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TMI Blog2022 (6) TMI 1502X X X X Extracts X X X X X X X X Extracts X X X X ..... at economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. Albeit these offences are likely to adversely impact the economic fabric of the Country. But each case must be adjudged on the basis of the peculiar facts and circumstances, while striking a balance between the right to personal liberty of the applicant and the interest of the society in general. In Dr. V.C. Mohan [ 2022 (1) TMI 511 - SUPREME COURT] on a challenge made by the Directorate of Enforcement to the grant of anticipatory bail to the respondent, the Hon ble Supreme Court set aside the impugned order and remanded the matter back for re-consideration. In the instant case, the offence is squarely made out against the applicant as DRI has already filed a complaint and cognizance has already been taken by the concerned Court. As per the allegations, the applicant is unique modus operandi to procure the goods from various places within India to export the same in the name of different firms/companies by inflating the value by several times. Two sets of invoices bearing the same serial number and dates were prepared. The invoices of inflated value we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to disbursal of duty drawback on the overvalued exports subsequently leading to extra duty drawbacks to the tune of Rs. 32.25 Crores. (iii) After investigating the case for almost 7 years, DRI registered the abovementioned ECIR on 23rd December 2019 on twin allegations:- - that Low value invoices were submitted by Representative of foreign buyer for obtaining the Certificate of Origin of goods from Delhi Chamber of Commerce. - and that Full Exports proceeds received against value of goods were arranged by foreign buyer and sent through Bank to India. (iv) The complaint was forwarded by DRI to Directorate of Enforcement (hereinafter ED ) on 19th November 2019 and on 23rd December 2019, an ECIR bearing no. DLZO-I/09/2019 was registered by the ED. (v) The applicant was alleged to be the key person in managing various enterprises through which such availing of excess duty drawback was facilitated. (vi) Section 132 of the Customs Act was added as scheduled offence in 2015. At the time of commission of alleged offence during 2010-2011, it was not a scheduled offence. (vii) During one of the appearances on 7th April 2021, the applicant alleged to have been pressurized to bribe the ED offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to dissociate the purchase made in the year 2011 from the proceeds of crime. The roles of individuals and firms were also recorded who knowingly indulged in the said activity. g. The main issue before the Court was whether the twin conditions as envisaged under Section 45 of the PMLA are applicable even after amendment the stage of bail or not. The latest position before the Hon ble Supreme Court on 4th January 2021 was that the mandate of Section 45 has to be dealt before deciding the anticipatory bail. This is equally applicable for deciding regular bail when the accused is in custody. h. No prima facie case was made out and therefore, because of embargo under Section 45 of the PMLA, the plea that the accused had been custody since 25th September 2021 and the fact that he was arrested in inhuman manner or the case is not likely to be concluded soon, could not have been considered by the Court. 3. Hence, the applicant has preferred the instant bail application. SUBMISSIONS 4. Mr. Vikas Pahwa, learned senior counsel for the applicant submitted that the ECIR was registered in the year 2019 and the applicant was summoned by the ED officers to join investigation. On all such occasi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at, in the predicate offence the investigating authorities of DRI have already placed the prosecution complaint on record on 23rd April 2018 before the designated trial Court without arresting the applicant but also on the ground that the cognizance of offence and summoning order qua the applicant had already been passed. It would be pertinent to mention here that in the predicate offence, the liberty of the applicant was never curtailed and he has been charge sheeted without arrest. Therefore, the very arrest of the applicant ex-facie is needless and does not subserve the cause of justice. 8. Learned senior counsel further submitted that the allegations in the complaint suffer from a fundamental error as to the definition of proceeds of crime . The duty drawback on the export of goods is determined and assessed by the custom officers at the time of export which was in 2010-2011. The determination of drawback payable is contingent upon verification assessment and statutory satisfaction arrived at by the proper officer by following the procedure established by law and export is completed on receipt of the full assessed value of the export goods in foreign exchange. The disbursement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting bail has been passed ignoring the fact that applicant‟s matter is about 10 years old, that he is already on bail in the scheduled offence and that there is no scope of him repeating the offence and even twin conditions have already been declared ultra vires by the Hon ble Supreme Court in the case of Nikesh Tarachand Shah Vs. UOI, 2018 (11) SCC 1. Therefore, the order of the Hon ble Supreme Court in the case of Dr. V.C. Mohan (Supra) does not over-ride the judgment of Nikesh Tarachand Shah (Supra). In view of the above law settled, the applicant is entitled to bail. 13. The law qua PMLA, specifically Section 45, stands well settled that the twin conditions for the purposes of grant of bail have been declared ultra vires in the landmark judgment of Nikesh Tarachand (Supra) and recently this Court amongst various other decisions and specifically in Sai Chandershekhar vs. E.D. (2021) SCC Online Del 1081, has reiterated that the twin conditions under Section 45 of the PMLA stand declared illegal and ultra vires. It is also submitted that the ED has not challenged the aforesaid judgment and therefore, the same has attained finality in law. The aforesaid view has been also end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e investigating authorities have blatantly violated the solemn and sacrosanct principle of presumption of innocence in favour of the applicant in the present case. Learned senior counsel for the applicant, on instructions, undertakes that the applicant would not tamper with evidence and would always make himself available before the learned Trial Court during the course of trial, except when he is exempted with the prior permission of learned Trial Court. The applicant also undertakes to join the further investigation being conducted by the respondent and that the applicant has no criminal antecedents. 