Orissa High Court
Deepak Gupta vs Enforcement Directorate Of India .... ... on 25 November, 2022
Author: A.K. Mohapatra
Bench: A.K. Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
ABLAPL No.9695 of 2022
Deepak Gupta .... Petitioners
Mr. H.K. Mund, Advocate
-versus-
Enforcement Directorate of India .... Opp. Party
Mr. G. Agarwal, Advocate
CORAM:
JUSTICE A.K. MOHAPATRA
ORDER
Order No. C.A.V.: 28.09.2022 Date of order: 25.11.2022
05. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).
2. Heard Mr. Siddharth Luthra, learned Senior Advocate along with Mr. H.K. Mund, Advocate for the Petitioner and Mr. G. Agarwal, learned Special Counsel appearing for the Enforcement Department. Perused the records and materials placed before this court for consideration.
3. At the outset, the following precious words of Justice T.S.Thakur (former Judge, Supreme Court of India) expressed in the case of in Babubhai Bhimabhai Bokhiria vrs. State of Gujarat reported in (2013) 9 SCC 500, which redefined the criminal justice system in this Country, reverberates in the mind of this Court i.e. "The essence of Article 21 of the Constitution of India lies not only in ensuring that no citizen is deprived of life and personal liberty except according to the procedure established by law, but also such // 2 // procedure ensures both fairness and expeditious conclusion of the trial." Therefore, it is apt to begin this judgment by prefacing it with Article 21 of the Constitution of India which states that no person shall be deprived of his right or his personal liberty except according to the procedure established by law.
4. A Constitution Bench of the Hon'ble Supreme Court in land mark case of A.K. Gopalan vrs. State of Madras ; reported in (1950) SCC 228. In paragraph-9 of the judgment has stated that "it cannot be disputed that the Article collected under the captioned (Right to Freedom) have to consider together to appreciate the extent of the fundamental rights. In the first place, it is necessary to notice that there is distinction between the rights given to citizens and persons. This is clear of perusal of the provision of Article 19 on the one hand and Articles 20, 21 and 22 on the other. In order to determine whether the right to abrize or infringe, it is first necessary to determine the extent the right given by Articles and the limitations prescribed in the Articles themselves permitting its curtailment. The inclusion of Article 13(1) and (2) in the Constitution appears to be a matter of abundant. Even in their absence, if any of the fundamental rights was ensuring by any legislation enactment, the Court has always the power to declare the enactment, to the extent it is transgresses the limit, validity. The existence of Article 13(1) and 13(2) in the Constitution, therefore, is not material for the decision on the question of the fundamental right is given and to what extent it is permitted to be abrize by the Constitution itself."
5. In the case at hand, the accused petition has sought for pre- arrest bail in connection with complaint case (PMLA No.40 of 2018) arising out ECIR No.01/2014/BSZO at Bhubaneswar Sub-zonal // 3 // office of the Enforcement Directorate pending before the court of leaned Special Judge, Special Court, PMLA, Bhubaneswar. The complaint which was lodged by the Enforcement Directorate involves allegation which comes under the prevention of Money Laundering Act, 2002 Act. A case has been registered for the alleged commission of offence under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "PMLA Act"). Since the petitioner apprehends arrest by E.D., he has approached this Court nu filing the anticipatory bail application under Section 438 of the Criminal Procedure Code.
6. Before delving into the facts of the case in detail, this Court deems it proper to highlight the validity of the aforesaid legislation, namely, PMLS Act, 2002. It is pertinent to mention here that the Constitution validity of PMLA Act shall put to test in the case of Bijay Madanlal Choudhury and others vrs. Union of India in Special Leave Petition (Criminal) No.3634 of 2014 and a batch of other similar cases which were disposed of by Hon'ble Supreme Court vide judgment dated 27.07.2022. The question that was involved and required adjudication by the Hon'ble Supreme Court in the above noted case was with regard to the pleas concerning validity and interpretation of certain provision of PMLA Act, 2002 and the procedure followed by the Enforcement Directorate while enquiring into/investigating of offence under the PMLA Act, being violative of the Constitution mandate. The Hon'ble Supreme Court after taking note of the facts of the cases and by referring to various judgments finally come to a conclusion which has been reflected in Paragraph- 187 of the aforesaid judgment. Although the review has been preferred before the Hon'ble Supreme Court against the judgment // 4 // dated 27.07.2022 in the case of Bijay Madanlal Choudhury and others vrs. Union of India(supra), this Court while considering the present bail application shall have to keep in mind the conclusion as has been reflected in Paragraph-187 of the aforesaid judgment.
