Enforcement Directorate vs Shri Debabrata Halder on 20 December, 2022

[Cites 28, Cited by 2]

Calcutta High Court (Appellete Side)

Enforcement Directorate vs Shri Debabrata Halder on 20 December, 2022

Bench: Tirthankar Ghosh

IN THE HIGH COURT AT CALCUTTA
CRIMINAL MISCELLANEOUS JURISDICTION
APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE TIRTHANKAR GHOSH

CRM (SB) 93 of 2022
Enforcement Directorate
-vs.-
Shri Debabrata Halder

Mr. Arijit Chakraborty.
...For the applicant/Enforcement Directorate.
Mr. Debasish Roy,
Mr. Soumik Ganguly,
Mr. Dilip Kumar Sadhu.
...For the Opposite Party no.1
Mr. Biswajit Hazra,
Mr. Rajib Mukherjee,
Mr. Archisman Sain.
...For the Opposite Party no.2 & 9
Mr. Sayan De,
Mr. Sayan Kanjilal.
...For the Opposite Party no.3 & 4
Mr. Rakheswar Dey Sarkar.
...For the accused no.5
Ms. Anita Kaunda,
Ms. Anubrata Dutta.
...For the accused no.6
Mr. Manoj Malhotra,
Mr. Ravi Kumar Dubey,
Mr. Samrat Dey Paul.
...For the accused nos.7 & 8
Mr. Ayan Bhattacherjee,
Mr. Aniruddha Bhattacharyya.
...For the accused nos. 10 &11

Reserved on : 23.11.2022

Judgment on : 20.12.2022
2

Tirthankar Ghosh, J:-

The petitioner has challenged the order dated 12.04.2022 passed by the

learned Judge, Special (CBI) Court No.1, Bichar Bhawan, Calcutta and Special

Court under the Prevention of Money Laundering Act, 2002 in M.L. Case No.

11 of 2021, arising out of ECIR No.KLZO/03/2018 dated 14.03.2018, thereby

praying for cancellation of bail of the opposite party namely, Debabrata Halder.

The genesis of the case relate to ECIR No. KLZO/03/2018 dated

14.03.2018 for alleged offence under the provisions of Prevention of Money

Laundering Act, 2002 (hereinafter referred to as 'PMLA, 2002'). The substance

of the accusations in brief are as follows:

(a) On a complaint made by the authorities of National Small

Industries Corporation Limited, a Government of India undertaking

organisation (hereinafter referred to as 'NSIC') relating to loss of

public money to the tune of Rs.173.50/- crore by wrongful

invocation of Bank Guarantees/invocation of fake Bank

Guarantees issued by various branches of the then United Bank of

India (hereinafter referred to as 'UBI'), FIR bearing no.161 dated

26.07.2016 was registered with Bidhannagar North Police Station,

Kolkata against the opposite party Debabrata Halder, a

middleman, having its office at 29C, Bentick Street, Ground Floor,

Room No.-2, Kolkata-700069 and others. The case was thereafter

investigated by Anti Cheating &Fraud Section, CID, West Bengal
3

and charge-sheet no. 60/2018 dated 28.04.2018 was submitted

before the competent Court for offences under Section

420/406/408/409/467/468/120B of the Indian Penal Code for

diversion of public money to the tune of Rs.173.50/- crore under

the garb of availing assistance of Raw Material Assistance Scheme

(hereinafter, referred as 'RMA Scheme') to various MSME firms, in

connivance with officials of NSIC, UBI and some other persons who

acted as middleman.

(b) On scrutiny of the material which constituted offences punishable

under the PMLA, 2002, ECIR No. KLZO/03/2018 dated

14.03.2018 under the PMLA, 2002 was registered for investigation.

NSIC, a Government of India Enterprise which arranged for credit

support through various Banks to MSME's, under the RMA

Scheme. The RMA Scheme was aimed for helping MSME's by way

of financing the purchase of essential raw materials which gives an

opportunity to MSME's to focus better on their business prospects.

In the case of Raw Materials, NSIC makes direct payment to the

supplier/manufacturer of the Raw Material on specific request of

the concerned MSME's. The assistance under RMA Scheme is

provided against 100% security to Bank Guarantee of approved

banks.
4

for diversion of public money to the tune of Rs.173.50/- crore

surfaced which are as follows:

 Duel set of Bank Guarantees, both in original stamp papers,

were prepared for providing collateral security to avail credit

facility from NSIC under RMA Scheme.

 One Bank Guarantee was submitted to NSIC as collateral

security for availing credit facility under RMA Scheme and

the other Bank Guarantee was kept with them.

 One of the syndicate members impersonated himself as Mr.

K. Banerjee, Deputy Manager, NSIC, who was instrumental

in invocation of other set of Bank Guarantee available with

them by submitting request with fake invocation letter of

NSIC, to the Bank. The proceeds of the invocation of those

Bank Guarantees were paid through Pay Order in favouring

NSIC.

 In those pay orders prepared by the branch, name of the

MSME unit was not mentioned. After preparation of the pay

order by invoking the Bank Guarantee the same was

delivered to Mr. K. Banerjee by hand.

 Bank never verified the identify of Mr. K. Banerjee either at

the time of receiving request of invocation of Bank Guarantee
5

or at the time of handing over the proceeds of Bank

Guarantee in the form of pay order.

 The proceeds of Bank Guarantee inthe form of pay order was

deposited in the account of other NSIC branch which was

not the actual beneficiary of the invoked Bank Guarantee.

 The depositors then confirmed over phone to the respective

branch of NSIC, whether the amount deposited in its

account was received or not. As the pay orders were

deposited in the account of that branch of NSIC, the official

of that respective branch used to confirm the same.

 After having confirmation about credit of that amount into

the account of that NSIC branch, the depositor then used to

identify as proprietor of certain unit against whom payment

was due and asked them to credit the said amount in their

account to meet up the dues pending against particular unit.

 In this way the proceeds of wrongful invocation of Bank

Guarantees were used to repay the dues of units of other

branch of NSIC.

 Once the issue of one Bank Guarantee stopped the whole

system of routing/movement of funds by issuance of Bank

Guarantee, invocation of the same, deposit of the proceeds

into the account of another NSIC branch and using the same

for settlement of dues of some other units collapsed. To
6

continue the whole practice of movement of funds, 18 fake

Bank Guarantees were prepared by the accused persons and

were used to avail credit facilities under RMA Scheme.

