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TMI Blog2024 (9) TMI 935X X X X Extracts X X X X X X X X Extracts X X X X ..... l and the Court entertaining such subsequent applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected - In the present case, this Court, while turning down the prayer of the petitioner on two occasions has dealt with the matter on merits and has come to a conclusion that there is material to show that the Enforcement Directorate has been able to collect material which would satisfy the presumptions attached to sections 22 and 23 of the 2002 Act and it cannot be held that the petitioner is not guilty of such offence at this stage. True, the conditions laid down in section 45 of the 2002 Act are the guiding factors for grant of bail to an accused under the said Act and the accused has to satisfy the said conditions for earning an order of bail in his favour. In a recent judgment in Manish Sisodia [ 2024 (8) TMI 614 - SUPREME COURT] the Hon ble Court has held that the right to bail in cases of delay coupled with incarceration for a long period should be read into section 439 of the Code of Criminal Procedure and section 45 of the 2002 Act. Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 as it stands after amendment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th June, 2023 as claimed by the opposite party but the TET result sheet of the list of 325 candidates as submitted by Tapas Kumar Mondal were not made over to him. Scrutiny of the said list is necessary in view of the fact that since the result of TET is published through N.I.C. any change made therein shall result in discrepancy in the results published. In the list of 325 candidates, there is reiteration of the names of 100 candidates which brings down the list to 225. The Enforcement Directorate submitted report comprising 12,000 documents and cognizance of the same was taken by the learned trial Court on the same date, i.e., on 7th December, 2022. It is inconceivable that the learned trial Court perused the entire report including the documents on that date prior to taking cognizance of the report. 4) The provision of section 19(1) of the Act of 2002 was not complied with at the time of his arrest. The petitioner or his learned counsel was not informed of the grounds of his arrest. The petitioner has referred to the confrontational proceeding wherein Tapas Kumar Mondal and Kuntal Ghosh were questioned in presence of each other. Question 5 of the confrontation and the answer th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d as recipient of the money in course of investigation. Relying upon section 2(1) (u) of the Act of 2022, the petitioner has submitted that proceeds of crime is the foundation of the offence and no offence has been made out against him under section 3 of the Act. All the documents relied upon by the opposite party were also not supplied to him in order to enable him to defend his cause. The petitioner undertakes to assist the opposite party in unveiling the truth and to co-operate in investigation of the case. The petitioner has placed reliance on the authority in Vijay Madan Lal Chaudhury and Others v/s. Union of India and others reported in 2022 SCC OnLine Sc 929 wherein the Hon'ble Supreme Court has recorded the submission made by the accused therein that section 24 of the Act of 2002 provides for rebuttable presumption and therefore, the accused has an opportunity to lead evidence so as to displace the presumption against him. The two conditions that are required to be satisfied for the presumption under section 24 (a) to apply are first, person should be charged with an offence of money-laundering and second, there should be proceeds of crime. It is only when both the conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b reported in (2021) 3 SCC 713 20. Manish Sisodia vs Directorate of Enforcement reported in 2024 INSC 595 21. Ramkripal Meena vs Directorate of Enforcement reported in SLP(Crl) No. 3205/2024 22. Javed Gulam Nabi Shaikh vs State of Maharashtra reported in Criminal Appeal No. 2787 of 2024 23. Sheikh Javed Iqbal vs State of Uttar Pradesh reported in 2024 INSC 534 24. Ranjitsing Brahmajeetsing Sharma vs State of Maharashtra reported in (2005) 5 SCC 294 25. Vijay Madanlal Choudhary vs Union Of India reported in 2022 SCC OnLine SC 929 9) Vehemently opposing the prayer of the petitioner, learned counsel for the E.D. has submitted as follows:- No subsequent event as stated by the petitioner has occurred requiring consideration of the bail of the petitioner afresh. Relying upon extracts of two medical journals in respect of heart by-pass surgery, learned counsel has pointed out that a thirty years follow up study comprises almost complete life cycle after CABG surgery. Most people get a good fifteen years after heart by-pass before needing another intervention. Therefore the plea of the petitioner with regard to his health and life expectation of another two years is not corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken in his statement under section 50 despite the fact that he is an Associate Professor, learned counsel for the E.D. has submitted that since Hira Lal Bhattacharya is suffering from parkinsons disease, he put his LTI in his statement which was countersigned by his wife Sanchita Bhattacharjee in whose presence the statement was recorded. 13) Learned counsel has further submitted that though the petitioner has alleged that his arrest was not in conformity with section 19 of the 2002 Act and he was not informed of the grounds of his arrest, the arrest memo discloses that the petitioner went through each page of the memo of arrest including the grounds for arrest stated therein but refused to receive the same. The arrest was made in strict compliance of section 19 of the Act. The earlier bail prayers were rejected by this Court after supply of relied upon documents to the petitioner. Charge sheet has been submitted against the petitioner and charge could not be framed as the petitioner and other co-accused of the case sought adjournment before the learned trial Court on several occasions. 