AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (8) TMI 264
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....as PC Act) against the present petitioner/accused and other accused persons. 3. The present petitioner/accused was a Senior Vice President of M/s Jyoti Trading Corporation, at the relevant time. The accused persons named in the CBI case entered into a criminal conspiracy during 2007 to 2014 and cheated and defrauded IFFCO and Indian Potash Limited. (IPL), the share holders of those entities and the Government of India by fraudulently importing fertilizers and other materials for fertilizer production at inflated prices and claimed higher subsidy from Government of India causing loss of several crores of rupees. They allegedly siphoned off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies owned by the accused persons, registered outside India in order to camouflage the fraudulent transactions. 4. It is claimed that IFFCO set up its 100% subsidiary namely M/s Kisan International Trading FZE in Dubai for importing fertilizers and other raw materials from foreign companies. Bills were raised by the suppliers in favour of M/s Kisan International Trading at inflated rates to cover up the bribe money to be paid to....
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....BI which finally registered the present FIR on 17.05.2021. 7. It is further submitted by the Ld. Sr. counsel for the petitioner that the CBI was bound to conduct a preliminary enquiry under chapter 7 of the CBI Crime Manual, 2020 in terms with the decision of Hon'ble Supreme Court in Lalita Kumari Vs. Government of Uttar Pradesh & Ors. (2014) 2 SCC 1 and in Vinod Dua Vs. State (Govt. of NCT of Delhi), 2020 SCC Online Delhi 644. It is further submitted by the Ld. Sr. counsel for the petitioner that there are no allegations against the petitioner that he has in any manner tampered with the evidence or influenced any witness during the last 8 years since the filing of the complaint by Nishikant Dubey and he was always available for investigation and has even joined the enquiry conducted by FEMA since 2011. It is further submitted by the Ld. Sr. counsel for the petitioner that the petitioner has made 90 foreign trips and has always come back and joined the investigation and not on one occasion he has made himself unavailable for the investigation so there are no chances of him fleeing away from justice. 8. It is further submitted by the Ld. Sr. counsel for the petitioner that the mai....
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....n an application field by the petitioner Ld. Special Judge directed the respondent to supply the copy of the ECIR to the petitioner within a week which expired on 21.07.2021 but the respondent failed to supply the copy of the ECIR and challenged the said order of the Special Judge before this Court in Crl. MC 1598/2021. 10. It is further submitted by the Ld. Sr. counsel for the petitioner that this Court vide order dated 22.07.2021 directed the respondent to file an affidavit indicating the manner in which the grounds of arrest are informed to the arrested person in terms of the guidelines issued in DK Basu Vs. State of West Bengal (1997) 1 SCC 416. It is further submitted by the Ld. Sr. counsel that the petitioner has challenged his illegal arrest and the first remand order by way of Crl. MC No. 1424/2021 which was listed before the vacation Bench of this Court and since the petitioner had filed his regular bail application before the Special Judge, the said petition was withdrawn and the petitioner was permitted to agitate all the issues contained in the said petition at the time of the arguments on his regular bail application. It is further submitted by the Ld. Sr. counsel tha....
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....ding Hodgkin's disease i.e. lymphatic cancer since 2002, which relapsed in 2004, 2013 and 2015; Graves' disease i.e. hyperthyroidism of the eye glands with Grave's orbitopathy i.e. exophthalmos since 2011; Type II Diabetes mellitus; Cardiac / cardiovascular complications; Hyperlipidaemia or cholesterol; Obstructive sleep apnea; Hypertension coupled with blood pressure. It is further submitted by the Ld. Sr. counsel for the petitioner that all his medical conditions are preexisting which have been confirmed by the medical report received from RML Hospital in Crl. M.C. No. 1435/2021. It is further submitted by the Ld. Sr. counsel for the petitioner that the medical condition of the petitioner deteriorated significantly. He further submitted that on 04.06.2021, the petitioner was taken to GB Pant Hospital where on account of preexisting risk of Corona Virus he was taken to AIIMS Hospital. It is further submitted by the Ld. Sr. counsel that the petitioner was granted special permission to travel America by the American Embassy New Delhi aided by the Ministry of External Affairs and his sister was also allowed to accompany him for his medical treatment between 25.05.2021 to 24.06.2021 a....