(d) During investigation under PMLA, 2002 searches were conducted

at the residential premises of Debabrata Halder and his other

associates which resulted in seizure of proceeds of crime worth

Rs.6.24/- crores, and several incriminating documents were

recovered. The accused Debabrata Halder was found to be involved

in the commissionof offences of money laundering, by indulging in

criminal conspiracy with bogus supplier, MSME units of Bank

Officials to obtain proceeds of the crime with the aim of

convertingthe illegal money into legitimate money. He was also

found to be knowingly involved and a party in the process and

activity connected with the proceeds of crime including its

concealment, possession, acquisition, use and projecting/claiming

the said proceeds of crime an untainted property deriving illegal

monetary gains.

In course of investigation it revealed that the accused Debabrata Halder

was involved in the process of laundering of proceeds of crime and as such he

was arrested under Section 19 of PMLA, 2002 on 17.11.2021 and was

produced before the learned Special Court under PMLA, 2002, before the

learned Judge, Special (CBI) Court No.1, Bichar Bhawan, Calcutta. The

accused/opposite party no.2 was remanded from 17.11.2021on different dates
7

till he was granted bail on 12.04.2022. In meantime on 15.01.2022 the

Enforcement Directorate/prosecution filed its final report under Section 45 of

the PMLA, 2002 against 13 accused persons including the accused Debabrata

Halder alleging commission of offence under Section 3 of PMLA, 2002

punishable under Section 4 of the said Act and the learned Judge by an order

dated 15.01.2022 was pleased to take cognizance of the offence and issued

summons in respect of rest of the accused persons.

The background of the case which weighed to the filing of the application

for cancellation of bail was the order dated 12.04.2022 wherein the learned

Judge, Special (CBI) Court no.1, Calcutta by the said order granted bail to the

accused/opposite party namely Debabrata Halder. It was submitted by the

learned Advocate appearing for the petitioner that the learned Special Court by

its order dated 12.04.2022 was of the view that as there is no prayer for further

investigation and no purpose would be served by keeping the accused in

custody for indefinite period, weighed with the Learned Special Court for

granting bail to the accused Debabrata Halder. The said order also reflected

that the accused was in custody since 17 th November, 2021 and the

Investigating Authorities on completion of investigation filed complaint under

the relevant provisions of the PMLA. While considering the order dated

12.04.2022 this Court noticed the order dated 04.04.2022 wherein all accused

persons namely, Sudhangshu Kumar Halder, Gopinath Bhattacharya, Manik

Lal Das, Jayanta Das, Kedar Nath Pursty, Pradeep Kumar Gangopadhyay,

Manik Mohan Mishra, Pappu Halder, Aloke Choudhury, Santosh Singh
8

appeared/surrendered and prayed for bail. The learned Special Court was of

the opinion that as the accused persons has appeared pursuant to the

summons and surrendered before the Court thereon they are on a different

position/situation than the accused who was arrested in connection with the

instant case and as such released the accused persons on bail. As the said

order dated 04.04.2022 reflected that the learned Special Court did not take

into consideration the provisions of PMLA and the order passed was in the

nature of an order under Section 437/439 of the Code of Criminal Procedure

this Court by its order dated 28th July, 2022 was pleased to issue show cause

as to why their bail should not be cancelled and directed them to appear before

this Court. Pursuant to such order the accused persons appeared before this

Court and filed their affidavits.

Mr. Arijit Chakraborty, learned Advocate appearing for the

Applicant/Enforcement Directorate submitted that the subject matter of the

case related to a fraud amounting to a sum of Rs.173.50/- crore in respect of

schedule offence and the Anti Cheating and Fraud Section, CID, West Bengal

has submitted their charge-sheet before the competent Court for offences

under Section 420/406/408/409/467/468/120B of the Indian Penal Code.

The Enforcement Directorate considered the offence, the manner in which the

proceeds of the crime were assimilated by the accused persons. On completion

of initial investigation complaint was filed under Section 45 of the PMLA on

15th January, 2022 before the learned Special Court where the facts and

circumstances constituting offence under Section 3 of the Act which is
9

punishable under Section 4 of the Act so filed against 13 accused persons

including the opposite party and the other accused have been set out in detail.

In paragraph 21 of the said complaint the Enforcement Directorate craved

leave to file supplementary complaint as the investigation is still continuing.

The learned Special Court vide its order dated 15.01.2022 in M.L. Case No.

11/2021 took cognizance of the offence. According to the learned Advocate

Explanation (ii) to Section 44(1) of PMLA, 2002 explains that complaint shall be

deemed to include any subsequent complaint in respect of further investigation

that may be conducted to bring any further evidence, oral or documentary

against any accused person involved in respect of the offence, for which

complaint has already been filed, whether he has been named in the original

complaint or not, as such for filing of supplementary/subsequent complaint in

the pending case before the learned Trial Judge, no prayer is required by the

Investigating Agency. It has also been submitted that the order dated

04.04.2022 would reflect that the bail petition was filed on 24.03.2022 and the

trial Court fixed hearing of such bail application on 12.04.2022, while the

production of the accused/opposite party Debabrata Halder was fixed on

10.06.2022, thus on 12.04.2022 oral objection was raised on behalf of the

Enforcement Directorate to the prayer for bail of the accused. The order dated

15.01.2022 primarily reflect that the learned trial Judge, after dealing with the

submissions made on behalf of the Enforcement Directorate observed that the

investigation revealed fake agency and there is sufficient material against the

present accused and prima facie a case has been made out against him. The
10

amount of money siphoned is to the tune of Rs.173.50/- Crore. In the

subsequent order dated 14.02.2022 the learned trial Court held that in view of

the order dated 15.01.2022 there is no further development in favour of the

accused thus the bail petition is rejected, subsequently in the order dated

12.04.2022 the learned trial Court according to the applicant erroneously held

that there is no prayer for further investigation so the Court can safely say that

