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TMI Blog2024 (5) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... aint the petitioner was applying his mind, knowledge and conscience for routing out the money which was illegally acquired by Tushar Patil, Prasenjit Das, Viraj Suhas Patil. The role of the petitioner was for concealment and projecting proceeds of crime as untainted money. Delay and long detention in custody have never been accepted by the constitutional courts and wherever there has been unreasonable delay the Courts have favoured the constitutional mandate of liberty. However, there are cases where the statute is built in such a manner that the complicity simpliciter is not a criteria but the detention is on the basis of guilt and the present case is one of such nature. It is a fact that the petitioner is in custody for more than 14 months but the nature of the offence complained of requires time for investigation as the procedure adopted in concealment and its unearthing both are time consuming. It has been submitted by the Enforcement Directorate that not only investigation is continuing but immovable assets which have been the outcome of such proceeds of crime are being traced to countries or abroad and for which time is being consumed. Having regard to the fact that although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khand. No parties were carrying out business at the address which were furnished in the account opening form and also no such parties existed at the address furnished in Jamshedpur. 3. It was alleged that the entire credits were effected through UPI, NEFT, RTGS transaction and therefore transferred to multiple accounts by the customer to the parties via internet banking channel initiated by the customer either on the same day or next day. M/s. National Payment Corporation of India alerted the head office of Canara Bank on 30.09.2022 regarding unauthorized entity using account of Canara Bank for forex funding purposes prohibited by RBI. Name of the entity/website was TP Global FX account, A/C M/s. T.M. Traders, A/c no. 120001761068, IFSC-CNRB0019754. A criminal case was directed to be initiated as the parties have committed a criminal act against the bank by involving themselves in the process of some money laundering activities by a group of unscrupulous person/persons. 4. On the basis of the aforesaid complaint dated 01.10.2022 referred to the Deputy Commissioner, Cyber Crime Police the criminal case being Hare Street P.S. Case no. 290 dated 14.10.2022 was registered for investi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el, Manjulaben Patel, in preparation of Balance Sheet and Profit & Loss account, filing of ITRs etc. A-2 has made all necessary compliances on behalf of A-1 and Tushar Patel during the formation of new company, as and when required. A-2 received the bank accounts and other related documents in his email-id. A-2 in turn received a huge commission of Rs.18-20 crore in cash as well as in his related bank accounts (like his firms/enities, his brother, his mother) from the scam money collected by the accused. The amount of Rs. 14.39 crore in cash has been recovered and seized from the premsies of A-2 which is nothing but the public funds collected in the name of forex trading on TP Global FX Platform. A-2 has also received commission from various other parties during the purchase of immovable properties by A-1 in the name of A-3 to A-8 and such commission has been received by A-2 in his companies namely Wonderland Agrotech Pvt Ltd, Akshay Financials Consultants Pvt Ltd etc and in the accounts of his family members like his mother and brother. A-2 has knowingly received commission of 2% on the entire credits received in the accounts of dummy firms which appeared on TP Global FX Platform ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51, this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab (2005) 7 SCC 387 and Kashmira Singh v. State of Punjab (1977) 4 SCC 291, to emphasise that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorised officers to ensure fairness, objectivity and accountability. Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y restrictions like Section 43D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 19. Adverting to the case at hand, we are conscious of the fact that the charges levelled against the respondent are grave and a serious threat to societal harmony. Had it been a case at the threshold, we would have outrightly turned down the respondent's prayer. However, keeping in mind the length of the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight to life. This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorised officers to ensure fairness, objectivity and accountability. Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be." 13. Petitioner also emphasized on the issue relating to delay and bail in heinous offences by referring to Union of India -vs.