Allahabad High Court
Syed Ishrat Hussain Jafri vs Directorate Of Enforcement Thru. ... on 5 October, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH High Court of Judicature at Allahabad Sitting at Lucknow ********************** Neutral Citation No. - 2023:AHC-LKO:64312 Court No. - 16 Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1312 of 2023 Applicant :- Syed Ishrat Hussain Jafri Opposite Party :- Directorate Of Enforcement Thru. Deputy Director Counsel for Applicant :- Mohd. Yasir Abbasi,Manish Kumar Tripathi Counsel for Opposite Party :- Rohit Tripathi,Kuldeep Srivastava Hon'ble Subhash Vidyarthi J.
1. Heard Sri S. C. Mishra Senior Advocate assisted by Dr. Farrukh Khan, Sri Manish Tripathi, Sri Mohd. Yasir Abbasi and Sri Aditya Tyagi Advocates, the learned Counsel for the applicant and Sri Kuldeep Srivastava Advocate, the learned counsel for the respondent - Directorate of Enforcement.
2. The instant application seeking has been filed seeking anticipatory bail in ECIR/ALSZO/02/2023 under Sections 3 and 4 of Prevention of Money Laundering Act, 2002, Police Station Directorate of Enforcement, Allahabad Sub-Zonal Office, Allahabad.
3. On 16.02.2023, the officials of Enforcement Directorate (hereinafter referred to as 'the E.D.') had raided ten educational institutions, including Hygia Institute of Pharmacy, and the applicant is the Vice-Chairman of the Society which manages the Institute. It is alleged that 956 dollars were recovered during search from the premises of the applicant which were seized by the officials and no other recovery or seizure was made. The applicant claims that the dollars belong to his sister who is a resident citizen of the U.S.A. who was visiting the applicant's home at the relevant time. At the time of the aforesaid raid conducted by the officials of the E.D., no F.I.R. of any predicate offence had been registered against the applicant. It was only after the E.D. had submitted a report to the police under Section 66 (2) of the Prevention of Money Laundering Act, 2002, that an F.I.R. bearing Case Crime No.119 of 2023, under Sections 120-B, 409, 420, 467, 468, 471 I.P.C. was registered at Police Station Hazratganj, District Lucknow alleging misappropriation of funds meant for being paid as scholarship to the students belong to the deprived sections of the society.
4. It has been stated in the affidavit filed in support of the anticipatory bail application that the applicant is suffering from various diseases and he has undergone nephrectomy of both kidneys, he has undergone a kidney transplant at Appllo Hospital, New Delhi, and he has also undergone a brain surgery and craniotomy and he is on immune-suppressant medicines due to the aforesaid reasons.
5. The applicant claims that he was taken into custody by the officials of the E.D. at Allahabad on 21.04.2023 and while he was being brought to Lucknow, his physical condition deteriorated on the way and he had to be taken to N.T.P.C. Hospital, Unchahar, where he was advised some medicines and he was referred to higher center for further management. The applicant was thereafter admitted in Appolo Medics Super Specialty Hospital at Lucknow on 25.04.2023, from where he was discharged on 26.04.2023 with diagnosis of cholelithiasis, type 2 diabetes mellitus, poly-cystic liver disease, hemorrhage/infection, poly-cystic kidney disease, post bilateral nephrectomy and renal transplant. The applicant's discharge summary issued by the hospital records that he requires further observation but he himself wished to discontinue the treatment and wanted to be discharged. The learned counsel for the applicant has submitted that the reason for this conduct of the applicant was an apprehension of arrest by the officials of the E.D. The learned counsel for the applicant has submitted that presently the applicant is continuing to be under treatment of Appolo Hospital, New Delhi.
6. The learned Counsel for the respondent E.D. had disputed the prayer for grant of anticipatory bail to the applicant in spite of his claim of sickness.
7. Noticing the aforesaid facts and circumstances of the case, this Court had granted interim anticipatory bail to the applicant by means of an order dated 30.05.2023. However, keeping in view the objections of the learned Counsel for the respondent, this court had requested the Director of Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow to constitute a Board consisting of suitable experts of the relevant fields as per the medical documents of the applicant and to get him examined by the Medical Board and to submit a report regarding the applicant's medical condition.