at this moment there is nothing for further investigation and as such no

purpose would be served if the accused is kept in the custody for indefinite

period. The applicant/Enforcement Directorate categorically submitted that the

learned Trial court failed to consider the mandatory nature of Section 45 of

PMLA, 2002 and ignored the decision of the Hon'ble Supreme Court. It has

been emphasized that in Ajay Kumar -Vs. - Directorate of Enforcement

reported in 2022 SCC OnLIne Bom 196 the Hon'ble Bombay High Court held

that the twin conditions in Section 45(1) of PMLA, 2002 which was declared

unconstitutional by the Hon'ble Supreme Court in the case of Nikesh

Tarachand Shah -Vs. - UOI &Ors. reported in (2018) 11 SCC 1 revived in view

of the legislative intervention vide Amendment Act 13 of 2018. Reliance was

placed on Assistant Director, Enforcement Directorate -Vs. - Dr. V.C. Mohan

wherein according to the applicant the mandate of Section 45 of the PMLA was

emphasized. The learned Advocate also relied upon Assistant Director,

Directorate of Enforcement - Vs. - N. Umashankar & Ors. wherein the Hon'ble

Supreme Court was pleased to set aside the order granting bail passed by the

Hon'ble High Court of Madras on the ground that the High Court has not dealt
11

with the relevant aspects of the matter including the statutory bar for grant of

bail in cases relating to PMLA. Learned Advocate also relied upon the judgment

of the Hon'ble Supreme Court in Vijay Madanlal Choudhury & Ors. -Vs. -

Union of India & Ors. which will be dealt with later. According to the learned

Advocate for the applicant/Enforcement Directorate the learned trial Judge,

enlarged the accused Debabrata Halder on bail without reasoning on the

statutory bar under Section 45 of the PMLA Act, as such the said order dated

12.04.2022 is ex-facie bad in law.

Mr. Debasish Roy, learned Advocate appearing for the accused/opposite

party submitted that the learned Special Court after conclusion of the

investigation and filing of the complaint and keeping in mind the provisions of

Section 45 of the PMLA Act granted bail to the opposite party. The plea of the

Enforcement Directorate that further investigation process was described in

one of the paragraph of the complaint based on which the investigating agency

has sought for cancellation of bail of the accused are basically the process

which the applicant ought to have exhausted before filing of the complaint in

terms of the Act. Mere filing of the complaint after a purported investigation

conducted in a slip-shod manner to secure the custody of the accused after the

expiry of the statutory period, should not suffice the pleadings in the

application with regard to continuation of further investigation. The bail so

granted on 12.04.2022 was in conformity with the statutory requirement and

the approach of the applicant is to venture for a never ending investigation for

an indefinite period of time. According to the learned Advocate the
12

accused/opposite party was arrested on 17.11.2021 and was granted bail on

12.04.2022 while the complaint was filed on 15.01.2022. It has been reiterated

that after five months the bail application was allowed by the learned Special

Court and the very purpose of filing such an application for cancellation is that

the Investigating Agency failed to unearth any admissible evidence in Course of

their investigation prior to filing of the complaint and as such sought the

prayer for cancellation under the garb of further investigation. Learned

Advocate relied upon the judgment of the Hon'ble Supreme in Satender Kumar

Antil -Vs. - Central Bureau of Investigation and Anr. reported in 2022 SCC

OnLine SC 825.

Mr. Biswajit Hazra, learned Advocate appearing for accused no.2,

Sudhangshu Kumar Halder and accused no.9, Pappu Halder, filed show-cause

and submitted that the accused persons voluntarily surrendered after receiving

the summons and they along with other co-accused persons were granted bail

by the order dated 12.04.2022. It was contended that as the

applicant/Investigating Agency did not file any application for cancellation of

bail of the present accused persons there is no reason to interfere with the

order of bail granted to them. Additionally it has been submitted that as the

investigating agency did not exercise their powers to arrest in the instant case

their bail may not be cancelled. It has also been submitted that the present

accused persons are not similarly situated in respect of the alleged offence with

Debabrata Halder and the accused no.9 namely, Pappu Halder was not

implicated as an accused in the charge-sheet submitted by the CID which has
13

been considered to be a schedule offence in respect of the investigation carried

out by the Enforcement Directorate. Learned Advocate submitted that the

accused persons would be prejudiced in case their bail is cancelled after about

8 months.

Mr. Sayan De, learned Advocate appearing for the accused no.3 and 4

submitted that the complicity of the accused persons namely, Gopinath

Bhattacharya and Manik Lal Das, if at all did not inspire the Investigating

Agency to exercise their powers under Section 19 of the PMLA, 2002 as no

incriminating materials in the nature relating to proceeds of crime could be

recovered from them. It has been reiterated that the accused persons are law

abiding citizens and as such on receipt of the summons they appeared before

the learned Special Court and the learned Special Court after considering the

materials appearing against them and the issues canvassed by the

Enforcement Directorate was pleased to allow them to be released on bail. It

has been submitted that so far as the rigors of Section 45 of the PMLA are

concerned the same do not apply to the present accused persons and as such

their prayer for bail should not be interfered with.

Mr. Rakheswar Dey Sarkar learned Advocate appearing for the accused

no.5Jayanta Das denied the allegations made against the accused no.5 and

reiterated the contentions advanced by the learned Advocates for other accused

persons. It was submitted that as the Investigating Agency in course of

investigation did not invoke the provision of Section 19 of the PMLA or their
14

powers to arrest, the accused no.5 as such, at this stage should not be sent to

custody. Additionally it has been submitted that the complicity of the accused

Jayanta Das could not be established by the investigating agency and he has

been implicated only on the basis of charge-sheet submitted by the CID, West

Bengal. The purpose for which the PMLA, 2002 was brought into force

particularly, with regard to the assessment, scrutiny and recovery of proceeds

of crime do not apply to the present accused and as such the rigors of Section

45 of the PMLA relating to bail do not apply to the present accused and the

learned trial Court keeping in mind the aforesaid provisions of law, the conduct

of the accused who appeared in response to the summons without evading the

same, granted bail which should not be interfered with.