- K. A. Najeeb reported in (2021) 3 SCC 713. Reliance was made to paragraphs 10 to 14, 15, 17 which are set out as follows:- "10. It is a fact that the High Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 13. We may also refer to the orders enlarging similarly-situated accused under UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra [Angela Harish Sontakke v. State of Maharashtra, (2021) 3 SCC 723]. That was also a case under Sections 10, 13, 17, 18, 18-A, 18-B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years' incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43-D(5) of the UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra [Sagar Tatyaram Gorkhe v. State of Maharashtra, (2021) 3 SCC 725], an accused under UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined. 15. This Court has clarified in nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21) 3 SCC 713. Therein, the following observations cannot be overlooked: "12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156], Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 19. Yet another reason which persuades us to enlarge the respondent on bail is that Section 43-D(5) of the UAPA is comparatively less stringent than Section 37 of the NDPS Act. Unlike th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appellant in the trial on the basis of the evidence and in accordance with law." 15. Reiterating his submissions on the same issue, learned advocate for the petitioner has relied upon Shoma Kanti Sen -vs.- State of Maharashtra & Anr. -Vs State of Maharashtra and Anr. reported in 2024 SCC OnLine SC 498. Attention was drawn to paragraphs 37 to 39 which are reads as follows:- "37. In the case of K.A. Najeeb v. Union of India [(2021) 3 SCC 713], a three Judge Bench of this Court (of which one of us Aniruddha Bose, J was a party), has held that a Constitutional Court is not strictly bound by the prohibitory provisions of grant of bail in the 1967 Act and can exercise its constitutional jurisdiction to release an accused on bail who has been incarcerated for a long period of time, relying on Article 21 of Constitution of India. This decision was sought to be distinguished by Mr. Nataraj on facts relying on judgment of this Court in the case of Gurwinder Singh v. State of Punjab [2024 INSC 92]. In this judgment, it has been held:-- "32. The Appellant's counsel has relied upon the case of KA Najeeb (supra) to back its contention that the appellant has been in jail for last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb (supra), and in that judgment, long period of incarceration was held to be a valid ground to enlarge an accused on bail in spite of the bail-restricting provision of Section 43D (5) of the 1967 Act. Pre-conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused. Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post-chargesheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case. These would be the overarching principles which the law Courts would have to apply while testi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... othing but rule of evidence. As observed by this Court in State of W.B. v. Mir Mohammad Omar (2000) 8 382, the pristine rule that the burden of proof is on the prosecution to prove the guilt of the accused should not be taken as a fossilised doctrine as though it admits no process of intelligent reasoning. The Court went on to observe that the doctrine of presumption is not alien to such a rule, nor would it impair the temper of the rule. On the other hand, if the traditional Rule relating to burden of proof of the prosecution is allowed to be wrapped in pedantic coverage, the offenders in serious offences would be the major beneficiaries and the society would be the casualty. This observation has been quoted with approval in Sucha Singh (2001) 4 SCC 375. In the latter judgment, the Court relying upon other decisions including in Shambhu Nath Mehra v. The State of Ajmer AIR 1956 SC 404, noted that the provisions, such as Section 106 of the Evidence Act, is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the Section would apply to cases where the prosecution has succeeded in proving facts for which a reasonable inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, "after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists". Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the "prudent man"." (emphasis supplied)" 17. Learned advocate for the petitioner has emphasized that the present petitioner happens to be a Chartered Accountant and, as such, he being a professional rendered his services for which he cannot be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his having culpability in the matter which is not the sine qua non for attracting the provisions of MCOCA. A person in a given situation may not do that which he ought to have done. The Court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision." 24. In Mohd. Muslim @ Hussain v. State (NCT of Delhi), 2023 SCC OnLine SC 352 it has further inter alia been held as under: "18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. … In cases where bail is sought, the court assesses the material on record such as the nature of the offence, like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial court. The case of the petitioner that Anubrata Mondal is shifting his blame on the petitioner only to save himself has to be tested during the course of the trial. Generally speaking, the professional would act on the instructions of his client. However, whether he has gone beyond his professional duty is something which is required to be seen and examined during the trial. The allegation against the present petitioner is not that he has done something which was beyond his scope of profession i.e. indulging in some activities which are totally unconnected with the chartered accountancy. The plea of the petitioner that he has acted on the basis of information and record provided to him cannot be rejected outrightly at this stage. This is required to be tested during the course of the trial. 