Punjab-Haryana High Court
Anil Nagar vs Directorate Of Enforcement, Through ... on 30 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:097677
CRM-M-19264-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-19264-2024
Reserved on: 05.07.2024
Pronounced on: 30.07.2024
Anil Nagar ......... Pe oner
Versus
Directorate of Enforcement, Through Assistant Director ......... Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. S.K. Garg Narwana, Senior Advocate with
Mr. Vishal Garg Narwana, Advocate,
Mr. Ni n Sachdeva, Advocate,
Mr. Mukul Ahuja, Advocate,
Mr. R.P.S. Jammu, Advocate and
Mr. Arishdeep Mraad, Advocate for the pe oner.
Ms. Promila Nain, Senior Panel Counsel with
Ms. Sushmita Srivastava, L.C. for the applicant/respondent-E.D
****
ANOOP CHITKARA, J. (ORAL)
ECIR No. Dated Sec2ons CDZO-II/15/2021 22.12.2021 44, 45, 65 of the Preven on of Money Laundering Act, 2002 1. The pe oner incarcerated in the FIR cap oned above has come before this Court seeking bail under Sec on 439 CrPC. 2. The pe oner's Counsel seeks bail on the ground of parity. He submits that the trial
Court had given bail to co-accused Ashwani Kumar @ Ashwani Sharma in case No. BA/1409/2023 vide order dated 17.11.2023 (Annexure P-10).
3. Counsel for the pe oner has referred to paragraphs 14 to 18 of the pe on to explain the non-appearance aDer receiving of summons, which reads as follows:
"14. That on 28.02.2023, the pe oner received summons to appear before E.D. for 28.03.2023 through email on the E-mail Id of the pe oner and through post from E.D. The pe oner was interrogated by the E.D authori es from 10:30 AM to 6:30 PM. A,er that E.D. again asked the pe oner to appear on 30.03.2023 before the authori es but the pe oner was suffering from Osteomyeli s bone infec on. Due to the above men oned reason the pe oner 1 of 9 ::: Downloaded on - 03-08-2024 11:15:23 ::: Neutral Citation No:=2024:PHHC:097677 CRM-M-19264-2024 2 was unable to appear before the authori es on 30.03.2023. This fact was duly told to the inves ga ng officer. The copy of the medical report dated 29.03.2023 is a2ached herewith as Annexure P-5.
15. That on 01.05.2023, the pe oner again received E-mail to appear before Enforcement Directorate on 12.05.2023. But on 11.05.2023, pe oner received an e-mail from Enforcement Directorate that Sh. Mangal Singh, IO is not well and he will be in mated later on as when to come for inves ga on.
16. That on 31.07.2023, the pe oner received an E-mail from Enforcement Directorate to appear on 03.08.2023 at 10:30 AM. But due to high fever and eye flue the pe oner via email dated 03.08.2023 informed the Enforcement Directorate that he is unable to appear and requested for another date a,er a week. The copy of the screenshots of e-mail dated 03.08.2023 and medical record dated 03.08.2023 are annexed herewith as Annexure P-6 and Annexure P-7 respec vely.
17. That on 07.08.2023, the pe oner checked his e-mail than he came to know that again summons were issued by the respondent authority for appearance on 05.08.2023. Then immediately on 07.08.2023, the pe oner sent an e-mail for seeking 4 to 5 days' me for appearance due to health issues. The copy of the screenshots of reply to the e-mail are annexed herewith as Annexure P-8.
18. That the pe oner came to know that in the aforesaid case the co- accused/Ashwani Sharma was also summoned by the respondent authority and when on 02.08.2023, the co-accused/Ashwani Sharma appeared before Enforcement Directorate for interroga on he was illegally arrested on the same day without informing the grounds of arrest."
4. The Counsel for ED refutes such prayer and submits that the pe oner is not en tled to bail on parity with co-accused Ashwani Kumar. Counsel appearing for E.D. submits that the pe oner is not en tled to bail on the grounds of parity with Ashwani Kumar @ Ashwani Sharma because compliance was duly made in the case of Anil Nagar's arrest, and allega ons against the pe oner are far graver. Counsel for the E.D. further submits that the pe oner's arrest was neither malafide nor with any vindic veness, but his arrest was necessary; as such, he is not en tled to bail on the grounds of parity with Ashwani Kumar.