Ms. Anita Kaunda, learned Advocate appearing for the accused no.6

namely, Kedar Nath Pursty submitted that he was Chief Manager of United

Bank of India, Hazra Branch which was no way concerned for issuing fake

Bank Guarantee. The accused has been falsely implicated in connection with

the instant case and there is nothing on record to suggest that the present

accused as a Manager accumulated proceeds of crime or has been beneficiary

of the same. In a routine manner without conducting any investigation the

Enforcement Directorate inserted the name of Kedar Nath Pursty as an

accused in the instant case as he was named by the CID, West Bengal in its

charge-sheet, the same is unfortunate. It has also been added that the present

accused in response to the summons appeared before the Court by not evading

the Investigating Agency or the Court and as such the learned Trial Court after
15

being satisfied, that the rigors of Section 45 of PMLA is not applicable to the

present accused was pleased to grant him bail. Learned Advocate submitted

that any interference in theorder of bail would seriously prejudice the present

accused in view of the fact that the accused was arrested by CID, West Bengal

and was in custody for a considerable period of time, while on bail in the

instant case for more than 8 months there were no allegations against him that

he has misused the liberty granted to him.

Mr. Manoj Malhotra, learned Advocate appearing for the accused no.7

and accused no.8 namely, Pradeep Kumar Gangopadhyay and Manik Mohan

Mishra submitted that the accused persons were granted bail as they

surrendered before the Special Court on the date fixed for appearance

pursuant to the summons being received by them. Neither there is any

allegation nor they hadattempted to flee away from the process of law or

tampered any witness/evidence in the instant case. It has also been pointed

out that Pradeep Kumar Gangopadhyay is aged about 68 years, he was Senior

Manager of Behala Branch of United Bank of India and has retired on 30 th

September, 2015. The case registered by the CID, West Bengal was on the

basis of a complaint of National Small Industries Corporation Limited which

was dated 26th September, 2016. In the said case being Bidhannagar North

Police Station Case no. 161 dated 26.07.2016, the accused No.7 was arrested

on 27.06.2017 and was in custody for about 93 days after which he was

granted bail by the learned ACJM, Bidhannagar. Learned Advocate has

submitted that during course of investigation all the documents relating to pre-
16

retirement savings and post-retirement assets which were available with him

along with the source of funds were handed over to the investigating. Learned

Advocate submitted that the Investigating Agency in course of investigation did

not arrest the accused no.7 and as such his liberty should not be interfered,

keeping in mind the fact that he never conducted himself in a manner which

would be prejudicial to the investigation, inquiry or trial of the case. So far as

the accused no.8 Manik Mohan Mishra is concerned, it has been submitted

that the accused was employed with United Bank of India and was suspended

due to internal disciplinary proceeding. In connection with Bidhannagar North

Police Station case no. 161 dated 26.07.2016 which was initiated by the

National Small Industries Corporation he was arrested and was granted bail

after 93 days. Learned Advocate submitted that the accused no.8 has informed

the petitioner his source of money and cooperated with the investigating

agency. According to him by no stretch of imagination the rigors of Section 45

of the PMLA could be made applicable this accused. It has been prayed that

having regard to the circumstances appearing in favour of the accused, liberty

granted to accused no.8 should not be interfered in view of the fact that he has

been cooperating with the Investigating Agency and has nevermisused the

liberty which has been granted to him.

Mr. Ayan Bhattacherjee, learned Advocate appearing for the accused

no.10 and 11 being Aloke Choudhury and Santosh Singh respectively,

submitted that in respect of the present accused persons the Enforcement

Directorate did not pray for cancellation of bail. Learned Advocate submitted
17

that rule/notice which was issued by the Court was for the limited purpose

pertaining as to whether the bail which was granted by the learned Special

Court was adhering to the conditions relating to Section 45 of the PMLA. It has

also been submitted that the Enforcement Directorate did not feel it necessary

for advancing any prayer for cancellation of bail for the present accused

persons and/or there are any supervening circumstances that callsfor

interference by this Court.Additionally it has been submitted that by detaining

the present accused persons in custody no fruitful purpose would be served as

the present accused persons were neither beneficiaries to the proceeds of crime

nor they are even alleged to be in possession of such proceeds of crime. In

order to substantiate his argument Mr. Bhattacharjee relied upon Vijay

Madanlal Chaudhury & Ors. -Vs. - Union of India &Ors. reported in 2022 SCC

OnLine SC 929; Pratap Singh -Vs. - State of Jharkhand & Anr. reported in

(2005) 3 SCC 551; Maru Ram -Vs. - Union of India &Ors. reported in (1981) 1

SCC 107;Mohd. Abdul Sufan Laskar & Ors. -Vs. - State of Assam reported in

(2008) 9 SCC 333; Sukh Ram -Vs. - State of Himachal Pradesh reported in

(2016) 14 SCC 183.

Mr. Bhattacharjee submitted that in this case FIR relating to

Bidhannagar (North) police station was registered on 26 th July, 2016;

conditions of bail enumerated in Section 45 of the PMLA, 2002 were struck

down by the Hon'ble Supreme Court in Nikesh Tarachand Shah -Vs. - Union of

India & Anr. reported in (2018) 11 SCC 1 on 23rd November, 2017; the ECIR

was registered in connection with the present case on 14 th of March, 2018; the
18

twin conditions which were earlier struck down were revived by the Parliament

vide Act 13 of 2018 with effect from 19th April, 2018; charge-sheet was filed by

the police authorities in connection with Bidhannagar (North) P.S. case against

11 accused persons including accused/respondent no.10 and 11 under Section

420/406/408/409/467/468/469 of the Indian Penal Code; pursuant to the

summons issued in the ECIR respondent/accused no.10 and 11

appeared/surrendered before the learned Special Court on 4 th of April, 2022.

According to the learned Advocate the judgment of the Hon'ble Supreme Court

in Vijay Madanlal Choudhury & Ors. (supra) cannot have a retrospective

operation and the Amendment Act was effective from 19.04.2018 which is

prospective in operation. Relying upon Pratap Singh -Vs. State of Jharkhand

&Anr. reported in (2005) 3 SCC 551 (Para 88), the learned Advocate submitted

that in case of Juvenile Justice (Care and Protection of Children) Act, 2020 it

was held that it would come into force on such date by a notification in the

official gazette as the Central Government may appoint on 1 st April, 2021. The

Central Government issued notification and it was held in the reported

judgment that "the Act, thus, is prospective in its operation". Learned Advocate

reiterated that every statute is presumed to be prospective in operation unless

otherwise specified. It was further contended that the

respondent/accusedno.10 and 11 surrendered before the Court immediately on

receipt of summons and they also complied with the notices issued by the

Enforcement Directorate on 05.07.2019, 10.12.2021, 11.12.2021, 03.01.2022

and 22.02.2022. The respondent no.10 and 11 were never arrested and as
19

such the provisions of Section 45 of the PMLA, 2002 will not be applicable to

them as Section 19 of the PMLA prescribes the powers of arrest which casts an

obligation upon the Investigating Officer to arrest a person in case such officer

has reason to believe that such accused is guilty of an offence, which is unlike

Section 41 of the Code of Criminal Procedure. Learned Advocate in order to

substantiate his contention relied upon Vijay Madanlal Chaudhury & Ors. -Vs.

