Jharkhand High Court
Rajeev Jhawar vs Assistant Director on 28 August, 2025
Author: Rongon Mukhopadhyay
Bench: Rongon Mukhopadhyay
Neutral Citation
(2025:JHHC:26964)
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No. 10153 of 2023
Rajeev Jhawar, S/o Brij Kishore Jhawar, Managing
Director, M/s. Usha Martin Ltd., R/o Flat No. 4c & 5c,
12c, Judges Court Road, Alipore, Kolkata, Alipore, P.O.
& P.S.- Alipore, Dist.- Kolkata, Pincode-700027 (West
Bengal) presently residing 132, Cove Drive, Sentosa,
P.O.- Harbour Front Centre Drive, P.S.- Police
Cantonment, New Bridge Road, Dist.- Sentosa,
Singapore-098224. ... Petitioner
Versus
Assistant Director, Enforcement Directorate, Zonal
Office, Government of India, 1st Floor, Chandpura, Bank
Road, Patna-800001, P.O.- Bank Road, Patna, P.S.-
Shashtrinagar, Dist.- Patna.
... Opposite Party
----
PRESENT HON'BLE MR. JUSTICE RONGON MUKHOPADHYAY
----
For the Petitioner : Mr. Indrajit Sinha, Adv. For the O.P. : Mr. Amit Kumar Das, R.C.-E.D.
----
Dated : 28/08/2025
1. Heard Mr. Indrajit Sinha, learned counsel for the petitioner and Mr. Amit Kumar Das, learned Retainer Counsel-Enforcement Directorate.
2. The petitioner apprehends his arrest in connection with Special Trial (PMLA) Complaint Case No. 2/2021 arising out of ECIR No. PTZO/03/2017 which has been instituted for the offences under Sections 3 & 4 read with Section 70 of the Prevention of Money Laundering Act, 2002 ('PMLA' in short).
A.B.A. NO. 10153 OF 2023 1Neutral Citation (2025:JHHC:26964)
3. This application was earlier heard and order was reserved, but subsequently was again listed on account of certain developments which had taken place resulting in interim protection granted to the petitioner by the Hon'ble Supreme Court and which was brought to the notice of the Court by the learned counsel for the petitioner and in course of such proceedings, the petitioner as well as the learned Retainer Counsel-E.D. had filed their written notes of argument.
4. The prosecution case in brief is that FIR No. RC220 2016 E 0017 dated 20.09.2016 was registered against M/s Usha Martin Ltd. & Others, having registered office at 2A Shakespeare Sarani, Kolkata-700071 for commission of offences under Sections 120-B and 420 of IPC, 1860 and Section 13(2) & 13(1)(d) of PC Act, 1988 which are scheduled offences under Paragraph 1 and 8 of Part A to the Schedule of the PMLA, 2002, defined under Section 3 punishable under Section 4 of the Act. On perusal of the above- mentioned FIR, it has been gathered that environmental clearance was issued to M/s Usha Martin Ltd., for mining of Iron Ore in Ghatkuri, West Singhbhum, Jharkhand where mining activities are prohibited or restricted. It has been alleged that while granting forest clearance to M/s Usha Martin Ltd., officials of Ministry of Environment and Forest, New Delhi and officials of Forest and Environment Department, Government of Jharkhand allegedly violated mining laws, environmental laws and various rules and regulations prescribed by Hon'ble Supreme Court of India on some extraneous considerations. The FIR reveals that M/s Usha Martin Ltd., while applying for mining lease, A.B.A. NO. 10153 OF 2023 2 Neutral Citation (2025:JHHC:26964) stated that it would use the Iron Ore for its existing industry. The minutes of the hearing process recorded by the Department of Mines, Jharkhand though speaks about the requirement of iron ore for M/s Usha Martin Ltd. for its plant, it has not specifically mentioned about captive use. However, in the clarification sought by the Government of India, Directorate of Mines, Government of Jharkhand categorically mentioned that the lease was recommended for captive mining. Further, the note dated 17.12.2004 of Indra Deo Paswan, the then Director, Mines, Jharkhand Government recommended allocation of the said mine to M/s Usha Martin Ltd. on the grounds that the company is facing shortage of iron ore for its plant and requires the same for its own use in its industry. It is further revealed that along with its application dated 19.01.0998, M/s Usha Martin Ltd. submitted an undertaking in bond paper that the mined ore would be used only for its captive Plant in Jharkhand. Enquiry has further revealed that the company clearly violated its own undertaking. The noting on the files, wherein the matter was processed by the Mines Department as well as Forest Department, clearly revealed that the user agency was required to use the ore for its own industry. Therefore, prima facie, the company had indulged in cheating by selling the ore in the open market. Further enquiry revealed that the certified photocopies of records of production and dispatch of minerals (Performa-A) (Rule-51 of Mineral Concession Rule, 1960) submitted by M/s Usha Martin Ltd., during the export period, i.e., April 2008 to March 2010 before the Director of Mines, Government of Jharkhand, Ranchi and the Commissioner (Mines & A.B.A. NO. 10153 OF 2023 3 Neutral Citation (2025:JHHC:26964) Geology), Ranchi, Jharkhand do not indicate that the mineral was being exported. This fact establishes furnishing of false information by the user company, i.e., M/s Usha Martin Ltd.
