty except according to the procedure established by law. 4. A Constitution Bench of the Hon'ble Supreme Court in land mark case of A.K. Gopalan vrs. State of Madras ; reported in (1950) SCC 228. In paragraph-9 of the judgment has stated that "it cannot be disputed that the Article collected under the captioned (Right to Freedom) have to consider together to appreciate the extent of the fundamental rights. In the first place, it is necessary to notice that there is distinction between the rights given to citizens and persons. This is clear of perusal of the provision of Article 19 on the one hand and Articles 20, 21 and 22 on the other. In order to determine whether the right to abrize or infringe, it is first necessary to determine the extent the right given by Articles and the limitations prescribed in the Articles themselves permitting its curtailment. The inclusion of Article 13(1) and (2) in the Constitution appears to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been preferred before the Hon'ble Supreme Court against the judgment dated 27.07.2022 in the case of Bijay Madanlal Choudhury and others vrs. Union of India(supra), this Court while considering the present bail application shall have to keep in mind the conclusion as has been reflected in Paragraph-187 of the aforesaid judgment. 7. Reverting back to the facts of the present case, it is imperative to know exact sequence of events by going back in time. From the facts are available on record, it appears that, the petitioner herein is Director of M/s. Sneha Marketing Ltd. And M/s. Deepak Steel and Power Ltd. The gravamen of the complaints against the petitioner arises from the alleged fact that he was illegally raised iron/manganese ores of a higher value than what has been declared from the Ulliburu Mining Lease area apart from the allegation illegally raising mineral from areas adjacent minor mining lease areas and selling such minerals to his own concern thereby causing huge loss of revenue to the State exchequer. 8. Records placed before this Court reveals that initially Balasore Vigilance P.S. Case No. 30 of 2013 was registered against the Petitioner and various other persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approach this Court vide the present petition seeking anticipatory bail to secure his liberty and freedom as guaranteed under Article 21 of the Constitution of India. 10. It appears, from the materials on record, that for some of the offences for which the Petitioner is charged with in T.R. Case No. 01 of 2014 being "scheduled offences" within the meaning of Section 2 (1)(y) of the PMLA, the Enforcement Directorate registered ECIR No. 01/2014/BSZO on 5.02.2014. Thereafter, the investigation commenced and since the Petitioner was already in judicial custody in Keonjhar in connection with T.R. Case No. 01 of 2014, the Enforcement Directorate filed a petition before the Learned Sessions Judge (Khurdha) at Bhubaneswar with the prayer to take the Petitioner into it's custody for interrogation for a period of fifteen days in Crl. Misc. Case No. 05 of 2014 arising out of ECIR No. 01/2014/BSZO. The said prayer was allowed vide the Learned Sessions Judge (Khurdha)'s order dated 03.07.2014 and the present petitioner with other accused was remanded to custody till 10.07.2014. On 10.07.2014, when the present Petitioner was produced in court, the Enforcement Directorate again sought for the cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bat the menace money laundering having a wide repercussion on the financial system of the country. 14. Mr. Luthra, learned Senior Counsel for the Petitioner contends that the present petition may be allowed inter alia on the following main grounds: a. During his custody in T.R. Case No. 01 of 2014 a production warrant appears to have been issued by virtue of which the Learned Sessions Judge (Khurda) had remanded the Petitioner's custody to the Special Court, PMLA in terms of Section 167 CrPC from 03.07.2014 to 10.07.2014. Upon his subsequent production on 10.07.2014 before the Learned Sessions Judge (Khurda), the Petitioner's custody was remanded to the Enforcement Directorate for ten days. During this period of remand to Enforcement Directorate, the Petitioner was subjected to custodial interrogation and his statement was recorded. When on 24.07.2014, the Enforcement Directorate did not seek his further custody and stated instead that no further interrogation was required, the Petitioner was sent back to the Superintendent, District Jail, Keonjhar for judicial custody in T.R. Case No. 01 of 2014. Therefore, it is clear that the order dtd. 24.07.2014 was in terms of Section 169 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Opp. Party i.e. the Enforcement Directorate submits as follows: f. The Petitioner was remanded to the Enforcement Directorate's custody for interrogation under Section 267 CrPC and not under Section 167 CrPC as alleged by the Petitioner. There is absolutely no material on record to show that the order of remand passed on 03.07.2014 or 10.07.2014 are under Section 167 CrPC. The Petitioner has never been arrested by the Enforcement Directorate in connection with Complaint Case (PMLA) No. 40 of 2018. g. The Petitioner is accused of a serious economic offence and the quantum of punishment for money laundering offences being only 7 years cannot be the basis to undermine the gravity and seriousness of the offence committed by the accused person as the quantum of sentence is a matter of legislative