- Union of India &Ors. reported in 2022 SCC OnLine SC 929; Pratap Singh -

Vs. - State of Jharkhand &Anr. reported in (2005) 3 SCC 551; Maru Ram -Vs.

- Union of India &Ors. reported in (1981) 1 SCC 107 Mohd. Abdul Sufan

Laskar & Ors. -Vs. - State of Assam reported in (2008) 9 SCC 333; Sukh Ram -

Vs. - State of Himachal Pradesh reported in (2016) 14 SCC 183; Reserve Bank

of India -Vs. - Peerless General Finance and Investment Co. Ltd. reported in

(1987) 1 SCC 424; Madhu Limaye & Anr. -Vs. - Ved Murti & Ors. reported in

(1970) 3 SCC 739 and Union of India -Vs. - K.A. Najeeb reported in (2021) 3

SCC 713.

Mr. Arijit Chakraborty learned Advocate appearing for the Enforcement

Directorate narrated a synopsis of the role attributed by each of the accused

persons in commission of the offence, the same are set out as follows:

(1) Debabrata Halder (accused no.1):He is the main architect and

conspirator of the whole offence and has enriched himself in the

process of financial assistance under RMA scheme of NSIC by way of

issuance and invocation of Bank Guarantee from United Bank of

India, in collusion with his associates in NSIC as well as United Bank
20

of India. He by way of creating several non-existent/fake MSME firms

which only existed as paper companies through his associates,

namely, Utpal Sarkar and Pappu Halder and with Identity

cards/personal details of some exploited persons created fake MSME

units which were later utilized for availing financial assistance from

NSIC under its RMA scheme. The accused attempted to convert such

earnings/money by projecting it as agricultural income/income from

his various firms/companies, for which he entered into lease

agreement of agricultural lands/fake bills regarding business of dry

fish etc. His statement under Section 50 of the PMLA, 2002 is self

explanatory in modus operandi of the offence and the conversion of

money in collusion with others, which includes officials of NSIC and

United Bank of Indiafor diversion of funds. The accused was directly

involved with the concealment, possession, acquisition, use of

proceeds of agreement and projecting them as untainted, for which

according to the provisions/Act he has committed the offence under

Section 3 of PMLA which is punishable under Section 4 of the said

Act.

(2) Sudhangshu Kumar Halder (accused No.2): He was a NSIC Official

at Kolkata Branch and was working in RMA section. He had

association with accused no.1 Debabrata Halder since 2009-10 and

was working as a consultant for processing of RMA proposal of

various MSME units. He guided Debabrata Halder about procedure
21

relating to processing, sanction, disbursement, financial assistance

under RMA scheme. He was shown as an accused in the CID case for

being involved in financial irregularities in NSIC due to wrongful

invocation of Bank Guarantees/ invocation of fake Bank guarantees.

He was also associated with many co-conspirators. He was getting

monthly remuneration in cash which was arranged through

misappropriation of NSIC funds.

(3) Gopinath Bhattacharya (accused no.3): He was working as Deputy

Manager in NSIC, Kolkata Branch and was associated with Debabrata

Halder since his initial days. He was later posted as Manager of NSIC,

Kolkata Branch and Salt Lake Branch. His role was assigned for

smooth processing of RMA assistance proposal and to take care of any

hurdle in this regard. He was paid Rs.15 lacs for each proposal of

Rs.3 crores under RMA scheme. He was found to have knowingly

assisted in the process/activity connected with the proceeds of crime

and thus has committed offence under Section 3 of the PMLA and

punishable under Section 4 of the said Act.

(4) ManikLal Das (accused no.4): He was an associate of Debabrata

Halder who was Manager of Salt Lake and Kolkata Branch of NSIC.

His role was similar to that of Gopinath Bhattacharya i.e. processing

of RMA assistance proposal, processed in the name of fictitious firms.

He also received remuneration of Rs.15 lacs for each RMA proposals

of Rs.3 crores. He was found to have indulged in recommendation for
22

availing post-retirement services of Sudhangshu Kumar Halder for

better control over diversion of public money, through RMA proposal

in the name of fictitious/non-existent MSME firms. He was found to

have committed offence under Section 3 of the PMLA and punishable

under Section 4 of the said Act.

(5) Jayanta Das (Accused No.5): His main work was to collect proposal

of RMA assistance from the MSME firms and inspection of such firms

to assess their business viability, existence and other related

conditions. He was also instrumental in getting the Bank Guarantee

verified from the issuing branch and its regional offices. He was

instrumental in preparing appraisal of the loan proposals inspecting

the units, submitting his recommendation, based on such inspection

it was decided which RMA proposal would be sanctioned. No actual

verification was made for ascertaining the existence and business

viability of such firms. Payment of Rs.3 lacs per RMA proposal of Rs.3

crores were paid to him in cash on each occasion. He was found to

have connection with Debabrata Halder and as such committed the

offence under Section 3 of the PMLA.

(6) Kedar Nath Pursty (Accused No.6):He was the main associate

person who guided Debabrata Halder, about opening of accounts,

issuance of Bank Guarantees and invocation of the same. He was

known to Debabrata Halder since 2005 and developed close

acquaintance with him, during sanctioning of his Cash Credit account
23

at the branch. Later he decided to explore the possibility of issuance

of Bank Guarantee for RMA proposal of NSIC and subsequently,

invocation of the same during his posting in Kudghat Branch. The

first Bank Guarantee which was issued is in the name of Arunabha

Enterprise on 08.01.2010 for an amount of Rs.4 lacs, having validity

of one year. Later two Bank Guarantees were also issued each in the

name of Gupta Traders and Fashion Track. These Bank Guarantees

were invoked within one week of their issuance as he was transferred

from Kudghat branch to Jadavpur branch. Payments of Rs.15 lacs

were made to him for issuance of Bank Guarantee valued Rs.3 crores

favouring NSIC, generally for each unit. Apart from this he was paid

Rs.5 lacs for each set of Bank Guarantees valued at Rs.3 crores

issued by Pradip Kumar Gangopadhyay and Manik Mohan Mishra.