14) Learned counsel has placed reliance on the following authorities in support of his content ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.P.A. 9979 of 2022 directing the West Bengal Board of Primary Education to verify the credentials of the candidates on the anvil of a list submitted by the Enforcement Directorate and also pursuant to a subsequent order of the said learned Court on 14th September 2023, report in the form of affidavit was submitted by the Board explaining the status of 1894 candidates who qualified for the service and remaining 63 candidates whose break up scores were published in the Board's website in terms of the order of the Court. No candidate raised a voice against the appointments which were dealt with by the School Service Commission with which the petitioner has no connection. According to the petitioner, the fixed/recurring deposits of the petitioner were shown to be separate bank accounts and the said deposits are the hard-earned money of the petitioner which were re-invested upon maturity. Such deposits do not fall within the definition of "proceeds of crime". Referring to paragraph 282 of Vijay Madan Lal (supra), the petitioner has submitted that not even in a case of existence of undisclosed income and irrespective of its volume, the definition of "proceeds of crime" under section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not complied with at the time of his arrest. The petitioner or his learned counsel was not informed of the grounds of his arrest and therefore, the arrest is bad in law. The petitioner has placed reliance on several authorities including Pankaj Bansal (supra), Arvind Kejriwal (supra) Madhu Limaye (supra) and Prabir Purkayastha (supra) in this connection. The arrest memo discloses that the petitioner refused to receive the same after going through each page of the grounds of arrest stated therein and conveyed to him. Therefore the plea taken by the petitioner is too weak to stand on its own feet. No illegality or irregularity in the arrest procedure has been made out. 22) The Hon'ble Supreme Court, in the authority in Prosanta Kumar Sarkar v/s. Ashis Chatterjee and another reported in (2010) 14 Supreme Court Cases 496 has laid down the factors which are required to borne in mind while considering an application for bail which are as follows:- i. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ii. nature and gravity of the accusation; iii. severity of the punishment in the event of conviction; iv. danger of the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivision Bench to conclude the investigation, which is being carried on by the E.D. Having regard to the aforesaid, particularly, with regard to the means, position, the standing of the present petitioner, the gravity of the offence as also the stage of the investigation which is at the final stage, I am of the view that this is not a fit case for the petitioner to be released on bail at this stage." 25) True, the conditions laid down in section 45 of the 2002 Act are the guiding factors for grant of bail to an accused under the said Act and the accused has to satisfy the said conditions for earning an order of bail in his favour. In a recent judgment in Manish Sisodia (supra) the Hon'ble Court has held that the right to bail in cases of delay coupled with incarceration for a long period should be read into section 439 of the Code of Criminal Procedure and section 45 of the 2002 Act. The Hon'ble Court has referred to the authority in Javed Gulam Nabi Shaikh v/s. State of Maharashtra and Another reported in 2024 SCC OnLine SC 1693 wherein the law laid down in the judgments in Gudikanti Narasimhulu and Others v/s. Public Prosecutor, High Court of Andhra Pradesh reported in (1978) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plement each other and may not be regarded as adversarial. 27) The petitioner is in custody for little less than two years. Charge is yet to be framed. Delay in trial cannot be wholly attributable to the petitioner. The case involves several thousands of pages of documents and a good number of witnesses to be examined. Chance of trial being concluded in near future is bleak. The case is based on documentary evidence which has been collected by the E.D. and is in their custody. Therefore there is no scope for the petitioner to tamper with the evidence. Further detention of the petitioner shall not serve any purpose and his unlimited detention shall deprive him of his fundamental right to liberty under Article 21 of the Constitution. 28) Section 479 of the Bharatiya Nagarik Suraksha Sanhita, 2023 as it stands after amendment of section 436A of the Code of Criminal Procedure envisages that a first-time offender (who has never been convicted for any offence in the past) shall be released on bond by the Court if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law. The Hon'ble Supreme Court, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the present case. 33) It is pertinent to refer to a judgment of the Hon'ble Supreme Court in Criminal Appeal no. 2790 of 2024 wherein the Hon'ble Court has dealt with the right to life and personal liberty under Article 21 of the Constitution. The relevant portion of the judgment is set out:- "This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional Court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional Court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional Court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run ..... 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