7. Reverting back to the facts of the present case, it is imperative to know exact sequence of events by going back in time. From the facts are available on record, it appears that, the petitioner herein is Director of M/s. Sneha Marketing Ltd. And M/s. Deepak Steel and Power Ltd. The gravamen of the complaints against the petitioner arises from the alleged fact that he was illegally raised iron/manganese ores of a higher value than what has been declared from the Ulliburu Mining Lease area apart from the allegation illegally raising mineral from areas adjacent minor mining lease areas and selling such minerals to his own concern thereby causing huge loss of revenue to the State exchequer.
8. Records placed before this Court reveals that initially Balasore Vigilance P.S. Case No. 30 of 2013 was registered against the Petitioner and various other persons for the aforementioned illegal mining and making liable for commission of alleged offences under Section 13(2) read with Section 13(1)(c)(d) of the Prevention of Corruption Act, 1988 (hereafter 'PC Act'), Sections 420, 409, 379, 411 read with Section 120-B of the Indian Penal Code, 1860 (hereafter 'IPC') Section 4 and 21(1) of the Mines and Mineral (Development and Regulation Act, 1957 (hereafter 'MMDR Act') and Section 3 of the Forest Conservation Act, 1980. The learned Special Judge (Vigilance), Keonjhar took cognizance of the offences and registered T.R. Case No. 01 of 2014 (V.G.R. Case No. 05 of 2013). The Petitioner was arrested and was in judicial custody for the // 5 // same since 05.09.2013. The preliminary charge-sheet was filed on 31.12.2013 and the final charge-sheet was filed on 24.06.2014. The Petitioner is facing trial in the Court of the Special Judge (Vigilance), Keonjhar having been charged for offences punishable under Section 13(2) read with Section 13(1)(c)(d) of the PC Act and Sections 420, 409, 379, 411, 468 read with Section 120-B of the IPC. Although the trial has commenced, but the same is still continuing and nobody knows as to when the same will be completed. After multiple bail applications and a lapse of almost about seven years, keeping in mind the time the Petitioner was already in judicial custody, the completion of investigation and him being in custody for the maximum punishment possible under most of the Sections he was charged with, this Court vide it's order dated 28.09.2020 in BLAPL No. 1042 of 2020 was pleased to grant him interim bail, which was further confirmed and made final by the Hon'ble Supreme Court vide it's order dated 31.01.2022 in SLP (Crl.) No. 5544 of 2020. At present the Petitioner is enlarged on bail.
9. In the instant bail application under section 438 Cr.P.C., this Court, however, is not concerned with the aforementioned T.R. Case No. 01 of 2014, but with the proceedings emanating from ECIR No. 01/2014/BSZO at Bhubaneswar Sub-Zonal Offices of Enforcement Directorate corresponding to Complaint Case (PMLA) No. 40 of 2018 for alleged offences under Section 3 r/w Section 4 of the Prevention of Money Laundering Act, 2002 (hereafter 'PMLA'), Section13(2) read with Section 13(1)(c)(d) of the PC Act and Sections 420, 411 read with Section 120-B of the IPC and for which the present Petitioner has been constrained to approach this Court vide the present petition seeking anticipatory bail to secure his // 6 // liberty and freedom as guaranteed under Article 21 of the Constitution of India.
