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TMI Blog2024 (6) TMI 1119X X X X Extracts X X X X X X X X Extracts X X X X ..... heb Hossain, Special Counsel for ED along with Mr. Anam Venkatesh, Mr. Vivek Gurnani, Ms. Abhi Priya, Mr. Dipanshu Gaba, Ms. Shweta Desai, Ms. Bhanupriya, AD, Mr. S. K. Sharma, AD/IO and Mr. Gaurav Saini, ALA For the Respondent Through: Dr. Abhishek Manu Singhvi, Senior Advocate with Mr. Vikram Chaudhari, Senior Advocate, Mr. Vivek Jain, Mohd Irshad, Mr. Karan Sharma, Mr. Rishikesh Kumar, Mr. Mohit Siwach, Mr. Sadiq Noor, Mr. Kaustubh Sandhu, Ms. Hargun Sandhu, Ms. Nikita Gill and Mr. Rajat Jain, Advocatesa ORDER CRL. M.A. 18446/2024 (stay) 1. The factual background of the case as appearing from the record is that CBI registered an FIR bearing no. RC-0032022A0053 dated 17.08.2022 against Sh. Manish Sisodia, Deputy Chief Minister, GNCTD and others under section 120 B read with section 477A of IPC, 1860 and section 7 of Prevention of Corruption Act, 1988 on the allegations of irregularities in framing and implementation of Excise Policy of GNCTD for the year 2021-22. Thereafter, the petitioner/Directorate of Enforcement (hereinafter referred to as ED ) recorded ECIR bearing no. ECIR/HIU-II/14/2022 on 22.08.2022 and initiated investigation to trace out proceeds of the crime stated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinuing up till date. 1.3 The respondent on 26.03.2024 preferred a writ petition bearing no. W.P. (Crl) 985/2024 to challenge his arrest on the ground of illegality and the remand order dated 22.03.2024 which was replied by ED. The writ petition bearing W.P. (Crl) 985/2024 was dismissed by Co-ordinate Bench of this Court vide judgment dated 09.04.2024. The respondent being aggrieved by the judgment dated 09.04.2024 filed SLP (Crl) bearing no 5154/2024 before the Hon ble Supreme Court. The respondent was granted interim bail in SLP (Crl) 5154/2024 vide order dated 10.05.2024 till 01.06.2024 on the account of campaigning in the upcoming Lok Sabha general elections. The Hon ble Supreme Court has already reserved judgment after conclusion of arguments in SLP (Crl) 5154/2024 vide order dated 17.05.2024. 1.4 The respondent on 30.05.2024 filed interim bail application vide IA no. 91/2024 and regular bail application vide IA no. 92/2024 before the Special Judge. The Special Judge has dismissed IA no 91/2024 for grant of interim bail vide order dated 05.06.2024. ED and the respondent have handed over written notes during the course of arguments on the bail application bearing IA no. 92/2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his vicarious liability as per section 70(1) of PMLA and no court could have come to a reasonable ground to believe that he is not guilty of offence of money laundering. iv) The respondent had active role in demanding kickback and meeting with south group. The respondent also had role in formulation of Excise Policy and utilization of proceed of crime amounting to Rs.45 crores approximately. v) The statements recorded under section 50 of PMLA are admissible in nature and can be relied upon at the stage of remand or even to reject bail. 3. Sh. S.V. Raju, the learned Additional Solicitor General assisted by Sh. Zoheb Hossain, Special Counsel advanced arguments for ED. Dr. Abhishek Manu Singhvi and Sh. Vikram Chaudhari, the learned Senior Counsels advanced arguments on behalf of the respondent. ED and the respondent have also submitted a written note/submissions in terms of order dated 21.06.2024 which are perused and considered. 4. Before averting to the arguments, it is necessary to reproduce the relevant paragraphs of the Impugned Order which were also referred by learned Senior Counsels for both the parties during course of arguments. The para nos. 16, 20, 24, 25, 26, 27, 29, 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in such a criminal matter is also required to be done under certain guidelines and legal procedures. Maxim of law that every person must be presumed innocent until proven guilty seems to be not applicable in the given case in respect of the present accused. 26. This is also noticeable that ED is silent about the facts as to how the proceeds of crime have been utilized in Assemble Elections at Goa by AAP as admittedly after about two years, the bigger portion of the alleged amount remains to be traced out. 27. There are certain undisputed facts as specified on behalf of the applicant that in the month of July 2022, the material was available with the ED against the accused but he was called only in August 2023 which shows malafide of ED and ED has failed to answer this objection of the applicant. 29. Ld. Counsel for the applicant states that statements of co-accused do not show any incriminating material against applicant. But, Ld. ASG stated that the statements of those co-accused/approvers is sufficient to establish the personal relation of the applicant with some of them and also the specific role and involvement of the applicant in the alleged offence. It may be possible th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing W.P.