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TMI Blog2023 (1) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... or bail of the accused Goutam Kundu is, thus, considered and rejected. - C.R.M (SB) 237 of 2022 - - - Dated:- 16-1-2023 - HON BLE JUSTICE BIBEK CHAUDHURI For the Petitioner: Mr. Sabyasachi Banerjee, Adv., Ms. Minal Palana, Adv. For the E.D: Ms. Debjani Ray, Adv. JUDGMENT BIBEK CHAUDHURI, J.: 1. This is an application under Section 436A read with Section 439 of the Code of Criminal Procedure filed by accused Goutam Kundu who is implicated in ML Case No.2 of 2018 under various penal provisions of Prevention of Money Laundering Act (PMLA) arising out of ECIR No.KLZO/08/2015 dated 21st May, 2015. It is pertinent to record at the outset that the petitioner had preferred an application before the learned Judge, Special CBI Court No.1, Bichar Bhawan, Calcutta praying for his release on bail under Section 436A of the Code of Criminal Procedure on the ground that he has been in custody for more than three years and seven months and thereby has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for the offence under Section 4 of the PMLA. However, the learned Judge rejected the said prayer vide order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y from the investors and the said money was sent to the Rose Valley Group of Companies in contravention of guidelines laid down by the Reserve Bank of India or SEBI. It is also alleged in the complaint that Rose Valley Group of Companies had made repayment to the investors to the tune of Rs.10,854 crores including interests of Rs.2,430 crores and principal amount of Rs.9096 crores still remain unpaid and outstanding on the account of Rose Valley Group of Companies. The said amount constitute the proceeds of crime. After filing of the complaint, the petitioner had been arraigned as an accused along with other accused persons in connection with ML Case No.2 of 2018. The petitioner was produced before the learned trial judge on 10th August, 2018. It is further submitted by the petitioner that subsequently with the permission of the trial court the Enforcement Directorate submitted supplementary complaint under Section 44/45 of the PMLA in connection with the instant case on 28th December, 2018 against the petitioner and others. The learned Judge had taken cognizance of the offence on the basis of the said complaint vide order dated 28th December, 2018. It is stated by the petitioner t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite party that this Court previously granted interim bail to the accused on humanitarian ground during the period between 9th August, 2021 and 15th August, 2021 in ML No.3/2015. During the said period he tried to influence the witnesses and the officials of Rose Valley Group of Companies and claimed monetary benefits from them and asked them to give electronic devices like mobile phones, laptop etc which he instructed to procure out of the companies funds which represent the proceeds of crime. He also demanded monetary benefit from Rose Valley Group for fighting his personal cases and directed the officials of Rose Valley to leave the properties at his disposal and at the disposal of his family members. While on interim bail during the period between 30th September, 2021 and 6th October, 2021, the petitioner and his mother made desperate attempt to remove the officials of M/s Chocolate Hotels Pvt. Ltd, a subsidiary company of Rose Valley Group managing hotel business. He also tried to change the manager of the committee which was set up by the Asset Disposal Committee constituted by this court under the chairmanship of Hon ble Justice (retired) D.K.Seth. He was also guilty for usin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that while taking a decision the public prosecutor is to be heard, and the court, if it is of the view that there is a need for continued detention longer than one-half of the said period, has to do so. However, such an exercise of power is expected to be undertaken sparingly being an exception to the general rule. Once again, we have to reiterate that bail is the rule and jail is an exception coupled with the principle governing the presumption of innocence. We have no doubt in our mind that this provision is a substantive one, facilitating liberty, being the core intendment of Article 21. The only caveat as furnished under the Explanation being the delay in the proceeding caused on account of the accused to be excluded. This court in Bhim Singh v. Union of India, (2015) 13 SCC 605 , while dealing with the aforesaid provision, has directed that: 5. Having given our thoughtful consideration to the legislative policy engrafted in Section 436-A and large number of undertrial prisoners housed in the prisons, we are of the considered view that some order deserves to be passed by us so that the undertrial prisoners do not continue to be detained in prison beyond the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not comment on the merits of the case which might be determined to the interest of other prosecution or the defence. The court will consider the period of the accused in custody and grant him bail. 8. On the same issue Mr. Banerjee refers to the following decisions of the Hon ble Supreme Court:- i) Jahir Hak vs. State of Rajasthan : 2022 SCC OnLine SC 441. ii) Ramchand Karunakaran vs. Directorate of Enforcement Anr : Criminal Appeal No.1650 of 2022 decided on 23rd September, 2022. 