5. An analysis of these submissions would lead to the following outcome. Para 5 of the order dated 17.11.2023 passed in Ashwani Kumar's bail points out that the said Ashwani Kumar was arrested on 02.08.2023 and has been in custody since then. In para 12 of the said order, the trial Court men oned the pe oner's primary grounds for bail for non-compliance 2 of 9 ::: Downloaded on - 03-08-2024 11:15:24 ::: Neutral Citation No:=2024:PHHC:097677 CRM-M-19264-2024 3 with sec on 19 of PMLA by relying upon the latest pronouncement of the Hon'ble Supreme Court in Pankaj Bansal Vs. Union of India & Ors., 2023 SCC Online SC 1244. The conclusion of the reasoning of Sessions Court men oned in para Nos. 27 and 28 which reads as follows:
"27. In the light of discussion above, on the ground of arrest of the accused being illegal, he can be granted bail without insistence upon requirement of sa sfac on of the twin condi ons of Sec on 45 of PMLA. Conten on, therefore, raised on behalf of respondent- ED that unless twin condi ons are sa sfied, bail cannot be granted, is without any merit because bail is being sought on the ground of non-compliance of Sec on 19 and whenever it is found that arrest was 'not made in accordance therewith, then there is no op on with the court but to order release of the accused on bail without looking into the aspect of sa sfac on of twin condi ons. This is precisely the reason why the point of twin condi ons was not raised before Hon'ble Supreme Court by ED. Moreover, as held in Union of India Vs. Thamisharasi and others, (1995) 4 Supreme Court Cases 190, which is concerning claim of an accused to default bail under Sec on 167 Cr.P.C. in a case under the NDPS Act, twin condi ons would be required to be sa sfied only in a case where bail applica on is considered and decided on merits which is not the case herein.
28. The conten on of respondent-ED that passing of remand orders itself validated the arrest of the accused and unless remand orders are challenged, no relief is admissible in favour of the applicant-accused, too is devoid of merit because it has been held by Hon'ble Supreme Court in Pankaj Bansal (supra) that mere passing of an order of remand would not be sufficient in itself to validate the arrest if such arrest is not in conformity with the requirements of Sec on 19 of the PMLA. Moreover, at the me of remand proceedings, sa sfac on regarding compliance of Sec on 19 was recorded by the court in view of law on the point then in vogue whereas while deciding the present applica on, the said aspect of the ma2er has to be considered in the light of latest law declared by Hon'ble Supreme Court which is binding on all the courts within the territory of India as per Ar cle 141 of the Cons tu on of India and hence, argument canvassed on behalf of respondent-ED has to be rejected."
6. It would be relevant to refer to Para 4 of the reply dated 30.04.2024 filed by the Assistant Director as such pe oner was summoned, which reads as follows:
"4. That, in the instant case, following summons were issued u/s 50 of the PMLA, 2002 to Anil Nagar, the pe oner, herein by the Directorate:
Sr. Date of Date of Compliance No. Summons appearance
1. 02.03.2022 02.03.2022 His statement was recorded u/s 50 of the PMLA, 2002 in the Temporary office at Central Jail, Ambala a,er geGng permission from the competent Court.
2. 28.02.2023 28.03.2023 He appeared and his statement recorded on 28.03.2023. His statement could not be completed, so he was directed to appear 3 of 9 ::: Downloaded on - 03-08-2024 11:15:24 ::: Neutral Citation No:=2024:PHHC:097677 CRM-M-19264-2024 4 on 29.03.2023. He sought an adjournment on 29.03.2023
3. 01.05.2023 12.05.2023 Due to some exigency the date was postponed and reschedule to 25.05.2023.
Again, due to some exigency his statement could not be recorded.
4. 31.07.2023 03.08.2023 Neither he appeared nor any
5. 04.08.2023 05.08.2023 communica on was received. Further a mail dated 07.08.2023 was received from his email id seeking 4-5 days' me.
6. 07.08.2023 09.08.2023 Neither he appeared nor any communica on was received. However, he filed an cipatory bail applica on in the Special Court, PMLA at Panchkula.
7. 21.08.2023 23.08.2023 Neither he appeared nor any communica on was received.
