TaxTMI 
TaxTMI 
2024 (9) TMI 1303
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.... Date of Scheduled offence 2017 to 2018 3. Date of Registration of ECIR No. C.R./F.I.R. Number (Scheduled Offence) 08.01.2020 4. Prosecuting Agency Name of the Police Station of scheduled offence Enforcement Directorate Shivaji Nagar, Pune 5. Sections invoked Scheduled offences Section 3 r/w. 70 of the Prevention of Money Laundering Act, 2002 Sections 420 r/w. 34, 406, 408, 409, 465, 468 & 471 of the Indian Penal Code, 1860 6. Date of arrest of the Applicant in Scheduled Offence Date of arrest in ECIR 24.02.2020 05.03.2021 7. Date of filing of Charge-sheet in Scheduled Offence ECIR Complaint Charge-sheet bearing No. 32/2020 dated 18^th May 2020 April 2021 8. Status of Bail Application in scheduled offence Scheduled Offence - Bail granted on 2^nd March 2023 by a learned Single Judge in B. A. No. 2006 of 2021 9. Main grounds for seeking bail The Applicant has undergone 3 years 6 months in ECIR i. e. half of the punishment. The maximum punishment which can be awarded is 7 years. The Applicant is in custody for more than 4 years and 7 months. 3. Respondent No. 1 - the Directorate of Enforcement ('ED') by filing ....
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....723/- from Shivajirao Bhosale Sahakari Bank Ltd. & its branches for personal gains. 7.4 That, subsequently EOW, Pune City carried out investigation and filed charge sheet bearing No. 32/2020 dated 18.05.2020 before the Hon'ble Additional Sessions Judge, Special M.P. I.D. Court, Shivajinagar, Pune against Mr. Anil Shivajirao Bhosale, Mr. Suryaji Pandurang Jadhav, Mr. Tanaji Dattu Padwal, Mr. Shailesh Sampatrao Bhosale and others for constituting the offences punishable under Sections 34, 406, 408, 409, 420, 468 and 471 of IPC, 1860 read with Sections 3, 4 & 5 of MPID Act. 7.5 That, Mr. Anil Shivajirao Bhosale and his 3 associates including the present applicant were arrested by the Crime Branch, Pune and produced before Additional Session Judge and Special Maharashtra Protection of Interest of Depositors Act (MPID) Judge Shivaji Nagar, Pune. Subsequently, the said Court sent/remanded them into Police custody till 19 March, 2020 and thereafter in the judicial custody. 7.6 That, a case under PMLA, 2002 was recorded vide ECIR/MBZO-II/03/2020 dated 07.02.2020 by the Enforcement Directorate, Mumbai Zonal Office-II, Mumbai, against Mr. Anil Shivajirao Bhosale, M....
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.... India. He submitted that the factual position on record clearly shows that the said fundamental right of the Applicant is violated. In support of the said contention, he also relied on Section 436A of the Cr.P.C.. He submitted that he is seeking bail only on the ground of long incarceration. He further submitted that even on merits, insofar as the case of the prosecution is concerned, the Applicant's liability is Rs. 79,00,00,000/-. He tendered a chart which shows that substantial amount is recovered and valuable properties are attached by the ED. He, therefore, submitted that the Applicant is entitled to be enlarged on bail. He also submitted that the Applicant is 72 years old and suffering from stage 4 of colon cancer. 6. Mr. Shirsat, learned APP for Respondent No. 1 - ED strongly opposed the Bail Application. He submitted that the material on record shows that the Applicant is involved in a very serious crime. He submitted that cash has been given to various persons as per the instructions of the present Applicant. He pointed out the statements of various persons including the statement of Mr. Santosh Sahebrao Kale recorded during the investigation by ED. He also pointed out....
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....ffence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm 113[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: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] subsection (1) is in addition to the limitations under the Code of Cr....
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....o 421 read as under : "412. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. 413. There is, however, an exception carved out to the strict compliance of the twin conditions in the form of Section 436A of the 1973 Code, which has come into being on 23.6.2006 vide Act 25 of 2005. This, being the subsequent law enacted by the Parliament, must prevail. Section 436A of the 1973 Code reads as under: "[436A. Maximum period for which an undertrial prisoner can be detained.- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishme....
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....gh V. State of Punjab. Despite this provision, we have directed as above mainly at the call of Article 21 as the right to speedy trial may even require in some cases quashing of a criminal proceeding altogether, as held by a Constitution Bench of this Court in A.R. Antulay v. R.S. Nayak, release on bail, which can be taken to be embedded in the right of speedy trial, may, in some cases be the demand of Article 21. As we have not felt inclined to accept the extreme submission of quashing the proceedings and setting free the accused whose trials have been delayed beyond reasonable time for reasons already alluded to, we have felt that deprivation of the personal liberty without ensuring speedy trial would also not be in consonance with the right guaranteed by Article21. Of course, some amount of deprivation of personal liberty cannot be avoided in such cases; but if the period of deprivation pending trial becomes unduly long, the fairness assured by Article 21 would receive a jolt. It is because of this that we have felt that after the accused persons have suffered imprisonment which is half of the maximum punishment provided for the offence, any further deprivation of personal liber....
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....ons, including to secure his/her presence during the trial. 418. Learned Solicitor General was at pains to persuade us that this view would impact the objectives of the 2002 Act and is in the nature of super imposition of Section 436A of the 1973 Code over Section 45 of the 2002 Act. He has also expressed concern that the same logic may be invoked in respect of other serious offences, including terrorist offences which would be counterproductive. So be it. We are not impressed by this submission. For, it is the constitutional obligation of the State to ensure that trials are concluded expeditiously and at least within a reasonable time where strict bail provisions apply. If a person is detained for a period extending up to one-half of the maximum period of imprisonment specified by law and is still facing trial, it is nothing short of failure of the State in upholding the constitutional rights of the citizens, including person accused of an offence. 419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits with....
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....Ashfaq Ansari @ Javed Ansari (supra) held in paragraph 32 as under : "32. This Court has, time and again, emphasized that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21 of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very strong to say that under a particular statute, bail cannot be granted. It would run counter to the very gain of our constitutional jurisprudence. In any view of the matter, K. A. Najeeb (supra) being rendered by a three Judge Bench is binding on a Bench of two Judges like us." (Emph....
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....h 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 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 forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. 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....
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.... noted hereinabove, the Applicant has completed more than half of the punishment and therefore, entitled to the benefit of Section 436A of the Cr.P.C.. The Judgment cited by Mr. Shirsat, learned APP in the case of Tarun Kumar (Supra) is not applicable to the facts of the present case, as in that case, the Accused has not completed half of the punishment. 19. Apart from that, one more factor is required to be taken into consideration. As noted hereinabove, Mr. Ponda, learned Senior Counsel for the Applicant has submitted a chart of the properties attached by the ED of the Applicant as well as his wife. As per the said chart in the recovery proceedings, various properties of the Applicant have been sold and an amount of Rs. 60,49,74,709/- has been recovered. The said chart is reproduced hereinbelow : "PROPERTIES ATTACHED BY ENFORCEMENT OF DIRECTORATE OF SURYAJI PANDURANG JADHAV AND SUJATA SURYAJI JADHAV : Sr.No. Property Holder Address Area Estimated Valuation 1 Suryaji Pandurang Jadhav Gat No 436, Village Bholawade, Taluka Bhor, District Pune H.0-07R 50 Lakhs 2 Suryaji Pandurang Jadhav Gat no 2191, Village Akiwat, Taluka Shirole, District....