5. It has been submitted by Mr. Indrajit Sinha, learned counsel for the petitioner that in the present case, E.D. has filed its prosecution complaint and supplementary prosecution complaint and the learned Special Judge has taken cognizance of the same and accordingly, the E.D. cannot arrest the petitioner at this stage. Learned counsel has referred to the case of Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office reported in (2024) 7 SCC 61 in which it has been held that once a Special Court takes cognizance of a money laundering complaint, the accused falls under the jurisdiction of the Special Court and Directorate of Enforcement loses its power to arrest under Section 19 of PMLA. It has been submitted that during the pendency of the present anticipatory bail application, the petitioner had approached the Hon'ble Supreme Court in two connected cases being RC AC-1/2020/A004 of 2020 in which it was alleged that the petitioner along with the other accused persons had attempted to bribe an alleged public servant to influence the investigation going on and based on the said FIR, E.D. had initiated a proceeding under the PMLA being ECIR/DLZO- I/24/2022 dated 29.10.2020 and in both the cases, interim protection has been granted to the petitioner who has been directed to appear before the investigation agencies physically. The petitioner in compliance thereto, had returned to India on 17.02.2025 and had joined the on-
A.B.A. NO. 10153 OF 2023 4Neutral Citation (2025:JHHC:26964) going investigations and proceedings in Ranchi and Delhi. Learned counsel has given a chronological events pursuant to the return of the petitioner to India as on 19.02.2025. The petitioner had appeared in the predicate offence of the present case and surrendered before the learned Special Judge and was granted bail subject to certain conditions including the surrender of his passport. The return to India and the subsequent grant of bail of the petitioner in the predicate offence has been intimated to this Court. The petitioner was also granted bail by learned Chief Metropolitan Magistrate, Patiala House Courts, New Delhi on 20.02.2025 in a case registered under Section 174 IPC due to non-compliance of the summons issued in the 2020 ECIR case. Furthermore, in compliance of the summons issued by the CBI qua 2020 FIR, the petitioner had duly appeared before the CBI and joined investigation and similar was the case with respect to the case instituted by the E.D. in the year 2020. It has been submitted that the petitioner had fully co-operated with the E.D. by appearing on 10.06.2019 and providing the required documents. As a result, E.D. consciously refrained from exercising its powers of arrest. It is well settled that when an accused is consciously not arrested during the investigation, his case shall be treated on a separate footing from the accused persons who have been arrested during the investigation. In view thereof, the rigors of Section 45 of the PMLA will not be applicable to the petitioner while deciding the present application at the post-cognizance stage. Reference in this connection has been made to the case of Satender Kumar Antil v. CBI reported in (2022) 10 SCC 51 and Amit A.B.A. NO. 10153 OF 2023 5 Neutral Citation (2025:JHHC:26964) Sarawgi v. Union of India through the Directorate of Enforcement reported in 2023 SCC Online Jhar 993. So far as the merits of the case are concerned, Mr. Indrajit Sinha, learned counsel for the petitioner has submitted that the main allegation is that Usha Martin Ltd., had violated its captive mining undertaking by selling/exporting Iron Ore and, therefore, cheated the Government of Jharkhand causing wrongful loss to the public exchequer. The undertaking of Usha Martin Ltd. clearly stated that only usable sized ore would be used, while any surplus would be sold. Further, for Usha Martin Ltd. the mining lease did not impose captive mining conditions and was granted based on its application. It has been submitted that Usha Martin Ltd. made no misrepresentation, acted within its legal framework and paid all dues, meaning no wrongful loss to the public exchequer was caused or Usha Martin Ltd. has made any wrongful gain. The petitioner was not named as an accused in the First Complaint by the E.D., as no case was made out against him and he was arrayed as an accused only in the supplementary prosecution complaint for being the Managing Director of Usha Martin Ltd. under Section 70 PMLA, without any specific allegations against him. Since no offence has been committed by Usha Martin Ltd., no case can be sustained against the petitioner as its Managing Director. It has been submitted that Pramod Kumar Fatepuria, the co-accused in ECIR has been granted anticipatory bail and, therefore, on the basis of parity, the petitioner also deserves to be granted anticipatory bail. The investigation has already been completed and, therefore, there is no scope of any tampering of evidence by the A.B.A. NO. 10153 OF 2023 6 Neutral Citation (2025:JHHC:26964) petitioner. In view of the circumstances noted above, Mr. Sinha, learned counsel for the petitioner has submitted that the petitioner deserves to be granted anticipatory bail.
