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TMI Blog2024 (9) TMI 183X X X X Extracts X X X X X X X X Extracts X X X X ..... n the economic stability of the country. Gravity of economic offences and need for a differential approach in matters of bail was highlighted by the Supreme Court in Y.S. Jagan Mohan Reddy [ 2013 (5) TMI 896 - SUPREME COURT ], where the Supreme Court observed that economic offences constitute a class apart and need to be approached with a different perspective even while considering a bail application. The Supreme Court in Masroor v. State of Uttar Pradesh and Another, [ 2009 (4) TMI 1031 - SUPREME COURT ], observed that while deciding the bail application, Courts must strike a balance between the valuable right of liberty of an individual and the larger interest of the society. Article 21 of the Constitution of India has been interpreted expansively by the Supreme Court to encompass a panoply of rights including the right of an accused to speedy trial. Despite the stringent requirements under Section 45 of PMLA for grant of bail, the twin conditions therein do not create an absolute restraint or embargo or an insurmountable barrier in the way of the Court to grant bail on grounds of delay in completion of trial and long incarceration, which in this case is for a period of 27 month ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 022 dated 27.11.2020 for offences punishable under Sections 120-B/409 IPC and Section 13 (2) read with 13 (1) (a) of Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act ). As per the FIR, Anup Majee, Amit Kumar Dhar and several other public and private persons were involved in activities related to illegal excavation and theft of coal from leasehold area of Eastern Coalfield Limited ( ECL ). It was alleged that Anup Majee led the syndicate of illegal coal miners in active connivance with officials of ECL, CISF, Indian Railways and other departments, who facilitated in misappropriation of coal thereby committing criminal breach of trust of Government property entrusted to them. During investigation, large number of vehicles and equipments used in illegal coal mining and its transportation were seized and several instances of installing illegal weigh bridges in concrete form were detected. CBI filed charge sheet against Anup Majee and 40 other accused on 19.07.2022 in the Court of learned Special Judge (CBI), Asansol, West Bengal and Court has taken cognizance of the offences. Applicant is Accused No. 10 in the CBI case. 3. Investigation revealed that Anup Majee and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... res, either directly or through his nephew Tapas Maji while the applicant was in custody in connection with a case under the NDPS Act, 1985. WhatsApp communications between the applicant and Niraj Singh and digital evidence seized from residence of Subhash Agarwal, CA of the applicant revealed transfer of POC to the applicant. Records such as loose sheets/ledgers seized from applicant s office at Balitora, Purulia show his clear involvement in the illegal coal mining. 6. Applicant has indulged in illegal coal mining and laundering of tainted money and POC generated from the scheduled offence were concealed by acquisition and use of POC by resorting to complex and multi-layered transactions through multiple persons and sham companies. Applicant and his family members were Directors/proprietors/partners in various shell companies during 2017-18 to 2020-21 which they acquired at nominal prices compared to their actual net worth for the purpose of laundering of POC generated from illegal coal mining, with the aid of Subhash Agarwal and Manoj Agarwal. Several attempts were made by ED to trace out the POC and attach the same for preventing their dissipation or creation of third party rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he was looking after these companies and his family members were Directors in these Companies. 9. Investigation revealed that Nilima Maji, wife of the applicant and the wife of Anup Majee are both Directors in M/s. Excel Infrabuild Pvt. Ltd. (Bihari Nath Resort) and expenses to the tune of Rs. 1.63 crores were paid from POC, which is reflected in the records maintained by Niraj Singh. It is further stated that the investigation is ongoing and further POC are yet to be unearthed. SUBMISSIONS ON BEHALF OF THE APPLICANT 10. Applicant is innocent and has been wrongly arraigned as an accused without iota of evidence against him and the entire case of ED is based on figment of imagination. ECIR is based on an FIR registered by the CBI on 27.11.2020 and notably, applicant was not named as an accused when the FIR was registered. ED filed the main prosecution complaint qua some co-accused on 13.05.2021. Applicant joined investigation on several occasions and co-operated therein. He was thoroughly investigated and his statements were recorded on 23.09.2021, 24.09.2021 and from 24.05.2022 to 26.05.2022 and despite rendering full co-operation, he was illegally arrested and thereafter sent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid down in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791 and Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, shall govern the law on bail in economic offences. In Manish Sisodia (supra), the Supreme Court has highlighted that bail is the rule and jail is an exception and right to bail has to be read into Section 439 Cr.PC and Section 45 of PMLA. 13. Applicant is not a flight risk and has deep roots in the society. There is no allegation that applicant attempted to influence witnesses before he was arrested. The entire evidence is documentary in nature and all documents are already in the custody of the investigating agencies and there is no question of tampering with them. Applicant is on bail in the scheduled offence granted by the CBI Court. Applicant is also entitled to bail on parity as co-accused, Vikas Mishra with alleged involvement in generation of POC to the tune of Rs. 731 crores was granted regular bail by the learned Trial Court vide order dated 10.10.2023. It is a well settled proposition that parity is a recognized principle for grant of bail. [ Ref.: Kamaljit Singh v. State of Punjab and Another, (2005) 7 SCC 226]. 