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TMI Blog2024 (12) TMI 359X X X X Extracts X X X X X X X X Extracts X X X X ..... I 920 - SUPREME COURT] their Lordships of the Supreme Court have held that economic offence is a grave offence affecting the economy of the country as a whole and observed ' Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.' It is the case of the prosecution that the EOW had received a communication from the Enforcement Directorate and after due verification and on being satisfied, case was registered as FIR No. 04/2024 under Sections 7 12 of the Prevention of Corruption Act and Sections 420, 467, 468, 471, and 120-B IPC. It has been revealed that a criminal syndicate has been operating in the State of Chhattisgarh which was extorting illegal commission in the sale of liquor and was also involved in unauthorized sale of unaccounted liquor through government liquor shops - The investigation revealed that the applicant played a pivotal rol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lleged to have been committed in the State of Chhattisgarh, in the considered opinion of this Court, it is not proper to order release of present applicant on regular bail. The prayer for grant of bail to the applicant is liable to be rejected and it is hereby rejected. - HON BLE SHRI JUSTICE ARVIND KUMAR VERMA For Applicant : Shri Arshdeep Khurana, Advocate, Shri Sourabh Dangi, Shri Sajal Kumar Gupta and Shri Sourabh kale, Advocates For Respondent/State : Shri Mahesh Jethmalani, Sr. Advocate assisted by Mr. Vivek Sharma, Addl. Advocate General CAV ORDER The Applicant has filed this Application under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023 for enlarging the Applicant on Regular Bail in connection with FIR bearing No.04/2024 registered by the Anti-Corruption Bureau for the offences punishable under Sections 420,468,471,120-B IPC read with Sections 7 12 of the Prevention of Corruption Act,1988. 2. Brief facts of the case are as follows: (i) To begin with, the facts of this case are that on a prosecution complaint filed by the Income Tax Department was filed in New Delhi for certain offences under the Income Tax Act bearing CT Case No. 1183/2022 under Section 276(C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to secure the presence of the accused to stand trial. He has relied upon the judgment of the Apex Court in the matter of Chidambaram Vs. ED (2020) 13 SCC 791 . 4. He contended that the investigation against the applicant is complete and the charge sheet against him has been filed on 18.11.2024 by the State and the applicant's custody is not required for the purpose of investigation. If the bail is denied at this stage, the applicant will remain in custody for an indefinite period. He has placed his reliance in the matter of Satendra Kumar Antil Vs. CBI, SLP No. 5191/2021; Krishnan Subramanian Vs. State NCT of Delhi, 2022 SCC Online Del.1384 it has been observed as under: 24. A perusal of record shows that charge sheet has already been filed, all materials have been collected by the investigating authorities and the evidence against the applicant is documentary in nature. In the considered opinion of this Court, the applicant is neither a flight risk, nor can there be any propensity on his part to tamper with any evidence or influence any witness inasmuch as the entire domain of evidence is documentary in nature, which exists as it is from the year 2008 onwards, unhindered, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The petitioner is already in custody for more than 100 days. In the event of his release, the petitioner, at this stage, is not likely to hamper or cause impediment in the investigation which is already complete. 6. In another judgment of the Apex Court in the matter of Kalvakunta Kavita Vs. ED SLP (Crl.) No. 10778 of 2024 where the bail was granted inter alia on the ground that she was in custody of five months. It has been dealt with in para 10 to 13 : 10. On perusal of the record, we find that in CBI case, charge sheet has been filed and in ED case complaint has been filed. As such, the custody of the appellant herein is not necessary for the purpose of investigation. 11. The appellant has been behind the bars for the last five months. As observed by us in the case of Manish Sisodia (supra), taking into consideration that there are about 493 witnesses to be examined and the documents to be considered are in the range of about 50,000 pages, the likelihood of the trial being concluded in near future is impossible. 12. Relying on the various pronouncements of this Court, we had observed in the case of Manish Sisodia (supra) that the prolonged incarceration before being pronounced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used 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. 52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus: 10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote: What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]: I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsonance with law, all subsequent and consequential proceedings would fall for the reason that the illegality strikes at the root of consequential proceedings ( State of Punjab Vs. Davindar Pal Singh Bhullar (2011) 14 SCC 770. 