6. Mr. Amit Kumar Das, learned Retainer Counsel-E.D. has submitted that the petitioner is the Managing Director of M/s Usha Martin Ltd. and was responsible for taking all material decisions on behalf of the said company. He has stated that M/s Usha Martin Ltd. was granted a mining lease for iron ore at Ghatkuri at West Singhbhum for the captive use of minerals and an undertaking was given on behalf of the company that the ore so excavated from the said mine would be used for captive use of the company, but by violating the said condition, Iron Ore was illegally exported to countries like China and was also sold in open market generating a proceeds of crime to the tune of Rs. 1,90,36,77,679/-. During investigation, the witnesses had established that the petitioner was the overall In-charge looking after the entire operation of the company and he was responsible for illegally diverting the sold iron ore from Ghatkuri Mines and exported to countries like China and had concealed the said transactions. It has been submitted that in course of investigation, it has been established that the petitioner since the very inception had an intent to sell/export the iron ore, but by giving false undertaking, secured allocation of the mining lease in favour of the company and thereby started sell/export of the iron ore while concealing the same in the Company's returns. It has further been submitted that when the offence got unearthed, the petitioner in order to frustrate the proceedings started transferring the properties of M/s Usha Martin Limited to A.B.A. NO. 10153 OF 2023 7 Neutral Citation (2025:JHHC:26964) M/s Tata Sponge and Iron Limited. Even the Ghatkuri Mines have been transferred vide a Memorandum dated 09.04.2019, i.e. after initiation of the investigation. The petitioner during investigation of the predicate offence had also tried to influence the investigating agency of the predicate offence by trying to bribe the Superintendent of Police of CBI, for which an F.I.R. bearing RC AC 1 2020 A0004 dated 02.10.2020 was initially instituted against the officials of M/s Usha Martin Limited along with one Binay Jalan, C.A. and; Parth Jalan, S/o Binay Jalan, who had tried to bribe the S.P., CBI, New Delhi for disposal of F.I.R. bearing No. RC 220 2016 E 0017 dated 20.09.2016 (instituted for the predicate offence). Learned counsel further submits that the petitioner has no regard to the directions passed by this Court. This Court, while granting interim protection to the petitioner vide order dated 15.12.2023 had recorded the undertaking of the petitioner that he would be submiting himself to the trial court on or before 25.01.2024, but despite such undertaking, the petitioner never appeared before the trial court and thus, it is apparent that the petitioner only in order to secure an interim protection had given a false undertaking before this Court. Learned counsel adds that recently when the petitioner had moved the Hon'ble Apex Court in S.L.A. (Crl.) No. 16648/2024, he was granted an interim protection with an observation that he would join the investigation by physically presenting himself before ED and CBI, but despite such directions, the petitioner never cared to appear before the trial court or the respondent- authorities in connection with the present case. Mr. Das, A.B.A. NO. 10153 OF 2023 8 Neutral Citation (2025:JHHC:26964) has summarized the grounds which, according to him, should be considered by submitting that the petitioner is directly involved in the offence of money laundering, and he has not only generated but also laundered the proceeds of crime to the tune of Rs. 1,90,36,77,679/-, had never co- operated with the investigation and avoided all summons issued to him, tampered with the evidence and started transferring the assets of M/s Usha Martin Ltd. including the plant located at Singhbhum East as well as Ghatkuri Mines in favour of M/s Tata Sponge & Iron Limited, had tried to bribe the Investigating Officer with respect to the predicate offence, for which a separate case had been instituted and had given a false undertaking before this Court as recorded in the order dated 15.12.2023 and did not comply with the same which disentitles him for grant of any relief in the instant case.