27. Any further appreciation of the evidence at this stage may prejudice the case and therefore is not expected. It has repeatedly been held that stage of bail cannot convert into a mini trial. It is also pertinent to mention here that that the court has only to take a prima facie view on the basis of the material on record. 28. In the facts and circumstances, the petitioner is admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... near future and as the investigation of the case is still in progress, further detention of the petitioner, as such, is unwarranted. 22. Mr. Arijit Chakrabarti, learned advocate appearing for the Enforcement Directorate submitted that according to the prosecution in a nutshell the key persons involved and who perpetuated the crime are Tushar Patil and Prasenjit Das as mastermind, Viraj S Patil as influencer and face of the scam and the present petitioner viz. Shailesh Kumar Pandey provided help in opening and managing the bank accounts and helped in audit and taxation related matters. 23. According to the complaint as also the relevant role of the present petitioner, Mr. Chakrabarti submitted that the present petitioner viz., Shailesh Kumar Pandey received commission of 2% of the total transactions made as investment from the public in Canara Bank accounts. He facilitated in opening of bank accounts which were used for deposit/investment of public money and routing of the same to some other bank accounts which were dummy firms. In course of investigation, it revealed that the petitioner was maintaining bank accounts (in SBI and Axis Bank) in the name of his brother wherein he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en of proof lies on the accused for the purpose of the condition set out in the Section 45 that he is not guilty of such offence. Of course, such discharge of burden could be on the probabilities, nonetheless in the instant case there being sufficient material on record adduced by the respondent showing the thick involvement of the appellant in the alleged offence of money laundering under Section 3 of the said Act, the Court is not inclined to grant bail to the appellant." 25. Reference was made by the learned advocate for the Enforcement Directorate to paragraph 34 of Y. S. Jagan Mohan Reddy Vs. CBI reported in (2013) 7 SCC 439 for emphasizing on the issue of economic offences which forms a class of its own. Paragraph 34 is set out as follows : "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 offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." 26. Reference was made by the learned adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of Section 45, as it stood then, which resulted in discrimination and arbitrariness as noticed in the judgment. But that opening part referring to class of offences, namely punishable for a term of imprisonment of more than three years under Part A of the Schedule having been deleted and, instead, the twin conditions have now been associated with all the offences under the 2002 Act, the defect pointed out in the stated decision, stands cured. To answer the question posed above, we may also usefully refer to the enunciation of the Constitution Bench of this Court, which recognises power of the Legislature to cure the defect when the law is struck down by the Constitutional Court as violative of some fundamental rights traceable to Part-III of the Constitution. It has been consistently held that such declaration does not have the effect of repealing the relevant provision as such. For, the power to repeal vests only in the Parliament and none else. Only upon such repeal by the Parliament, the provision would become non est for all purposes until re-enacted, but it is open to the Parliament to cure the defect noticed by the Constitutional Court so that the provision, as amended by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present petitioner. 32. I have considered the submissions advanced by Mr. Bhattacharya, learned Advocate appearing for the petitioner who has emphasised on the issues as have been referred to above as also that of Mr. Chakrabarti, learned Advocate appearing for the Enforcement Directorate. In this Case amount transpired in course of investigation initially is recovering of the seized cash amount and the same was at the behest of a complaint lodged by a nationalised bank in respect of transactions/debit credit taking place in some of the accounts and the same being routed through another nationalised bank. The holder of the main five companies were found to have a single address which was rented for two months and so far as shell-companies are concerned which were from Jamshedpur, Jharkhand mainly in those case on scrutiny of the records which were furnished for opening the accounts the same were found to be fake or non-existent. Going by the allegations against the present petitioner in the complaint the petitioner was applying his mind, knowledge and conscience for routing out the money which was illegally acquired by Tushar Patil, Prasenjit Das, Viraj Suhas Patil. The role of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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