8. 04.09.2023 06.09.2023 A,er dismissing the an cipatory bail applica on by the learned Special Court, PMLA, Panchkula Court. One more summons was issued. But he neither appeared nor any communica on was received.
That, as it was evident from above details that Anil Nagar deliberately, inten onally and knowingly avoided his appearance before the inves ga ng officer in compliance to summons issued under sec on 50(2) & (3), which under law are termed as judicial proceedings in terms of Sec on 193 & 228 of IPC, 1860; an applica on with prayer for issuance of the Non Bailable Warrant (NBW) was filed, during the course of inves ga on, before the Ld. Special Court, PMLA, Panchkula on 18.09.2023. The Hon'ble Special Court, a,er considering the facts and circumstances of the case, issued the NBW against Anil Nagar on 18.09.2023.
As he was not residing at the available address with this Directorate, on the basis of report submi2ed by this Directorate, the Ld. Special Court, PMLA, Panchkula issued Fresh Warrant of Arrest against Anil Nagar, the pe oner herein on 03.10.2023 & 17.10.2023 with direc on to arrest the accused, the pe oner herein and produce him on before the Ld. Special Court, PMLA on or before 17.10.2023 & 10.11.2023 respec vely.
That, as it appeared that the accused Anil Nagar s/o late Jogi Ram has gone underground to escape from the eyes of Law, this directorate filed an applica on with prayer to and start the process to declare the accused Anil Nagar s/o Late Jogi Ram, accused herein a Proclaimed Offender; that, on the basis of applica on filed by this Directorate, the Ld. Special Court, PMLA, Panchkula issued the Proclama on requiring the appearance of a person accused i.e Anil Nagar S/o Jogi Ram to appear at District and Session Court, Panchkula before 4 of 9 ::: Downloaded on - 03-08-2024 11:15:24 ::: Neutral Citation No:=2024:PHHC:097677 CRM-M-19264-2024 5 Special Judge, under PMLA to answer the said complaint on the day of 22.12.2023. That Anil Nagar, the pe oner herein surrendered before the Ld. Special Court, PMLA, Panchkula on 22.12.2023 and the Ld. Special Court, PMLA, Panchkula sent him to judicial custody."
7. Given the above, the pe oner, Anil Nagar, evaded summons, which was not the case with the co-accused Ashwani; as such, he is not en tled to bail on parity with Ashwani. Based primarily on this, counsel for the ED submits that the pe oner is not en tled to bail on parity with co-accused Ashwani Kumar because all the legal parameters of Pankaj Bansal were complied with, he was given grounds of arrest in wriJen format, he refused to cooperate, and his arrest was not vindic ve because he was evading trial as men oned above. Further, he did not cooperate at all, and there were reasons to believe that he is guilty.
8. Counsel for the pe oner seeks bail on the ground of lack of evidence and false implica on and has referred to following paragraphs of the bail pe on which reads as follows:
"6. That it is admi2ed fact that the pe oner has never demanded or accepted any bribe from anyone. No money or proceeds of crime was recovered from the pe oner. The alleged recovery of Rs.12 lakhs from the house of the pe oner has no link with any kind of bribe or proceeds of crime. This money was a secret fund amount which was kept in his house for scheduled interviews to be held in the coming week. This money was withdrawn from the secret fund account maintained by HPSC.
7. That the co-accused/Ashwani Sharma used to facilitate the Haryana Public Service Commission for scanning of the OMR sheets. On the alleged day of incident pe oner, one Mr. Ajay Khaira, a programmer of HPSC and one Mr. Singla of Singla agency were busy preparing in revising the result of the HCS preliminary examina on, as directed by the Hon'ble High Court. For revising the aforesaid result, on 18.11.2021, the co- accused/Ashwani Sharma telephoned the pe oner on his mobile number 70274-60111 thrice, but the pe oner did not a2end his phone calls. Then, the pe oner called him back and co-accused/Ashwani Sharma said "Sir, meri machine lekar aaya hun". Firstly, the pe oner scolded him therea,er he called him to his office. The inves ga ng agency inten onally misinterpreted the word "Machine" found to be used for the bribe and pe oner's name was involved in the case.
