9911796707
TMI Blog2024 (10) TMI 1636X X X X Extracts X X X X X X X X Extracts X X X X ..... nto fact that a well planned systematic conspiracy was executed by the syndicate to earn illegal commission in the sale and licensing of liquor in the State of Chhattisgarh. From the investigation by the ED it has been revealed that CSMCL was used by the syndicate to enforce a parallel excise department which comprises of senior bureaucrats of State, politicians and officials of Excise Department. The applicant was leading the CSMCL and was the MD of the organization. It has been further revealed that the applicant was assigned with the task of maximizing the bribe commission collected on liquor procured by M/s. CSMCL and for making necessary arrangement for sale of non duty paid liquor in the CSMCL run shops. In the instant case, after investigation by the ED, it has come to notice that the placement of the applicant as the head of M/s. CSMCL and Special Secretary in State Excise Department being an influential person and close to senior bureaucrats, masterminds of the present liquor syndicate earned profits. The applicants direct involvement in the commission and execution of the entire scam has been investigated wherein extortion of commission from the sale of unaccounted liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al ORDER ( Hon'ble Shri Justice Arvind Kumar Verma ) By way of present application under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023 ('BNSS') read with Section 45 of the PMLA on behalf of the applicant herein, is seeking grant of regular bail in ECIR/RPZO/04/2024 dated 11.04.2024. 2.The applicant was arrested in pursuance of ECIR/RPZO/04/2024 of 2024 registered with Raipur Zone dated 11.04.2024 by the Directorate of Enforcement. The ED had registered the above stated ECIR pursuant to the predicate offence which was registered by EOW, Raipur dated 17.01.2024 as FIR No. 04 of 2024 for the offence punishable under Sections 120-B, 420,467,468,471 of IPC and Section 7 & 12 of the Prevention of Corruption Act. The case of the applicant falls under Schedule One, Part -A (offence under the IPC) and para -8 (Offence under PC Act) as per Section 3 & 4 of the PMLA. 3.It is submitted that the apart from the present case, the applicant has following criminal antecedents against him. I) FIR No. 196/2023 registered by PS Kasna, Greater Noida, Commissionerate Guatam Buddh Nagar, Uttar Pradesh for the alleged offence under Sections 420, 468,471,473,484 and 120-B of IPC. The cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e before the investigating officer. Similarly the statement of the applicant was recorded under Section 50 of the PMLA in ECIR 11 of 2022 on 31.03.2023, 01.04.2023,03,04.2023,08.04.2023,19.04.2023 and 20.04.2023 and in ECIR 4 of 2024, on 8.05.2024, 31.05.2024, 09.08.2024,10.08.2024,11.08.2024,12.08.2024, 13.08.2024 and 14.08.2024. The applicant retracted his statement on 05.04.2023,11.04.2023 and 21.04.2023 in ECIR 11 of 2022, however, he has not retracted his statements in ECIR 4 of 2024. 6. Shri Yatin Ojha, learned Senior counsel appearing for the applicant has contended that what was found from ECIR 11 is culminated into ECIR 4. On the premise that only complaint is forged not the material and investigation stands quashed. Once complaint goes everything goes. Supreme Court says when foundation goes the superstructure collapses. In a recent judgment of the Supreme Court, it has been held by Justice B.Pardiwala that "stream can't be higher than the source." 7. In one of the judgment of the Supreme Court, it has been held initially the officer who is not empowered started investigation under NDPS. It is nothing like wait till the trial when factual aspect is there. The factum whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold for the grant of bail cannot go together. It is a well settled principle of our criminal jurisprudence that "bail is the rule, and jail is the exception." These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time. 9. Contention of learned Senior Counsel for the applicant is that Section 45 of the PMLA cannot be read independently and take away the liberty of a citizen. The interpretation of Section 45 of the PMLA is no longer res integra in as much as Supreme Court in the case of V. Senthil Balaji Vs. The Deputy Director, Directorate of Enforcement has held that Article 21 of the Constitution ensures liberty to a citizen, which is a far more higher and valuable right guaranteed under the Constitution, and therefore Section 45 of the PMLA cannot be read in stringent terms as it is drafter. Similarly, in the case of Prem Prakash Vs. Union of India, 2024 INSC 637, Hon'ble Supreme Court held that Bail is the Rule and Jail is an exception, and that Article 21 of the Constitution confers a higher right than Section 45 of the PMLA. 10. