TaxTMI 
TaxTMI 
2024 (12) TMI 359
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....(C)/277/278 E of the IT Act read with Section 120-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 pol....
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....s from the year 2008 onwards, unhindered, and untampered. The applicant is a permanent 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 s....
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....rved in the case of Manish Sisodia (supra) that the prolonged incarceration before being pronounced guilty of an offence 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....
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.... 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 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 t....
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....lready noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, 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....
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....his is a reasonable cause for a remand. Explanation 2.-The terms on which an adjournment or postponement may be granted include, in appropriate cases, the payment of costs by the prosecution or the accused." 11. Similarly, in the matter of Javed Gulam Nabi Shaikh Vs. State of Maharastra, 2024 SC Online SC 1693, 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 th....
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....t, it would be essential for the arrested person to be aware of the grounds on which the authorized officer arrested him/her under Section 19 and the basis for the officer's 'reason to believe' that he/she is guilty of an offence punishable under the Act of 2002. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special 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 ....
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....rendered nugatory by permitting the authorities concerned to merely read out or permit reading of the grounds of arrest, irrespective of their length and detail, and claim due compliance with the constitutional requirement under Article 22 (1) and the statutory mandate under Section 19 (1) of the Act of 2002. 44. We may also note that the grounds of arrest recorded by the authorized officer, in terms of Section 19 (1) of 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 ....
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....infringement of this fundamental right would vitiate the process of arrest and remand. Mere fact that a charge sheet has been filed in the matter, would not validate the illegality and the unconstitutionality 3 (2000) 8 SCC 590 committed at the time of arresting the accused and the grant of initial police custody remand to the accused." 13. He contended that the ground on which the accused has been arrested were actually conveyed to the applicant before he was remanded 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 ....
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....d in a pick and choose manner. All the accused persons ought to have been made accuse as per the case of the ED. It is contended that one Naveen Kedia of M/s. Chhattisgarh Distillers was caught selling 20 lac bottles of illegal liquor yet no action was taken by the ACB against him. There are number of accused persons involved in the present case but ED has not yet made accused like the Excise officials, Placement agencies, cash handling agencies, distillers but none of them have been made accused 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,....
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....cracy. In the rejoinder, learned counsel for the applicant has contended that the applicant has not been convicted for any offence till date and mere pendency of the FIRs cannot be considered as antecedents. 19. Opposing the submissions made by the learned counsel for the applicant, it has been contended by the Shri Jethmalani, learned Senior counsel of the respondent that on 11.,07.2023, respondent EOW had received a communication from the Enforcement Directorate and after due verification, on being 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....
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....d thus a total amount of Rs. 1660,41,00,056/- was made by the syndicate from the financial year 2019-20 to financial year 2022-23 and had caused a huge loss to the State Exchequer. 22. It is contended that from the investigation being conducted till date, massive corruption had taken place in the Excise Department of the State of Chhattisgarh since 2019. The Excise Departments are set up to regulate the supply of liquor, ensure quality liquor to users and to prevent hooch tragedies and earn revenue for the State have been misused 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 rai....
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....dered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of Justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet 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 an....
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....ding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay Vs. Sudarshan Singh, 2002 (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 ....
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....order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide 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 fo....
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....e court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order of the High Court in the present case, in so far as it is relevant reads: "Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing 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 ....
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....dda Prasad v. Central Bureau of Investigation,(2013) 7 SCC 466 their Lordships of the Supreme Court have held that economic offence is a grave offence affecting the economy of the country as a whole and observed as under:- "23. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fibre of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. 25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy 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 ....
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.... accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) Prima facie satisfaction of the court in support of the charge. [See Chaman Lal v. State of U.P.; (2004) 7 SCC 525] 34. In this context, it is paramount to delve into the ingredients of 'forgery' and 'cheating' required to be prima facie established against the applicant, at the very threshold. Such an evaluation would have to proceed on the premise that the material gathered by the investigating agency is not to be discarded or disbelieved at this stage. 35. It is the case of the prosecution that the EOW had received a communication from the Enforcement Directorate and after due verification and on being satisfied, case was registered 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 involv....
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....using bail to a person accused of a non-bailable offence, (1) The nature of the offence (2) The severity of the punishment which conviction will entail (3) The character, behaviour, means and standing of the accused (4) The circumstances which are peculiar to the accused (5) The status and position of the accused in relation to the victim or the complainant (6) Reasonable possibility of securing the presence of the accused during the trial (7) Reasonable apprehension of the witnesses being tampered with (8) The larger interests of the public or the State or the society (9) Likelihood of the accused fleeing from justice (10) Absence or presence of materials in support of the accusation (11) Likelihood of the offence being repeated (12) Frivolity in prosecution. 40. Economic offences, having deep-rooted conspiracies and involving huge loss of public funds, need 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 e....
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....the estimated proceeds of crime is around Rs. 1660,41,00,056/-, have not been made accused despite the fact that their name has been mentioned in the complaint made by the ED as member of the syndicate. Even though some of the witnesses have admitted in their statement before the police and statement recorded under Section 164 of the Cr.P.C. that they were involved in the syndicate crime but they are listed as prosecution witnesses without being granted pardon by the competent court. Prima facie it appears that the prosecution has adopted an inconsistent stance being both hot and cold in its approach and has acted in a pick and choose manner in investigation. It is stated by the learned counsel for the respondent that the applicant was involved in the criminal syndicate and maximum personal beneifts were acquired by the syndicate but surprisingly, no recovery in relation to the earnings made by the illegal liquor has been made from the present applicant. However, Shri Jethmalani, learned Senior Counsel contended 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 inv....