TaxTMI 
TaxTMI 
2023 (9) TMI 662
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....on similar set of allegations arising out of a joint surprise check carried out on 25.03.2011 by some officers of Railways and Northern Coalfields Ltd. (NCL) at the factory premises of (1) M/s Swastik Cement Products Ltd., (2) M/s Fertico Marketing and Investments Pvt. Ltd., (3) M/s Jai Durga Industries, (4) M/s Sri Ram Fuels Pvt. Ltd. and (5) M/s Drolia Coke Industries Pvt. Ltd. It was found that the aforesaid companies used to receive coal from Northern Coal Fields Ltd. (NCL) for manufacture of Special Smokeless Fuel (SSF) and instead of processing the coal, the companies sold it in black market at a high premium causing wrongful loss to the government and wrongful gain to the accused persons. 3. On 13.04.2011, the C.B.I/ACB Lucknow filed 5 F.I.Rs. under Sections 120-B, 420 of I.P.C. and Section 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 for causing wrongful gain to the companies by diverting the coal received from NCL to open market without processing to SSF. RC 4(A) 2011 was filed against M/s Swastik Products Ltd., RC 5 (A) 2011 against M/s Fertico Marketing & Investment Pvt. Ltd., RC 6(A) 2011 against M/s Jai Durga Industries, RC 7 (A) 2011 against M/s Sri....
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....into SSF. 9. Regarding Ramji Singh - the applicant in Anticipatory Bail Application Nos. 1518 of 2023, 1523 of 2023 and 1602 of 2023, it is stated in the complaints filed by E.D. that he and Yogendra Nath Pandey - another officer of the DIC, had misused their official positions by certifying falls/fabricated reports prepared by the companies regarding proper utilization of coal received from NCL and about functioning of SSF manufacturing units without proper physical inspection. Their act facilitated continuous supply of coal from NCL, which resulted in generation of wrongful gain. The applicant Ramji Singh and Yogendra Nath Pandey were indirectly involved in the activity of abetment with regard to generation of proceeds of crime and thereby they committed the offence of money-laundering. 10. The complaint further states that three summons were issued to the applicant Ramji Singh and in reply to the last summon, he sought exemption from appearance due to his medical conditions. 11. In the affidavits filed in support of the anticipatory bail applications of the applicant Ramji Singh, it has been stated that no coal was supplied at a notified price on the basis of status report su....
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....s. 1636 of 2023 and 1638 of 2023, is the owner of M/s Tulsian Coal Syndicate and M/s Purnagiri Holding Pvt. Ltd. The allegation against him is that during year 2010-11 M/s Swastik Cement Products and M/s Fertico Marketing and Investments Pvt. Ltd. had purchased the coal from NCL under FSA for processing and converting it into special smokeless fuel (SSF) but they wrongfully sold the coal in open market without processing the same to M/s Tulsian Coal Syndicate and M/s Purnagiri Holding Pvt. Ltd. It is alleged that some sale transactions appeared to be fake. Subhash Chandra Tulsian has been charged as being involved in criminal conspiracy of illegal diversion of coal by showing fake purchase of SSF. The complaints record the statement of the applicant that the coal so purchased from M/s Swastik Cement Products and M/s Fertico Marketing and Investments Pvt. Ltd. was further sold to other purchasers. The entire consideration for the coal was paid through cheques only. 16. The learned counsel for the applicants in ABAIL Nos. 1611, 1617, 1636, 1638 and 1639 of 2023, namely Ravindra Aggarwal, Jai Narayan Agarwal and Subhash Chandra Tulsian, has submitted that the applicants have not comm....