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons is significant and if read in the context of the judgment passed in Criminal Appeal No. 3295 of 2024 [Manish Sisodia (II) Vs. Directorate of Enforcement], wherein it has been observed as under : "53.....From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that "bail is rule and jail is exception." 13. All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, "bail is the rule and jail is the exception" is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs.State of Punjab (2005) 7 SCC 387 and Kashmira Singh Vs. State of Punjab (1977) 4 SCC 291. With regard to the prolonged period of incarceration suffered by the applicant, time and again it has been reiterated by the Hon'ble Supreme Court in various cases that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. 16. It has been further contended that Section 436-A Cr.P.C. should not be construed as a mandate that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period of half the maximum period of imprisonment. He contended that when the trial is not proceedings for reasons not attributable to the accused, the court unless there are good reasons, may well be guided to exercise the power to grant bail. He has further reiterated to the judgment of Manish Sisodia 1 (2023) SCC Online SC 1393, wherein it has been observed as under: "29. On the necessity to satisfy the preconditions mentioned in Section 19(1) of the PML Act, we have quoted from the judgment of this Court in Padam Narain Aggarwal (supra) and also referred to and quoted from the Canadian judgment in Gifford ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een quashed and therefore the applicant may be released on bail. He has relied upon the judgment 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. He has further relied upon the jdugment of the Hon'ble Supreme Court in the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40: " It is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detail the accused in custody, that too, after the completion of the investigation and filing of the charge sheet. " 19. It has been contended that the applicant is an ITS Officer of Department of Telecom and was working in the Excise Department on deputation as Special Secretary and Jt. MD/MD of CSMCL and he had no knowledge of the working and functioning of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant arranged duplicate hologram with Vidhu Gupta is baseless as the supply of the holograms was done to Commissioner Excise Chhattisgarh as per tender conditions. The hologram Section of Excise Department issues PO to M/s. Prism Holography for supply of hologram which is under the custody of hologram section. After payment of the cost, requisition is submitted, payment is verified and issue instructions for QR coding and numbering to the local representatives of hologram supplier. This numbering machined which is under the control of hologram section is issued to the distilleries who in turn affix the same on country liquor bottles and all the activities, storage, payment of hologram supply to distillers etc. is under the control of Commissioner Excise Chhatisgarh CSMCL and the applicant is not at all involved in the entire process. 21. He contended that the allegation against the applicant that large amount of cash was transferred to Netherlands and UAE to acquire benami foreign asset is completely baseless and that neither the applicant nor his family has any foreign assets in UAE and Netherland. Similar allegation has been levelled against the applicant in the first prosecuti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail under PMLA. The relevant observation of the Hon'ble Court is as under: "135. We are conscious of the fact that in paragraph 53 of the Nikesh Tarachand Shah642, the Court noted that it had struck down Section 45 of the 2002 as a whole. However, in paragraph 54, the declaration is only in respect of further (two) conditions for release on bail as contained in Section 45(1), being unconstitutional as the same violated Articles 14 and 21 of the Constitution. Be that as it may, nothing would remain in that observation or for that matter, the declaration as the defect in the provision [Section 45(1)], as existed then, and noticed by this Court has been cured by the Parliament by enacting amendment Act 13 of 2018 which has come into force with effect from 19.4.2018. We, therefore, confined ourselves to the challenge to the twin conditions in the provision, as it stands to this date post amendment of 2018 and which, on analysis of the decisions referred to above dealing with concerned enactments having similar twin conditions as valid, we must reject the challenge. Instead, we hold that the provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egistration of ECIR/RPZO/04/2024 on the basis of EOW/ACB FIR was also informed to the Hon'ble Supreme Court and it did not bar the ED from recording new ECIR. Subsequently. The new ECIR has been recorded on the basis of FIR by the Chhattisgarh police. 