9. Ms. Debjani Ray, learned Advocate for the Enforcement Directorate on the other hand submits that the decision of the Hon ble Supreme Court in Satender Kumar Antil (supra) as laid down the propositions of law in respect of an application under Section 436A of the Cr.P.C. other decisions referred to by Mr. Banerjee are solemn orders of the Hon ble Supreme Court in the cases involving offences under the IPC. Those, cases did not have any precedents in respect of the offence under the PMLA. Mrs. Roy refers to an order passed by a Coordinate Bench in CRM No.8345 of 2019 between the same parties on 28th February, 2020 wherein this Court unequivocally observed:- The learned Spec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... below as per chart mentioned in paragraph 7.6 of the report. 7.6. That it is pertinent to bring before your lordship the noncooperating attitude of the petitioner in the Ld. Special Court under PMLA which is causing detail in trial. Date of hearing Detail of proceedings 10.08.2018 Sh. Gautam Kundu was sent to Judicial Custody. 17.08.2018 Service Report for accused 1 2 remain returned unserved. The copy of Prosecution Complaint was supplied to accused persons. Prosecution was directed to take fresh steps for accused no.1 2 31.08.2018 The prosecution filed application mentioning the Sh. Gautam Kundu is the Chairman of Rose Valley Group of companies including Rose Valley Real Estate Construction Ltd. and Rose Valley Hotels and Entertainment Ltd. and that the summons should be served through Gautam Kundu, the chairman of the companies and further that when the said Gautam Kundu is produced before this Court he should receive the summons issued in the name of Rose Valley Real Estate Construction Ltd. and Rose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was fixed for 27.11.2018 for production of Gautam Kundu. 27.11.2018 Since the Regular Presiding Officer was on leave. Matter was adjourned for 10.12.2018 for production of accused persons in custody. 10.12.2018 Gautam Kundu was produced. Another accused person filed petition for confirmation of his interim bail. 20.12.2018 Gautam Kundu was produced. Another person filed petition for confirmation of his interim bail. 03.01.2019 Gautam Kundu was produced. Objection is filed in respect of application for confirmation of interim bail in respect of another accused person. 17.01.2019 Gautam Kundu was produced. Hearing took place on application for confirmation on interim bail in respect of another person. 30.01.2019 Gautam Kundu was produced. Another accused person filed petition for relaxation of bail conditions. 12.02.2019 Gautam Kundu was produced. Written objection filed in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gautam Kundu was produced. Matter was adjourned for 07.11.2019 for production of accused person. 07.11.2019 Gautam Kundu was produced. Misc application filed by another accused person. 27.11.2019 Gautam Kundu was produced. Upon perusing the case records the Ld. Court noted their satisfaction with investigation. Matter was adjourned for 16.01.2020 for production of accused person. 16.01.2020 Gautam Kundu was produced. Misc application filed by another accused person. 08.06.2020 Gautam Kundu was not produced. 18.06.2020 Gautam Kundu was not produced. 14.07.2020 Gautam Kundu was not produced. 05.09.2020 Gautam Kundu was not produced. 21.11.2020 Gautam Kundu was not produced. 12.01.2021 Gautam Kundu filed application for interim bail which was rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gautam Kundu was produced. Hearing on another accused took place. The Ld. Court observed that it appears from the case records till now the copies are not supplied/accepted by Gautam Kundu. The matter was adjourned for 22.03.2022 for verification of documents and supplies of copies to Gautam Kundu, if he declined to accept the copies u/s 207 of the Crpc, necessary order shall be passed. 22.03.2022 Gautam Kundu was not produced. Gautam Kundu received copies u/s 207 of CrPC. Misc application filed by another accused person. 22.04.2022 Gautam Kundu was produced. Application u/s 436A of CrPC filed by Gautam Kundu 28.04.2022 Haring on application u/s 436A of CrPC filed by Gautam Kundu took place. 19.05.2022 Bail application of Gautam Kundu was rejected. 17.06.2022 Gautam Kundu was produced. Matter was adjourned since the regular Presiding Officer retired. 13. On careful perusal of the above chart it is ascertained that primarily delay in tria ..... X X X X Extracts X X X X X X X X Extracts X X X X
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