10. It appears, from the materials on record, that for some of the offences for which the Petitioner is charged with in T.R. Case No. 01 of 2014 being "scheduled offences" within the meaning of Section 2 (1)(y) of the PMLA, the Enforcement Directorate registered ECIR No. 01/2014/BSZO on 5.02.2014. Thereafter, the investigation commenced and since the Petitioner was already in judicial custody in Keonjhar in connection with T.R. Case No. 01 of 2014, the Enforcement Directorate filed a petition before the Learned Sessions Judge (Khurdha) at Bhubaneswar with the prayer to take the Petitioner into it's custody for interrogation for a period of fifteen days in Crl. Misc. Case No. 05 of 2014 arising out of ECIR No. 01/2014/BSZO. The said prayer was allowed vide the Learned Sessions Judge (Khurdha)'s order dated 03.07.2014 and the present petitioner with other accused was remanded to custody till 10.07.2014. On 10.07.2014, when the present Petitioner was produced in court, the Enforcement Directorate again sought for the custody of the Petitioner, in accordance with law, for a period of thirteen more days for further investigation of the case/ interrogation of the petitioner. Vide order dated 10.07.2014, the present petitioner with other accused was remanded to the Enforcement Directorate's custody for ten days. In this period, the petitioner's statement was recorded by the Enforcement Directorate on 22.07.2014. As the matter stood thus, on 24.07.2014, the Assistant Director, Directorate of Enforcement filed a petition stating that the petitioner's interrogation was over and the petitioner could now be remanded to judicial custody. It is pertinent to note that a bare perusal of the order // 7 // dated 24.07.2014 of the Sessions Judge (Khurdha) also reveals in clear terms that the Enforcement Directorate has not prayed for any further remand and the Petitioner and co-accused are no longer required in the case and therefore, the petitioner was directed to be produced before the Special Judge Keonjhar so as to enable them to be sent back to judicial custody in T.R. Case No. 01 of 2014.
11. The Opp. Party i.e the Enforcement Directorate on 11.04.2018 filed Complaint Case (PMLA) No. 40 of 2018 before the Court of the Learned Sessions Judge (Khurda) at Bhubaneswar under Section 45 of the PMLA against multiple accused persons including the present Petitioner. The Learned Sessions Judge (Khurda) took cognizance on 21.08.2018 and issued summons to the accused persons. Trial has since commenced but it appears, this trial as well is nowhere near completion.
12. The Petitioner herein has filed the present petition under Section 438 of the Criminal Procedure Code, 1973 seeking anticipatory bail in the event of his arrest in connection with Complaint Case (PMLA) No. 40 of 2018 pending before the Court of the Learned Sessions Judge (Khurda) at Bhubaneswar subject to the condition that he will abide by the terms and conditions likely to be imposed by this Court in the event of his release on pre-arrest bail and further subject to condition that he shall cooperate with the trial court for an early conclusion of the trial.
13. Per contra, Mr. G. Agarwal, learned Special Counsel appearing for the Enforcement Directorate opposes the release of the petitioner on pre-arrest bail by referring to the provisions contained in Section 45 of the PMLA Act, 2002 and submits that the same has // 8 // been enacted to combat the menace money laundering having a wide repercussion on the financial system of the country.
14. Mr. Luthra, learned Senior Counsel for the Petitioner contends that the present petition may be allowed inter alia on the following main grounds:
a. During his custody in T.R. Case No. 01 of 2014 a production warrant appears to have been issued by virtue of which the Learned Sessions Judge (Khurda) had remanded the Petitioner's custody to the Special Court, PMLA in terms of Section 167 CrPC from 03.07.2014 to 10.07.2014. Upon his subsequent production on 10.07.2014 before the Learned Sessions Judge (Khurda), the Petitioner's custody was remanded to the Enforcement Directorate for ten days. During this period of remand to Enforcement Directorate, the Petitioner was subjected to custodial interrogation and his statement was recorded. When on 24.07.2014, the Enforcement Directorate did not seek his further custody and stated instead that no further interrogation was required, the Petitioner was sent back to the Superintendent, District Jail, Keonjhar for judicial custody in T.R. Case No. 01 of 2014. Therefore, it is clear that the order dtd. 24.07.2014 was in terms of Section 169 of the CrPC.
b. In the alternative, even if it is assumed for the sake of argument, that the order of 24.07.2014 is not to be treated as a release order, the fact remains that the complaint under PMLA should have been filed within 60 days. As the same was not done, the Petitioner is clearly entitled to default bail under Section 167(2) of the CrPC.
c. The Petitioner has already undergone imprisonment for about 6 years since the order dated 24.07.2014 of the Learned Sessions Judge (Khurda), albeit, in breach of Section 167(2) of the CrPC till his release on interim bail on 28.09.2020 in BLAPL No. 1042 of 2018 by this Court which was extended from time to time and // 9 // was finally confirmed by the Hon'ble Supreme Court on 31.01.2022 in SLP (Crl.) No. 5544 of 2020. Thus, even if it is taken that the Petitioner's custody had not ended on 24.07.2014 or on the 60th day since he was remanded to Enforcement Directorate custody on 10.07.2014 and the Complaint Case No. 40/2018 was registered on 11.04.2018, it implies that he has already spent 6 years in custody even in the case registered at the instance of the Enforcement Directorate (with or without) a legitimate remand order. The maximum punishment prescribed being 7 years as stipulated in Section 4 of the PMLA, the present Anticipatory Bail petition ought to be allowed, keeping in view the Enforcement Directorates' contention that a NBW has been issued, although the same has been denied by the Petitioner, which gives rise to genuine apprehension of arrest.