10. It is further contended that the co-accused persons have been granted protection from arrest. The hologram manufacturer, Excise Commissioner, person against whom there are allegations of handling money etc. have been granted protection and the present applicant against whom there is no admissible material whatsoever continues in custody. Further it has been contended that it is a settled law that mere seriousness of offence is not a ground for rejection of bail. Bail is the rule and jail is exception even in cases relating to economic offences and bail is not to be withheld as a punishment. He has relied upon the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 wherein it has been observed as under: 24. In the instant case, we have already noticed that the pointing finger of accusation against the appellants is the seriousness of the charge . The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (a) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the control of that party; (b) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment; (c) where a witness is present in Court but a party or his pleader is not present or the party or his pleader though present in Court, is not ready to examine or cross-examine the witness, the Court may, if thinks fit, record the statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-examination of the witness, as the case may be.] Explanation 1. If sufficient evidence has been obtained to raise a suspicion that the accused may have committed an offence, and it appears likely that further evidence may be obtained by a remand, this is a reasonable cause for a remand. Explanation 2. The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused. 11. Similarly, in the matter of Javed Gulam Nabi Shaikh Vs. State of Maharastra, 2024 SC Online SC 1693 , it has been observed as under: 7. Having heard the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 of the Act of 2002 enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions set out in the provision are that, firstly, the Court must be satisfied, after giving an opportunity to the public prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorized officer arrested him/her under Section 19 and the basis for the officer's reason to believe that he/she is guilty of an offence punishable under the Act of 2002. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntended that they were produced at the time of remand. However, as already noted earlier, this did not serve the intended purpose. Further, in the event their grounds of arrest were equally voluminous, it would be well-high impossible for either Pankaj Bansal or Basant Bansal to record and remember all that they had read or heard being read out for future recall so as to avail legal remedies. More so, as a person who has just been arrested would not be in a calm and collected frame of mind and may be utterly incapable of remembering the contents of the grounds of arrest read by or read out to him/her. The very purpose of this constitutional and statutory protection would be rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22 (1) and the statutory mandate under Section 19 (1) of the Act of 2002. 44. We may also note that the grounds of arrest recorded by the authorized officer, in terms of Section 19 (1) of the Act of 2002, would be personal to the person who is arrested and there should, ordinaril ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22 (1) of the Constitution of India. XXXX XXXX XXXX 21. The right to be informed about the grounds of arrest flows from Article 22 (1) of the Constitution of India and any infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590 committed at the time of arresting the accused and the grant of initial police custody remand to the accused. 13. He contended that the ground on which the accused has been arrested were actually conveyed to the applicant before he was remanded to the custody of the investigating officer. He has referred to para 47 and 48 of the judgment wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no question of tampering of evidence. It is further contended that the material on the basis of which the FIR registered in Chhattisgarh has been registered has been quashed by the Apex Court on 08.04.2024 and that the co-accused persons namely Yash Tuteja, Niranjan Das, Yash Purohit, Nitesh Purohit and Vidhu Gupta have been granted interim protection in the present case and therefore the applicant is also seeking for the same relief. 15. Further it has been contended that the investigation which has been done is unfair, malicious, selective, prejudicial and in a pick and choose manner. All the accused persons ought to have been made accuse as per the case of the ED. It is contended that one Naveen Kedia of M/s. Chhattisgarh Distillers was caught selling 20 lac bottles of illegal liquor yet no action was taken by the ACB against him. There are number of accused persons involved in the present case but ED has not yet made accused like the Excise officials, Placement agencies, cash handling agencies, distillers but none of them have been made accused and no proceedings under Section 8 of the Prevention of Corruption Act has been initiated nor the information has been shared wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble evidence to substantiate these allegations which remain uncorroborated and baseless. It is contended that certain whatsapp chats have been recovered from the mobile phone of the applicant which is denied by the applicant. The issue of admissibility and veracity of the chats is pending before the Apex Court which has been challenged by the applicant regarding the validity, authenticity and admissibility of the chats. Lastly, he contended that there is nothing on record to show that the applicant had exercised any power or influence in the State Bureaucracy. In the rejoinder, learned counsel for the applicant has contended that the applicant has not been convicted for any offence till date and mere pendency of the FIRs cannot be considered as antecedents. 19. Opposing the submissions made by the learned counsel for the applicant, it has been contended by the Shri Jethmalani, learned Senior counsel of the respondent that on 11.,07.2023, respondent EOW had received a communication from the Enforcement Directorate and after due verification, on being satisfied that prima facie a cognizable offence was committed, FIR No. 04/2024 came to be registered under Sections 7 12 of the Preven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-60% final profit amount of the FL-10A licensee be paid to the syndicate. The multi national companies were briefed about this mechanism by Arunpati Tripathi, who was appointed by the present applicant. The FL-10A license was given to three persons who were ready to hike prices and ensure payment of cash bribes to Sanjay Mishra (M/s. Nexgen Power Engitech Prviate Limited), Atul Kumar Singh and Mukesh Manchanda (M/s. Om Sai Beverages Pvt. Ltd. and Asheesh Saurabh kedia (M/s. Dishita Ventures Private Limited) and thus a total amount of Rs. 1660,41,00,056/- was made by the syndicate from the financial year 2019-20 to financial year 2022-23 and had caused a huge loss to the State Exchequer. 