8. That therea,er co-accused/Ashwani Sharma came to the office of the pe oner, at that me, the pe oner was siGng with his back towards co-
5 of 9 ::: Downloaded on - 03-08-2024 11:15:24 ::: Neutral Citation No:=2024:PHHC:097677 CRM-M-19264-2024 6 accused/Ashwani Sharma, as they all were having tea. Co-accused/Ashwani Sharma kept a bag in the pe oner's office and ran away from there. The pe oner never touched the said bag and had no idea about the contents of the bag. Therea,er, the police officials as per their planned trap to falsely implicate the pe oner, raided his office and recovered the bag which was kept by co- accused/Ashwani Sharma. This clearly shows that it was a planned trap against the pe oner as no prudent man will ever receive bribe in the presence of two persons and that too under CCTV surveillance.
9. That at the me of alleged recovery of money from the office of the pe oner, the employees of HPSC namely Mr. Ajay Khaira and Mr. Singla of Singla agency were siGng with Pe oner in his office but the police did not record their statements. Also, the office of the pe oner was surrounded with the CCTV cameras, but the police officials inten onally did not a2ached the same with the challan. This clearly shows that the recovery shown on the pe oner was totally baseless and planted and he has been falsely implicated in the present case.
10. That the inves ga ng agency/state of Haryana has failed to establish that who is the bribe giver and who is the alleged beneficiary. There is no pleading or evidence to show that the pe oner ever demanded any bribe from anybody. Even in the challan, there is nothing to show who gave the money to the pe oner.
11. That the whole case of the Haryana police hinges upon the candidate - Dalbir Singh. Candidate/Dalbir Singh is alleged to be the person for whom the bribe money is given for his selec on, but the candidate Dalbir Singh has not supported the case of Haryana police. The copy of the statement under sec on 164 Cr.P.C. of Dalbir Singh is a2ached herewith as Annexure P-4.
12. That the police alleged that Rs. 66 lacs were recovered from the house of one Ashish Garg and Rs. 144 lacs were produced before the police officials by Ashish Garg son of Sa sh Garg, who was alleged to be the friend of the pe oner. The family of Ashish Garg is a renowned business family and property dealers, who handed over Rs. 2.10 crores cash to the police.
This amount has no link with the pe oner, whatsoever. Sa sh Garg is the father of Ashish Garg and both are not known to the pe oner. Both Sa sh Garg as well as Ashish Garg was present at the me of the alleged recovery of Rs. 66 lacs. It is noteworthy to men on here that both the father and son were present there, that's why they not handed over Rs. 144 Lacs at that me only. Therefore, it is very much clear that the aforesaid recovery was planted by the police."
9. Counsel for E.D has opposed the bail and has referred to reply/affidavit dated 01.07.2024 filed by Assistant Director, which reads as follows:
6 of 9 ::: Downloaded on - 03-08-2024 11:15:24 ::: Neutral Citation No:=2024:PHHC:097677 CRM-M-19264-2024 7 "1. That the SVB laid a trap for Anil Nagar to catch him while accep ng bribe amoun ng to Rs.1,07,97,000/- from Ashwani Sharma and arrested him on 18.11.2021 Anil Nagar admi2ed before the SVB that he had received the said amount of Rs.1,07,97,000/- as bribe from Ashwani Sharma in lieu of geGng the candidates qualified fraudulently in the examina ons of Dental Surgeon and HCS-Pre conducted by the HPSC. He also stated that he took bribe of Rs.2,08,00,000/- and Rs.1,30,00,000/- from Ashwani Sharma for geGng 13 and 05 candidates qualified fraudulently in the examina ons of Dental Surgeon (Grade-II), 2021 and HCS (Ex. Br.) & other Allied Services Preliminary, 2021 respec vely. He further stated that, a,er the scanning of OMR sheets, he and Ashwani Sharma together used to fill in the circles le, blank in the original copies as well as the carbon copies of the candidates from whom they had taken the money for geGng them fraudulently qualified in the said exams. Before SVB, Anil Nagar disclosed