policy. h. The Petitioner's case does not attract any relief in the nature of an anticipatory bail as the Ld. PMLA Court has taken cognizance of the case and the present case does not satisfy the rigors laid down in Section 45 of the PMLA. i. The Petitioner ought to have approached the Ld. District and Sessions Court, Khurdha prior to approaching this Court. j. Grant of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... modern man." Further the Supreme Court of India in Sanjay Chandra v. CBI, (2012) 1 SCC 40, has observed that: "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offences; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail" The rest of the provision is not necessary for the purpose of considering the question raised. Upon a plain reading of the aforesaid provision, it is crystal clear that it confers concurrent jurisdiction on the High Court as well as the Court of Sessions. The wide discretion has been entrusted on the Court of Sessions as well as on the High Court to enlarge such person who comes t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to believe" that he may be arrested for a non-bailable offence (ii) the High Court or the Sessions Court as the case may be must apply its own mind to the question and decide whether a case is made out for granting such a relief (iii) the filing of a First Information Report ("FIR") is not a condition precedent to the exercise of power under Section 438 (iv) anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested (v) the provisions of Section 438 cannot be invoked after the arrest of the accused (vi) a blanket order of anticipatory bail should not generally be passed and (vii) the normal rule should not be to limit the operation of the order in relation to a period of time. 22. It is therefore clear that the question of granting an anticipatory bail arises only prior to the arrest or to put it in unambiguous terms, at the stage where the person seeking anticipatory bail is 'apprehending arrest'. It is befitting at this juncture to examine the concept of arrest and custody. The word 'arrest' is derived from the French 'Arreter' meaning 'to stop or stay' and signifies a restraint of the person. Black's Law Dic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t under the authority, accompanied by a seizure or detention of the person in the manner known to law, which so understood by the person arrested. In this connection, a debatable question that arises for our consideration is whether the mere taking into custody of a person by an authority empowered to arrest would amount to 'arrest' of that person and whether the terms 'arrest' and 'custody' are synonymous. xxx 37. For all the discussions made above, we hold that 'custody' and 'arrest' are not synonymous terms. It is true that in every arrest there is a custody, but not vice versa. A custody may amount to an arrest in certain cases but not in all cases but not in all cases. In our view the interpretation that the two terms 'custody' and 'arrest' are synonymous is an ultra legalist interpretation, which if accepted and adopted, would lead to a startling anomaly resulting in serious consequences." 25. In the case of Niranjan Singh v. Prabhakar Rajaram Kharote reported in (1980) 2 SCC 559 the Hon'ble Supreme Court held that a person is said to be in "custody" as envisaged under the Cr.P.C. when he is in duress either because he is held by the investigating agency or other police ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similar enunciation of the law is also available in Nirmal Jeet Kaur v. State of M.P. reported in (2004) 7 SCC 558; Sunita Devi v. State of Bihar reported in (2005) 1 SCC 608 and Adri Dharan Das v. State of W.B. (2005) 4 SCC 303 all of which are in sync with the view expressed in Niranjan Singh (supra). 27. Moving on, Section 167 of the Cr.P.C. clearly lays down that where investigation cannot be completed within twenty-four hours and the accused is under arrest with police, he has to be produced before the Magistrate for further detention if necessary. This is a salutary provision to safeguard the citizen's liberty so that police cannot illegally detain any citizen. Sub-sections (1) and (2) of Section 167 which are relevant for our purposes read as under: "167. Procedure when investigation cannot be completed in twenty-four hours.-(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e nearest Judicial Magistrate. The mandate of sub-section (1) of Section 167 CrPC is that when it is not possible to complete investigation within 24 hours then it is the duty of the police to produce the accused before the Magistrate. Police cannot detain any person in their custody beyond that period. Therefore, sub-section (1) presupposes that the police should have custody of an accused in relation to certain accusation for which the cognizance has been taken and the matter is under investigation. Sub-section (2) says that if the accused is produced before the Magistrate and if the Magistrate is satisfied looking to accusation then he can remand the suspect/accused to the police for investigation not exceeding 15 days in the whole. But the proviso further gives a discretion to the Magistrate that he can authorise detention of the accused otherwise than the police custody beyond the period of 15 days but no Magistrate shall authorise detention of the accused in police custody for a total period of 90 days for the offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years (so far State of Odisha