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....spondent - E.D. has filed counter affidavits in ABAIL Nos. 1518 of 2023, 1523 of 2023, 1602 of 2023, 1617 of 2023 & 1636 of 2023. It has not been disputed in the counter affidavits that the applicants have cooperated with the investigation and they were not arrested during investigation, but it has been stated that these facts are hardly relevant for deciding the application. The counter affidavits state that the proceeds of crime need not be relatable or traceable to any particular accused so long as the same is identifiable and can be related with the case. 23. The counter affidavits refers to the law laid down by the Hon'ble Supreme Court in the cases of Vijay Madanlal Choudhary versus Union of India 2022 SCC OnLine SC 929, Directorate of Enforcement versus M. Gopal Reddy and another 2022 SCC OnLine SC 1862, Y. S. Jagan Mohan Reddy versus Central Bureau of Investigation, (2013) 7 SCC 439, State of Bihar and another versus Amit Kumar, (2017) 13 SCC 751 and Rohit Tandon versus Directorate of Enforcement, (2018) 11 SCC 46. 24. In Directorate of Enforcement versus M. Gopal Reddy and another and Vijay Madanlal Chaudhary versus Directorate of Enforcement (Supra), the Hon'ble Supreme....
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....l application before the High Court of Delhi and he filed an application for his interim release on the assertion that his mother was seriously ill and she required immediate medical attention. The Second Bail Application was dismissed as withdrawn on the request of the applicant, yet the High Court granted interim bail to the appellant for 3 weeks, taking into account the period of incarceration of the petitioner, submission of the charge-sheet in the main case and the illness of the mother of the petitioner. In the aforesaid factual background, the Hon'ble Supreme Court held that: - "21. The consistent view taken by this Court is that economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Further, when attempt is made to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on t....
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....or the time being in force on granting of bail. * * *" (Emphasis supplied) 31. It is relevant to note that Section 44 of the PMLA contains the following provision: - "44. Offences triable by Special Courts.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) an offence punishable under Section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or (b) a Special Court may, upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under Section 3, without the accused being committed to it for trial. Provided that after conclusion of investigation, if no offence of money-laundering is made out requiring filing of such complaint, the said authority shall submit a closure report before the Special Court; or (c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has t....
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..... It appears that the provision contained in Section 44 (2) of PMLA saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 45 of the Act, but it has erroneously been placed just above Section 45. This conclusion is supported by a study of similar provisions contained in other Statutes which are being referred to in the following paragraphs. 34. Section 12 (1) and 12 (2) of the Anti-Hijacking Act, 2016 contains a provision similar to Section 45 (1) and 45 (2) of PMLA, but a provision similar to Section 44(2) of PMLA is also contained Section 12(3) of the Anti-Hijacking Act. The aforesaid section reads thus: - "12. Provision as to bail.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond, unless,- (a) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (b) where Public Prosecutor opposes the application, the Designated Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence an....
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....his own bond unless- (a) the Public Prosecutor has been given a reasonable opportunity to oppose the application for such release; and (b) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding grant of bail under section 439 of the Code." 38. Offences under Suppression of Unlawful Acts Against Safety of Maritime Navigation and Fixed Platforms on Continental Shelf Act, 2002 carry punishment upto death and Section 8 of the aforesaid Act provides that: - "8. Provision as to bail.-(1) Notwithstanding anything in the Code, no person accused of an offence punishable under this Act shall, if in custody, be released on bail or on his own bond unless - (a) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (b) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty....
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.... special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under Section 36-AB." 40. The aforesaid Acts deal with heinous offences like hijacking of aero planes, unlawful acts against safety of civil aviation, maritime piracy, unlawful acts against safety of maritime navigation and fixed platforms on continental shelf, and offences relating to manufacture and sale of adulterated or spurious drugs, which would affect a very large number of population, and the offences carry punishment upto death. All the Acts contain restrictions of Courts' power to grant bail to an accused person, which are similar to the restriction provided in Section 45 (1) and (2) of PMLA. All the acts provide that the aforesaid restrictions can be waved by the Special Courts in case of a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, like the provision contained in the proviso appended to Sec....