26. The present investigation is based on the new ECIR bearing No. ECIR/RPZO/04/2024 which is recorded on 11.04.2024 on the basis of FIR registered by the Chhattisgarh State police at EOW/ACB Raipur. Further the applicant Arun Pati Triapthi was the mastermind of the liquor scam. The applicant was arrested by the ED on 08.08.2024 and he was remanded in judicial custody for 6 days till 14.08.2024 and subsequently was remanded periodically. He contended that the present arrest was made completely in accordance with the provisions of sub-section 1,2 and 3 of Section 19 of PMLA 2002. He contended that the applicant was not granted regular bail vide order dated 13.02.2024 in M.Cr.C. No. 60 of 2024 though Hon'ble Supreme Court on 19.10.2023 had advised to grant only interim bail. The relevant order of the Hon'ble Supreme Court in WP No. 15/2023 is as under: " A reading of the aforesaid order, prima facie gives rise to a scenario that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licant is shareholder of 50% in the company named M/s. Dutch Eagle Hunters Group LLC and the applicant is having credits to the tune of Rs. 2,29 crores in its bank account. It has also been gathered that the wife of the applicant is actively pursuing the business a Netherland based entities and is fully involved in the operation of the company. It is contended that one Mr. B.R.Lohai, had shared the details pertaining to oversees entities it. Bank statements pertaining to M/s. Nanse BV and the UAE based entity namely M/s. Eagle Hunter LLC relating to the applicant through e-mails. It is clear from the perusal of the said statement of the bank account wife of the applicant is the shareholder and cash deposit of more than 5 lacs has been shown and on the same date of cash deposit Rs. 1 crore was transferred to M/s. Nanse BV, a Netherland based company. It has also been gathered that the applicant had used hawala routes to transfer funds collected out of liquor scam to Dubai." 28. It has been submitted by the learned counsel for the respondent that the Hon'ble Supreme Court has observed that money laundering is a serious threat to the national economy and national interest. Orissa Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined the investigation in one pretext or the other and as demonstrated by the Directorate the majority of the proceeds of the crime have been secreted outside India and considering that the applicant frequently travel outside India and his associates are abroad, he is a flight risk as well. It is further submitted that the applicant is an influential person being head of the Excise Department and close to senior bureaucrats, masterminds of the present liquor syndicate and the present case pertains to the offence of Money Laundering to the tune of more than Rs. 2,0000 crores approximately and as has been held by the Courts in a catena of judgments that Economic offences constitute a separate class of offences and bail should normally not be granted in such cases and therefore, the applicant is not entitled for grant of bail at this stage. 29. I have heard learned counsel for the parties and perused the judgments cited by the learned Sr. counsel for the applicant as well as the documents submitted by the learned counsel for the respondent/Enforcement Directorate with utmost circumspection. 30. In the present case, the predicate offence has been registered against the applicant by A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounting to Rs. 20 crores. The applicant is alleged to have conspired with M/s. Prizm Holography by lowering the tender conditions and ensured supply of lacs of duplicate holograms which were required to make the1liquor look real liquor. 33. It is the case of prosecution that a criminal syndicate comprising of high level State Government officials, private persons and political executives of the State Government were operating in the State of Chhattisgarh and collecting illegal bribe from the State Departments and State Public Sector undertakings by sale of liquor which is one of the major source of their illegal earning. In the initial investigation, it has come into account that there was massive corruption in the Excise Department of Chhattisgarh since the year 2019. The Excise department was set up to regulate the supply of liquor, ensure quality liquor to users to prevent hooch tragedies and to earn revenue for the State but the criminal syndicate have altered the policy as per their whims and fancies and extorted maximum personal benefit for themselves and total earning of Rs. 1660,41,00,056/- was made by the syndicate from the financial year 2019-20 to financial year 2022-23 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
