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TMI Blog2021 (3) TMI 1412X X X X Extracts X X X X X X X X Extracts X X X X ..... ces punishable under Sections .120-B,420, 468 and 471. of I.P.C., Section 66 of the Information Technology Act, 2000 and Section 7 (C) read with Section 13 (2) of the Prevention of Corruption Act. As per the said F.l.R., EOW, Bhopal, received note sheet from Chief Secretary, Madhya Pradesh, regarding unauthorized access in 3 Tenders of Madhya Pradesh Water Corporation on Madhya Pradesh e-Procurement Portal being run by MPSEDC. The facts were verified and it was found that MP e-Procurement Portal is managed by MPSEDC and M/s. Antares Systems Limited, Bangalore and M/s. Tata Consultancy Services (TCS) were given contract for a period of five years for the maintenance and operation of the said portal. These two companies along with MPSEDC were accountable for the security of e-Procurement Portal. It was found in preliminary enquiry that e-Tender Nos.91, 93 and 94 for total amount of Rs.1769.00 Crores of Madhya Pradesh Water Corporation were tampered and changed to price bid of M/ s. GVPR Engineers Limited (Tender No.91), M/s The Indian Hume Pipe Company Limited (Tender No.93) and M/s JMC Project India Limited (Tender No.94) to make them the lowest bidders. Similarly, various tenders o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, Hyderabad, in relation to the complaint in ECIR/HYZO/36/2020. The petitioner has been served with summnons, dated 05.01..2021 seeking his appearance on 20.01.2021 purporting that his presence is required for investigation of offences under the P.M.L. Act. It is further submitted that the petitioner is a retired I. A.S. Officer, who previously held various positions at the: Government of India. The petitioner worked as an Additional Chief Secretary to the Government of Madhya Pradesh and also a Chief Secretary for the Government of Madhya Pradesh and thereafter retired as Chairman, Revenue Board, Gwalior. It is further submitted that the present investigation is with regard to money laundering initiated under the P.M.L. Act in the matter of tampering of the e-tenders in the State of Madhya Pradesh by various officials and infrastructure companies during January, 2018 to March, 201ti. The present investigation is based on an F.l.R. registered by the Economic Offences Wing, Bhopal vide F.l.R.No.12 of 2019, wherein 20 persons/companies were named as suspects in the said scam and as per the said F.I.R. it was found that e-Tender of Madhya Pradesh Water Corporation was tampered an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non-bailable offence for certain gains to the Government of Madhya Pradesh. It is further submitted that the present investigation is with regard to a complaint that was lodged on 1,0.04.2019, alleging offences of tampering with e-tenders by certain elements and the offences alleged against them are under Section 13 (1) of the Prevention of Corruption Act, 1988 read with Sections 420, 467, 468, 471. and 120 (B) and Section 66 of the Information Technology Act, 2000. It is pertinent to note that in order to book a case under Section 13 (1) of the Prevention of Corruption Act, there ought to be a public servant in the accomplishment of the task of establishing a case under Section 13 (1) of the Prevention of Corruption Act, before the Economic Offences Court at Bhopal. Since the same was not done: by the investigating agency, the 1.st respondent in order to cover up the said gap has been directed to register cases under the provisions of the P.M.L. Act. It is also submitted that the petitioner worked in the water works department as Additional Chief Secretary between the period from 18.02.2079 to 76.02.2020 and is nowhere connected or involved in any way with the alleged offences. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madhya Pradesh, many bidders aspiring to secure allocation of the projects have conspired with one M/s. Osmo IT Solutions, Bhopal and tampered the e-tenders to suit their bid and gained undue benefits worth thousands of Crores by being allocated various irrigation and other projects being undertaken by Madhya Pradesh State Government The suspected were charged under Section 120-8 of I.P.C. read with Sections 420 and 47-1. of I.P.C. Since the predicate agency have charged the suspected under the sections forming scheduled offences in terms of Section 2 (y) of the P.M.L. Act., and also since prima facie there: appears large scale money laundering involved in the said issue, investigation under the P.M.L. Act has been initiated. It is further submitted that the present application seeking anticipatory bail under Section 438 of Cr.P.C. is liable to be dismissed as it does not make out any valid grounds for apprehension of arrest. In any event, there can be no apprehension of arrest unless and until reasons to believe are formed on the basis of material in the possession of the Directorate of Enforcement under Section 19 of the P.M.L. Act that a person has been guilty of an offence pun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As per the EOW charge sheet, a joint venture of the Mantena Group known as M/s Max Mantena Micro JV is a direct beneficiary of a tampered e-tender No.10030 worth Rs.1020 Crore. Although EOW, Bhopal has filed first charge sheet on 04.07.201.9, its investigation is not complete and is still going on. The Enforcement Directorate, which is tasked with tracing the proceeds of crime and investigating money laundering, is carrying out investigation into the entire illegal profits generated through this e-tender scam over the last few years. It is also submitted that in order to gather evidence, a search operation was conducted under the provisions of Section 17 (1) of the P.M.L. Act. Accordingly, 18 premises were searched including the residences of the promoters and offices of M/ s Mantena Constructions Limited, M/s. Anteras Private Limited, M/s Osmo IT Solutions Private Limited, M/s. Arni Infra etc., Large amount of incriminating documents and digital devices have been seized and are being examined for evidence. It is clear from the E.D. investigation done so far that a systematic conspiracy has been planned and