22. It is contended that from the investigation being conducted till date, massive corruption had taken place in the Excise Department of the State of Chhattisgarh since 2019. The Excise Departments are set up to regulate the supply of liquor, ensure quality liquor to users and to prevent hooch tragedies and earn revenue for the State have been misused by the criminal syndicate led by Anwar Dhebar and the present applicant who extorted maximum personal benefit for themselves with the help of co-con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r granting bail. The relevant portion is reproduced below: Reliance is next placed on Dolat Ram and others Vs. State of Haryana 1995 (1) SCC 349 , wherein the distinction between the facts relevant for rejecting bail in a non-bailable case and cancellation of bail already granted was brought out: Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed exclamation of evidence and elaborate documentation of merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. ( See Ram Govind Upadhyay Vs. Sudarshan Singh, 2002 (3) SCC 598 and Puran Vs. Ram Bilas 2001 (6) SCC 338. 19. This Court also in specific terms held that : the condition laid down under Section 437 (1) (i) is sine qua non for granting bail even under Section 439 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trary, delves into the justifiability and the soundness of the order passed by the Court. 16. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order of the High Court in the present case, in so far as it is relevant reads: Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail. However, the Apex Court held that : 20. Without expressing any finding or opinion on the merits of the case, a case has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... huge financial loss to the State exchequer and the estimated proceeds of crime is around Rs. 1660,41,00,056/-. 30. In the matter of Nimmagadda Prasad v. Central Bureau of Investigation,(2013) 7 SCC 466 their Lordships of the Supreme Court have held that economic offence is a grave offence affecting the economy of the country as a whole and observed as under:- 23. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fibre of the country s economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. 25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 31. In yet another decision, ie. in the case of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation; (2013) 7 SCC 439, wherein Hon ble the Apex Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors and they basically are; (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge. [See Chaman Lal v. State of U.P.; (2004) 7 SCC 525] 34. In this context, it is paramount to delve into the ingredients of forgery and cheating required to be prima facie established against the applicant, at the very threshold. Such an evaluation would have to proceed on the premise that the material gathered by the investigating agency is not to be discarded or disbelieved at this stage. 35. It is the case of the prosecution that the EOW had received a communication from the Enforcement Directorate and after due verification and on being satisfied, case was registered as FIR No. 04/2024 under Sections 7 12 of the Prevention of Corruption Act and Sections 420, 467, 468, 471, and 120-B IPC. It has been revealed that a criminal syndicate has been operating in the State of Chhattisgarh which was extorting illegal commission in the sale of liquor and was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail to a person accused of a non-bailable offence, (1) The nature of the offence (2) The severity of the punishment which conviction will entail (3) The character, behaviour, means and standing of the accused (4) The circumstances which are peculiar to the accused (5) The status and position of the accused in relation to the victim or the complainant (6) Reasonable possibility of securing the presence of the accused during the trial (7) Reasonable apprehension of the witnesses being tampered with (8) The larger interests of the public or the State or the society (9) Likelihood of the accused fleeing from justice (10) Absence or presence of materials in support of the accusation (11) Likelihood of the offence being repeated (12) Frivolity in prosecution. 40. Economic offences, having deep-rooted conspiracies and involving huge loss of public funds, need to be viewed seriously and considered as grave offences ( See Y.S. Jagan Mohan Reddy v. CBI : (2013) 7 SCC 439 : AIR 2013 SC 1933 ). An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community ( See State of Gujarat v. Mohanlal Jitamalji P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber of the syndicate. Even though some of the witnesses have admitted in their statement before the police and statement recorded under Section 164 of the Cr.P.C. that they were involved in the syndicate crime but they are listed as prosecution witnesses without being granted pardon by the competent court. Prima facie it appears that the prosecution has adopted an inconsistent stance being both hot and cold in its approach and has acted in a pick and choose manner in investigation. It is stated by the learned counsel for the respondent that the applicant was involved in the criminal syndicate and maximum personal beneifts were acquired by the syndicate but surprisingly, no recovery in relation to the earnings made by the illegal liquor has been made from the present applicant. However, Shri Jethmalani, learned Senior Counsel contended that the investigation is still going on and 3-4 charge sheets are yet to be filed. Be that as it may, the applicant cannot take advantage at this stage because further investigation is going on and as per argument of learned Sr. Counsel on behalf of the State, 3-4 charges sheets are yet to be filed. In the present case, he was involved in the crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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