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TMI Blog2023 (9) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... bail was meant to be incorporated in Section 45 of the Act, but it has erroneously been placed just above Section 45. The aforesaid Acts deal with heinous offences like hijacking of aero planes, unlawful acts against safety of civil aviation, maritime piracy, unlawful acts against safety of maritime navigation and fixed platforms on continental shelf, and offences relating to manufacture and sale of adulterated or spurious drugs, which would affect a very large number of population, and the offences carry punishment upto death. All the Acts contain restrictions of Courts power to grant bail to an accused person, which are similar to the restriction provided in Section 45 (1) and (2) of PMLA. All the acts provide that the aforesaid restrictions can be waved by the Special Courts in case of a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, like the provision contained in the proviso appended to Section 45 (1) of PMLA. The restriction contained in Section 45 of PMLA that bail cannot be granted to a person accused of an offence under the PMLA without recording a prima facie satisfaction of innocence of the applicant, is not applicable to the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (NCL) for manufacture of Special Smokeless Fuel (SSF) and instead of processing the coal, the companies sold it in black market at a high premium causing wrongful loss to the government and wrongful gain to the accused persons. 3. On 13.04.2011, the C.B.I/ACB Lucknow filed 5 F.I.Rs. under Sections 120-B, 420 of I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 for causing wrongful gain to the companies by diverting the coal received from NCL to open market without processing to SSF. RC 4(A) 2011 was filed against M/s Swastik Products Ltd., RC 5 (A) 2011 against M/s Fertico Marketing & Investment Pvt. Ltd., RC 6(A) 2011 against M/s Jai Durga Industries, RC 7 (A) 2011 against M/s Sri Ram Fuels and RC 8 (A) against Ms Drolia Code Industries Pvt. Ltd. Unknown officials of District Industries Centre (DIC) and unknown officials of NCL have also been made accused in all the F.I.Rs. The C.B.I. filed five different charge-sheets dated 31.05.2012 in respect of the aforesaid 5 F.I.Rs. 4. The particulars of the cases in respect of which the aforesaid 8 applications have been filed, are being mentioned below: - Sl.no. ABAIL No. FIR No. ECIR No. Compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l inspection. Their act facilitated continuous supply of coal from NCL, which resulted in generation of wrongful gain. The applicant Ramji Singh and Yogendra Nath Pandey were indirectly involved in the activity of abetment with regard to generation of proceeds of crime and thereby they committed the offence of money-laundering. 10. The complaint further states that three summons were issued to the applicant Ramji Singh and in reply to the last summon, he sought exemption from appearance due to his medical conditions. 11. In the affidavits filed in support of the anticipatory bail applications of the applicant Ramji Singh, it has been stated that no coal was supplied at a notified price on the basis of status report submitted by the applicant, because the coal was supplied under FSA and as per clause 4.4 of the agreement, it was the duty of NCL to inspect/call for any documents from the purchaser and physically verify the end use of coal and satisfy itself about its correctness. The applicant Ramji Singh has not received any money as a result of any criminal activity. 12. It has been stated that the applicant Ramji Singh is a 72 years old person, who is infirm and sick and he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purnagiri Holding Pvt. Ltd. It is alleged that some sale transactions appeared to be fake. Subhash Chandra Tulsian has been charged as being involved in criminal conspiracy of illegal diversion of coal by showing fake purchase of SSF. The complaints record the statement of the applicant that the coal so purchased from M/s Swastik Cement Products and M/s Fertico Marketing and Investments Pvt. Ltd. was further sold to other purchasers. The entire consideration for the coal was paid through cheques only. 16. The learned counsel for the applicants in ABAIL Nos. 1611, 1617, 1636, 1638 and 1639 of 2023, namely Ravindra Aggarwal, Jai Narayan Agarwal and Subhash Chandra Tulsian, has submitted that the applicants have not committed any offence by purchasing the coal from Sri Ram Fuels Pvt. Ltd., M/s Jai Durga Industries, M/s Drolia Coke Industries, M/s Fertico Marketing and Investment Pvt. Ltd. and M/s Swastik Cement Products. At the most, the aforesaid companies are guilty of breach of agreement with NCL, which prohibited sale of coal in open market and under which the companies were obliged to process the coal, convert it into SSF and thereafter sell it in the open market. The applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o any particular accused so long as the same is identifiable and can be related with the case. 23. The counter affidavits refers to the law laid down by the Hon'ble Supreme Court in the cases of Vijay Madanlal Choudhary versus Union of India 2022 SCC OnLine SC 929, Directorate of Enforcement versus M. Gopal Reddy and another 2022 SCC OnLine SC 1862, Y. S. Jagan Mohan Reddy versus Central Bureau of Investigation, (2013) 7 SCC 439, State of Bihar and another versus Amit Kumar, (2017) 13 SCC 751 and Rohit Tandon versus Directorate of Enforcement, (2018) 11 SCC 46. 