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TMI Blog2023 (9) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... der and reported certain irregularities. This submission prompted the Court to issue oral direction to the Registrar (Vigilance) of the High Court to bring records from the trial Court (which is hardly two km away from the High Court Campus). The case bundle secured and produced to the shock of this Court did not contain the detail order, neither the docket order indicated that a detailed order passed separately. The enquiry made in the trial Court by the Registrar (Vigilance) revealed that the learned Judge had not made ready the detailed order. While so, the grant of bail in haste without making the detail order throw suspicion over the conduct of the trial Court. (iii) However, this Court is not dwelling upon that aspect since this matter is for the High Court administrative side to take note and proceed. Except to reinforce the view of the Hon'ble Supreme Court in THE REGISTRAR GENERAL, HIGH COURT OF KARNATAKA ANR. VERSUS SRI M. NARASIMHA PRASAD [ 2023 (4) TMI 1251 - SUPREME COURT] , which had observed that a judicial officer cannot pronounce the concluding portion of its judgement in open Court without the entire text of the judgement being prepared which dictated. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to registration of the case against him under Sections 3 4 of Prevention of Money Laundering Act, 2002 (hereinafter referred to PMLA Act ) in F.No.ECIR/CEZO/I/01/2018 which was on the file of Directorate of Enforcement, Chennai Zone-I, Chennai. On completion of investigation, the Enforcement Directorate had filed final report and the same was taken on file by the Special Court for CBI cases, Chennai in Spl.C.C.No.01 of 2022 after being transferred from the Principal Sessions Court, Chennai. Before the trial Court, the petitioner sought for grant of bail in Crl.MP. No.6628 of 2023 and same was allowed on 16.08.2023. The docket order uploaded in the Court website read as below:- 1. The petitioner/Accused (A1) required to surrender/deposit his passport before this court custody until further orders. 2. Petitioner/Accused (A1) enlarged on bail, on his execution of bond for Rs.1 lakh and two such sureties for the like sum each and the sureties shall be his blood relatives and sureties required to produce sufficient solvency certificates. 3. The petitioner/Accused (A1) on his enlargement on bail, shall appear before this Court on all working days and to sign before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.1 of 2022 dated 16.08.2023 has to be tested. Therefore, it is hereby stayed. 3. Thereafter, on completion of service to the respondent, the matter was heard. In the meantime, the learned trial Judge has also uploaded the detailed order which was made available to the prosecution on 21.08.2023. The prosecution was permitted to file additional affidavit in response to the detailed order passed by the trial Court. 4. The learned counsel for the petitioner/Directorate of Enforcement and the learned counsel for the respondent made their oral and written submission. Upon hearing both the side and on perusal of records this Court pass the following order:- The respondent is a NRI, domiciled at Singapore. He is the Director of M/s.Coastal Energyen (P) Limited and Power Plant under the name and style of M/s.Mutiara Thermal Power Plant, Tuticorin with 1200 MW capacity and few other group of Companies. The respondent and his Company came under the scanner of Directorate of Revenue Intelligence (DRI), when the coal imported from Foreign for conversion of coal into thermal energy, the price were inflated and the inflated sale price was transferred to intermediary Form-B in Fore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether the money laundered the manner in which the investigation so far reveals, mere physical presence at Respondent Office will not tantamount to cooperation to investigation. Further, having declared to maintain silence, the investigating agency needs time to collect the documents required, by other means as the petitioner himself have put it in his petition, (i.e.,) Letter of Request (LOR) under Section 57 of PMLA, 2002 or Section 166-A of Cr.P.C., may be resorted. It is the discretion and prerogative of the investigating agency, to choose the mode and they need no advice neither from the Court nor from the accused. To collect those documents, the confinement of the petitioner in prison is inevitable, else he may secret away the documents, taking advantage of his liberty. 8. This order was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court in its order [Special Leave to Appeal (Crl.) No.5476 of 2022], dated 05.12.2022 observed that, they do not find any ground to release the petitioner on bail at this stage as it might hamper the ongoing investigation. The Hon'ble Supreme Court in its order had further observed as below:- 2. Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. Whereas, the specific case of the accused is that he is no longer involved with those offshore entities and he would rely upon the order passed by this Court in Crl.M.P.No.4781 2022 under section 305 Cr.P.C. holding that the entities alone could appoint representatives to face the trial and this petitioner/accused cannot be compelled to represent those entities because the said entities were not served summons properly and that they are said to be under liquidation process. However, it was held in that order that this Petitioner/accused cannot escape the liability under PMLA as he was in-charge of those entities during the relevant period. Hence, the Petitioner cannot take advantage of the order passed by this court under section 305 Cr.P.C. to gain support that he did not commit any offence either under the schedule or under Section 3 of PMLA. 10. The respondent/accused, soon thereafter had filed bail petition under Section 167(2) of Cr.P.C before the trial Court in Crl.M.P.No.2784 of 2023 on the premise the complaint filed by Enforcement Directorate and taken on file as Special C.C.No.1 of 2022 is an incomplete report. Referring that before the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly from Indonesia through his Company by name M/s.Coastal Energyen Private Limited. In respect of coal imported during 2011-15, the Director of Revenue Intelligence, Mumbai Zonal Unit investigated about the over-invoice and issued show cause notice in file No.DRI/MZU/F/INT.160/2014/977 dated 14.02.2017 under the relevant provisions of the Customs Act, 1962. The adjudication in the proceedings initiated by DRI is still pending. 15. Followed by the proceedings of DRI, CBI has registered a case against this petitioner, his Company and others. The investigation in the case registered by CBI, Delhi in RC. No.221/2018/E0003 dated 22.01.2018 is still pending and the final report not yet filed. 16. The case registered by CBI is the predicate offence which has led to the complaint by Enforcement Directorate in F.No.ECIR/CEZ/01/2018. The respondent on taking up the investigation had conducted search and seizure operation under the provisions of PMLA Act, in the premises connected to the petitioner. The search operation dated 12.09.2019 and 13.09.2019 had led to recovery of incriminating material. Based on the complaint, the offence under Sections 3 and 4 of PMLA Act, been taken co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e predicate crime registered by CBI has prompted the trial Court to grant bail on conditions. 21. The learned Special Public Prosecutor appearing for the Enforcement Directorate submitted that after dismissal of the bail petition by the trial Court in Crl.M.P No.1320 of 2023 on 17.03.2023 and bail petition in Crl.OP. No.2784 of 2023 dated 31.03.2023, there is no change of circumstances for entertaining the bail petition. The trial Court on 16.08.2023, passed a cryptic order without any reasoning or recording its satisfaction for granting bail inspite of the twin conditions imposed in Section 45(2) of PMLA Act. This was brought to the notice of the High Court, the next day and interim stay of bail order was granted. The copy of the bail order was made ready only on 21.08.2023 and served to the prosecution. The detailed order of the trial Court for granting bail also does not give reason for satisfaction to grant bail. 22. The learned Special Public Prosecutor specifically contended that this is a case investigated by the Enforcement Directorate regarding siphoning of Indian money more than Rs.550 Crores to Foreign country and the proceeds of crime being scattered across th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, the order of bail granted unmindful of the gravity of the offence and overwhelming evidence against the petitioner is to be cancelled. 25. The learned senior counsel appearing for the accused submitted that a detailed order passed by the trial Court considering all the objections and the past history of the case following the adjudication of the Hon'ble Supreme Court rendered in Mohammed Muslim @ Hussain vs. State (NCT of Delhi) in SLP. Crl.No.943 2023 dated 28.03.2023 and the judgement rendered in Vijai Madanlal Choudary Vs. Union of India reported in 2022 SCC Online SC 929 . After recording its satisfaction as below, in respect of twin condition laid in Section 45 of the PMLA Act, Court is not expected to go into deep of facts and pros and cons of constitution and express his opinion. On perusal, the petitioner who is aged about 50 years had been repeatedly applying for bail and he suffers back pain owing to his old age from very inception of taking cognizance, the summons to co-accused A2-A7 not yet been served and the case being posted every 15 days for extension of remand. The custodial interrogation of the petitioner also been completed and his pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t out of 169 consignments of coal, the accused has supplied totally 77 consignments through MMTC, 5 consignments directly by its offshore entities DNO, DMCC, Dubai and remaining 87 consignments were supplied by his Company M/s.Coastal Energyen Private Limited to the public sector undertaking in India and the over all inflation of price that is the difference between the inferior quality coal and the superior quality coal is arrived at Rs.564.58 Crores. Out of which 557.28 Crores had been diverted through his company M/s.Coastal Energyen Private limited and CNO groups of entities. The materials placed indicates at this juncture the accused cannot be presumed to be not guilty. (v) The gravity of offence, the length and breath of crime committed has forced the Enforcement Directorate to request the trial Court to issue letter of rogatory and the trial Court had issued letter of request on 03.10.2022 to two countries. The responses from those countries are awaited. While so, it is incorrect to say that the Enforcement Directorate has not taken any steps to proceed with its investigation in respect of offshore entities. (vi) The delay in completing the investigation by the CBI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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