d. Investigation in the matter has concluded and no new facts remain to be unearthed by the Enforcement Directorate which may require the custodial interrogation of the Petitioner. In fact, the alleged evidence unearthed in the course of investigation which the Opposite Party relies upon in its present Affidavit already finds mention in the Complaint Case (PMLA) No. 40 of 2018 filed on 11.04.2018 in Paragraph 7 i.e. "Brief discussion of evidence relating to offence of money laundering".
e. The Petitioner has already been subjected to rigorous custodial interrogation by E.D. and no useful purpose is going to be served by remanding the Petitioner to custody at this stage. Merely because trial has commenced and the Petitioner is enlarged on bail is not an ipso facto cause to belatedly arrest the Petitioner.
15. Per contra, Mr. Gopal Agarwal, learned Counsel for the Opp. Party i.e. the Enforcement Directorate submits as follows:
f. The Petitioner was remanded to the Enforcement Directorate's custody for interrogation under // 10 // Section 267 CrPC and not under Section 167 CrPC as alleged by the Petitioner. There is absolutely no material on record to show that the order of remand passed on 03.07.2014 or 10.07.2014 are under Section 167 CrPC. The Petitioner has never been arrested by the Enforcement Directorate in connection with Complaint Case (PMLA) No. 40 of 2018.
g. The Petitioner is accused of a serious economic offence and the quantum of punishment for money laundering offences being only 7 years cannot be the basis to undermine the gravity and seriousness of the offence committed by the accused person as the quantum of sentence is a matter of legislative policy.
h. The Petitioner's case does not attract any relief in the nature of an anticipatory bail as the Ld. PMLA Court has taken cognizance of the case and the present case does not satisfy the rigors laid down in Section 45 of the PMLA.
i. The Petitioner ought to have approached the Ld. District and Sessions Court, Khurdha prior to approaching this Court.
j. Grant of anticipatory bail at the stage of investigation will render the Enforcement Directorate unable to collect useful information which the accused has concealed. As there are allegations of the proceeds being laundered, the Enforcement Directorate has to be given sufficient freedom in the process of investigation. The length of his custody, the complaint case having been filed, trial having commenced cannot be treated as persuasive grounds for granting the relief sought for in this case, to the Petitioner.
16. Having heard the rival contentions on grant of pre arrest bail to the petitioner as has been raised by the learned counsels for the parties and on a conspectus of the background facts of the case as well as upon a close scrutiny of the materials placed before this // 11 // Court for consideration by either side and futher taking into consideration the affidavits filed by the learned counsel for the Opp. Party as well the written note of submissions, this Court, at the outset, would like to observe that it is the settled position of law that except where there are specific provisions in the PMLA that provides an alternative procedure, the provisions and procedure of CrPC shall apply to the cases registered and tried under the PMLA. Section 65 of the PMLA states that:
"The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act."
Given the mandate of Articles 21 and 22 of the Constitution of India, the powers under the PMLA in relation to the offences under the PMLA, have to be governed by the CrPC, if not expressly provided for alternatively in the PMLA. This is expressly recognized and acknowledged by Section 65 PMLA. Therefore, there exists absolutely no doubt with regard to the applicability of the procedural law in the case of the present nature.
17. In matters pertaining to bail, the Hon'ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) SCC OnLine SC 825 recently was of the opinion that:
"Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and essential requirement of a modern man."
Further the Supreme Court of India in Sanjay Chandra v. CBI, // 12 // (2012) 1 SCC 40, has observed that:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson."
18. The concept of anticipatory bail was unknown to the old Code of Criminal Procedure of 1898. The Law Commission of India, in its // 13 // 41st report, dated September 24, 1969, drew attention to the necessity of introducing a provision in the Code, to enable the High Courts and the Session Courts to grant anticipatory bail, for protecting an accused or any person, who is apprehending or having a belief that they may be arrested for any non-bailable offence. The Law Commission was seized of the necessity for granting anticipatory bail arose because, at times, influential individuals tried to implicate their rivals in false cases for the purpose of disgracing them or for other purposes, by detaining them in jail for a couple of days. It was also observed that, with the accentuation of political rivalry, the aforesaid tendency showed signs of a steady increase. The Law Commission also suggested that it may not be practical to exhaustively enumerate conditions under which anticipatory bail may be granted, as the same may have been construed as prejudging the entire case. Hence, this was left to the discretion of the courts, without any fetters on such discretion in the statutory provision.