8. The Director of Sanjay Gandhi Post Graduate Institute of Medical Sciences, Lucknow has submitted a report prepared by a five member Medical Board headed by the Medical Superintendent of the Hospital and also consisting of doctors from the Departments of Endocrinology, Gastro Medicine, Nephrology and a Specialist Physician, stating that "the applicant is a post-renal transplant patient suffering from autosomal dominant polycystic kidney disease (ADKPD) that required bilateral nephrectomy. Since his renal transplant in 2015, he had a stable renal graft function. He takes multiple immunosuppressive medicines to maintain renal graft. He has a grossly enlarged liver with multiple cysts (due to his underlying disease of ADKPD) that produces recurrent abdominal pain. He also has a poorly controlled diabetes mellitus despite insulin injections. For adequate control of blood sugars, he requires diet control, exercise and close observation of his blood sugars. His recent report of elevated creatinine level of 1.56 mg/dl requires further evaluation of renal graft functions. Like every renal transplant patient, he needs close observation of renal graft function and he must follow lifestyle measures like social distancing, use of mask, maintenance of hygiene etc to prevent community acquired and opportunistic infections."
9. The respondent-Enforcement Directorate has filed a counter affidavit on 31.02.2023 and a supplementary affidavit on 31.07.2023. In the supplementary affidavit dated 31.07.2023, inter alia stating that information was sought from the concerned authorities of SGPGI, whereupon the medical board informed them that the report had been prepared after physical examination of the applicant and no scanning, medical tests or any blood test of the applicant were performed by the board at the institute. It is strange that in his endeavor to oppose the anticipatory bail application, the E.D. has gone to the extent of calling for an explanation from the Director of SGPGI regarding the procedure adopted by the medical board before submitting its report to this Court in compliance with the Court's order, which conduct is strongly deprecated. The E.D could have filed its objections before this Court but the conduct of calling for an explanation from the Director SGPGI regarding the procedure adopted by the Medical Board consisting of five expert doctors, is strongly deprecated.
10. An Assistant Director of the E.D. has stated in the affidavit that from the report submitted by SGPGI it appears that the findings of the medical board are based on very old reports and medical documents provided by the applicant himself and no new medical tests were performed by the board to confirm the medical issues of the applicant and to confirm the veracity of the reports. The Assistant Director of the E.D., who has doubted the correctness of the procedure adopted by the Medical Board consisting of five expert doctors of SGPGI, has disclosed his qualification to be merely graduate, without disclosing the field of his study - whether it is medicine or commerce or engineering. Even if the deponent is a graduate in medicine - who does not write 'Dr.' before his name and does not practice medicine, his conduct in doubting the procedure adopted by the medical board consisting of five expert doctors of SGPGI, which is a very reputed government institution indicates his vindictive approach towards the applicant, besides showing disrespect to the doctors who had submitted the report and to the medical profession in general.
11. The learned counsel for the respondent E.D. has submitted that in the discharge summary issued by the Appolo Medics Hospital on 06.07.2023, it is recorded that all the parameters of the applicant have been reported to be normal. The respondent-E.D. has filed another supplementary affidavit stating that the applicant has stable renal graph function and his neurological condition is unremarkable.
12. The discharge summary mentions "CVS S1 S2 present, RS B/L AE present, CNS conscious, oriented" The learned Counsel for the E.D. and its officers may be experts in the field of Medicine, Endocrinology, Gastro Medicine and Nephrology but the Court does not possess the requisite expertise to doubt the medical opinion submitted by a medical board of five specialist doctors of SGPGI. The Court lacks requisite expertise to understand "CVS S1 S2 present, RS B/L AE" or the "renal graph function" and the neurological condition of the applicant. When the court lacks the required expertise in this field and there is a conflict in the opinion of the officers of the E.D. and that of the experts of SGPGI, the court has to believe the advice of the experts of SGPGI.
13. Sri S. C. Mishra has drawn attention of the court to an order dated 20.10.2022, passed by Hon'ble the Supreme Court in Assistant Director, Directorate of Enforcement and another Vs. Kamal Ahsan, 2022 SCC OnLine SC 1514, in which case the respondent was suffering from Cancer and he had been released on bail. Without going into any other question, the Hon'ble Supreme Court held that the bail order is not required to be interfered. The Hon'ble Supreme Court ordered that: -
"The Department ought not to have filed such a Special Leave Petition wasting the stationery, the legal fees and Court's time. The Special Leave Petition stands dismissed with exemplary cost, to be borne by the concerned officer, who granted the permission to file the Special Leave Petition, quantified at Rs. 1,00,000/-, to be recovered from the salary of such an officer. The cost to be deposited by the Department with the Registry of this Court within a period of four weeks from today."
14. From the course adopted by the concerned officers of the E.D. in the present case, it appears that the officers of the E.D. are not willing to mend their ways even after the aforesaid order of the Hon'ble Supreme Court.