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.....07.2019. The search was also conducted by the respondent in relation to FEMA enquiry on 15.10.2020 and on 19.05.2021 by the CBI in relation to the present FIR. It is further submitted that on 02.06.2021, the respondent conducted raid at the petitioner's residence in the present ECIR. Ld. Sr. counsel contended that all the documents are in possession and custody of the investigating agency and he placed reliance on State of Maharashtra Vs. Nainmal Punjaji Shah (1969) 3 SCC 904 and Manoranjana Sinh Vs. CBI (2017 5 SCC 218. 17. It is further submitted by the Ld. Sr. counsel for the petitioner that simply because the petitioner is a Member of Parliament or a Member of Standing Committee of Fertilizers, it does not disentitle him to any relief from this Court as no misconduct has been attributed to him. It is further argued that the position of the petitioner in the society shows that he has deep roots and there are no chances of his running away. It is further submitted by the Ld. Sr. counsel that it has been alleged that the petitioner helped one Sushil Kumar Pachisia to flee from the country which is totally false and baseless. It is submitted by the Ld. Sr. counsel that these alle....
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....f Enforcement (2019) SCC OnLine Del 9086 (Supreme Court stay only on release of the accused.) 20. It is further submitted by the Ld. Sr. counsel that the stay of the Hon'ble Supreme Court in Upender Rai [SLP (Crl.) Diary No. 5150/2020 order dated 03.06.2020] is only of the operation of the order in terms with release of the accused there in on bail. It is further submitted by him that the said order is distinguished from the order passed by the Hon'ble Supreme Court in ED Vs. Shivinder Mohan Singh [SLP Crl. No. 3474/2020 order dated 31.07.2020.] It is further submitted by him that the stay passed by the Hon'ble Supreme Court only operates inter se the parties and does not create a vacuum in the legal position. He placed reliance on Principal Commissioner of C. Ex., Delhi-I V. Space Telelink Ltd. 2017 (355) ELT 189 (Del), Shree Chamundi Mopeds Ltd. Vs. Church of South India Trust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1. 21. It is further submitted by the Ld. Sr. counsel for the petitioner that the proviso of Section 45 of the PMLA provides that in case of sick person, bail should be granted to the person arrested. 22. On the other hand, it is submitted by the Ld.....
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....Ld. ASG that during the analysis of the data recovered from one of the phones of the petitioner which was seized during the course of search in October 2019 in proceedings under FEMA, certain Whatsapp messages showed that he had helped one Sushil Kumar Pachisia to flee from India by getting favour as a Member of Parliament by misrepresenting him as his manager and got him VIP treatment at the airport. It is further submitted that record/evidences received from Income Tax which were collected by the Income Tax during the course of its searches, and statement of various persons recorded U/s 50 of PMLA, wherein these persons when confronted with the said records/evidence have confirmed the veracity of the said record evidencing transfer of proceeds of crime in India in cash to the petitioner and his associates. 24. It is further submitted by the Ld. ASG that the petitioner has not cooperated in the investigation and has given evasive reply. It is further submitted by the Ld. ASG that the petitioner's health condition is stable and does not warrant bail on medical ground. It is further submitted by the Ld. ASG that the medical condition of the petitioner is manageable which is evident....
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....ations in the petition should be specific, clear and unambiguous and that there is a presumption in favour of the constitutionality of an enactment with the burden upon the person who attacks the provision to show that the same is unconstitutional; the Delhi High Court in Upendra Rai vs. Enforcement Directorate (2019) SCC Online Delhi 9086 and Dr.Shivinder Mohan Singh vs. Directorate of Enforcement 2020 SCC Online Del 766 held that Act 13 of 2018 would not revive or resurrect the twin conditions for grant of bail contained in Section 45(1) of the PMLA and on challenge before the Supreme Court such orders passed by the Delhi High Court have been stayed. 27. The PMLA, as enacted by the Parliament in the year 2002, contained Section 45(1) which read as under:- "Section 45. Offences to be cognizable and non- bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given a opportunity to oppose the application for such release....
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....ve Courts which denied bail. All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly." 30. By Act 13 of 2018 Section 45(1) of the PMLA was sought to be amended w.e.f. 19.04.2018. Through such amendment the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" as occurring in Section 45(1) before the judgment of the Supreme Court in Nikesh Tarachand Shah's case (supra) were substituted with the words "under this Act". As per learned ASG, after such amendment, the defect on the basis of which the Supreme Court had declared Section 45(1) of the PMLA to be unconstitutional was cured and consequently the twin conditions prescribed in Section 45(1) stood revived. 31. The declaration by the Supreme Court in Nikesh Tarachand Shah's case (supra) would render the t....
