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TMI Blog2024 (10) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... present case, the allegations are that the Applicant was a party to cattle-smuggling in so much as he facilitated the same for money considerations. The investigations qua the Petitioner are already complete as the Complaint has been filed in the Court. Pertinently, the Applicant was named only in First Supplementary Charge Sheet. He is not a flight risk, considering his position of being a Commandant in the BSF and that he has deep roots in the Society. The evidence being essentially documentary, is not likely to be tampered or the witnesses influenced. The Applicant is admitted to bail subject to fulfilment of conditions imposed - bail application allowed. - HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA For the Applicant Through: Mr. Arshdeep Singh Khurana, Mr. Sidak Singh Anand, Mr. Harsh Mittal Mr. Peeyush Bhatia, Advocates. For the Respondent Through: Mr. Anupam S Sharma, Special Counsel, Mr. Prakash Airan, Ms. Harpreet Kalsi, Mr. Abhishek Batra, Mr.. Ripudaman Sharma, Mr. Vashisht Rao Mr. SyamantakModgill, Advocates. JUDGMENT NEENA BANSAL KRISHNA, J. 1. The Applicant has filed Bail Application under S. 439 of Criminal Procedure Code 1973 (hereinafter Cr.P.C.) read with S. 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the ECIR, ED filed Complaint Case No. CT13/2022 on 16.04.2022, supplementary Complaint dated 18.06.2022, and second supplementary Complaint dated 05.12.2022, and finally, third supplementary Complaint dated 04.05.2023 in the Court. The Applicant was named in the First Supplementary Complaint. 8. The Applicant was serving as the Commandant in the 20th Battalion of BSF from December 2015 to April 2016 and thereafter as Commandant in 36BN BSF from May 2016 to April 2017. As Commandant, the Applicant was heading 6 Companies which were responsible for stopping trans-border crimes such as smuggling of contraband items, protecting local population, and maintaining sanctity of Border. 9. The BSF troops seized cattle which was attempted to be smuggled across international border illegally and after the seizure, the cattle are brought to BSF Border out Post (BOP). In the morning, the seizure memo of seized cattle containing particulars of their breed and price, were prepared. The concerned Company which seizes the cattle, provides the information of seizure to the Adjutant of the Battalion who further reports the same to the Sector Headquarter which further reports the same to Frontier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cials, but none has been arrayed as an accused which indicates that the Applicant is being used as a scapegoat, for it is unfathomable that the Applicant could have committed these acts of alleged manipulation alone, especially when the seizure memos were prepared by the Companies involved in the seizure of cattle being smuggled and the Applicant merely had a supervisory role. 15. The Applicant has sought bail on the ground that the allegations leveled are false, baseless, and without any prima facie evidence, and that the Applicant has been falsely implicated in the corruption case without any iota of evidence of his involvement in the alleged offences and without any evidence of receiving the proceeds of crime generated from the aforesaid alleged acts of corruption. 16. The Applicant asserts that even after long investigation conducted by both CBI and the ED and after the submission of two Charge Sheets in the matter by the CBI ED, there is no cogent direct or indirect evidence on record to even prima facie show the involvement of the Applicant in the alleged acts of corruption, cattle smuggling, and receiving bribe from the main accused Mr. Md. Enamul Haque and his associates. F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence is unfounded and in any case, mere apprehensions of tampering with evidence or influencing witnesses, without any concrete basis in fact, cannot be grounds for denying bail to accused persons. In this regard, reliance is placed on State of Maharashtra Vs. Nainmal Punjaji Shah, (1969) 3 SCC 904 and P. Chidambaram v. CBI, (2020) 13 SCC 337. 22. Further, mere gravity of offence and even in case of allegations of grave economic offences, is no ground to deny bail as has been observed in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, and Amarendra Dhari Singh vs. Directorate of Enforcement, Bail App. No.2293/2021 dated 05.08.2021. 23. Also, the merits of the case cannot be gone into at the stage of bail, as has been held in Niranjan Singh Anr. v. Prabhakar Rajaram Kharote Ors., (1980) 2 SCC 559, P. Chidambaram (supra), and Amarendra Dhari Singh (Supra). 24. The Applicant undertakes to abide by all the conditions as may be imposed by this Hon ble Court for grant of regular bail. 25. The Respondent by way of Status Report has submitted that the Applicant along with Md. Enamul Haque, Md. Anarul Sk, Md. Golam Mustafa, other unknown public servant(s) and private person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearance of his name in the diary of Mr. Manoj Sana would not be sufficient to impute his involvement in criminal activity, is unfounded in view of Section 22 of PMLA which provides for presumption/admissibility of records. 30. Further, involvement of the Applicant is evidenced from the fact that due to the nexus of the Applicant with Md. Enamul Haque, whose Company M/s Haque Mercantile Pvt. Ltd. as the Applicant s son Bhaskar Bhuvan was made a Director within 1 month of his employment in this Company. 31. It is submitted that the Applicant has failed to satisfy the mandatory twin conditions for grant of bail under PMLA. 32. The learned counsel for the Respondent has placed reliance on Gautam Kundu vs. Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement, AIR 2016 SC 106, Arun Mukherjee vs. Enforcement Directorate, AIR OnLine 2018 Cal 1446, Deepak Talwar vs. Enforcement Directorate, AIROnLine 2019 Del 1573, Thomas Daniel vs. Directorate of Enforcement, MANU/KE/1424/2022, Bimal Kumar Jain vs. Directorate of Enforcement, Bail Appl. No. 2438/2022, Raj Singh Gehlot vs. Directorate of Enforcement, Bail Appl. No. 4295/2021, Sajjan Kumar vs. Directorate of Enforcem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. It is finally submitted that the Application is devoid of merits and is liable to be dismissed. 34. The detailed arguments have been addressed by the learned Senior Advocate on behalf of the Applicant and Written Submissions have also filed on behalf of the Applicant. 35. Learned Special Counsel on behalf of the Respondent has also addressed the arguments which are essentially on the same lines as detailed in its Reply by way of Status Report. 36. Submissions Heard and Record perused. 37. The Constitution of India guarantees Personal liberty of every individual through its Article 21. The fundamental principle of bail is bail is the rule and jail is exception , and the presumption is that of innocence until proven guilty . In Masroor v. State of Uttar Pradesh and Another, 2009 SCC OnLine SC 903, the Hon ble Supreme Court observed that the courts must strike a balance between the valuable right of liberty of individual and the larger interest of society. The Hon ble Supreme Court has time and again reiterated that the economic offences constitute a class apart and must be approached differently in regards to the bail, and the same is observed by the Hon ble Supreme Court in vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingent provisions are incorporated through special laws. It was held that prolonged incarceration before being pronounced guilty of an offence, should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that bail is the rule and refusal is an exception . The same has been reiterated by the Apex Court in while granting bail to similarly placed accused under PMLA, 2002 in Kalvakuntla Kavitha v. Directorate of Enforcement 2024 INSC 632 and Vijay Nair v. Directorate of Enforcement in SLP (Crl.) No. 22137/2024 vide order dated 02.09.2024. 42. In Prem Prakash v.Union of India SLP (Crl.) No. 5416/2024 the Apex Court has held that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of PMLA, 2002 which has been reiterated by the Apex Court while granting bail under the PMLA 2002 in Vijay Nair (supra). 43. Pertinently, Sh. Anubrata Mondal has been admitted to bail by the Hon ble Supreme Court in the case of Anubrata Mondal @ Kesto vs. The Central Bureau of In ..... X X X X Extracts X X X X X X X X Extracts X X X X
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