Having assessed his role he was found to be involved in commission of

the offence under Section 3 of PMLA.

(7) Pradip Kumar Gangopadhyay (Accused No.7): He was Branch

Manager of Jadavpur Vidyapith Branch of United Bank of India and

was also associated with Debabrata Halder, in issuance of Bank

Guarantee in favour of NSIC and also for wrongful invocation of the

same in similar manner as KedarNathPursty. Payment of Rs.10 lacs

were made to him for each RMA proposal having Bank Guarantees

valued Rs.3 crores for his assistance in issuance of Bank Guarantees

favouring NSIC and wrongful invocation thereof. He also received
24

payments of Rs.1-1.5 lacs for extending his post-retirement services

regarding issuance and invocation of Bank Guarantee for each set of

Bank Guarantees valued at Rs.3 crores. He was found to be

associated with Debabrata Halder and has committed the offence

under Section 3 of PMLA.

(8) Manik Mohan Mishra (Accused No.8): He was successor of Pradeep

Kumar Gangopadhyay in Jadavpur Vidyapeeth Branch of United

Bank of India. He carried forward the whole process of issuance of

dual Bank Guarantees favouring NSIC and further wrongful

invocation thereof by Pradeep Kumar Gangopadhyay. Payment of

Rs.10 lacs were also made to him for each set of Bank Guarantees

valued Rs.3 crores. About 18 fake Bank Guarantees were also issued

by him without entering their details into the software system of

United Bank of India. Payment of Rs.17.5 lacs were made to him for

issuance of each set of such fake Bank Guarantees of Rs.3 crores. He

was found to have committed the offence under Section 3 of PMLA.

(9) Pappu Halder (Accused No.9): He was one of the close associates of

Debabrata Halder in all activities related to NSIC scam. He is elder

son of Sudhangshu Kumar Halder who was working in RMA section in

NSIC, Kolkata office and was a close associate of Debabrata Halder.

He handled works in connection with processing of various

documentation viz. opening bank accounts in the name of various

units related to the RMA scheme, arranged non-functional/fictitious
25

MSME units, availed financial assistance under RMA scheme. He also

arranged new units to complete documentation in relation to bank

etc. in connection with availing financial assistance under RMA

scheme. He arranged about 20 units and total amount of Rs. 1 crore

was paid to him. He has committed offence under Section 3 of the

PMLA.

(10) Aloke Choudhury (Accused No.10): He was working as Chief

Manager (credit) in Behala Regional Office of United Bank of India

having administrative control over its Jadavpur Vidyapith Branch. He

was associated with Debabrata Halder in confirmation of Bank

Guarantees issued in favour of NSIC. He also worked as Head of

Credit/Advance department in Behala Regional Office and was

responsible to look after the activities relating to all credit facilities,

extended by the branches under the administrative control of the then

Behala Regional Office. Payment of Rs.20-25 lacs were paid to him

regarding issuance/confirmation/invocation of Bank Guarantees for

each set of Bank Guarantees valued Rs.3 crores issued in favour of

NSIC. He has committed the offence under Section 3 of PMLA.

(11) Santosh Singh (Accused No.11):He was successor of Aloke

Chowdhury and was working as Credit Manager (Credit) in Behala

Regional Office of United Bank of India, having administrative control

over its Jadavpur Vidyapith Branch. He was actively associated with

Debabrata Halder, in confirmation of Bank Guarantees issued in
26

favour of NSIC, on request of NSIC authorities. He was also

functioning as Head of Credit/Advance Department in Behala

Regional Office and was responsible to look after the activities relating

to all credit facilities extended by the branches under the

administrative control over the then Behala Regional Office. It was

clearly mentioned in the monthly discretionary power statements of

different branches that the Branch Manager of Jadavpur Vidyapith

Branch had issued Bank Guarantees much beyond his discretionary

power. However, he never recommended any action against such

branch manager and always tried to rectify the issuance of those

Bank Guarantees. Payment of Rs.20-25 lacs were made to him for

extending his services regarding issuance/confirmation/invocation of

Bank Guarantee for each set of Bank Guarantees valued Rs.3 crores

issued in favour of NSIC. Further, payment of Rs.30 lacs were also

separately made for confirmation of 18 fake Bank Guarantees. He has

also committed offence under Section 3 of the PMLA.

Learned Advocate appearing for the Enforcement Directorate has relied

upon the judgment of Vijay Madanlal Choudhury & Ors. -Vs. - Union of India

reported in 2022 SCC OnLine SC 929[para 115 to 136 at page 407 to 450].

Learned Advocate has also relied upon the judgment of the Hon'ble Bombay

High Court in Ajay Kumar Chandraprakash Baheti -Vs. - Directorate of

Enforcement (through the Assistant Director, Sub-Zonal Office, Nagpur)

reported in AIR Online 2021 BOM 5356. Two judgments of the Hon'ble
27

Supreme Court in The Assistant Director Enforcement Directorate -Vs. - Dr.

V.C. Mohan (Criminal Appeal No. 21 of 2022); The Assistant Director,

Directorate of Enforcement -Vs. - N. Umashankar & Ors. arising from SLP

(Crl) Nos. 7563-7565 of 2021; P. Chidambaram -Vs. - Directorate of

Enforcement reported in AIR 2019 SC 4198; Sanjay Agarwal -Vs. - Directorate

of Enforcement reported in 2022 Crl.L.J. 2219.

