TaxTMI 
TaxTMI 
2024 (12) TMI 359
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....B/191/199/200/204 IPC the ED registered an ECIR bearing No. ECIR/RPZO/11/2022 ("ECIR 11'). (ii) The applicant was arrested on 21st August 2024. The allegations are that certain wealth was generated in the liquor trade in the State of Chhattisgarh and the persons involved have not disclosed those amounts in their income tax returns which laid to registration of ECIR which was EIR No. 11/2022 (first ECIR which has been ultimately quashed by the Hon'ble Supreme Court 08.04.2024). The instant FIR was an offshoot of the first ECIR which had been vacated. On 11.04.2024, immediately after quashment of the prosecution complaint in ECIR 11, the ED registered another ECIR bearing ECIR/RPZO/04/2024 (second ECIR) treating the said FIR as the underlying scheduled offence. (iii) After the arrest of the applicant on 20.08.2024 by the ED, the applicant appeared before the ACB, Raipur pursuant to summons in relation to the subject FIR and after questioning by the ACB, officers of the ED arrested the applicant. The applicant was given summons by the officers of the ED and directed for his appearance and he was sent for 7 days of police custody by the learned Special Judge. On 27.08.2024, the cus....
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....nent resident of Delhi and has clean antecedents. He has been languishing in jail since 8th December 2021. In that background considering the charge sheet, first supplementary charge sheet and second supplementary charge sheet as well as the fact that other co-accused persons having been enlarged on bail by the Coordinate Bench which stand confirmed by the Hon‟ble Supreme Court; and the facts and circumstances and discussion as aforesaid, this Court is inclined to allow the instant bail application seeking regular bail." 5. It is further contended that there are three charge sheets against 11 accused persons spanning about 13,000 pages with 457 witnesses filed by the investigating agency and the investigation is still going on. He contends that the proceedings before the learned Special Judge are at the stage of Section 207 Cr.P.C. proceedings and no charges have been framed therein. The applicant has already undergone custody of about 5 months in relation to the alleged liquor scam. It is contended that the applicant has a fundamental right to liberty and his liberty cannot be curtailed in such a manner which is violation of Article 21 of the Constitution of India and there....
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....should not be permitted to become punishment without trial. 13. We had also reiterated the well-established principle that "bail is the rule and refusal is an exception". We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions." 7. It has been stated that despite raising specific allegations against the applicant, he was deliberately not made an accused. It is further contended that the learned Special Judge has failed to appreciate that the applicant has always been willing to cooperate in the investigation and no purpose would be served by extending the pre-trial incarceration of the applicant. He has placed his reliance in the matter of Pankaj Bansal Vs. Directorate of Enforcement, 2023 SCC Online SC 1244. 8. He has relied upon the judgments in the matter of Manish Sisodia Vs. ED SLP Crl. No. 8781 of 2024 wherein it has been held as under: "49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. 50. As observed by this Court, the right t....
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....s 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 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". 54. In the present case, in the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the pro....
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....ugh, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice. XXXX XXXX XXXX XXXX XXXX XXXX Section 309 of the Code 39.This provision has been substituted by Act 13 of 2013 and Act 22 of 2018. It would be appropriate to reproduce the said provision for better appreciation: "309. Power to postpone or adjourn proceedings. -(1) In every inquiry or trial the proceedings shall be continued from day-to-day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded: Provid....
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....it has been observed as under: 7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects: (i) The appellant is in jail as an under-trial prisoner past four years; (ii) Till this date, the trial court has not been able to even proceed to frame charge; and (iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses. XXXX XXXX XXXX 9. 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. 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 & Ors. 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 obs....
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....Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22 (1) of the Constitution and Section 19 of the Act of 2002, is meant to serve this higher purpose and must be given due importance. XXXX XXXX XXXX 42. That being so, there is no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. There are two primary reasons as to why this would be the advisable course of action to be followed as a matter of principle. Firstly, in the event such grounds of arrest are orally read out to the arrested person or read by such person with nothing further and this fact is disputed in a given case, it may boil down to the word of the arrested person against the word of the authorized officer as to whether or not there is due and proper compliance in this regard. In the case on hand, that is the situation insofar as Basant Bansal is concerned. Though the ED claims that witnesses were present and certified that the grounds of arrest were read out and explained ....
