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TMI Blog2024 (10) TMI 460X X X X Extracts X X X X X X X X Extracts X X X X ..... an Bhaskar s/o Sh. Satish Kumar and Others. The PE revealed that cattle smuggling was happening from India to Bangladesh by paying illegal gratification to BSF personnel deputed on the Border during 19.12.2015 to 22.04.2017. The CBI alleged that Md. Enamul Haque used to pay Rs. 2000/- per cattle to BSF officials and Rs. 500 to Customs Officials aside from the 10% of the Auction price from successful bidders like Enamul Haque. 3. The CBI, after completion of PE, registered a RC No. RC0102020A0019, dated 21.09.2020 for offences under section 120B IPC and Sections 7, 11, & 12 of the Prevention of Corruption Act, 1988 (PC Act). The Chargesheet under Section 173 of Cr.P.C., 1973 was filed before the Special Judge, CBI, Asansol, Paschim Bardhaman, West Bengal on 06.02.2021 against the accused persons, namely, Satish Kumar (the Applicant), Md. Enamula Haque, Md. Anarul SK, Md. Golam Mustafa, Badal Krishna Sanyal, Rasheda Bibi and Tanya Sanyal (2nd wife of Satish Kumar). The Supplementary Chargesheet was filed by the CBI before the Special Judge on 24.02.2021 against the accused persons, namely, Manoj Sana and Vinay Mishra. 4. The Applicant was arrested by on 09.06.2022 by CBI, Kolkata o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was filed on 19.04.2022 and since then, it has been 2 years that the investigation is not yet complete. 11. The Applicant has been granted bail in the CBI case by this Hon'ble Court vide order dated 24.04.2024 in Bail Appl. No. 463 of 2024. 12. There are about 85 witnesses to be examined in the present case under PMLA and it is going to take time. Also, since the investigation has not been completed yet, it is possible that there will be more witnesses added to the list and that would further prolong the trial and custody of the Applicant. There is a voluminous record which needs to be examined and thousands of pages in Bengali which need to be translated, which would consume much time. The investigation is ongoing and the trial has not yet commenced and is at the stage of supplying un-relied documents. 13. Further, the properties of the Applicant have been wrongly attached by the ED despite the Applicant and his family members having shown the Income Tax Returns, including documents to show that the monies used to buy the said properties were from valid sources. The case pertaining to attached properties is ongoing in as Appeal No. 6453-6456 of 2023 before the Appellate Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Section 50 PMLA Statement dated 08.11.2022 to 10.11.2022, who was in touch with the Applicant about construction of his Medical College, stated that he knew the Applicant since 2019 and that if he wanted to visit Mr. Anubrata Mondal then he had to connect with the Applicant. 21. The above-mentioned factum of the Applicant managing the affairs of co-accused Anubrata Mondal, such as overseeing monetary transaction, cash collection, and laundering of the PoC, is further corroborated by the Section 50 PMLA Statement of Sh. Biswajyoti Banerjee and Sh. Sanjib Majumdar, who stated that all dealings between Anubrata Mondal and others were done through the Applicant. 22. It is submitted that the Applicant has amassed disproportionate assets of Rs. 5.47 Crores in the name of Self and family members, generated from the predicate offence of cattle smuggling. Also, the CBI Chargesheet disclosed that the total income of Mrs. Latifa Khatun (mother of the Applicant), Mrs. Somaiya Khandokar (wife of the Applicant) and the Applicant himself for 2015-2022 was Rs. 1,04,10, 216/- whereas the total value of assets and expenditures during the same period was Rs. 5,47,90,867/- which is disproportio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, as the factum of the Applicant being in regular contact with Enamul Haque is corroborated by the statement of Sk. Abdul Latif and CDR records received from CBI, Kochi. It is claimed that such non-cooperative behaviour of the Applicant raises serious apprehension that material evidence may be tampered with, besides he influencing the witnesses. 28. Moreover, the syndicate involving the Applicant was such that those who protested against the illegal activities being carried out, were either managed or falsely implicated in NDPS cases by the Applicant. 29. Merely because the Applicant has been granted bail in the scheduled offence by this Hon'ble Court, would not inure to the benefit of the Applicant as is the settled position of law, having recently been re-affirmed by the Hon'ble Supreme Court in Directorate of Enforcement vs. Aditya Tripathi, Crl. Appeal No. 1401/2023, that mere factum of grant of bail in predicate offence would not automatically entitle an accused for grant of bail under PMLA. In any case, the Applicant is required to satisfy the mandatory conditions under Section 45 PMLA in addition to the conditions for grant of bail under Section 439 Cr.P.C. as held in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2155/2022, Bimal Kumar Jain vs Directorate of Enforcement, in Bail Appln. 2438/2022, Deepak Talwar vs. Enforcement Directorate, AIR OnLine 2019 Del 1573, and Directorate of Enforcement vs Aditya Tripathi, Criminal Appeal No. 1401/2023. 36. Submissions Heard. 37. The guarantee of Personal liberty of every individual envisioned by Article 21 of the Constitution of India, which cannot be curtailed except by due process of law. The fundamental principle of "bail is the rule and jail is exception", has been time and again emphasized by the Apex Court and other Courts and has been recently reiterated in the case of Vijay Nair vs. Directorate of Enforcement, SLP (Crl.) No. 22137 of 2024 dated 02.09.2024, as the foundational presumption of criminal law is that of "innocence until proven guilty". 38. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry restrictions and reiterated the principle that "bail is the rule and refusal is an exception". 42. The same principles have been reiterated by the Apex Court while granting bail to the 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. 43. 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). 44. 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 Investigation and Anr. decided vide SLP (Crl) No. 12769/2023 on 30.07.2024, essentially on the grounds of his long period of incarceration from 11.08.2022 and the case still being at the stage of Section 207 of Cr.P.C. 1973. Further, seeing the volume of pages in the Chargesheet and some of it being in Bengali and thus, req ..... X X X X Extracts X X X X X X X X Extracts X X X X
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