Chattisgarh High Court
Subhash Sharma vs Directorate Of Enforcement Government ... on 21 September, 2022
Author: Rajani Dubey
Bench: Rajani Dubey
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Order reserved on : 07/09/2022
Order passed on : 21/09/2022
MCRC No. 5288 of 2022
Subhash Sharma S/o Lokheshwar Prasad Sharma Aged About
62 Years R/o HIG C-109, A Shailendra Nagar, Raipur, District
Raipur Chhattisgarh
---- Applicant
in jail
Versus
Directorate Of Enforcement Government Of India Through
Assistant Director, Zonal Office, 2nd Floor, A-1 Block, Pujari
Chambers, Pachpedi Naka, Raipur, District Raipur Chhattisgarh.
---- Respondent
For Applicant : Mr. Rahul Tyagi with Mr. Vivek Sharma, Advocate.
For Respondent : Dr. Saurabh Kumar Pandey, Advocate.
Hon'ble Smt. Justice Rajani Dubey CAV ORDER The applicant has preferred this first bail application under Section 439 of CrPC for grant of regular bail as he is arrested in connection with ECIR No.RPSZO/03/2019 registered at Raipur Zonal Office of ED, Pachpedi Naka, Raipur (CG) for the offence punishable under Sections 3 & 4 of Prevention of Money Laundering Act, 2002 (in short "PMLA")
02. Initially, FIRs bearing Crime Nos.97/2015, 272/2018 and 141/2018 were registered against the applicant at Police Station - Gol Bazar, Police Station - Civil Lines and Police Station - Gol Bazar, Raipur respectively. In all these crime number, charge sheets have 2 been filed. Based on the above reports, on 3.10.2019 present ECIR No. RPSZO/03/2019 was registered by the Enforcement Directorate treating the abovementioned cases as scheduled offences.
03. Allegation against the present applicant is that on the basis of forged and fabricated documents, the applicant obtained loan from Punjab National Bank, Raipur and Axix Bank, Raipur in the name of his companies namely M/s Hotel Saffaire Inn, M/s Goodluck Petroleum Co. Pvt. Ltd. and M/s Vidit Trading Pvt. Ltd. The said loan amount of Rs.31.37 crores was subsequently declared as NPA by the concerned banks and the same is to be recovered from the applicant.
04. Learned counsel for the applicant submits that custody of the applicant is unconstitutional and criminal, hence illegal from the very inception and therefore, he deserves to be enlarged on bail. During the entire course of investigation starting from 3.10.2019 to 5.3.2022, the applicant duly appeared and joined the investigation on each occasion as and when required by the investigating agency. As such, there is no apprehension of his evading the due process of law. He submits that the Look Out Circular (in short LOC") dated 4.10.2019 was issued in an arbitrary and malafide exercise of power by the ED. The requirement of issuing LOC is when good reasons exist and when a person is avoiding warrants of arrest or avoiding trial in a criminal case. However, no such reason exists in the present case and no warrant is issued by any Court. In this case, the applicant was illegally taken from IGI Airport, New Delhi to Raipur and not produced before the remand Court within 24 hours of his arrest and as such, his arrest is illegal and unconstitutional.
3
05. It is further contended that charge sheet has already been filed against the applicant and the properties of the applicant have been attached by the investigating agency. The investigating agency has simply presumed that the applicant is likely to abscond even though he had already booked a return ticket to India and the same was known to the investigating agency. He submits that the applicant undertakes that he would join the investigation and trial as and when required by the investigating agency/trial Court. The applicant is the permanent resident of Raipur; his movable and immovable properties situate here and there is no chance of his absconding or tampering with the evidence or influencing the witnesses. There are number of documents and witnesses and as such, conclusion of the trial is likely to take some time. Therefore, the applicant deserves to be released on bail.
Reliance has been placed on the decisions in the matters of Karti P. Chidambaram Vs. Bureaur of Immigration and others, MANU/TN/3645/2018; Noor Paul Vs. Union of India and others, MANU/PH/0561/2022; Ashak Hussain Allah Detha and others Vs. Assistant Director of Customs (P.), Bombay and others, MANU/MH/0084/1990; State of Punjab Vs. Davinder Pal Singh Bhullar and others, MANU/SC/1476/2011; Badrinath Vs. State of Tamil Nadu and others, MANU/SC/0624/2000; State of Kerala Vs. Puthenkavu NSS Karayogam and another, (2001) 10 SCC 191 and Mangal Prasad Tamoli (dead) by LRs Vs. Narvadeshwar Mishra (dead) by LRs. & others, MANU/SC/0153/2005.