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....f the Act of 2002, would be personal to the person who is arrested and there should, ordinarily, be no risk of sensitive material being divulged therefrom, compromising the sanctity and integrity of the investigation. In the event any such sensitive material finds mention in such grounds of arrest recorded by the authorized officer, it would always be open to him to redact such sensitive portions in the document and furnish the edited copy of the grounds of arrest to the arrested person, so as to safeguard the sanctity of the investigation. 45. On the above analysis, to give true meaning and purpose to the constitutional and the statutory mandate of Section 19 (1) of the Act of 2002 of informing the arrested person of the grounds of arrest, we hold that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. The decisions of the Delhi High Court in Moin Akhtar Qureshi (supra) and the Bombay High Court in Chhagan Chandrakant Bhujbal (supra), which hold to the contrary, do not lay down the correct law. In the case on hand, the admitted position is that the ED's Investigatin....
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....emanded to the custody of the investigating officer. He has referred to para 47 and 48 of the judgment wherein it has been observed as under: "48. It may be reiterated at the cost of repetition that there is a significant difference in the phrase 'reasons for arrest' and 'grounds of arrest'. The 'reasons for arrest' as indicated in the arrest memo are purely formal parameters, viz., to prevent the accused person from committing any further offence; for proper investigation of the offence; to prevent the accused person from causing the evidence of the offence to disappear or tempering with such evidence in any manner; to prevent the arrested person for making inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating Officer. These reasons would commonly apply to any person arrested on charge of a crime whereas the 'grounds of arrest' would be required to contain all such details in hand of the Investigating Officer which necessitated the arrest of the accused. Simultaneously, the grounds of arrest informed in writing must convey to the arrested accused all basic facts on w....
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.... and no proceedings under Section 8 of the Prevention of Corruption Act has been initiated nor the information has been shared with the IT departments or GST departments. 16. Learned counsel for the applicant contended that the applicant is a retired senior citizen and is suffering from several comorbidities ie. osteoarthritis, liver disorder, raised GGTP (liver damage), Hyponatremia, hypertension, hypothyroidism and anxiety. He submits that the Applicant requires stress free, clean and hygienic surroundings to recover and therefore, the case of the applicant falls within the definition of sick and infirm person, and hence he may be granted regular bail. 17. On the merits of the case, contention of the learned counsel for the applicant is that the merits are not to be considered at the stage of considering bail and the allegations are a matter of trial. Though there is no recovery of any unaccounted money, incriminating material, illegal liquor bottles or counterfeit holograms from the present applicant and as per the allegation levelled in the charge sheet filed by the EOW, the total scam is of Rs. 1,660 crores. He contends that even there is no recovery of any asset from the ap....
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....satisfied that prima facie a cognizable offence was committed, FIR No. 04/2024 came to be registered under Sections 7 & 12 of the Prevention of Corruption Act and Sections 420,467,471 and 120-B IPC against 71 accused persons. The present applicant is accused NO.1 in the said FIR No. 04/2024 dated 17.01.2024 and he has been named in the supplementary charge sheet 03(B)/2024 dated 17.11.2024 along with three others. in the said charge sheet, the applicant along with co-accused Anwar Dhebar was the head of the criminal syndicate comprising high level State government officials, private persons and political executives of the State Government operating in the State of Chhattisgarh. This alleged syndicate collected illegal money in three different ways: Part A- illegal commission charged from liquor supplier for official sale of liquor in the State of Chhattisgarh. Part B - Sale of unaccounted illicit country made liquor from State run shops done with the involvement of distillers, hologram manufacturers, bottle makers, transporters, man power management and District Excise Officials. Part C - Annual Commission from distillers for allowing them to operate a syndicate and divide th....
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....ed by the criminal syndicate led by Anwar Dhebar and the present applicant who extorted maximum personal benefit for themselves with the help of co-conspirators ie. Arunpathi Tripathi and Trilok Singh Dhilllon and Others. The excise policy in the State of Chhattisgarh was amended in the year 2017 and Chhattisgarh State Marketing Corporation was created for sale of retail liquor through its stores in the State of Chhattisgarh. 23. It has been contended by the learned State counsel that the evidence against the present applicant is that he had played a key role in the appointment of co-conspirators namely Arunpati Tripathi and Niranjan Das. During the raid conducted by the IT department, mobile phone of the applicant was seized and whatsapp chats were recovered which shows that the applicant was actively involved in the appointment of co-accused Arunpati Tripathi has MD, CSMCL. In the whatsapp chat, the co-accused Anwar Dhebar was also in regular touch with the applicant regarding the business of syndicate and during investigation when the applicant was confronted with the said whatsapp chat recovered from his mobile phone, he had not denied the same. It is thus contended by the lea....
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....et another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial. They also relied on the decision of S.N. Bhattacharjee Vs. State of West Bengal 2004 (11) SCC 165 where the above principle is reiterated. The decisions in Dolat Ram and Bhattacharjee cases (supra) relate to applications for cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We however, agree that while considering and deciding the appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case o....