(Crl) 985/2024 to challenge his arrest and remand and the Co-ordinate Bench of this Court in para no 155 of the judgment dated 09.04.2024 has already held that there was nothing before the Court to reach a conclusion that the timing of the arrest was deliberated by ED and the conduct of the respondent was not responsible for a situation in which there was no other option except to arrest him for joining the investigation. 5.2 Sh. S. V. Raju further argued that the respondent has filed SLP (Crl) 5154/2024 to impugn the judgment dated 09.04.2024 passed in W.P.(Crl) 985/2024 before the Hon ble Supreme Court wherein the respondent vide order dated 10.05.2024 was granted interim bail. It was mentioned in order dated 10.05.2024 that nothing in the order shall be treated as an expression of opinion on the merits of the case of the Criminal Appeal pending before the Hon ble Supreme Court. The Hon ble Supreme Court on 17.05.2024 has already heard the arguments and the judgment is reserved. The Supreme Court vide order dated 17.05.2024 has given the liberty to the respondent to file an application for grant of bail which was ordered to be considered and decided in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shek Manu Singhvi, the learned Senior Counsel for the respondent argued that the respondent cannot be detained in jail indefinitely and the Vacation Judge was not expected to mention each and every argument stated to have been advanced on behalf of ED in impugned order. The judgment dated 09.04.2024 passed in W.P. (Crl) 985/2024 was not decided on merits of the case but only dealt with arrest of the respondent under section 19 of PMLA and referred para no. 4 of the judgment dated 09.04.2024 wherein it was observed by the learned Single Judge that the petition is not an application seeking grant of bail, but release on the ground of arrest of the respondent being illegal. 6.1 Dr. Singhvi further argued that the cancellation of bail and grant of bail are two different aspects and the Impugned Order is not perverse as the Vacation Judge has considered every aspect while passing the Impugned Order. If the present application is allowed, it would amount to cancellation of bail. Dr. Singhvi in support of his arguments cited Dolat Ram V State of Haryana, (1995) 1 SCC 349; Kanwar Singh Meena V State of Rajasthan, (2012) 12 SCC 180; Subhendu Mishra V Subhrat Kumar Mishra, 2000 SCC (Crl) 158 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice shall be caused if the respondent is released on bail and the Vacation Judge as reflecting from para no. 36 of the Impugned Order has considered most of the relevant arguments and contentions raised on behalf of the parties which were accordingly dealt with. 8. The written submissions were also submitted on behalf of the respondent. It is mentioned in written submissions that the co-accused P. Sarath Reddy (PSR) made his statement on 09.11.2022 under section 50 of PMLA wherein he did not say any incriminating fact against the respondent. The co-accused Magunta Sreenivasulu Reddy (MSR) made his statement on 24.03.2023 under section 50 of PMLA without mentioning any incriminating fact against the respondent. PSR was examined 9 times under section 50 of PMLA between his arrest and April, 2023 but he did not make any allegation against the respondent. However, PSR was granted pardon by the Special Judge on 29.05.2024 i.e. after 20 days from the grant of bail on 08.05.2024 by this Court as grant of bail was not objected by ED. ED issued 9 summon to the respondent but the respondent was not arrested till March, 2024. 8.1 In the written submissions besides arguments advanced by learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ime of passing the Impugned Order and on the other hand, how in para no. 36 the Vacation Judge has mentioned that relevant arguments and contentions raised on behalf of the parties are dealt with. The perusal of the Impugned Order is reflecting that the Vacation Judge has passed the Impugned Order without going through and appreciating the entire material brought on record by the rival parties which reflects perversity in Impugned Order. There is factual force in the arguments advanced by Sh. S. V. Raju that the Vacation Judge has not passed the Impugned Order after due consideration of entire material on record. Although, Sh. Vikram Chaudhari referred the para no. 36 of the Impugned Order but the averment made in para no. 36 of the Impugned Order does not inspire any confidence to the effect that the Vacation Judge before passing the Impugned Order has considered the entire material brought on record. The observation made by the Vacation Judge in Impugned Order is uncalled for, unwarranted and out of context. The Vacation Judge should refrain from making such observations in the Impugned Order. The Vacation Judge was required to consider every important and relevant document at ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 of the Impugned Order has rebutted this argument of ED but in humble assessment of this court, argument raised by Sh. S. V. Raju needs due consideration of this court. Every court is under an obligation to give sufficient and appropriate opportunity to represent their respective case before the court. ED ought to have given adequate opportunity to advance arguments on bail application by the Vacation Judge. 