7. In the case of Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office reported in (2024) 7 SCC 61, it has been held as follows:
"21. A decision of this Court in Pankaj Jain v. Union of India had an occasion to deal with the issue. The occasion to consider the provision of Section 88 was the word "may" used in the Section. We may conveniently reproduce paras 21 and 22 of the said decision, which reads thus : (SCC pp. 754-55) "21. This Court in State of Kerala v. Kandath Distilleries came to consider the use of expression "may" in the Kerala Abkari Act, 1902. The Court held that the expression conferred discretionary power A.B.A. NO. 10153 OF 2023 9 Neutral Citation (2025:JHHC:26964) on the Commissioner and power is not coupled with duty. Following observation has been made in para 29 : (SCC p. 584) '29. Section 14 uses the expression "Commissioner may", "with the approval of the Government" so also Rule 4 uses the expressions "Commissioner may", "if he is satisfied" after making such enquiries as he may consider necessary "licence may be issued".
All those expressions used in Section 14 and Rule 4 confer discretionary powers on the Commissioner as well as the State Government, not a discretionary power coupled with duty.'
22. Section 88 CrPC does not confer any right on any person, who is present in a court. Discretionary power given to the court is for the purpose and object of ensuring appearance of such person in that court or to any other court into which the case may be transferred for trial. Discretion given under Section 88 to the court does not confer any right on a person, who is present in the court rather it is the power given to the court to facilitate his appearance, which clearly indicates that use of the word "may" is discretionary and it is for the court to A.B.A. NO. 10153 OF 2023 10 Neutral Citation (2025:JHHC:26964) exercise its discretion when situation so demands. It is further relevant to note that the words used in Section 88 "any person" have to be given wide meaning, which may include persons, who are not even accused in a case and appeared as witnesses."
22. This Court, in Pankaj Jain case, dealt with a case where Section 437 CrPC was applicable. We have already held that in case of a complaint under Section 44(1)(b) PMLA, Section 437 will have no application. Thereafter, this Court discussed the issue as to in what manner discretion should be exercised. Paras 27 to 29 deal with this issue which read thus : (Pankaj Jain case, SCC pp. 757-58) "27. Another judgment relied upon by the appellant is the judgment of the Punjab & Haryana High Court in Arun Sharma v.
Union of India. In the above case, the Punjab & Haryana High Court was considering Section 88 CrPC read with Section 65 of the Prevention of Money- Laundering Act. In the above context, following has been observed in para 11 :
(SCC OnLine P&H) '11. On the same principles, in absence of anything inconsistent in PMLA with Section 88 CrPC, when a person voluntarily appears before the Special Court for PMLA pursuant A.B.A. NO. 10153 OF 2023 11 Neutral Citation (2025:JHHC:26964) to issuance of process vide summons or warrant, and offers submission of bonds for further appearances before the court, any consideration of his application for furnishing such bond, would be necessarily governed by Section 88 CrPC read with Section 65 PMLA.
Section 88 CrPC reads as follows:
"88. Power to take bond for appearance.--When any person for whose appearance or arrest the officer presiding in any court is empowered to issue a summons or warrant, is present in such court, such officer may require such person to execute a bond, with or without sureties, for his appearance in such court, or any other court to which the case may be transferred for trial."