19. Accordingly, taking into consideration the Law Commission's report (and the need of the hour), the Parliament, while enacting the Code of 1973, introduced a provision for anticipatory bail under Section 438, under the heading "Direction for grant of bail to person apprehending arrest". Section 438 of the Criminal Procedure Code reads as follows:
"438. Direction for grant of bail to person apprehending arrest - (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Sessions for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following // 14 // factors, namely-
(i) the nature and gravity of the accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offences;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail"
The rest of the provision is not necessary for the purpose of considering the question raised. Upon a plain reading of the aforesaid provision, it is crystal clear that it confers concurrent jurisdiction on the High Court as well as the Court of Sessions. The wide discretion has been entrusted on the Court of Sessions as well as on the High Court to enlarge such person who comes to the Court, on anticipatory bail. Both the courts have got jurisdiction to enlarge the applicant on anticipatory bail, considering the relevant guidelines in the said provision. As could be seen from the provision itself, there is no embargo or any rider incorporated under the provision that the person who approaches the High Court must first exhaust the said remedy before the Court of Sessions.
20. Furthermore, as stated here in above there exists no Act or Rules or any straight jacket formula to regulate grant of bail to an accused or a person who is apprehending arrest by police, be it regular or anticipatory. The law on anticipatory bail has developed in a non-linear course, through a plethora of judgments passed by the Hon'ble Supreme Court. The following cases are considered to be // 15 // landmark breakthroughs in the law on anticipatory bail. The very first landmark judgment on anticipatory bail was passed by a Constitution bench of the Hon'ble Supreme Court on April 9, 1980, in Gurbaksh Singh Sibbia v. State of Punjab reported in (1980) 2 SCC 565, which laid down the prevailing law of the land on this issue, along with some guiding principles on the concept of anticipatory bail. The Supreme Court, while considering personal liberty as a fundamental right under Article 21, declared that any provision of law, which deals with personal liberty of an individual cannot be unduly whittled down by reading restrictions into it, especially the ones, which find no mention in the statute itself. This judgment of the Hon'ble Supreme Court drew inspiration from the judgment passed in Maneka Gandhi v. Union of India reported in AIR 1978 SC 597, which upheld the primacy of an individual's personal liberty and mandated all laws having an interface with personal liberty to be "just, fair and reasonable".
21. Additionally, the Hon'ble Supreme Court held that courts should lean against imposition of unnecessary restrictions on the scope of Section 438 of the Code when no such restrictions have been imposed by the legislature. Further, the Hon'ble Supreme Court also stated that courts are entitled to impose restrictive conditions as they deem fit, but due consideration should be given to the seriousness and nature of the proposed charges. Furthermore, the Hon'ble Supreme Court laid down guiding principles inter alia being that (i) the applicant must show that he has "reason to believe" that he may be arrested for a non-bailable offence (ii) the High Court or the Sessions Court as the case may be must apply its own mind to the question and decide whether a case is made out for granting such a // 16 // relief (iii) the filing of a First Information Report ("FIR") is not a condition precedent to the exercise of power under Section 438 (iv) anticipatory bail can be granted even after an FIR is filed, so long as the applicant has not been arrested (v) the provisions of Section 438 cannot be invoked after the arrest of the accused (vi) a blanket order of anticipatory bail should not generally be passed and (vii) the normal rule should not be to limit the operation of the order in relation to a period of time.
22. It is therefore clear that the question of granting an anticipatory bail arises only prior to the arrest or to put it in unambiguous terms, at the stage where the person seeking anticipatory bail is 'apprehending arrest'. It is befitting at this juncture to examine the concept of arrest and custody. The word 'arrest' is derived from the French 'Arreter' meaning 'to stop or stay' and signifies a restraint of the person. Black's Law Dictionary, 5th Edition (1979), defines "arrest" as:
"Arrest : To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand. ................ Arrest involves the authority to arrest, the assertion of that authority with the intent to effect an arrest, and the restraint of the person to be arrested............. All that is required for an 'arrest' is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer, as formal declaration of arrest is required."