06. On the other hand, learned counsel for the respondent would contend that economic offences constitute a class apart and need to be visited with different approach in the matter of bail. The applicant 4 has not mentioned the true facts of the case. In fact, the applicant was arrested at Delhi Airport while he was trying to leave India and he was duly produced before the remand court. He was arrested on 5th March, 2022 and produced within 24 hours before the remand court on 6th March, 2022 and as such, there is no question of violation of any constitutional right of the applicant. The applicant is a frequent foreign traveller and hence a LOC was issued against him assuming that he may attempt to flee away from the country. The said LOC was renewed from time to time. During investigation, the applicant did not cooperate and had always given vague, evasive and misleading reply regarding utilization of loan proceeds, their diversion through shell entities and their utilization in other businesses.
07. It is submitted that grant of bail to the applicant in connection with FIRs No.97/2015, 272/2018 and 141/2018 holds no relevance because the proceedings under the PMLA being a special enactment, contemplate a distinct procedure. It may extend to a person, who is connected with criminal activity relating to scheduled offence, but may not be the offender of the scheduled offence. The properties registered in the name of the applicant and his family members including investments made by his companies were attached being the proceeds of crime after following the due process of law. The applicant is a high flight risk person and mere booking of a return ticket to India provides no guarantee that he would return. The applicant being an influential person, there is every likelihood that in the event of getting bail, he would tamper with the evidence or influence the witnesses or even abscond. Therefore, the instant bail application is liable to be rejected.
Reliance has been placed on the order dated 3.1.2020 passed 5 by this Court in MCRC No.6533/2019 in the matter of Mr. Alok Kumar Agrawal Vs. Directorate of Enforcement, Raipur; S. Martin Vs. Deputy Commissioner of Police, 2014 SCC OnLine Mad 426 and GSC Rao Vs. State of Andhra Pradesh and others, (2019) 106 ACC
437.
08. I have heard learned counsel for the parties and perused the case diary as also the copy of LOC.
09. According to learned counsel for the applicant, LOC issued against the applicant is illegal which resulted in his arrest. He has also filed the order sheets of the trial Court. As per order dated 6.3.2022, the applicant was produced before the Special Court on 6.3.2022. Para-1 of the said order reads as under:
"06.03.2022 3.00 ih-,e- izorZu funs'kky;] {ks=h; dk;kZy; jk;iqj ds lgk;d funs'kd BaMhyky ehuk us mifLFkr gksdj /ku'kks/ku fuokj.k vf/kfu;e] 2002 dh /kkjk&3 ,ao 4 ds varxZr vfHk;qDr lqHkk"k 'kekZ firk Jh yksds'oj izlkn 'kekZ mez 62 o"kZ fuoklh ,pvkbZth lh&109@,] 'kSysUnz uxj] jk;iqj ¼N-x-½ dks fnukad 06-03-2022 le; 01-15 cts lqcg fxjQ~rkj dj] esjs le{k izLrqr fd;k ,ao 14 fnol dk vFkkZr fnukad 19-03-2022 rd mDr vfHk;qDr dk dLVksfM;y fjek.M fn;s tkus ds fy, vkosnu i= e; bUosLVhxs'ku QkbZy izLrqr fd;k A Likewise, as per order dated 30.4.2022 of the trial Court, complaint/charge sheet has been filed against the applicant and other co-accused persons before the Special Court, Raipur. The applicant filed bail application under Section 439 of CrPC on 29.4.2022 before the trial Court. As per order dated 29.4.2022, the trial Court observed as under:6
"vfHkys[k ds voyksdu rFkk tekur vkosnu i= ds lkFk layXu nLrkostks ls nf'kZr gS fd vfHk;qDr dks fnukad 04-03-2022 dks le; 18-00 cts bfexzs'ku C;wjksa ds vf/kdkfj;ksa ds }kjk bafnjk xka/kh varjkZ"Vªh; gokbZ vM~Mk ubZ fnYyh esa yqdvkmV ldZqyj ds vk/kkj ij fujks/k esa fy;k x;k vkSj fnukad 05- 03-2022 dks le; 11-00 cts ifjoknh@ izorZu funs'kky; ds vf/kdkfj;ksa dks vkosnd dks lkSik x;k] ftl ij vkosnd dks izorZu funs'kky; tksuy dk;kZy; jk;iqj yk;k x;k rRi'pkr fnukad 05-03-2022 dks le; 17-30 cts mifLFkfr gsrq leal tkjh fd;k x;k vkSj vfHk;qDr dks fnukad 06-03- 2022 dks 1-15 cts izorZu funs'kky; dk;kZy; tksuy vkfQl ipisMh ukdk jk;iqj esa fxjQrkjh dk vk/kkj crkrs gq, fxjQrkj fd;k x;k gS A rRi'pkr fnukad 06-03-2022 dks nksigj 3-00 cts fo'ks"k U;k;ky; /ku'kks/ku fuokj.k vf/kfu;e ds le{k izLrqr fd;k x;k A ftlls Li"V gS fd vkosnd@vfHk;qDr dks fxjQrkjh ds 24 ?kaVs ds vanj l{ke U;k;ky; ds le{k izLrqr fd;k tkuk ifjyf{kr gksus ls vkosnd @ vfHk;qDr dh vksj ls fy;k x;k vk/kkj vekU; fd;k tkrk gSA"
10. From the documents available in the case diary and the aforesaid order, it is crystal clear that the applicant was detained and taken into custody at 18:00 hours (6 pm) on 4.3.2022 at IGI Airport, New Delhi when the Bureau of Immigration executed the LOC issued against the applicant and held him in custody on behalf of ED. It is also not in dispute that ED took physical custody of the applicant from the Bureau of Immigration at 11:00 hours (11 am) at IGI Airport on 5.3.2022 and brought him to Raipur where the ED prepared arrest memo on 6.3.2022 at 1.15 hours and produced him in the afternoon on 6.3.2022 before the remand Court.