This Section 88 (corresponding to Section 91 CrPC, 1898) would not apply qua a person whose appearance is not on his volition, but is brought in custody by the authorities as held by the Constitution Bench of the Hon'ble Supreme Court in Madhu Limaye v.
Ved Murti, wherein it was observed that : (SCC p. 745, para 17) "17. ... In fact Section 91 applies to A.B.A. NO. 10153 OF 2023 12 Neutral Citation (2025:JHHC:26964) a person who is present in court and is free because it speaks of his being bound over, to appear on another day before the court. That shows that the person must be a free agent whether to appear or not. If the person is already under arrest and in custody, as were the petitioners, their appearance depended not on their own volition but on the volition of the person who had their custody."
Thus, in a situation like this where the accused were not arrested under Section 19 PMLA during investigations and were not produced in custody for taking cognizance, Section 88 CrPC shall apply upon appearance of the accused person on his own volition before the trial court to furnish bonds for further appearances.'
28. The present is not a case where accused was a free agent whether to appear or not. He was already issued non-bailable warrant of arrest as well as proceeding of Sections 82 and 83 CrPC had been initiated. In this view of the matter, he was not entitled to the benefit of Section 88.
29. In the Punjab & Haryana case, the A.B.A. NO. 10153 OF 2023 13 Neutral Citation (2025:JHHC:26964) High Court has relied on judgment of this Court in Madhu Limaye v. Ved Murti and held that Section 88 shall be applicable since accused were not arrested under Section 19 PMLA during investigation and were not taken into custody for taking cognizance. What the Punjab & Haryana High Court missed, is that this Court in the same paragraph had observed "that shows that the person must be a free agent whether to appear or not". When the accused was issued warrant of arrest to appear in the court and proceeding under Sections 82 and 83 CrPC has been initiated, he cannot be held to be a free agent to appear or not to appear in the court. We thus are of the view that the Punjab & Haryana High Court has not correctly applied Section 88 in the aforesaid case."
(emphasis in original and supplied)
23. Therefore, if a warrant of arrest has been issued and proceedings under Section 82 and/or 83 CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88. Section 88 is indeed discretionary. But this proposition will not apply to a case where an accused in a case under PMLA is not arrested by ED till the filing of the complaint. The reason is that, in such cases, as a rule, a summons must be issued A.B.A. NO. 10153 OF 2023 14 Neutral Citation (2025:JHHC:26964) while taking cognizance of a complaint. In such a case, the Special Court may direct the accused to furnish bonds in accordance with Section 88 CrPC."
8. It is the case of the petitioner that due to ill health of the parents of the petitioner which required day to day care, the petitioner had to go to Singapore. The travel restrictions during COVID-19 outbreak was one of the reasons as well for the petitioner not being able to appear despite the issuance of summons by the E.D. It also appears that pursuant to the interim protection granted to the petitioner in two cases by the Hon'ble Supreme Court being "Rajeev Jhawar v. CBI in Special Leave to Appeal (Crl.) No. 16648/2024 and "Rajeev Jhawar v. E.D. in Special Leave to Appeal (Crl.) No. 16650/2024", the petitioner has returned back to India and has joined the investigation. The petitioner was granted permission to travel to France on account of the marriage of his daughter in Special Leave to Appeal (Crl.) No. 16648/2024, albeit on certain conditions, vide order dated 20-05-2025. Moreover, the E.D. has filed a prosecution complaint and a supplementary prosecution complaint in which the petitioner has been arrayed as (A-3) and cognizance has also been taken.