15. It has been stated in the aforesaid supplementary affidavit that the E.D. had issued summon to one Vikram Nag to record his statement but he did not appear. Later he got his statement, wherein he revealed that the applicant had directed him not to join investigation in compliance of summons. Vikram Nag further stated that he had personally met the applicant on 16.08.2023 in his office, when the applicant had tried to influence him and asked him not to visit the E.D. Office in compliance of summons. The applicant had also directed him not to reveal his name and put all the responsibility of the offence on Ravi Prakash Gupta. The applicant had motivated him to delete his call records and destroy his diary, in which he used to keep details of PH persons and his commission income. The applicant has categorically denied the aforesaid allegation by filing a supplementary rejoinder affidavit, wherein it has been stated that the applicant has never met Vikram Nag and he is already in custody of the E.D. On account of the applicant's precarious health condition, he is almost bed ridden and there is no question of the applicant meeting the Vikram Nag or influencing him.
16. Documents relating to the latest medical condition of the applicant have been annexed with the supplementary affidavit indicating that the applicant is suffering from several adverse medical conditions.
17. Sri Kuldeep Srivastava, the learned counsel for the E.D. has submitted that the applicant is directly involved in commission of the offence under the Prevention of Money Laundering Act and, therefore, in view of the provisions contained in Section 45 of Prevention of Money Laundering Act, the applicant cannot be granted anticipatory bail. He has relied upon the judgment of the Hon'ble Supreme Court in the case of Vijay Madanlal Choudhary and others Vs. Union of India and others, 2022 SCC OnLine SC 929, and he laid emphasis on the following passage from the judgment: -
"412. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money- laundering."
18. The learned counsel for the respondent has placed before this court the judgment of Hon'ble Supreme Court in the case of Directorate of Enforcement Vs. M. Gopal Reddy and another, 2022 SCC OnLine SC 1862, wherein the Hon'ble Supreme Court has held as under: -
"28. By the impugned judgment and order, while granting anticipatory bail the High Court has observed that the provisions of Section 45 of the Act, 2002 shall not be applicable with respect to the anticipatory bail applications/proceedings under Section 438 Cr.PC. For which the High Court has relied upon the decision of this Court in the case of Nikesh Tarachand Shah (supra). In the case of Dr. V.C. Mohan (supra), this Court has specifically observed and held that it is the wrong understanding that in the case of Nikesh Tarachand Shah (supra) this Court has held that the rigour of Section 45 of the Act, 2002 shall not be applicable to the application under Section 438 Cr. PC. In the case of Dr. V.C. Mohan (supra) in which the decision of this Court in the case of Nikesh Tarachand Shah (supra) was pressed into service, it is specifically observed by this Court that it is one thing to say that Section 45 of the Act, 2002 to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the Act, 2002, the underlying principles and rigours of Section 45 of the Act, must get triggered - although the application is under Section 438 Cr.PC. Therefore, the observations made by the High Court that the provisions of Section 45 of the Act, 2002 shall not be applicable in connection with an application under Section 438 Cr.PC is just contrary to the decision in the case of Dr. V.C. Mohan (supra) and the same is on misunderstanding of the observations made in the case of Nikesh Tarachand Shah (supra). Once the rigour under Section 45 of the Act, 2002 shall be applicable the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is unsustainable.
29. Even otherwise on merits also, the impugned judgment and order passed by the High Court granting anticipatory bail to respondent No. 1 is erroneous and unsustainable. While granting the anticipatory bail to respondent No. 1 the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offence(s) under the Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. As per the investigating agency, they have collected some material connecting respondent No. 1 having taken undue advantage from Srinivas Raju Mantena. From the impugned judgment and order passed by the High Court, it appears that the High Court has considered the matter, as if, it was dealing with the prayer for anticipatory bail in connection with the ordinary offence under IPC."
19. The next judgment relied upon by learned counsel for the respondent is the State of U.P. Versus Gayatri Prasad Prajapati, 2022 SCC OnLine SC 843, wherein the Hon'ble Supreme Court has observed as under:
"14. The medical condition of the respondent, the treatment given and various reports including the report of medical board were on the record. The S.G.P.G.I.M.S. is a super-speciality hospital where the respondent has been referred for specified purposes and report of S.G.P.G.I.M.S. has also been brought on the record as Annexure P-10 alongwith the letter dated 10.06.2020 addressed to Chief Medical Superintendant, S.G.P.G.I.M.S., Lucknow. The medical report of the respondent dated 10.06.2020 in final evaluation states:-
"Final Evaluation Glycemia : better controlled Hypertension : well controlled Pulmonary consult: Completed, advised as per notes above Urology work-up on- going.
* * *
18. Even as on date, due medical care is being taken of the respondent, which is apparent from the additional documents filed as Annexure A-2 and Annexure A-3 alongwith the application dated 10.10.2020. The High Court, without considering the entire materials on record, has passed the impugned order dated 03.09.2020, which is unsustainable.
19. In result, we allow this appeal, set aside the order dated 03.09.2020. We may again make it clear that observations made by us in this order are only for deciding this appeal and shall have no bearing on the merits of the Bail Application No.5743 of 2019, which is still pending before the High Court for consideration."