on 18.11.2021 that the amount of Rs.66,00,000/- that he received from Ashwani Bharma earlier, for fraudulently qualifying the candidates, were kept with one Sa sh Garg at his residence. Therea,er, on his disclosure, the SVB team along with Anil Nagar reached at the residence of Shri Sa sh Garg wherein Anil Nagar helped in recovering Rs.66,00,000/-. Anil Nagar also disclosed on 19.11.2021 before the SVB that in addi on to Rs.66,00,000/- he (Anil Nagar) gave Rs.1,44,00,000/- to his friend Ashish, hence i.e. 19.11.2021, Ashish Kumar (son of Sa sh Garg), friend of Anil Nagar, accompanied by his uncle Shri Ashok Garg produced Rs.1,44,00,000/- at the office of SVB. The said amounts were claimed by him (Ashish Kumar) to have been received from Anil Nagar. Further, on 19.11.2021 Anil Nagar disclosed before SVB that he kept some amount, which he received as bribe money from Ashwani Sharma for geGng HCS (Pre) & Dental Surgeon Exam qualifying fraudulently, in his Almirah at his residence, hence the SVB conducted search on 19.11.2021 at the residence of Anil Nagar and recovered Rs.12,00,000/- from there. Anil Nagar disclosed that the amounts of Rs.66,00,000/- Rs.1,44,00,000/- and Rs.12,00,000/- recovered and seized by the SVB are the bribe money received from Ashwani Sharma for fraudulently qualifying the candidates in Dental Surgeon and HCS-Pre-
Examina on conducted by HPSC.
2. That total amount of Rs.3,29,97,000/- was recovered and seized by the SVB from Anil Nagar and Ashwani Sharma who demanded and accepted the said money for geGng candidates fraudulently qualified in Dental Surgeon and HCS Pre-examina ons. The details in table are reproduced hereunder:-
7 of 9 ::: Downloaded on - 03-08-2024 11:15:24 ::: Neutral Citation No:=2024:PHHC:097677 CRM-M-19264-2024 8 Amount Par culars Cash-Rs. 1,07,97,000/- Recovered and Seized from the office of accused in the presence of Duty Magistrate by SVB on 18.11.2021.
Cash Rs. 66,00,000/- Before SVB, Accused disclosed on 18.11.2021 that the amount of Rs.66,00,000/- that he received from Ashwani Sharma earlier, for fraudulently qualifying the candidates, were kept with one Sa sh Garg at his residence.
Cash Rs. 1,44,00,000/- Accused also disclosed before SVB on 19.11.2021 before the SVB that in addi on to Rs.66,00,000/- he (Anil Nagar) gave Rs.1,44,00,000/- to his friend Ashish, hence i.e. 19.11.2021, Ashish Kumar (son of Sa sh Garg), friend of Anil Nagar, accompanied by his uncle Shri Ashok Garg produced Rs.1,44,00,000/- at the office of SVB.
Cash Rs. 12,00,000/- Accused on 19.11.2021 disclosed before SVB that he kept some amount, which he received as bribe money from Ashwani Sharma for geGng HCS (Pre) & Dental Surgeon Exam qualifying fraudulently, in his Almirah at his residence, hence the SVB conducted search on 19.11.2021 at the residence of Anil Nagar and recovered Rs.
12 Lakh from there.
Total amount recovered and Rs. 3,29,97,000/-.
seized Apart from this accused disclosed Rs. 2,08,00,000/- on 23.01.2021 before SVB that he And Rs. 1,30,00,000/- took bribe from Ashwani Sharma for geGng 13 and 5 candidates qualifying fraudulently in the examina on of Dental Surgeon and other allied services.
Ashwani Kumar @ Ashwani Rs. 2,05,00,000/-
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Neutral Citation No:=2024:PHHC:097677
CRM-M-19264-2024 9
Sharma interalia stated before the
ED that he handed over Rs.2.5
crores to Anil Nagar i.e. accused
a,er receiving money from
Naveen, Middleman.
10. An analysis of above pleadings would lead to the outcome that there is sufficient evidence connec ng the pe oner with proceeds of crime. The pe oner failed to sa sfy the statutory burden placed upon him under Sec on 45 of PMLA.
11. Given above, there is no reason for this Court to believe that the pe oner is not guilty of any offence, rather, the preliminary evidence prima facie points out towards the pe oner's involvement.
12. Pe on dismissed. All pending miscellaneous applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
30.07.2024
Jyo -II
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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