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....Special Court may, upon perusal of police report of the facts constituting an offence under this Act or upon complaint made by an officer of the Central Government or a State Government authorised in his behalf, take cognizance of that offence without the accused being committed to it for trial. (2) When trying an offence under this Act, a Special Court may also try an offence other than an offence under this Act with which the accused may, under the Code of Criminal Procedure, 1973, be charged at the same trial. (3) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973, and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section included also a reference to a "Special Court" constituted under Section 36. * * *" 43. Section 37 of NDPS Act contains restrictions against grant of bail, which are similar to the restrictions provided in PMLA and other Acts referred to above and it provides that: - "37. Offences to be cognizable and non-bailable.-(1) Notwithst....
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....udhary (Supra), the Hon'ble Supreme Court referred to a King's Bench judgment in the case of Seaford Court Estates ld., which is as follows: - "274. We may profitably advert to the judgment in Seaford Court Estates ld. [1949] 2 K.B. 481, which states: "...A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give "force and life" to the intention of the legislature. That was clearly laid down by the resolution of the judges in Heydon's case, (1584) 3 Co. Re....
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.... 44(2) does not become redundant or otiose. 51. The only irresistible conclusion that can be drawn from the foregoing discussion, is that the intention of the Legislature was clear and unambiguous while making the provisions contained in Sections 44 and 45 of PMLA and it was that the Special Courts will have jurisdiction to try the offences under the Act and no Court shall grant bail to an accused person unless : - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs: (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or a....
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.... Cr.P.C. and the scope of scrutiny required for deciding an application for anticipatory bail, are entirely different. 56. In State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Hon'ble Supreme Court had explained the scope of jurisdiction under Section 482 Cr.P.C. by holding that the inherent powers under Section 482 Cr.P.C. could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, or where the allegations in the first information report and other materials accompanying the FIR do not disclose a cognizable offence, or where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused, or where there is an express legal bar engrafted in the Cr.P.C. or any Act to the institution and continuance of the proceedings or where a crimi....
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....he same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the alle....
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.... to the commission of offences of a serious nature, with certain special conditions, is a matter of discretion to be exercised, having regard to the nature of the offences, the facts shown, the background of the applicant, the likelihood of his fleeing justice (or not fleeing justice), likelihood of cooperation or non-cooperation with the investigating agency or police, etc. There can be no inflexible time-frame for which an order of anticipatory bail can continue. 76. Therefore, this Court holds that the view expressed in Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667, K. L. Verma v. State, (1998) 9 SCC 348, Nirmal Jeet Kaur v. State of M.P., (2004) 7 SCC 558, Satpal Singh v. State of Punjab, (2018) 13 SCC 813, Adri Dharan Das v. State of W.B., (2005) 4 SCC 303, HDFC Bank Ltd. v. J.J. Mannan, (2010) 1 SCC 679 and Naresh Kumar Yadav v. Ravindra Kumar, (2008) 1 SCC 632 about the Court of Session, or the High Court, being obliged to grant anticipatory bail, for a limited duration, or to await the course of investigation, so as the "normal court" not being "bypassed" or that in certain kinds of serious offences, anticipatory bail should not be granted normally....
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....the Coal India Ltd. Therefore, prima facie it appears that no loss was occasioned to the Government and no offence of cheating is made out against any accused person. 66. No proceeds of crime have been recovered from the applicant Ramji Singh and the only allegation against the applicant is that he was indirectly involved in the activity of abetment with regard to generation of proceeds of crime, and even as per the complaint, there is no allegation of his direct involvement in commission of any offence. Meanwhile the applicant Ramji Singh has attained the age of 72 years and obviously he has retired long ago and he does not appear to be in a position to influence the witnesses or tamper with the evidence. Having retired, there appears no reasonable apprehension of the applicant Ramji Singh indulging in commission of a similar offence after grant of anticipatory bail to him. 67. Ravindra Aggarwal the applicant in ABAIL Nos. 1611 of 2023 and 1617 of 2023 is proprietor of M/s SBC Minerals Pvt. Ltd., which had purchased coal from M/s Shree Ram Fuels Pvt. Ltd., M/s Jai Durga Industries and M/s Drolia Coke Industries during year 2010-11. Ravindra Aggarwal has been charged for involvem....