23. The word 'custody' similarly finds mention in various enactments but it is also not defined under any enactment. The meaning of the term 'custody' is given in the Oxford English // 17 // Dictionary, as follows:
"1. Safe-keeping, protection, charge, care, guardianship.
2. The keeping of an officer of justice, confinement, imprisonment, durance.
3. Guardianship."
24. It is clear that the meaning of the word 'custody' has to be taken with reference to the context in which it is used. The question as to what would constitute arrest and custody has been the subject matter of decisions of different High Courts. This issue was grappled with by the Full Court of the High Court of Madras in the case of Roshan Beevi v. Joint Secretary to Government of Tamil Nadu reported in 1983 SCC OnLine Mad 163, wherein the Hon'ble High Court was pleased to observe as follows:
"16. From the various definitions which we have extracted above, it is clear that the word 'arrest', when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing, the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which so understood by the person arrested. In this connection, a debatable question that arises for our consideration is whether the mere taking into custody of a person by an authority empowered to arrest would // 18 // amount to 'arrest' of that person and whether the terms 'arrest' and 'custody' are synonymous. xxx
37. For all the discussions made above, we hold that 'custody' and 'arrest' are not synonymous terms. It is true that in every arrest there is a custody, but not vice versa. A custody may amount to an arrest in certain cases but not in all cases but not in all cases. In our view the interpretation that the two terms 'custody' and 'arrest' are synonymous is an ultra legalist interpretation, which if accepted and adopted, would lead to a startling anomaly resulting in serious consequences."
25. In the case of Niranjan Singh v. Prabhakar Rajaram Kharote reported in (1980) 2 SCC 559 the Hon'ble Supreme Court held that a person is said to be in "custody" as envisaged under the Cr.P.C. when he is in duress either because he is held by the investigating agency or other police or allied authority or is under the control of the court having been remanded by judicial order, or having offered himself to the court's jurisdiction and submitted to its orders by physical presence. This word "custody" has been explained to have elastic semantics but its core meaning is that the law has taken control of the person. It was observed that "the equivocatory quibblings and hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and other like terminological dubieties are unfair evasions of the straightforwardness of the law." A person can thus be in custody not merely when the police arrest him, produce him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before // 19 // the court and submits to its directions. In the said judgement the overarching principles of bail jurisprudence were laid down and which have been consistently followed by all courts including this court in the cases of Satindra Kumar Yadav v. State of Odisha reported in (2022) SCC Online Ori 90; Gurdit Dang v. State of Odisha reported in 2021 SCC Online Ori 2361 and in the case of Tareque Ahmad v. State of Odisha reported in 2016 SCC Online Ori
835.
26. In Sundeep Kumar Bafna v. State of Maharastra and Ors. reported in (2014) 16 SCC 623 the Hon'ble Supreme Court has concluded that custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigating agency is of the opinion that the detainee or person in custody is guilty of the commission of a crime, he is charged of it and thereupon arrested. This principle is reiterated by Pandian, J. in Directorate of Enforcement v. Deepak Mahajan reported in (1994) 3 SCC 440 that a person is in custody no sooner than he surrenders before the police or before the appropriate court. Similar enunciation of the law is also available in Nirmal Jeet Kaur v. State of M.P. reported in (2004) 7 SCC 558; Sunita Devi v. State of Bihar reported in (2005) 1 SCC 608 and Adri Dharan Das v. State of W.B. (2005) 4 SCC 303 all of which are in sync with the view expressed // 20 // in Niranjan Singh (supra).
27. Moving on, Section 167 of the Cr.P.C. clearly lays down that where investigation cannot be completed within twenty-four hours and the accused is under arrest with police, he has to be produced before the Magistrate for further detention if necessary. This is a salutary provision to safeguard the citizen's liberty so that police cannot illegally detain any citizen. Sub-sections (1) and (2) of Section 167 which are relevant for our purposes read as under:
"167. Procedure when investigation cannot be completed in twenty-four hours.--(1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well-founded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub- inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction:
Provided that--
(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no // 21 // Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,--
(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years;
(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be so released under the provisions of Chapter XXXIII for the purposes of that Chapter;
(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him;
(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police."
