TaxTMI 
TaxTMI 
2021 (6) TMI 801
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....arwal, learned counsel appearing for the Enforcement Directorate. 3. For the purpose at hand, a brief reference may be made to the background facts as follows:- Ponzi Companies, many in number, got flourished in the Eastern States of India, basically in Odisha, West Bengal, Assam, Tripura and Bihar, which instigated public through different schemes, to deposit / invest money, with false assurance of impressive returns. Being allured by such lucrative assurance, lacs of gullible depositors parted with their hard earned money with those ponzi firms, who though at initial stage paid some returns, later on after collecting huge amounts of money from public, disappeared from the scene to the dismay and detriment of the depositors. It is alleged that those ponzi firms were able to operate their network and duped lacs of gullible depositors, under the patronage of political and other influential people of the Society. On the reports of the victims and otherwise, cases were registered and the Investigating Agencies of the respective States handled the investigation. However, in compliance with the order dated 09.05.2014 passed by the Supreme Court of India in two writ petitions, such as,....
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.... that in the year 2010, the petitioner and his Company DPMPL entered into four agreements with two Companies of Saradha Group, and in pursuance of those agreements, an amount of Rs. 4,54,00,000/- of Saradha Group was diverted to the petitioner and his company DPMPL as on 20.09.2011, and by another settlement agreement dated 20.09.2011, all the above four agreements were cancelled, and Rs. 3.5 Crore out of Rs. 4,54,00,000/- was returned to Saradha Group by keeping Rs. 1,04,50,000/- with the petitioner. It is alleged that under the agreements aforesaid, no share of DPMPL was parted with, and an amount of Rs. 1,04,50,000/- that was wrongfully received by the petitioner from Saradha Group belonged to general public who, ultimately, suffered thereby. According to the C.B.I., the petitioner being well aware of the fact that the selective companies, such as, Saradha Group, M/s. I-Core, etc. were dealing with ponzi schemes and defrauding the public, habitually entered into agreement with them in the garb of business dealing in order to extract money from them, and in the midway he cancelled the agreements after getting illegal benefits of crores of rupee from those ponzi firms, to the ult....
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....urther interrogation, if necessary, and there is no necessity of his being taken to custody. It is his further submission that the petitioner having already been granted bail by the Apex Court in I-core case for similar allegations, pre-arrest bail should be granted to him in the present case on taking into consideration his health condition and prevailing Covid-19 situation. 5. Shri Sarthak Nayak, learned counsel appearing for the C.B.I. repudiated the contentions of the petitioner and opposed the application on the grounds, inter-alia, as follows:- (i) Since the Supreme Court of India has specifically directed the C.B.I. to investigate larger conspiracy, money trail, roles of regulators etc., the arrest and custodial interrogation of the petitioner by the C.B.I. in the present case involving Saradha Group is essential, inasmuch as it is apparent on record that the petitioner by misusing his media company and adopting an arm-twisting technique against some selective companies dealing with ponzi schemes, extracted crores of rupee which belonged to gullible depositors. In the present case, the petitioner aided the principal accused - Sudipta Sen to escape from SEBI enquiry and pr....
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....y the C.B.I. at whose instance the case has been initiated. 7. In course of hearing, the learned counsel appearing for the petitioner has also raised certain points questioning the applicability of PMLA Act to the petitioner, jurisdiction of the Special Court under PMLA Act at Bhubaneswar to try the petitioner, jurisdiction and bona fides of C.B.I. to seek arrest / custody of the petitioner etc. so also, the contention of the learned counsel for the C.B.I. that custodial interrogation is much more fruitful for an effective investigation and economic offences are class apart and, as such, jurisdiction under Section 438 of Cr.P.C. should not be invoked in favour of the petitioner. Reliance in this regard has been placed by the learned counsel for the petitioner on the Constitution Bench decisions of the Apex Court in the case of Gurbaksh Singh Sibbia and others vrs. State of Punjab, reported in (1980) 2 SCC 565 and in the case of Sushila Aggarwal vrs. State (Nct of Delhi), reported in (2020) 5 SCC 1. 8. Before addressing the contention of the parties with regard to the merit of the prayer of the petitioner for pre-arrest bail, it would be apposite to address the technical questions....