is concerned 90 days be read as 120 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. [But their Lordships put an occasion and added that] limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody." 30. In so far as the the concept of "formal arrest" is concerned, the procedure therefor has been dealt with by the Apex Court in the case of Joginder Kumar v. State of U.P. and others reported in 1994 SCC (Crl) 1172 that: ".......no arrest can be made, because it is lawful for the police officer to arrest. The existen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arized the discussion made therein as follows; "42. From the above discussions, the following conclusions emerge: (1) When an Accused is involved in more than one case and has been remanded to judicial custody in connection with one case, there is no legal compulsion for the Investigating Officer in the other case to effect a formal arrest of the Accused. He has got discretion either to arrest or not to arrest the Accused in the latter case. The Police Officer shall not arrest the Accused in a mechanical fashion. He can resort to arrest only if there are grounds and need to arrest. (2) If the Investigating Officer in the latter case decides to arrest the Accused, he can go over to the prison where the Accused is already in judicial remand in connection with some other case and effect a formal arrest as held in Anupam Kulkarni case. When such a formal arrest is effected in prison, the Accused does not come into the physical custody of the Police at all, instead, he continues to be in judicial custody in connection with the other case. Therefore, there is no legal compulsion for the production of the Accused before the Magistrate within 24 hours from the said formal arrest. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed continues to be in judicial custody, in connection with the former case, he can be transmitted in pursuance of P.T. Warrant in connection with the latter case." 32. Upon examining whether it is at all necessary that invariably in all cases such "formal arrest" is required to be effected in prison, when the accused is already lodged in prison in connection with some other case, it is needless to point out that though the police officer has got power to arrest, it does not mean that he has to resort to arresting the accused, irrespective of the need and justification for arrest. The accused persons shall not be arrested in a robotic fashion. Arrest needs to occur only if there are grounds and need to arrest, not otherwise. It goes without saying that if deemed fit, and in exercise of his discretion, the officer formally arrests the accused then when such a formal arrest is effected in prison, the accused does not come into the physical custody of the officer subsequently effecting the formal arrest at all, instead, he continues to be in judicial custody in connection with the other case. If the officer decides not to effect formal arrest, it will be lawful for him to straightawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Code of Criminal Procedure, 1973 to apply.-The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act." 34. In the context of the present case, it would be apt to state here that while considering the present bail application, a detailed examination of the material on record especially touching upon the merits of the case are not required to be undertaken, however, this Court is expected to supply sound reasons while exercising its discretionary power to enlarge the accused on pre arrest bail, as has been observed by the Hon'ble Supreme Court in many cases. 35. It would be pertinent to refer to another judgment of the Hon'ble Supreme Court delivered in Vijay Madanlal Choudhary and Ors. v. Union of India and Ors. reported in 2022 SCC OnLine SC 929, laying emphasis upon the further need to assign reasons as it contains an embargo against the grant of bail to a person accused of an offence under PML Act, unless the Public Prosecutor has been given an opportunity to oppos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of materials on records only for grant of bail and for no other purpose . 38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ............ 44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar provision prescribing twin conditions in MCOCA, this Court in Ranjitsingh Sharma (supra) held as under: 44..... 45..... 46 (extracted above). 401. We are in agreement with the observations made by the Court in Ranjitsing Sharma (supra). The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weight the evidence to find the guilt of the accused which is, of course, the work of trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt." Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilance Police, Balasore, Odisha before the Ld. Special Judge, Vigilance Court at Keonjhar. The Opposite Party registered the Enforcement Case Information Report bearing ECIR No. 01/2014/BSZO as some of the offences under the alleged offences mentioned above were coming under "scheduled offences" as defined in the PMLA under Section 2(y) by lodging a complaint under Section 45 of the PMLA. 40. The substratum of the allegation with regard to the predicate offences seems to be one of illegal mining. The allegation is that under valuation has been done with regard to the quantum of material is raised and the state exchequer has been defrauded on account of non-payment of royalty. The primary contentions raised by the opposite party seems to be that at no stage had they taken the petitioner into "custody" and in any case no formal arrest had been affected. That being the case, although the petitioner has been enlarged on bail in the vigilance case and the fact remaining that the opposite party herein has never formally arrested the petitioner herein, nothing stops them from seeking his custody at the stage for custodial interrogation. It is for this reason that in their affidavit they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and while the petitioner was in custody in connection with the vigilance case, he was taken on remand for interrogation by E.D. officials. After investigation was concluded, probably the necessity of arrest was never felt by E.D. The Petitioner had cooperated with investigation and had recorded his statement before the Enforcement Directorate which had led the Enforcement Directorate to state that they no longer require the custody of the Petitioner for the purposes of investigation. As such Section 167 CrPC which talks about the benefits of default bail when investigation cannot be completed post arrest is not applicable to the present factual situation and the Petitioner cannot claim any benefit of the said provision. Moreover, the orders passed by the Ld. Special Judge, Special PMLA Court at Bhubaneswar on 03.07.2014, 10.07.2014 and 24.07.2014 were in line with the provisions of Section 267 of the CrPC. Such ground realities also entail that the present pre arrest bail at the instance of the petitioner is maintainable, furthermore, the Petitioner can apply for and seek grant of anticipatory bail as he justifiably apprehends his formal arrest in the enforcement case by the E.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the relevant law. In that case the punishment for the offence was for a maximum period of imprisonment of seven years. It was held therein that even if the accused had a likelihood of being convicted, the period of detention already undergone during the trial stage would have a great bearing while deciding a bail application and such a factor should also be taken into consideration. 45. The Opposite Party claims that investigation is continuing which necessitates custodial interrogation of the present Petitioner and has pressed upon us some evidence in its present Affidavit. At this juncture, however, we note that the present matter has gone beyond the stage of investigation qua the present Petitioner to a substantial extent although, the Enforcement Directorate seeks to keep the door open for further investigation. Here, this court observes that the investigation has almost been concluded and no new materials whatsoever were brought to the notice of this court, albeit the case is lingering for almost more than half a decade now. Further, custodial interrogation several years after the institution of the case does not stand to any legal reason and justification. Hence, in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, this court would unhesitantly conclude that the rigour, as provided under the special acts such as Section 45 of the PMLA Act as in the present case, would not come in the way as the liberty of the individual is paramount under Article 21 of the Constitution of India. 47. The Petitioner has been in the custody of the Enforcement Directorate wherein his statement has been recorded. He has been stated not to be required by the Enforcement Directorate themselves which stands recorded in order dated 24.07.2014 of the Special PMLA Court, Bhubaneswar. All the documentary evidence to be unearthed against the Petitioner is already in the custody of the Opposite Parties and in fact, assets of the Petitioner and his family members to the tune of Rs.386 crores have admittedly already been attached which is almost equal to the value of the amount of monies allegedly misappropriated. The Petitioner has surrendered his passport to the investigating agency in T.R. Case No. 01 of 2014 and as such no risk exists with regard to the fact that the petitioner might flee away from the country and the court of law. Furthermore, my attention was also drawn to the judgement of the Hon'ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial and he may not appear before the trial court on each and every date the matter is posted to can very well be taken care of by imposing conditions while releasing the petitioner on pre arrest bail, further violation of such conditions would draw the penalty of curtailment of liberty granted to the petitioner by virtue of this order. 50. At this juncture, this Court as a constitutional would like to highlight another aspect of the matter. As has been said earlier, initially the Vigilance case was registered in the year 2013. The petitioner was arrested and taken into custody. Thereafter, the ECIR was submitted in 2014 and PMLA case was registered in 2018. After remaining custody for more than 6 years, the Petitioner was released on bail by this Court and later on the same was confirmed by the Hon'ble Apex Court. Since 2013, the criminal proceedings are pending and it is not known as to how long the trial will continue. Considering the list of witnesses and the documents, the trial is not likely to conclude in the near future. Under such factual scenario this Court is not expected to remain as a mere spectator and allow the fundamental rights of the accused citizen to be infri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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