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....PMLA Act, the present application has to be considered and decided under Section 439 of the Code of Criminal Procedure with or without conditions." 33. Observations made in Sameer M. Bhujbal vs. Assistant Director Directorate of Enforcement and another was considered and followed by the Bombay High Court in its judgment dated 25.03.2020 rendered in Bail Application No.1322 of 2020 - Deepak Virendra Kochhar vs. Directorate of Enforcement and another. Observations in this regard are as follows:- "38. The question is the provision which was held constitutional by Apex Court in the case of Nikesh Shah (supra) stands revived in view of Amendment as stated above to Section 45 of the Act. This Court in the case of Sameer Bhujbal (supra) has turned down the submission of respondents therein that Government has brought an amendment to Finance Act, 2018 which has come into effect from 19.04.2018 to Section 45(1) of PMLA thereby inserting words "under this Act" in Section 45 (1) of the Act. In view of amendment, the original sub- Section (ii) of Section 45(1) which imposes the said twin conditions automatically stands revived and the said condition therefore remain on statute book. The ori....
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.... Section 439 of Cr.P.C and the conditions therein will only apply in the case of the Petitioner for grant of bail." 35. This issue has also been dealt in a similar manner by the Madhya Pradesh High Court in M.Cr.C. No.34201/2018 - Dr.Vinod Bhandari Vs. Assistant Director, Directorate of Enforcement, decided on 29.08.2018 and the High Court of Patna in Criminal Miscellaneous No.41413 of 2019 - Ahilya Devi vs. The State of Bihar and others, decided on 28.05.2020 and in Parkash Gurbaxani Vs. The Directorate of Enforcement through Assistant Director in CRM-M-12901-2021(O&M) decided on 02.06.2021. 36. Reliance by the respondent has been placed on Bimal Kumar Jain and Naresh Jain Vs. Directorate of Enforcement BAIL APPLN.112/2021 and CRL. M. (BAIL) 81/2021; BAIL APPLN. 122/2021. The said bail application has been decided only on the basis of parameters as laid down U/s 439 of the Cr.PC. Therefore, in view of the above, the provisions of Section 439 of Cr.P.C and the conditions therein will apply in the case of petitioner for grant of bail. 37. While dealing with the bail application it is not in dispute that three factors have to be seen namely i) flight risk, ii) tampering evide....
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....hisia in fleeing from India by getting favours as a Member of Parliament. In this regard it has been submitted by the Ld. Sr. counsel for the petitioner that during the relevant time the petitioner was not the Member of Parliament and he became member of Parliament in the year 2020. In reply the department has submitted that the said Sushil Kumar Paschisia was summoned U/s 50 but he has expressed his inability to travel to India under the prevailing circumstances but it has not been spelled out as to what action has been taken to bring him back to India or he is totally avoiding to come back or whether any LOC has been opened in his name. There are no specific allegations that the petitioner in any manner over the last many years since the filing of the complaint way back in the year 2013 had in any manner tried to tamper with the evidence or threaten the witnesses. 39. It has been argued by the Ld. ASG that economic offences constituted a class apart and needed to be visited with a different approach and reliance was placed on the judgments of Hon'ble Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364; Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439;....
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....ill have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial."(emphasis supplied) 40. Thus it was held that even if the allegation was one of grave economic offence, it was not a rule that bail should be denied in every case. 41. Regarding the flight risk, it is the admitted case of the department that over the period of last 10 years the petitioner has gone abroad atleast 90 times for various purposes. In this regard, it has been submitted by the Ld. Sr. counsel for the petitioner that the petitioner is a sitting member of Rajya Sabha and owns substantial movable and immovable property in India. It is further submitted that despite the pendency of various enquiries and investigation, the petitioner has returned to the country. The petitioner was even allowed to travel abroad by this Court twice subject to conditions despite the opening of LOC against him and the registration of the FIR by the CBI. Therefore, when such is the conduct of the petitioner, he cannot be said to be a flight risk. Moreover, nothing has been placed on record that the petitioner/accused is a flight risk nor much emphasis was laid on this during....