24. In Directorate of Enforcement versus M. Gopal Reddy and another and Vijay Madanlal Chaudhary versus Directorate of Enforcement (Supra), the Hon'ble Supreme Court held that the rigors of Section 45 of PMLA apply to the applications under Section 438 Cr.P.C. 25. In Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, the Hon'ble Supreme Court had held that: - "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the illness of the mother of the petitioner. In the aforesaid factual background, the Hon'ble Supreme Court held that: - "21. The consistent view taken by this Court is that economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Further, when attempt is made to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on the accused persons under Section 24 of the 2002 Act." 28. The counter affidavit also makes a reference to the following passage from a judgment dated 12.03.2001 passed by the Hon'ble Supreme Court in the case of Rakesh Kumar Pandey versus Munni Singh @ Mata Bux Singh, S.L.P. No. 4059 of 2000: - "The High Court on being moved, has considered the application for bail and without bearing in mind the relevant materials on record as well as the gravity of offence relea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under Section 3, without the accused being committed to it for trial. Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or (c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-laundering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains a provision similar to Section 45 (1) and 45 (2) of PMLA, but a provision similar to Section 44(2) of PMLA is also contained Section 12(3) of the Anti-Hijacking Act. The aforesaid section reads thus: - "12. Provision as to bail.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless,-- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (b) where Public Prosecutor opposes the application, the Designated 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 any offence while on bail. (2) The limitations on granting of bail as specified in sub-section (1) are in addition to the limitation under the Code of Criminal Procedure, 1973 (2 of 1974), or any other law for the time being in force, on granting bail. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court regarding grant of bail under section 439 of the Code." 38. Offences under Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 carry punishment upto death and Section 8 of the aforesaid Act provides that: - "8. Provision as to bail.--(1) Notwithstanding anything in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless -- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (b) 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 any offence while on bail. (2) The limitations on granting of bail specified in sub-section (1) are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code." 39. Offences under the Drugs and C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unlawful acts against safety of civil aviation, maritime piracy, unlawful acts against safety of maritime navigation and fixed platforms on continental shelf, and offences relating to manufacture and sale of adulterated or spurious drugs, which would affect a very large number of population, and the offences carry punishment upto death. All the Acts contain restrictions of Courts' power to grant bail to an accused person, which are similar to the restriction provided in Section 45 (1) and (2) of PMLA. All the acts provide that the aforesaid restrictions can be waved by the Special Courts in case of a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, like the provision contained in the proviso appended to Section 45 (1) of PMLA. 41. Although the High Courts' discretion in the matter of grant of bail has been saved in respect of offences as serious as hijacking of aero planes and piracy on ships or manufacture or sale of adulterated or spurious drugs, by inserting a sub-section in the particular Section which contains restrictions against grant of bail, in PMLA, the clause saving the special powers of High Courts has been placed at a wrong place in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the Code of Criminal Procedure, 1973, be charged at the same trial. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36. * * *" 43. Section 37 of NDPS Act contains restrictions against grant of bail, which are similar to the restrictions provided in PMLA and other Acts referred to above and it provides that: - "37. Offences to be cognizable and non-bailable.