9. In Rana Kapoor v. Directorate of Enforcement reported in 2022 SCC Online Del 4065, it has been held as follows:
"33. The applicant was not implicated in FIR bearing RC No. 2232021A0005 registered by CBI. The applicant was implicated in present criminal complaint filed by the respondent/ED and arrayed as accused no 2. The investigating A.B.A. NO. 10153 OF 2023 15 Neutral Citation (2025:JHHC:26964) officer consciously did not arrest the applicant. The applicant participated in investigation as his three statements under section 50 PMLA were recorded. The respondent also did not allege that the applicant neither participated nor cooperated in investigation. The concerned Special Court after taking cognizance on present criminal complaint ordered for summoning of the accused persons including the applicant. The investigating officer even after filing of present complaint did not apply for custody of the applicant. The co-accused Gautam Thapar was arrested consciously by the investigating officer during investigation and was denied bail by the Special Court and High Court and as such the applicant is standing on different footing from co-accused Gautam Thapar. The applicant was taken into custody due to dismissal of bail application vide order dated 20.01.2022 passed by the court of Sh. Sanjeev Aggarwal, Special Judge (PC Act)(CBI)-02 Rouse Avenue District Court, New Delhi. The applicant primarily not seeking bail on merit but on basis of observation made by the Supreme Court in para no 65 of Satinder Kumar Antil decision and as such applicant is not required to pass the test of section 45 PMLA. The conditions as per section 45 PMLA would be applicable, had the applicant filed an application either under section 439 of the Code after arrest during investigation or under section 438 of the Code apprehending his A.B.A. NO. 10153 OF 2023 16 Neutral Citation (2025:JHHC:26964) arrest during investigation. As mentioned in present criminal complaint filed by the respondent, the applicant was not arrested during investigation by the investigating agency. There is legal force in argument advanced by the learned Senior Counsel of the applicant that applicant is entitled to bail in view of observations/legal proposition as laid down by the Supreme Court in Satinder Kumar Antil. It is not mandate of section 170 of the Code that if the accused is not taken into custody or arrested during investigation can be arrested or taken into custody after appearance in court post summoning order particularly when neither investigation agency nor prosecution agency sought arrest of accused.
34. The arguments advanced by the learned Special Counsel for the respondent that the applicant has misinterpreted para no 65 of Satinder Kumar Antil is misplaced. There is no force in argument advanced by the learned Special Counsel for the respondent that the applicant before grant of bail required to pass test of 45 of PMLA. The position would have been different, had the applicant arrested during investigation. The investigating agency as mentioned hereinabove consciously preferred not to arrest the applicant during investigation or post filing of charge sheet. The arguments advanced and case law relied on by the Special Counsel for the respondent are A.B.A. NO. 10153 OF 2023 17 Neutral Citation (2025:JHHC:26964) considered in right perspective to the given facts and circumstances but they do not provide much legal help to the respondent in opposing present bail application."
10. Similarly, in Govind Prakash Pandey v. Directorate of Enforcement, Government of India, reported in 2023 SCC Online All 58, it has been held as follows:
"25. At the very outset, it would be apt to deal the rigours of Section 45 of the PMLA, which provides that before granting bail, the twin conditions have to be seen carefully. In the present case, this is an admitted case of the prosecution that after lodging the ECIR on 14.04.2012, the E.D. has not tried to arrest the present applicant under Section 19 of the PMLA. Even after release of the present applicant from jail in the predicate offence in the year 2015, the present applicant was called twice by the E.D. under Section 50 of the PMLA to record his statement on 23.12.2016 and 10.06.2019 where the applicant appeared and recorded his statement but the E.D. has not arrested the applicant under Section 19 of the PMLA. Therefore, it is clear that considering the proper cooperation of the present applicant in the investigation and evidences, material and allegations against the applicant, the Investigating Officer did not find it proper to arrest the applicant under Section 19 of the PMLA. In other words, his A.B.A. NO. 10153 OF 2023 18 Neutral Citation (2025:JHHC:26964) arrest was not warranted during investigation. It is also clear from the records that after proper cooperation of the applicant in the investigation, the prosecution complaint was filed by the E.D. where the learned trial court took cognizance and issued summons to the applicant and the applicant appeared before the learned trial court pleading his bonafide conduct apprising each facts and circumstances seeking bail giving undertaking that he shall cooperate in the trial proceedings in the same manner as he has cooperated in the investigation, but on the request of learned counsel for the E.D. to file objection, the bail application was adjourned; then the applicant prayed for ad-interim bail making submission regarding his bonafide but ad-interim bail application of the applicant has been rejected without considering the dictums of the Apex Court in re; Aman Preet Singh (supra) and Satender Kumar Antil (supra). Even his regular bail application has been rejected on the ground that the twin conditions of Section 45 of the PMLA are not being satisfied whereas in the present case, the applicant has not been arrested by the Investigating Agency under Section 19 of the PMLA and the counsel for the E.D. was properly heard by the trial court, therefore rigours of Section 45 of the PMLA should not be made applicable in the present case."A.B.A. NO. 10153 OF 2023 19
Neutral Citation (2025:JHHC:26964)
11. One of the co-accused, namely, Pramod Kumar Fatepuria has been granted anticipatory bail by this Court in A.B.A. No. 4404/2023 vide order dated 09-11-2023.