11. Learned counsel for the respondent/ED has submitted that the applicant was arrested on 6.3.2022 and within 24 hours produced before the trial Court. However, from the order sheets and documents available in the case diary, it is seen that the applicant was detained and taken into custody at 6 pm on 4.3.2022 at IGI Airport, New Delhi. 7
12. Article 22 of the Constitution of India reads as under:
"22. Protection against arrest and detention in certain cases.-
(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate."
13. The Hon'ble Supreme Court in the matter of Manoj Vs. State of MP, MANU/SC/0231/1999, held in para 10, 13 & 14 as under:
"10. The police officer who conducts investigation cannot obviate the legal obligation to perform two requisites if he knows that investigation cannot be completed within 24 hours after the arrest of the accused. One requisite is, to transmit a copy of the case-diary to the nearest Judicial Magistrate. The other is, to forward the accused to such Magistrate simultaneously. The only exceptional ground on which the police officer can avoid producing the arrested person before such Magistrate is when the officer concerned is satisfied that there are no grounds for believing that the information or accusation was well founded. In such a case, the accused must be released from custody to which he was interred pursuant to the arrest.
13. If the police officer is forbidden from keeping an arrested person beyond twenty-four hours without order 8 of a Magistrate, what should happen to the arrested person after the said period? It is a constitutional mandate that no person shall be deprived of his liberty except in accordance with the procedure established in law. Close to its heels the Constitution directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest. The only time permitted by Article 22 of the Constitution to be excluded from the said period of 24 hours is "the time necessary for going from the place of arrest to the court of the Magistrate". Only under two contingencies can the said direction be obviated. One is when the person arrested is an "enemy alien". Second is when the arrest is under any law for preventive detention. In all other cases the Constitution has prohibited peremptorily that "no such person shall be detained in custody beyond the said period without the authority of a Magistrate". Hence the respondent cannot validly press for further detention of the accused beyond 24 hours. That arrest has now become otiose.
14. When the State of Madhya Pradesh, whose police made the arrest of the appellant in connection with the M.P case on 7-8-1998, admitted that after the arrest he was not produced before the nearest Magistrate within 24 hours, its inevitable corollary is that detention made as a sequel to the arrest would become unlawful beyond the said period of 24 hours."
14. In Ashak Hussain Allah Detha and others (supra), the High Court of Bombay held in para 7 as under:
"7. Admittedly, the Applicants were detained without any authority from the midnight of 20th July, 1989 to 5.20 p.m. of 21st July, 1989 - for 17 hours. Their arrest has been so recorded that their production before the Magistrate falls within 24 hours stipulated by Art. 22(2) 9 of the Constitution of India and S.57 of the Code of Criminal Procedure. The Prosecution urges that after the "arrest" they were not detained beyond 24 hours. This submission is a distortion of the true meaning of the constitutional guarantee against detention without the sanction of judicial Tribunal. The word "arrest" has not been defined in the Code of Criminal Procedure or in any other law. The true meaning needs to be understood. The word "arrest" is a term of art. It starts with the arrester taking a person into his custody by action on or words restraining him from moving anywhere beyond the arrester's control, and it continues until the person so restrained is either released from custody or, having been brought before a Magistrate, is remanded in custody by the Magistrate's judicial act Christie v. Leachinsky, (1947) 1 All ER 567; Holgate Mohammed v. Duke, (1984) 1 All ER 1054. Both quoted in WORDS AND PHRASES LEGALLY DEFINED Vol. 1, Third Edition - page 113.).