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....he PMLA Act and independently registered for prosecution of the accused person for the scheduled offence though nomenclature as a PMLA case and the petitioner is being investigated by the CBI, production of the accused in the PMLA Court at the instance of the C.B.I. while he was in custody in another case which could not materialize and after his release the steps taken by the C.B.I. to apprehend him, cannot be said to be unsustainable. Otherwise also, all those questions appear to be technical and premature in nature, inasmuch as the present case (R.C. No.31(S) of 2014-Kol.) is at the stage of investigation vis-à-vis the petitioner, and the C.B.I. has taken over the investigation in compliance with the order of the Apex Court to delve into the question of larger conspiracy, money trail, roles of regulators etc. in the crimes committed by Saradha Group of Companies as well as other ponzi companies in the country. As reported, the petitioner was earlier indicted or interrogated in connection with some other cases in Kolkata and in those occasions he had not been taken to custody. But, the same ipso facto cannot be a ground to question the bona fides of C.B.I. to seek his arr....
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....are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran, State of Maharashtra v. Modh. Sajid Husain Mohd. S. Husain and Union of India v. Padam Narain Aggarwal.) Economic Offences: 78. Power under Section 438 Code of Criminal Procedure being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain MANU/SC/0007/1998 : (1998) 2 SCC 105, it was held that in economic offences, the Accused is not entitled to anticipatory bail. 79. The learned Solicitor General submitted that the "Scheduled offence" and "offence of money laundering" are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solic....
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....nd other similar considerations. 82. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria MANU/SC/0872/1998 : (1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Boara and Ors. MANU/SC/0970/1999 : (1999) 5 SCC 720, while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the Respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the Accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the Accused knows that he is protected by the order of the Court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the Respondent-Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case t....
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....tant. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, Clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasses of the statute-maker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context. With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 70. Likewise, in Directorate of Enforcement v Deepak Mahajan this court referred to Maxwell on Interpretation of Statutes, Tenth Edn., to the effect that if the ordinary meaning and grammatical construction: (scc PP.453-5....
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....ifferent decisions, however, held that economic offences constitute a class apart, the Court need to visit the same with a different approach in the matter of bail and should be loathed while extending the benefit of bail/ pre-arrest bail to a person accused of such offences. The aforesaid is also the view of the Apex Court in the case of P. Chidambaram (supra). 13. Now, coming to the second contention of the learned counsel for the C.B.I. that since custodial interrogation is much more fruitful for collection of further evidence, and the interrogation of the petitioner is required to unveil the larger conspiracy in the aforesaid heinous and serious offence in which crores of rupee has been collected by the ponzi firm, of which money trail was found with the petitioner, pre-arrest bail should not be granted to him. Reliance in this regard has been placed on a decision of the Apex Court in the case of P. Chidambaram (supra). 14. Controverting to the contention of the learned counsel for the C.B.I. that custodial interrogation of the petitioner is much more fruitful for investigation to unearth the larger conspiracy and, as such, the petitioner should not be released on pre-arrest ....
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.... of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail. In fact, two of the usual conditions incorporated in a direction issued under Section 438 (1) are those recommended in Sub-section (2) (i) and (ii) which require the applicant to co-operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation. While granting relief under Section 438 (1), appropriate conditions can be imposed under Section 438 (2) so as to ensure an uninterrupted investigation. One of such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery. Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the principle stated by this Court in State of U.P. v.....
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....nd techniques, we cut down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait-jacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a 'Code for the grant of anticipatory bail', which really is the business of the legislature, it can at best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discreti....