Records of this case reveal that by an order dated 15.01.2022 final report

was filed by the complainant Nishant Neeraj of Enforcement Directorate under

Section 45 of the PMLA, 2002 against (1) Shri Debabrata Halder, (2) Shri

Sudhangshu Kumar Halder, (3) Shri Gopinath Bhattacharya, (4) Shri Manil Lal

Das, (5) Shri Jayanta Das, (6) Shri Kedar Nath Pursty, (7) Shri Pradeep Kumar

Gangopadhyay, (8) Shri Manik Mohan Mishra, (9) Shri Pappu Halder, (10) Shri

Alok Choudhury, (11) Shri Santosh Singh, (12) Shri Utpal Sarkar and (13) Shri

Rahul Paul and the learned Court was pleased to take cognizance of the offence

as submitted by the Enforcement Directorate against the accused persons and

issued summons against the accused persons bearing serial nos. 2 to 11 (as

above).

On receipt of the summons the accused nos.2 to 11 surrendered before

the learned Special Court on 04.04.2022 and prayed for bail. The learned

Special Court proceeded to record, that summons were sent to the accused

persons and in response to the same they surrendered before the Court and as

such the contention of the learned Advocate appearing for the

complainant/Enforcement Directorate that they are similarly placed with
28

accused no.1/ Debabrata Halder is not correct and accordingly released

accused nos.2 to 11 on bail.

It would be pertinent at this stage to quote Section 19 and 45 of PMLA,

2002 which are set out as follows:

"S. 19. Power to arrest.--(1) If the Director, Deputy Director,
Assistant Director or any other officer authorised in this behalf by
the Central Government by general or special order, has on the basis
of material in his possession, reason to believe (the reason for such
belief to be recorded in writing) that any person has been guilty of
an offence punishable under this Act, he may arrest such person
and shall, as soon as may be, inform him of the grounds for such
arrest.

(2) The Director, Deputy Director, Assistant Director or any other
officer shall, immediately after arrest of such person under sub-
section (1), forward a copy of the order along with the material in his
possession, referred to in that sub-section, to the Adjudicating
Authority, in a sealed envelope, in the manner as may be prescribed
and such Adjudicating Authority shall keep such order and material
for such period, as may be prescribed.

(3) Every person arrested under sub-section (1) shall, within twenty-
four hours, be taken to a [Special Court or] Judicial Magistrate or a
Metropolitan Magistrate, as the case may be, having jurisdiction:

Provided that the period of twenty-four hours shall exclude the time
necessary for the journey from the place of arrest to the [Special
Court or] Magistrate's Court.

S. 45. Offences to be cognizable and non-bailable.--(1)
[Notwithstanding anything contained in the Code of Criminal
29

Procedure, 1973 (2 of 1974), no person accused of an offence [under
this Act] shall be released on bail or on his own bond 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:

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 [* * *] sub-section (1)
is in addition to the limitations under the Code of Criminal
30

Procedure, 1973 (2 of 1974) or any other law for the time being in
force on granting of bail."

Further Rule 6 of reference to the arrest order ofthe Prevention of Money-

Laundering (the Forms and the Manner of Forwarding a Copy of Order of Arrest

of a Person along with the Material to the Adjudicating Authority and its period

of Retention) Rules, 2005.

"FORM III

[See Rule 6]

Arrest Order

"Whereas, I ............................. Director/Deputy Director/ Assistant
Director/Officer authorised in this behalf by the Central Government,
have reason to believe that.............................(name of the person
arrested) resident of..................... has been guilty of an offence
punishable under the provisions of the Prevention of Money-
laundering Act, 2002 (15 of 2003);

Now, Therefore, in exercise of the powers conferred on me under
sub-section (1) of Section 19 of the Prevention of Money-laundering
Act, 2002 (15 of 2003), I hereby arrest the said
.............................................. (name of the person arrested)
at................ hours on .................. and he has been informed of the
grounds for such arrest.

Dated at ............ on this ............ day of ................. Two thousand
.....................................

Arresting Officer (Signature with Seal) 31 In Vijay Madanlal Choudhary and Ors. -Vs. -Union of India and Others reported in 2022 SCC OnLine SC 929, the following paragraphs are relied upon for the purpose of the present case which are set out below:

325. The safeguards provided in the 2002 Act and the preconditions to be fulfilled by the authorised officer before effecting arrest, as contained in Section 19 of the 2002 Act, are equally stringent and of higher standard. Those safeguards ensure that the authorised officers do not act arbitrarily, but make them accountable for their judgment about the necessity to arrest any person as being involved in the commission of offence of money-laundering even before filing of the complaint before the Special Court under Section 44(1)(b) of the 2002 Act in that regard. If the action of the authorised officer is found to be vexatious, he can be proceeded with and inflicted with punishment specified under Section 62 of the 2002 Act.

The safeguards to be adhered to by the jurisdictional police officer before effecting arrest as stipulated in the 1973 Code, are certainly not comparable. Suffice it to observe that this power has been given to the high-ranking officials with further conditions to ensure that there is objectivity and their own accountability in resorting to arrest of a person even before a formal complaint is filed under Section 44(1)(b) of the 2002 Act. Investing of power in the high-ranking officials in this regard has stood the test of reasonableness in Premium Granites, wherein the Court restated the position that requirement of giving reasons for exercise of power by itself excludes chances of arbitrariness. Further, in Sukhwinder Pal Bipan Kumar, the Court restated the position that where the discretion to apply the provisions of a particular statute is left with the Government or one of the highest officers, it will be presumed that the discretion vested 32 in such highest authority will not be abused. Additionally, the Central Government has framed Rules under Section 73 in 2005, regarding the forms and the manner of forwarding a copy of order of arrest of a person along with the material to the Adjudicating Authority and the period of its retention. In yet another decision in Ahmed Noormohmed Bhatti, this Court opined that the provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan).

326. Considering the above, we have no hesitation in upholding the validity of Section 19 of the 2002 Act. We reject the grounds pressed into service to declare Section 19 of the 2002 Act as unconstitutional. On the other hand, we hold that such a provision has reasonable nexus with the purposes and objects sought to be achieved by the 2002 Act of prevention of money-laundering and confiscation of proceeds of crime involved in money-laundering, including to prosecute persons involved in the process or activity connected with the proceeds of crime so as to ensure that the proceeds of crime are not dealt with in any manner which may result in frustrating any proceedings relating to confiscation thereof.

400. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act. While dealing with a similar provision prescribing twin conditions in MCOCA, this Court in Ranjitsing Brahmajeetsing Sharma, held as under:

"44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.

45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained 34 in sub-section (4) of Section 21 of the Act, the court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby"

(emphasis supplied)

401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt.