28. Sub-section (1) says that when a person is arrested and detained in custody and it appears that investigation cannot be completed within 24 hours fixed under Section 57 and there are grounds of believing that accusation or information is well founded, the officer in charge of the police station or the police officer making the investigation not below the rank of Sub-Inspector shall produce the accused before the nearest Judicial Magistrate. The mandate of sub-section (1) of Section 167 CrPC is that when it is not possible to complete investigation within 24 hours then it is the duty of the police to produce the accused before the Magistrate. Police cannot detain any person in their custody beyond that period. Therefore, sub-section (1) presupposes that the police should have custody of an // 22 // accused in relation to certain accusation for which the cognizance has been taken and the matter is under investigation. Sub-section (2) says that if the accused is produced before the Magistrate and if the Magistrate is satisfied looking to accusation then he can remand the suspect/accused to the police for investigation not exceeding 15 days in the whole. But the proviso further gives a discretion to the Magistrate that he can authorise detention of the accused otherwise than the police custody beyond the period of 15 days but no Magistrate shall authorise detention of the accused in police custody for a total period of 90 days for the offences punishable with death, imprisonment for life or imprisonment for a term of not less than ten years (so far State of Odisha is concerned 90 days be read as 120 days vide Orissa Act 11 of 1997). It is further provided that no Magistrate shall authorise the detention of the accused person in custody for a total period of 60 days when the investigation relates to any other offence. Upon expiry of the period of 90 days (For Odisha 120 days) or 60 days as the case may be, and he shall be released if he is willing to furnish bail. In this connection in State of Maharashtra v. Bharati Chandmal Varma reported in (2002) 2 SCC 121 their Lordships have very clearly held that:
"11. For the application of the proviso to Section 167(2) of the Code there is no necessity to consider when the investigation could legally have commenced. That proviso is intended only for keeping an arrested person under detention for the purpose of investigation and the legislature has provided a maximum period for such detention. On the expiry of the said period the further custody becomes unauthorised and hence it is mandated that the arrested person shall be released on bail if he is prepared to and does furnish bail. It may be a different position if the same accused was found to have been involved in some other offence disconnected from the offence for which he was arrested. In such an // 23 // eventuality the officer investigating such second offence can exercise the power of arresting him in connection with the second case. But if the investigation into the offence for which he was arrested initially had revealed other ramifications associated therewith, any further investigation would continue to relate to the same arrest and hence the period envisaged in the proviso to Section 167(2) would remain unextendable."
29. Therefore, the position of law is very clear that if during the course of the investigation any further ramification comes to the notice of the police then the period will not be extendable. In CBI v. Anupam J. Kulkarni reported in (1992) 3 SCC 141 the Hon'ble Supreme Court observed as follows:
"In one occurrence it may so happen that the accused might have committed several offences and the police may arrest him in connection with one or two offences on the basis of the available information and obtain police custody. If during the investigation his complicity in more serious offences during the same occurrence is disclosed that does not authorise the police to ask for police custody for a further period after the expiry of the first fifteen days. If that is permitted then the police can go on adding some offence or the other of a serious nature at various stages and seek further detention in police custody repeatedly, this would defeat the very object underlying Section 167. [But their Lordships put an occasion and added that] limitation shall not apply to a different occurrence in which complicity of the arrested accused is disclosed. That would be a different transaction and if an accused is in judicial custody in connection with one case and to enable the police to complete their investigation of the other case they can require his detention in police custody for the purpose of associating him with the investigation of the other case. In such a situation he must be formally arrested in connection with other case and then obtain the order of the Magistrate for detention in police custody."
30. In so far as the the concept of "formal arrest" is concerned, the // 24 // procedure therefor has been dealt with by the Apex Court in the case of Joginder Kumar v. State of U.P. and others reported in 1994 SCC (Crl) 1172 that:
".......no arrest can be made, because it is lawful for the police officer to arrest. The existence of power to arrest is one thing. The jurisdiction for exercise of it is quite another. Thus, he has got discretion and only in a case where such arrest is absolutely necessary, he shall resort to arrest. In all other cases, he may, without arresting the accused, proceed with the investigation and filed final reports. It is thus clear that in a case where the police officer investigating a certain case deems it necessary to arrest a person who is the accused as in another case and is already in judicial custody in connection with a different case there are two modes available for him to adopt. The first one is that, instead of effecting formal arrest, he can very well make an application before the jurisdictional magistrate seeking a P.T. warrant for the production of the accused from prison. If the conditions required under Section 267 of the Code of Criminal Procedure, are satisfied, the Magistrate shall issue a P.T warrant for the production of the accused in court. When the accused is so produced before the court, in pursuance of the P.T. warrant, the police officer will be at liberty to make a request for remanding the accused, either to police custody or judicial custody as provided under Section 167 (1) of the Code of Criminal Procedure. At that time, the Magistrate shall consider the request of the police, peruse the case diary and the representation the accused and then pass an appropriate order either remanding the accused or declining to remand the accused. It is of course needless to state that while considering the request for remand, the Magistrate is required to hold a summary enquiry and it is a very serious judicial act be performed by the magistrates while remanding the accused as the personal liberty of the individual is curtailed. The second more which the police officer may adopt is to effect a formal arrest in prison has stated in the case of CBI v. Anupam J Kulkarni reported in (1992) 3 SCC 141 and thereafter to make a request to // 25 // the jurisdictional magistrate for issuance of PT warrant for the production of the accused. When the accused is so produced before the magistrate, the police officer will be entitled to make a request for remand of the accused either in judicial custody or in police custody."