executed by a number of infrastructure companies based at Hyderabad in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and same needs to be investigated in detail. The petitioner instead of appearing for the summons issued by the respondent authorites, filed an anticipatory bail, which was dismissed by the M.S.J. Court, Hyderabad, vide order, dated 09.02.2021. The petitioner was already questioned and his statement was recorded on 18.02.2021, and he was not arrested Further recording of his statement is necessary as he gave contradicting replies. The petitioner had availed other patronages from Srinivasa Raju Mantena like sponsoring foreign exchange through Hawala Channels for his son. The 1st respondent is in possession of e-mail documents, where it is established that Mr.Srinivasa Raju Mantena was trying to set up a finance company in Singapore with Mr.Anirudh, son of the petitioner, acting as the resident Director of the same. It is also established that Mr.Srinivasa Raju Mantena had extended logistic support for transfer of the petitioner's household goods from Bhopal to Hyderabad post his retirement and the petitioner admitted in his statement that because of the space constraints, he had stored part of his luggage in the office of Mantena Group. All these instances go onto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no ground to seek anticipatory bail. Further, since the object of the investigation of E.D. and EOW are different, the material evidence collected by them cannot exactly the same. It is further submitted that financial frauds involving large scale loot of public funds are a scourge on the National economy and integrity of our Nation and the petitioner instead of explaining her conduct and appearing before the 1st respondent on issuance of lawful summons, is misusing the legal provisions to delay and derail the investigation and prayed to dismiss the petition. In support of his contentions, learned Counsel appearing for the 1st respondent relied upon the following judgments. 1. Y.S. Jagan Mohan Reddy v. CBI (2013) 7 SCC 439 2. Rohit Tandon v. Directorate of Enforcement (2018) 11 SCC 46 3. Gautam Kundu v. Directorate of Enforcement (2015) 16 SCC 1 4. Nimmagadda Prasad v. CBI (2013) 7 SCC 466 5. Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105 6. State of Gujarat v. Mohanlal Jitamaljiporwal and Others (1987) 2 SCC 364 I have carefully considered the rival submissions and perused all the relevant material relied on by both sides A three Judges' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheduled offence, by virtue of the fact that the two sets of offences are being tried together, Mr X would be denied bail because the money laundering offence is being tried along with the scheduled offence, for which Mr Y alone is being prosecuted. This illustration would show that a person who may have nothing to do with the offence of money laundering may yet be denied bail, because of the twin conditions that have to be satisfied under Section 5(1) of the 2002 Act. Also, Mr A may well be prosecuted for an offence which falls within Part A of the Schedule, but which does not involve money laundering. Such offences would be liable to be tried under the Code of Criminal Procedure, and despite the fact that it may be the very same Part A scheduled offence given in the illustration above, the fact that no prosecution for money laundering along with the said offence is launched, would enable Mr A to get bail without the rigorous conditions contained in Section 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, inasm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has beer, held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easonable grounds for believing that the applicant has been guilty of an offence punishable with death or imprisonment for life . In cases falling under Section 438 that stage is still to arrive and, in the generality of cases thereunder, it would be premature and indeed difficult to predicate that there are or are not reasonable grounds for so believing. The foundation of the belief spoken of in Section a37 Q), by reason of which the court cannot release the applicant on bail is, normally, the credibility of the allegations contained in the first information report. In the majority of cases falling under Section 438, that data will be lacking for forming the requisite belief. If at all the conditions mentioned in Section 437 are to be read into the provisions of Section 438, the transplantation shall have to be done without amputation. That is to say, on the reasoning of the High Court, Section 438(1) shall have to be read as containing the clause that the applicant "shall not" be released on bail "if there appear reasonable grounds for believing that he has been guilty of an offence punishable, with death or imprisonment for life". In this process one shall have overlooked that w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for anticipatory bail in the case of P.Chidambaram (7 supra) was rejected on merits of the allegations and other material. It is trite law that in case of economic ,offences, which are having an impact on the society, the Court must be very slow in exercising the discretion under Section 438 of Cr.P.C. But on perusal of the factual matrix of the present case, prima facie, there is no material to come to the conclusion that the act of the petitioner is having an impact on the financial status of the Country, and in that light the ratio laid down in P.Chidambaram's case (7 supra) is not applicable to the facts of the present case. Therefore, looking into the totality of the circumstances, this Court is of the considered opinion that the petitioner is entitled for anticipatory bail. Accordingly, the Criminal Petition is allowed and the petitioner is granted anticipatory bail on the following terms and conditions: (i) The petitioner is directed to surrender before the Assistant Director, Enforcement Directorate. Government of India, Hyderabad, within a period of ten days from today, and on such surrender, he shall be released on bail on his executing a personal bond to th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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