Relying on the observations made by the Hon'ble Apex Court in the aforesaid judgment it can be stated that the Enforcement Directorate exercised 35 its discretion and authority under Section 19 of the PMLA, 2002 to arrest a person wherein they found higher standard of evidence relating to proceeds of crime which were available with them and the custodial detention of the accused wasthought to be necessary in the background of the object and purpose of the PMLA, 2002. Needless to state that such powers are vested with the superior officers of the Enforcement Directorate and there are rigors on the exercise of the powers which have been thrusted on them, so thatthe authorised officers, arresting officer are to comply with the rules framed under Section 73 of the Act, which warrants the forwarding of a copy of the warrant of arrest of the person along with material to the adjudicating authority and the purpose of detention. Thus, the applicability of the twin conditions under Section 45 of the PMLA, 2002 for granting bail is to be satisfied in case of release of such an accused.

In Vijay Madanlal Choudhary and Ors.(supra) the Hon'ble Apex Court was pleased to emphasise on the issue relating to a delicate balance between the merits of appreciation while deciding a case at the stage of acquittal or conviction and an application for bail. For this purpose the phrase "reasonable grounds for believing" was also emphasized in relation to the material collected by the prosecution at the time of considering the bail application.

Be that as it may, there is difference with regard to releasing a person on bail who has appeared in response to summons and a person who was arrested in course of investigationunder the PMLA, 2002 by the Investigating Authorities invoking their powers under Section 19 of the Act. The accused nos. 2 to 11 36 appeared before the learned Special Court pursuant to the summons which were issued to them as such taking into account the provisions of Section 65 of the PMLA, 2002 it can be held that if the learned Special Court intended to exercise its option under Section 88 of the Code of Criminal Procedure the same cannot be interfered with until and unless supervening circumstances are brought on record.

In view of the aforesaid the order dated 04.04.2022 wherein the learned Special Court granted bail to accused nos.2 to 11 and against whom, this Court was pleased to issue show causeby its order dated 28.07.2022is not interfered with. The order of bail dated 04.04.2022 granted by the learned Special Court to accused nos. 2 to 11 is hereby affirmed.

However, so far as the accused Debabrata Halder is concerned the learned Special Court by its order dated 12.04.2022 was pleased to release the said accused on bail which calls for interference in view of the reasons so assigned by the learned Special Court which is quoted below:

"...It is submitted by the Ld. Advocates for the petitioner that the accused is in custody since 17.11.2021 and after investigation complaint has been filed. Noting is left for investigation. It is also unknown when the trial will be completed. So the ld. Advocate has prayed released of the accused persons on bail on any condition. On the other hand Ld. Spl P.P. opposed the bail application and submitted that crores of money is involved in this case. Heard both sides.Perused the materials on case record as well as the prayer portion of complaint. There is no prayer for further investigation so the court can safely say that at this moment there is 37 nothing for further investigation. No purpose will be served if the accused is kept in the custody for an indefinite period...."

In Y.S. Jagan Mohan Reddy &Ors. -Vs. - CBI reported in (2013) 7 SCC 439 it has been observed by the Hon'ble Supreme Court that economic offences constitute a class apart and need to be visited with different approach in the matter of bail. Paragraph 34 and 35 of the said judgment is relevant for the purpose of consideration of this case, as such the same is set out below:

"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."

Ordinarily, the considerations which weigh with a Court in granting bail in non-bailable offences are the nature and seriousness of the offences; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witness being tampered with; the larger 38 interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case.

In State of Gujarat -Vs. - Sandip Omprakash Gupta reported in 2022 SCC OnLine SC 1727 the Hon'ble Supreme Court while dealing with the provisions of bail under Section 20(4) of the Gujarat Control of Terrorism and Organised Crime Act, 2015 was pleased to observe as follows:

"34. It is plain from a bare reading of the non-obstante clause in the sub-section that the power to grant bail by the High Court or Court of Sessions is not only subject to the limitations imposed by Section 439 of the Code but is also subject to the limitations placed by Section 20(4) of the 2015 Act. Apart from the grant of opportunity to the Public Prosecutor, the other twin conditions are : the satisfaction of the court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence and that he is not likely to commit any offence while on bail. The conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty has to be based on reasonable grounds. The expression 'reasonable grounds' means something more than prima facie grounds. It contemplates substantial probable causes for believing that the accused is not guilty of the alleged offence. The reasonable belief contemplated in the provisions requires existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. Thus, recording of findings under the said provision is a sine qua non for granting bail under the 2015 Act."

The order of the learnedJudge, Special (CBI) Court No.1, Bichar Bhawan, Calcutta dated 12.04.2022 reflects that the Public Prosecutor opposed the prayer for bail and as such it was incumbent upon the learned Special Court to satisfy itself regarding the broad probabilities relating to the existence of reasonable grounds for believing that the accused was not guilty of the offence alleged under the PMLA, 2002 while he wasbeing released on bail. The learned Special Court without adhering to the merits of the case and the provisions of law proceeded to allow the prayer for bail on reasons which are not applicable in respect of the offences under the PMLA, 2002.

The complaint filed by the prosecution itself contained prayer for further investigation but the learned Special Court observed that there was no prayer for further investigation. It would be apposite to state that an investigating agency is not required to pray for permission for further investigation of the case which is a settled principle of law and the same is prerogative of the investigating agency. The duty of the investigating agency is to the extent of informing the Court which the investigating agency in this case has done by informing the Court in the complaint filed before it.

Considering that the order dated 12.04.2022 passed by the Learned Judge, Special (CBI), Court no.1, Calcutta in ML Case No. 11 of 2022 is in violation of the provisions of Section 45 of the PMLA, 2002, I am of the opinion that the said order calls for interference. Accordingly, the order dated 12.04.2022 granting bail to the accused Debabrata Halder is hereby set aside. 40

The bail granted to the accused Debabrata Halder being cancelled, he is directed to surrender before the Learned Judge, Special (CBI), Court no.1, Calcutta within 72 hours.

Accordingly CRM (SB) 93 of 2022 is allowed.

Pending applications, if any, are consequently disposed of. All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court.

Urgent Xerox certified photocopy of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.

(Tirthankar Ghosh, J.)

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