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for offences under Section 19 or Section 24 or Section 27-A and also for offences involving commercial quantity shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an opportunity to oppose the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon's case, (1584) 3 Co. Rep. 7a, and it is the safest guide today. Good practical advice on the subject was given about the same time by Plowden in his second volume Eyston v. Studd (1574) 2 Plowden 465. Put into homely metaphor it is this : A judge should ask himself the question : If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A judge must n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecutor 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 any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs: (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. Nothing contained in sections 44 or 45 shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of justice, where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, or where the allegations in the first information report and other materials accompanying the FIR do not disclose a cognizable offence, or where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, or where there is an express legal bar engrafted in the Cr.P.C. or any Act to the institution and continuance of the proceedings or where a criminal proceeding is manifestly attended with mala fide or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. The Hon'ble Supreme Court gave the following note of caution in this regard: - "103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d befall on the society in cases of financial irregularities, it has been 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 even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of anticipatory bail can continue. 76. Therefore, this Court holds that the view expressed in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, K. L. Verma v. State, (1998) 9 SCC 348, Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558, Satpal Singh v. State of Punjab, (2018) 13 SCC 813, Adri Dharan Das v. State of W.B., (2005) 4 SCC 303, HDFC Bank Ltd. v. J.J. Mannan, (2010) 1 SCC 679 and Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632 about the Court of Session, or the High Court, being obliged to grant anticipatory bail, for a limited duration, or to await the course of investigation, so as the "normal court" not being "bypassed" or that in certain kinds of serious offences, anticipatory bail should not be granted normally -- including in economic offences, etc.--are not good law." (Emphasis supplied) 62. In Kamlesh and another versus State of Rajasthan and another, 2019 SCC OnLine SC 1822, the High Court of Rajasthan had rejected the application for anticipatory bail only on the ground that petition under Section 482 Cr.P.C., praying for quashing of FIR, had already been rejected. The Hon'ble Supreme Court allowed the appeal filed against the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no allegation of his direct involvement in commission of any offence. Meanwhile the applicant Ramji Singh has attained the age of 72 years and obviously he has retired long ago and he does not appear to be in a position to influence the witnesses or tamper with the evidence. Having retired, there appears no reasonable apprehension of the applicant Ramji Singh indulging in commission of a similar offence after grant of anticipatory bail to him. 67. Ravindra Aggarwal the applicant in ABAIL Nos. 1611 of 2023 and 1617 of 2023 is proprietor of M/s SBC Minerals Pvt. Ltd., which had purchased coal from M/s Shree Ram Fuels Pvt. Ltd., M/s Jai Durga Industries and M/s Drolia Coke Industries during year 2010-11. Ravindra Aggarwal has been charged for involvement in criminal conspiracy of illegal diversion of coal in violation of conditions of FSA and showing fake purchase of undersized coal. The complaint records the statement of Ravindra Aggarwal that the coal so purchased was further sold to other purchasers. M/s S.B.C. Minerals Pvt. Ltd. was not a party to the contract between the NCL and the aforesaid three companies. No proceeds of crime have been recovered from Ravindra Aggar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that such trials get precedence and are concluded within a reasonable time, but in the present case even the complaints have been lodged after an inordinate delay of 7 to 12 years.
72. All the applicants have already submitted bail bonds in furtherance of the interim orders passed by this Court granting interim anticipatory bail to them. No violation of any of the conditions of interim anticipatory bail granted to any of the applicants has been pointed out in any of the counter affidavits filed by the E.D.
73. In view of the aforesaid discussion, I am of the view that all the orders granted interim anticipatory bail to the applicants deserve to be confirmed and the applications deserve to be allowed.
74. Accordingly, the Civil Miscellaneous Anticipatory Bail Application Numbers 1518 of 2023, 1523 of 2023, 1602 of 2023, 1611 of 2023, 1617 of 2023, 1636 of 2023, 1638 of 2023 and 1639 of 2023 are allowed. As the applicants have already furnished bail bonds in furtherance of the interim orders passed in their favour, they need not furnish any fresh bail bonds. The conditions of bail imposed in the interim orders shall continue to bind the applicants. X X X X Extracts X X X X X X X X Extracts X X X X
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