12. In the backdrop of the aforesaid pronouncements and as has been noted above, the Prosecution Complaint as well as the Supplementary Prosecution Complaint have been submitted by the E.D. in which cognizance has been taken and, therefore, in such circumstances, the petitioner deserves the privilege of anticipatory bail.
13. So far as the allegations are concerned, it relates to the violation by the user agency (Usha Martin Ltd.) of its undertaking that the iron ore mined in Ghatkuri Mines would only be used for its captive plant, but the same was said to have been sold in open market. Mr. Indrajit Sinha, learned counsel for the petitioner has submitted that the restriction imposed for sell/export of iron ore fines was set aside in the case of Krishna Nand Tripathi v. State of Jharkhand & Ors. reported in 2012 SCC Online Jhar 198 in which Usha Martin Ltd. was also one of the parties. The relevant paragraphs of the said judgment which has been pointed out by the learned counsel for the petitioner reads as follows:
"13. If we go into the merit of the case, then it is not in dispute that the Resolution of the State Government dated 27th August, 2011 being issued without authority of law and in contravention to the provisions of the Act of 1957 and Rules, wherein the powers have been separately given to only the Central Government in prescribing of the relevant Rules, including the provisions to be made A.B.A. NO. 10153 OF 2023 20 Neutral Citation (2025:JHHC:26964) which have been already made by the Central Government. However, it is a different issue, whether the petitioner can succeed in the writ petition. In view of the fact that if the argument of the learned counsel for the petitioner is accepted in toto then it was the duty of the writ petitioner to show that under which law the petitioner is seeking direction against the State Government so as to have a restriction against the sale of the fines. Annexure-2 dated 27th August, 2011, the alleged policy decision, if found to be illegal even then, as we have already noticed, there are all provisions under the Act and Rules, which clearly provided for complete procedure for sale of minerals and fines. The lease is granted to the lessee by the lessor to be executed by the State Government with the limited right of the State Government only to enter into lease agreement but without putting any condition by the State Government and the lease is required to be in prescribed form, as prescribed under Form 'K', which is, in fact, a statutory lease deed which prescribes statutory condition in the lease and in the Form 'K'. Part-2 of Clause (1) specifically provided:
"(1) Liberty and power at all times during the term hereby demised to enter upon the said lands and to search for mine bore, dig, drill for win work, dress, process, convert, carry away and dispose of the said mineral/minerals."A.B.A. NO. 10153 OF 2023 21
Neutral Citation (2025:JHHC:26964)
14. Therefore, so far sale is concerned, right has been given to the mining holders to dispose of the minerals.
15. At this juncture, it will be relevant to mention sub-rule (6) of Rule 33 of the Mines Conservation and Development Rules, 1988, which may be interpreted in the manner that the fines falls in the category of rejects and, therefore, they are required to be disposed of according to sub-rule (6) of Rule 33.
16. Sub-rule (6) of Rule 33 is as under:
"The fines, rejects or tailings from mine, beneficiation or metallurgical plants shall be deposited and disposed in a specially prepared tailings disposal area such that they are not allowed to flow away and cause land degradation or damage to agricultural field, pollution of surface water bodies and ground water or cause floods."