14. Bail is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same. Even otherwise these entries have no veracity in law. As per the ledgers, the figure of alleged POC is in lakhs, however, based on statement of Anup Majee, it is claimed by ED that the figures in the ledgers were purportedly suppressed by two digits. Anup Majee cannot prove the entries made by Niraj and ascertain the figures or the true value of the entries and thus in the absence of a statement by Niraj, reliance on the ledgers is misplaced. Even assuming ledgers are admissible in evidence, at best they are corroborative in nature and have no independent probative value in terms of Section 34 of Act 1872 so as to fasten any liability on the applicant. Thus the prosecution has failed to establish that POC of Rs.89.04 crores qua the applicant as the same is based on diaries/registers/ledgers, which are inadmissible in evidence for the foregoing reasons and in the absence of proof of POC, the case of ED is bound to fail at the trial and applicant is entitled to be enlarged on bail. 17. There are serious contradictions in the quantification of POC as well and ED has been unable to establish any nexus or link with the scheduled offence. At one place, to compute POC of Rs. 89.04 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion entries made by the applicant. Accused Nos.6 to 9 companies were acquired by the applicant or his family members in March, 2017 to June, 2017 whereas the period of alleged generation of POC is December, 2017 to October, 2020. Generation of POC cannot precede the commission of the scheduled offence. The amounts generated by accommodation entries made by CA Subhash Agarwal and deceased Manoj Agarwal were through sale of unquoted shares. Subhash in his statements dated 06.12.2021 and 07.12.2021 has stated that he is not aware about the source of the cash from which the entries were made and none of the Directors of these companies have either been examined or made accused by the ED. Thus normal financial transactions cannot be given a colour of POC without establishing a nexus with the predicate offence and the identified POC thereof. 20. ED has been selectively investigating and arresting persons. As per the case set up by ED, Anup Majee is the mastermind and kingpin but he was absconding for a long time and even when he joined investigation he was not arrested in the present case ECIR. He surrendered before the CBI Court, Asansol on 14.05.2024, in connection with illegal smuggli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, on the touchstone of Article 21 of the Constitution of India, applicant is entitled to be enlarged on bail. Reliance is placed on the recent judgments of the Supreme Court in Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari v. State of Uttar Pradesh, 2024 SCC OnLine SC 1755; Javed Gulam Nabi Shaikh v. State of Maharashtra and Another, 2024 SCC OnLine SC 1693; Ankur Chaudhary v. State of Madhya Pradesh, Special Leave to Appeal (Crl.) No.4648/2024; and Sunil Kumar Agrawal v. Directorate of Enforcement, 2024 SCC OnLine SC 1917, where bails have been granted on ground of long incarceration and delay in completion of trial. SUBMISSIONS ON BEHALF OF THE ED 22. FIR was registered by the CBI on 27.11.2020 in Kolkata against Anup Majee and other persons, which included unknown officials of ECL, CISF, Railways, etc. for commission of offences under Sections 409/120-B IPC and Section 13 (2) read with Section 13 (1) (a) of PC Act for illegal excavation and theft of coal from the leasehold area of ECL. Based on the scheduled offences, present ECIR was recorded by Headquarter Intelligence Unit of ED on 28.11.2020 for commission of offences under Sections 3 and 4 of PMLA. 23. Inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that they were in contact for delivery of POC. Digital evidence seized from residence of Subhash Agarwal, Chartered Accountant of the applicant, revealed active communication between them in respect of transfer of POC and this is corroborated by summary of tally record prepared by Niraj Singh. In fact, during the period 2017-18 to 2019-20, applicant received POC of Rs. 36,79,49,000/-. Records including loose sheets and ledger books seized by Income Tax Department from the premises of the applicant at Balitora show his active involvement in the offence, as these contain details of coal supplied to various parties, details of transportation of coal, etc. The trucks used to transport the coal are registered in the names of applicant s company and his nephew Tapas Maji. Applicant s family members are Directors/Proprietors/Owners of various shell companies acquired in the period F.Y. 2017-18 to F.Y. 2020-21 at nominal prices for the purpose of laundering of POC generated from illegal coal mining. Subhash Agarwal arranged accommodation entries for POC of around Rs.26 crores from 2016-2019. 26. In his statements under Section 50 of PMLA dated 06.12.2021 and 07.12.2021, Subhash Agarwal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndwriting of the said person. Rabin Kalai in his statement dated 12.08.2021 acknowledges his handwriting on the ledgers and the vouchers are acknowledged by Sanu Mallick in his statements on 30.09.2021 and 01.10.2021 and there is thus sufficient corroboration of the documents by oral statements. 