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.... (3) SCC 598 and Puran Vs. Ram Bilas 2001 (6) SCC 338. 19. This Court also in specific terms held that : "the condition laid down under Section 437 (1) (i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charge of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitled the accused be enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during period he was on bail. 21. Therefore, the general rule that this Court will not ordina....
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....e the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding. The decision of this Court in Prasanta has been consistently followed by this Court in Ash Mohammad v Shiv Raj Singh, (2012) SCC 446 Ranjit Singh v State of Madhya Pradesh, (2013) 16 SCC 797 Neeru Yadav v State of U.P. (2014) 16 SCC 508, Virupakshappa Gouda v State of Karnataka,(2017) 5 SCC 406 and State of Orissa v Mahimananda Mishra(2018) 10 SCC 516. 15. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjust....
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....pressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail." However, the Apex Court held that : 20. Without expressing any finding or opinion on the merits of the case, a case has been made out for setting aside the bail granted by the High Court. The High Court has manifestly erred in not taking note of the material which has been adverted to above. The order passed by the High Court fails to notice material facts and shows a non-application of mind to the seriousness of the crime and the circumstances referred to earlier which ought to have been taken into consideration. 21 The High Court has erred in not considering material relevant to the determination of whether the accused were to be enlarged on bail. The order of the High Court enlarging the accused on bail is erroneous and liable to be set aside." 27. In another judgment of the Apex Court, ie. Indresh Kumar Vs. State of Uttar Pradesh in Criminal Appeal No. 938 of 2022, it has been held that at the stage of bail, statements made under Section 161 Cr.P.C can be looked into. 28. Heard learned counsels for the parties and perused the material available on record w....
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....y of the country as a whole and thereby posing serious threat to the financial health of the country." 31. In yet another decision, ie. in the case of Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation; (2013) 7 SCC 439, wherein Hon'ble the Apex Court in paragraphs 34 & 35 has held as under:- "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The 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. 35. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations." 32. Very recent....
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....ered as FIR No. 04/2024 under Sections 7 & 12 of the Prevention of Corruption Act and Sections 420, 467, 468, 471, and 120-B IPC. It has been revealed that a criminal syndicate has been operating in the State of Chhattisgarh which was extorting illegal commission in the sale of liquor and was also involved in unauthorized sale of unaccounted liquor through government liquor shops. During the course of investigation, plethora of evidence regarding criminal involvement and illegal gratification of number of government officers including the applicant has been unearthed and their role in the crime has been established. The investigation revealed that the applicant played a pivotal role in facilitating the payment of bribes to the syndicates in collusion with other co-accused. 36. It has been pointed by Mr. Jethmalani, the learned Senior counsel on behalf of the State that the investigation so far conducted reveals that the applicant is the main person of the syndicate along with Arunpati Tripathi and Anwar Dhebar. It is apparent that the applicant was one of the main accused in the liquor scam and had misused his position being a Government servant and involved in the illegal sale of....
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....ed to be viewed seriously and considered as grave offences (See Y.S. Jagan Mohan Reddy v. CBI : (2013) 7 SCC 439 : AIR 2013 SC 1933). An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community (See State of Gujarat v. Mohanlal Jitamalji Porwal : (1987) 2 SCC 364 : AIR 1987 SC 1321). Economic offences have serious repercussions on the development of the society as a whole. The entire community would be aggrieved if the economic offenders, who ruin the economy of the State, are not brought to book in a proper manner. 41. 'Bail is the rule and jail is the exception' is the well established principle but competing forces present in the facts and circumstances of each case have to be measured before enlarging a person on bail. Socio-economic offences have deep impact affecting the moral fiber of the society and it is a matter needs to be considered seriously (See State of Bihar v. Amit Kumar @ Bachcha Rai : AIR 2017 SC 2487). 42. It is pertinent to mention here that there are other criminal antecedents and cases pending against the applicant which are as follows: i) FIR No.09/2015 registe....
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....that the investigation is still going on and 3-4 charge sheets are yet to be filed. Be that as it may, the applicant cannot take advantage at this stage because further investigation is going on and as per argument of learned Sr. Counsel on behalf of the State, 3-4 charges sheets are yet to be filed. In the present case, he was involved in the criminal acts of the syndicate and is in possession of the proceeds of crime and that he received commission from the liquor suppliers. However, no recovery of unaccounted money has been made in this regard. The details of the whatsap chats annexed with the charge sheet prima facie shows the involvement of the applicant in the present case. 44. While considering the prayer for granting bail, a balance has to be struck between two factors, namely, prejudice to the free, fair and full investigation and prevention of harassment, humiliation and unjustified detention of the accused in jail. This is a case of fraud of large magnitude where public money has been swindled by the applicant in conspiracy with other co-accused persons. The offences alleged against the applicant are very serious involving huge financial loss to the State exchequer. 45....