18. It is further submitted that the applicant undertakes to abide by any directions or conditions imposed by this Court in granting bail including joining the further investigation, if any, as and when required. 19. Per Contra, learned counsel appearing on behalf of the respondent submitted that the scheduled offence is squarely made out against the applicant as DRI has already filed a complaint and cognizance has already been taken by the concerned Court. There is no challenge by the applicant of the said cognizance. It is further submitted that the present applicant, in unique mod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gurbaxani 2021 SCC OnLine SC 3185 and Dr. V.C. Mohan (Supra). It is further submitted that the economic offences constitute a class apart and bail should not be granted in such cases. In this regard learned counsel has relied upon the judgment of the Hon ble Supreme Court in the case of Rohit Tandon vs. Directorate of Enforcement (2018) 11 SCC 46. In this case the Hon ble Supreme Court held as under:- 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. 22. It is not necessary to multiply the authorities on the sweep of Section 45 of the 2002 Act which, as aforementioned, is no more res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the written submissions which have been placed on record on their behalf. 26. The allegation against the applicant is that he procured goods from various places within India to export the same in the name of different firms/companies by inflating the value by several times and also prepared two sets of invoices bearing the same serial number and dates and on the basis of inflated values, extra duty drawbacks were claimed and obtained Rs. 32.25 Crores. The proceeds were converted from bank accounts to cash through various modes and then reintroduction of cash in banking channels and its utilization. Direct utilization of cash, purchase of assets, documentary evidence as well as statement of witnesses and applicant under Section 50 of the PMLA were recorded to substantiate the case against the applicant. 27. In the matter of regular bail under Section 439 of the Cr.P.C., a Court must consider aspects, including but not limited to, the larger interest of the State or public, whether the accused is a flight risk, whether there is likelihood of his tampering with evidence, whether there is likelihood of his influencing witnesses, etc. Apart from these, another factor relevant would be t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pposes such application, the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and that he is not likely to commit any offence while on bail. The limitations so imposed are in addition to those imposed under Cr.P.C. and have an overriding effect over the provisions of the Code, in case there occurred any inconsistency between the provisions of the two. Though stringent, they were held by the Supreme Court to be mandatory. In Rohit Tandon (Supra) observed as under:- 18. The argument though attractive at the first blush deserves to be rejected. In our opinion, the order dated 10-8-2017 [Rohit Tandon v. Directorate of Enforcement, 2017 SCC OnLine Del 11786] passed by the High Court directing interim release of the appellant was primarily on account of the illness of his mother. No more and no less. The other observations in the said order will have no bearing on the merits of the controversy and required to be reckoned whilst considering the prayer for grant of regular bail. For that, the appellant must succeed in overcoming the threshold of the rigors of Section 45 of the 2002 Act. Indubitably, the appellant having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or 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: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 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. 33. It is informed that the issue relating to the Constitutional validity of the amendment made in Section 45 of the PMLA vide the Finance Act, 2018 as well as revival of the twin conditions thereby, alongwith other issues relating to PMLA, has already been taken up for hearing by the Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime which is an offence under the Act after grant of bail. 37. In the instant case, the offence is squarely made out against the applicant as DRI has already filed a complaint and cognizance has already been taken by the concerned Court. As per the allegations, the applicant is unique modus operandi to procure the goods from various places within India to export the same in the name of different firms/companies by inflating the value by several times. Two sets of invoices bearing the same serial number and dates were prepared. The invoices of inflated value were produced before Indian custom authorities and actual values were sent to consignee therefore on the basis of inflated values, extra duty drawbacks were claimed by accused other than what was admissible, and in this manner, Rs. 32.25 crores were fraudulently availed by applicant/accused. In this regard, reliance was placed on the statement of witnesses recorded under Section 50 of PMLA. The applicant is alleged the main accused in the instant FIR. The DRI has already filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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