In substance, "arrest" is the restraint on a man's personal liberty by the power or colour of lawful authority (The Law Lexicon - P. Ramanatha Aiyar Reprint Edition 1987, page 85). In its natural sense also "arrest" means the restraint on or deprivation of one's personal liberty (The Law Lexicon - T. P. Mukherjee, (1989) page 177-
178.) It is thus clear that arrest being a restraint on the personal liberty, it is complete when such restraint by an authority, commences (The Law Lexicon - P. Ramanatha Aiyar Reprint Edition 1987, page 85). Whether a person is arrested or not does not depend on the legality of the Act. It is enough if an authority clothed with the power to arrest, actually imposes the restraint by physical act or words. Whether a person is arrested depends on whether he has been deprived of his personal liberty to go where he pleases (The Law Lexicon - T. P. Mukherjee (1989), Page 177-178). It 10 stands to reason, therefore, that what label the investigating officer affixes to his act of restraint is irrelevant. For the same reason, the record of the time of arrest is not an index to the actual time of arrest. The arrest commences with the restraint placed on the liberty of the accused and not with the time of "arrest"
recorded by the Arresting Officers.
The argument that the applicants were not arrested at the mid-night of 19th July, 1989 but were detained for interrogation is untenable. Since the offences under the N.D.P.S. Act are cognizable (Section 37(1) of the N.D.P.S. Act), the Investigating Officers possess the authority to arrest without warrant. They arrest a suspect or do not arrest at all. The "detention in custody for interrogation" is unknown to law. Interrogation is known. A person may be lawfully interrogated. But during such interrogation he is a free man. If he is detained, not allowed to leave the office of the Respondent No. 1 and compelled to eat and sleep there, he is under detention. This restraint is in reality an arrest. In this case, the applicants were not allowed to leave the Office of the Respondent No. 1 after the mid-night of 19th July, 1989. In the circumstances of this case, the applicants were arrested at the mid-night of 19th July, 1989."
15. In the case in hand, the applicant was also detained at IGI Airport, New Delhi on 4.3.2022, he was taken to Raipur by the officials of ED and the arrest memo was prepared on 6.3.2022 at Raipur. The High Court of Bombay rightly observed that "detention in custody for interrogation" is unknown to law. Interrogation is known. A person may be lawfully interrogated but during such interrogation he is a free man. If he is detained, not allowed to leave the office of the respondent and compelled to eat and sleep there, he is under detention. This restraint is in reality an arrest. The investigating agency could have easily 11 produced the applicant herein before the competent court at Delhi itself and asked for transit remand but they detained the applicant and brought him to Raipur where the arrest memo was prepared.
16. Learned counsel for the respondent/ED submitted that the PMLA is a very special Act. There is documentary evidence on record to show that the applicant misappropriated crores of rupees and caused great loss to the State Exchequer and the community at large. So, under the PMLA the applicant is not entitled to be released on bail.
17. From the order sheets of the trial Court as well as the documents in the case diary, it is clear that the applicant is not produced before the competent Court within 24 hours of his detention. Charge sheet/complaint has been filed before the learned trial Court. As per order sheet dated 2.5.2022, the case is at preliminary state for argument before registration. Looking to the number of documents and list of witnesses, there is every likelihood that conclusion of trial would take considerable time. Therefore, in the totality of facts and circumstances of the case, this Court is of the opinion that present is a fit case to release the applicant on bail. Accordingly, the application is allowed. Though learned counsel for the applicant has also questioned the legality of the LOC on several points but at this stage when complaint has been filed and the matter is pending before the trial Court, this Court does not deem it proper to make any comment on the said issue in the bail application.
18. It is directed that the applicant shall be released on bail on his executing a personal bond for a sum of Rs.10 lacs with two sureties of the like amount to the satisfaction of the trial Court for his appearance 12 before the said Court as and when directed, till final disposal of the trial, on the following further conditions:
(i) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court;
(ii) he shall not act in any manner which will be prejudicial to the fair and expeditious trial;
(iii) He shall not leave the headquarters without permission of the concerned trial Court;
(iv) He shall furnish his original Aadhar Card, Driving Licence, Voter ID Card, current mobile number as also the details of his movable and immovable properties before the concerned trial Court;
(v) He shall not involve himself in any offence of similar nature in future.
Copy of LOC submitted by learned counsel for the respondent is kept in closed envelope and handed over to him.
sd/ (Rajani Dubey) Judge Khan