17. A bare perusal of sub-rule (6) of the Rules of 1988 will reveal that it has been provided that the rejects or tailing from mine, beneficiation, or metallurgical plants shall be deposited and disposed in a specially prepared tailings disposal area. Rejects, tailings and fines also have been included in sub-rule (6) and, therefore, it appears from sub-rule (6) of Rule-33 that though fines might have been referred to here, but that does not mean that fines, which can be utilized and used for any A.B.A. NO. 10153 OF 2023 22 Neutral Citation (2025:JHHC:26964) other purpose, is also a rejects in any manner so as to permit its use only for the purpose, as provided under sub-rule (4) of Rule-33, which provides that wherever possible, the waste rock, overburden, etc. shall be back-filled into the mine excavations with a view to restoring the land to its original use as far as possible. As per said sub-rule (6), for keeping these fines, rejects and tailings, a caution has been given so that they are not allowed to flow away and cause land degradation or damage to agriculture field, pollution of surface water bodies and ground water or cause floods. Here, in this case, there are materials which indicate that because of the accumulation of the fines in huge quantity, the authorities found that it is creating pollution in the surface water bodies and also creating huge pollution for the environment and causing deforestation also. Therefore, the fines if are required to be deposited then it does not mean that sub-rule (6) of Rule 33 prohibits sale of the fines in any way. In view of the above. Rule 33(6), as interpreted by the petitioner, cannot be accepted to mean that fines are required to be kept deposited and can only be disposed of in specially prepared tailing disposal area.
18. At this juncture, we would like to refer two orders placed on record by the State Government along with the supplementary counter affidavit because of which it has been A.B.A. NO. 10153 OF 2023 23 Neutral Citation (2025:JHHC:26964) stated by the State that the State had to take a policy decision in the form of Annexure-2. The said order is Annexure-B dated 11th December, 2009 and this is not a general order passed by the State Government, so as to prohibit the sale of the fines, obviously the iron ore fines. This order is a blanket stay against the sale of the iron ore itself in open market by the Companies which supposed to utilize the iron ore for their own use. It nowhere says that by this order the sale of the fines have been stayed. However, this order is also not an order passed by the State authority so as to stay the sale of the fines by all the Companies in the State of Jharkhand, which are 46 in numbers and even if it is so, then also this order dated 11th December, 2009 itself, which is also issued by the State Government and, therefore, the State Government had no authority to issue even such type of order. In fact, said order dated 11th December, 2009 is running contrary to the above referred provisions of law, which cannot be an order that can bind anybody. When an order is contrary to the statutory provisions of law then its legality can be examined even when as such its legality has not been challenged by any of the parties because of the plain and simple reason that the orders cannot be given precedence over the statutory provisions of law and orders are required to be only in consonance with the order to give effect to the statutory provisions of law. When order A.B.A. NO. 10153 OF 2023 24 Neutral Citation (2025:JHHC:26964) is found to be contrary to law, according to the submission made, not only by the respondents but also the writ petitioner, then it is of no use to keep such order.
19. However, we cannot appreciate the manner in which the State Government proceeded to issue Annexure-2 because of the plain and simple reason that the order dated 11th December, 2009 Annexure-B was in relation to the three Companies and not a policy decision of the State Government, so as to require a policy decision of the State Government for taking the decision back. However, the State Government after passing of the order dated 11th December, 2009 proceeded to prescribe more conditions than required in any manner if the State Government was of the opinion that Annexure-B may not come in the way of the free sale of the fines in the State then in that situation the State Government could have passed the order of the withdrawal of Annexure-B.
20. Be that as it may, in totality the order dated 11th December, 2009 and the impugned notification dated 27th August, 2011 have been issued without any authority of law by the State Government and from the provisions of law referred above that a right given to the lessee in Form 'K' and other relevant rules authorize them to dispose of all minerals including the fines. Therefore, the present writ A.B.A. NO. 10153 OF 2023 25 Neutral Citation (2025:JHHC:26964) petition has no merit and hence is liable to be dismissed."
14. In the precincts of the aforesaid as well as on consideration of the entire gamut of the case, I am inclined to allow this application. Accordingly, the petitioner is directed to surrender before the learned court below within a period of four weeks and on his surrender, he shall be released on anticipatory bail on furnishing bail bond of Rs. 50,000/- (Fifty Thousand) with two sureties of the like amount each, to the satisfaction of learned A.J.C.-XVIII- cum-Special Judge, PMLA, Ranchi in connection with Special Trial (PMLA) Complaint Case No. 2/2021, subject to the conditions as laid down under Section 438(2) of the Code of Criminal Procedure.
15. This application stands allowed.
16. Pending I.A.s, if any, stands closed.
(RONGON MUKHOPADHYAY, J.) Preet/-
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