28. It is incorrect for the applicant to argue that ED has failed to showcase the live link between predicate offence of smuggling of coal and the laundered amount as also the POC. Keeping in view the 03 ingredients of Section 3 of PMLA, i.e., person; process or activity; and product, it is proved from the records seized from the premises of the applicant and Anup Majee, diary of Niraj Singh, electronic evidence collected by the Income Tax Department and Section 50 PMLA statements of witnesses that POC was generated by the applicant from the scheduled offence of illegal coal mining. POC has been identified at Rs.994.70 crores as of now out of which Rs.89.04 crores as POC is directly attributable to the applicant. CBI charge sheet is replete with the modus operandi adopted by the applicant in association with Anup Majee and others in which case the competent Court has taken cognizance. As pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic role of each accused has to be considered along with evidence on record and if the accused is not able to cross the threshold of Section 45 of PMLA, he cannot be enlarged on bail. Moreover, bail granted to co-accused Vikas Mishra has been challenged and interim bail granted to another co-accused Ashok Kumar Mishra has been revoked. Non-arrest of Anup Majee in the ECIR is due to procedural requirements under Section 19 of PMLA, which mandates sufficient material for arrest. 32. Applicant has relied on the judgment of the Supreme Court in Manish Sisodia (supra), however, the same is inapplicable as bail was granted in the said case in the backdrop of an earlier order of the Supreme Court taking on record the assurance of the ED that they shall conclude the trial within the next 6-8 months but despite this the trial was proceeding at snail s pace. In Sheikh Javed Iqbal (supra), the Supreme Court has not laid down a general principle that in all cases where there is some delay in completion of trial, accused is entitled to bail as a matter of right. No doubt, in Ankur Chaudhary (supra), bail was granted on account of custody of two years but it was in light of the special facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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: Provided further that the Special Court shall not take cognizance of any offence punishable undersection 4 except upon a complaint in writing made by (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. (1A) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation . For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a specia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se huge loss of public funds and thus need to be viewed seriously. 38. At this stage it is pertinent to refer to the recent judgements of the Supreme Court in the case of Manish Sisodia (supra); Sunil Kumar Agrawal (supra); Javed Gulam Nabi Shaikh (supra); and Ankur Chaudhary (supra) and in light of the observations made therein, this bail application will have to be considered basis an interplay between Section 45 of PMLA and Article 21 of the Constitution of India, which guarantees right to personal liberty to every individual. 39. The Supreme Court in Masroor v. State of Uttar Pradesh and Another, (2009) 14 SCC 286 , observed that while deciding the bail application, Courts must strike a balance between the valuable right of liberty of an individual and the larger interest of the society. Article 21 of the Constitution of India has been interpreted expansively by the Supreme Court to encompass a panoply of rights including the right of an accused to speedy trial. In State of Rajasthan, Jaipur v. Balchand alias Baliay, (1977) 4 SCC 308 and recently in Manish Sisodia (supra), the Supreme Court reinforced the principle that bail is the rule and jail is an exception and observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial. 53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that bail is rule and jail is exception . 54. In the present case, in the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Gujarat and Another, (2019) 14 SCC 522; Bikramjit Singh v. State (Govt. of NCT of Delhi), 2020 SCC OnLine Del 2309; and Jagjeet Singh and Others v. Ashish Mishra alias Monu and Another, (2022) 9 SCC 321.] 41. Guided by the observations of the Supreme Court in a very recent judgement in Manish Sisodia (supra) that right to bail in case of delayed trial and long incarceration would be read into Section 439 Cr.P.C. and Section 45 of PMLA, I would now proceed to examine this application seeking bail. Applicant has been in judicial custody since 02.06.2022 and the trial has not even commenced. Applicant contends and in my view, rightly so, that many witnesses have been named and the case involves thousands of pages of documents which have to be examined on behalf of the prosecution and there is no possibility of the trial concluding in the near future more so, when the trial has not even commenced. A three-Judge Bench of the Supreme Court in K.A. Najeeb (supra), considered the long incarceration of the accused and counterbalancing the same with the effect of Section 43-D(v) of UAPA observed as under: 17. It is thus clear to us that the presence of statutory restrictions like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a stricter compliance of Section 309 of the Code. 18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations. 19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. 20. We may hasten to add that the petitioner is still an accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. Reliance is placed on the financial statements of the shell companies owned and managed by family members of the applicant and himself, purportedly created only on paper for the purpose of accommodation entries for laundering the POC. Reliance is also placed on Section 50 PMLA statement of Chartered Accountant Subhash Agarwal, who is stated to have arranged accommodation entries of POC of around Rs.26 crores during 2016-2019 received from the applicant as well as the statements of Anup Majee, etc. and WhatsApp communications between the applicant and Niraj Singh as well as Subhash Agarwal to show that allegedly the POC was transferred to the applicant. As per the applicant, ED has failed to establish any nexus between the alleged POC of Rs.89.04 crores and the accommodation entries allegedly made by the applicant and it is also stated that the companies were acquired in March, 2017 to June, 2017 whereas the alleged period for generation of POC was December, 2017 to October, 2020 and hence the investments cannot be construed as POC generated from the scheduled offence. It is also claimed that at best, the unaccounted money could be tax evasion or violation but not an offence unde ..... 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