20. It is relevant to note that in the case of Gayatri Prasad Prajapati (Supra) the High Court had passed the impugned order without considering the report of SGPGI. The Hon'ble Supreme Court observed that SGPGI is a super specialty hospital and it had reported that the accused's glycaemia was better controlled, hypertension was well controlled, pulmonary consultation had been completed and only urology workup was going on and, therefore, the Hon'ble Supreme Court set aside the order passed by the High Court.
21. Section 44 (2) of the Prevention of Money Laundering Act provides as follows: -
"44. Offences triable by Special Courts.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),--
(2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Code of Criminal Procedure, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under Section 43."
22. In the case of Ramji Singh Vs. Directorate of Enforcement, 2023 SCC OnLine All 831 this court has held as under:
"48. In case we look at the bare language of Sections 44 and 45 of PMLA, the defect of misplacement of the provision contained in Section 44(2) becomes manifest. Section 44 does not contain any restriction on the powers of any Court regarding grant of bail, yet Section 44(2) provides that nothing contained in this section shall affect the Special powers of the High Courts under Section 439 Cr. P.C. reading Section 44(2) with Section 44(1) only would render Section 44(2) of PMLA redundant and otiose, but this Court cannot chose an interpretation which will render the provision contained in Section 44 (2) of the PMLA redundant or otiose.
49. Apparently, Section 44(2) was inserted by the Parliament with the intention to save the special power of the High Courts under Section 439 Cr. P.C., which intention cannot be fulfilled due to an erroneous placement of the provision as pointed above. This Court has to interpret the provisions contained in Sections 44 and 45 of PMLA collectively so as to give "force and life" to the intention of the legislature behind inserting Section 44(2) in the Act. Undoubtedly, if the makers of the Act had themselves come across this jumbling of the provisions in Sections 44 and 45 due to a copy-paste error, they have surely have straightened it out by reading Section 44(2) and Section 45 in conjunction with each other. Therefore, in order to correct the defect without altering the provisions of the Statute, the provisions of Sections 44 and 45 have to be read together and interpreted harmoniously so that Section 44(2) does not become redundant or otiose.
50. The only irresistible conclusion that can be drawn from the foregoing discussion, is that the intention of the Legislature was clear and unambiguous while making the provisions contained in Sections 44 and 45 of PMLA and it was that the Special Courts will have jurisdiction to try the offences under the Act and no Court shall grant bail to an accused person 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:
(2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.
Nothing contained in sections 44 or 45 shall be deemed to affect the special powers of the High Court regarding bail under Section 439 of the Criminal Procedure Code, 1973 (2 of 1974) and the High Court may exercise such powers including the power under clause (b) of sub-section (1) of that section as if the reference to "Magistrate" in that section includes also a reference to a "Special Court" designated under Section 43.
51. In view of the aforesaid discussion, I am of the considered view that the restrictions contained in Section 45 of the PMLA were meant to be applicable to Courts other than the Constitutional Courts and in view of the provision contained in Section 44 (2) of PMLA, those restrictions do not apply to the Constitutional Courts."
23. Moreover, even Section 45 PMLA has a Proviso appended to it which provides that a person who is sick, may be released on bail even by the special court.
24. The applicant was granted interim anticipatory bail keeping in view his medical conditions only, which claim stands fortified by the subsequent reports submitted by the medical board constituted by five expert doctors of SGPGIMS in furtherance of an order passed by this Court. As has already been noted above, this court lacks the requisite expertise to doubt the reports submitted by SGPGI. The subsequent documents relating to medical condition of the applicant annexed with the supplementary affidavit indicate that the applicant continues to be seriously ill. The allegations of a witness being influenced have been emphatically denied on behalf of the applicant. It has also been denied that the applicant has not cooperated with the investigation and the details of the applicant's appearance before the officers of the Directorate of Enforcement have been mentioned in the supplementary affidavit, prima facie indicating that the applicant has cooperated with the investigation.
25. The applicant has been granted anticipatory bail in Case Crime No. 119/2023, under sections 409, 420, 467, 468, 471, 120-B I.P.C., P.S. Hazratganj, District Lucknow, which is the scheduled offence, by means of an order dated 27.09.2023 which is reported in 2023 SCC OnLine All 925. Besides the aforesaid scheduled offence, the applicant has no other criminal history.
26. Nothing has come to light which may persuade this court to take a view, other than the view taken at the time of granting interim anticipatory bail to the applicant.
27. In view of the aforesaid discussion, this court finds no reason to vacate the interim anticipatory bail granted to the applicant by means of order dated 30.05.2023. Therefore the application for anticipatory bail is allowed and the order dated 30.05.2023 is made absolute.
(Subhash Vidyarthi, J.) Order Date :- 05.10.2023 Ram.