13. The Vacation Judge in para no. 25 of the Impugned Order observed that ED has again and again pressed the twin conditions as per section 45 of PMLA which are stated to be altogether different from the provision of bail under the Code and further observed that due consideration is not being taken care by ED that even for implicating a person as an accused in such a criminal matter, it is also required to be done under certain guidelines and legal procedures. Sh. S.V. Raju argued that the trial court should have satisfied itself with the twin conditions as laid down under section 45 of PMLA but the Vacation Judge in the Impugned Order has not considered the twin conditions as per section 45 of PMLA. Dr. Singhvi has countered this argument by stating that the Vacation Judge in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala fide on the part of ED. It is worth mentioning here that the Co-ordinate Bench of this Court while delivering the judgment dated 09.04.2024 in W.P.(Crl) 985/2024, in para no. 151 observed absence of any mala fide intention on the part of ED and further observed that the Court has to examine the arrest and remand of the respondent irrespective of the timing of the elections. Dr. Singhvi although argued that the finding given vide judgment dated 09.04.2024 has not attained finality but this Court cannot lose sight of the fact that the Hon ble Supreme Court while hearing SLP(Crl) 5154/2024 although granted the leave against the judgment dated 09.04.2024, but did not stay operation of judgment dated 09.04.2024. The Vacation Judge after following the judicial discipline should not have observe in para no. 27 of the Impugned Order that there was mala fide on the part of ED particularly in light of observation made in judgment dated 09.04.2024 as referred herein above. 16. Sh.S.V. Raju also argued that ED during the hearing of bail application subject matter of Impugned Order has raised issue of vicarious liability qua the respondent as per section 70 of PMLA but the said issued was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tayed by the Hon ble Supreme Court. So at this stage it cannot be said that arrest and remand of the respondent was not in accordance with law and personal liberty of the respondent was curtailed without following procedure established by law. 17.2 It is correct that the respondent was granted interim bail vide order dated 10.05.2024 which was emphatically referred by Dr. Singhvi passed in SLP (Crl) 5154/2024 by the Hon ble Supreme Court. The Hon ble Supreme Court in order dated 10.05.2024 observed that the respondent has not been convicted although serious accusations have been made against the respondent. It was further observed that the respondent does not have any criminal antecedents and the respondent is not a threat to the society. It was further observed that investigation is pending since August, 2022 and further legality and validity of arrest is under challenge before the Hon ble Supreme Court. Accordingly, the respondent was granted interim bail till 01.06.2024 in background of the 18th Lok Sabha General Election on conditions as detailed in para no. 18 of the order dated 10.05.2024. Although, there is no allegation of misuse of interim bail by the respondent but one fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order is not legally tenable and as such Impugned Order is perverse. The argument as such advanced by Sh. S. V. Raju requires further consideration. 20. Sh. S.V. Raju also argued that the Impugned Order was passed on the basis of irrelevant consideration by ignoring relevant consideration. In the humble submission of this Court, these points are required to be considered by the Roster Bench at time of consideration of petition under section 439 (2) of the Code. 21. The arguments advanced by Dr. Singhvi and Sh. Vikram Chaudhari that arrest of the respondent was bad, the judgment dated 09.04.2024 has not attained finality and other arguments which are not specifically dealt with or discussed in this order in humble opinion of this Court are required to be dealt with at the time of consideration of the petition under section 439 (2) of the Code. 22. The Vacation Judge while passing the Impugned Order did not appropriately appreciate the material/documents submitted on record and pleas taken by ED and the averments/grounds as raised in the petition under section 439 (2) of the Code require serious consideration while dealing with said petition. Accordingly, the present application is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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