31. In fact, the Hon'ble Madras High Court in the case of State v. K.N. Nehru reported in 2011 SCC OnLine Mad 1984 has succintly summarized the discussion made therein as follows;
"42. From the above discussions, the following conclusions emerge:
(1) When an Accused is involved in more than one case and has been remanded to judicial custody in connection with one case, there is no legal compulsion for the Investigating Officer in the other case to effect a formal arrest of the Accused. He has got discretion either to arrest or not to arrest the Accused in the latter case. The Police Officer shall not arrest the Accused in a mechanical fashion. He can resort to arrest only if there are grounds and need to arrest.
(2) If the Investigating Officer in the latter case decides to arrest the Accused, he can go over to the prison where the Accused is already in judicial remand in connection with some other case and effect a formal arrest as held in Anupam Kulkarni case. When such a formal arrest is effected in prison, the Accused does not come into the physical custody of the Police at all, instead, he continues to be in judicial custody in connection with the other case. Therefore, there is no legal compulsion for the production of the Accused before the Magistrate within 24 hours from the said formal arrest.
(3) For the production of the Accused before the Court after such formal arrest, the Police Officer shall make an Application before the Jurisdictional Magistrate for issuance of P.T. Warrant without delay. If the conditions required in Section 267 of the Code of Criminal Procedure are satisfied, the Magistrate shall issue P.T. Warrant for the production of the Accused on or before // 26 // a specified date before the Magistrate. When the Accused is so transmitted from prison and produced before the Jurisdictional Magistrate in pursuance of the P.T. Warrant, it will be lawful for the Police Officer to make a request to the learned Magistrate for authorising the detention of the Accused either in Police custody or in judicial custody.
(4) After considering the said request, the representation of the Accused and after perusing the case diary and other relevant materials, the learned Magistrate shall pass appropriate orders under Section 167(1) of the Code of Criminal Procedure.
(5) If the Police Officer decides not to effect formal arrest, it will be lawful for him to straightaway make an Application to the Jurisdictional Magistrate for issuance of P.T. Warrant for transmitting the Accused from prison before him for the purpose of remand. On such request, if the Magistrate finds that the requirements of Section 267 of the Code of Criminal Procedure are satisfied, he shall issue P.T. Warrant for the production of the Accused on or before a specified date.
(6) When the Accused is so transmitted and produced before the Magistrate in pursuance of the P.T. Warrant from prison, the Police Officer will be entitled to make a request to the Magistrate for authorising the detention of the Accused either in Police custody or in judicial custody. On such request, after following the procedure indicated above, the Magistrate shall pass appropriate orders either remanding the Accused either to judicial custody or Police custody under Section 167(1) of the Code of Criminal Procedure or dismissing the request after recording the reasons.
(7) Before the Accused is transmitted and produced before the Court in pursuance of a P.T. Warrant in connection with a latter case, if he has been ordered to be released in connection with the former case, the Jail Authority shall set him at liberty and return the P.T. Warrant to the Magistrate making necessary endorsement and if only the Accused continues to be in judicial custody, in connection with the former case, he can be transmitted in pursuance of P.T. Warrant in // 27 // connection with the latter case."
32. Upon examining whether it is at all necessary that invariably in all cases such "formal arrest" is required to be effected in prison, when the accused is already lodged in prison in connection with some other case, it is needless to point out that though the police officer has got power to arrest, it does not mean that he has to resort to arresting the accused, irrespective of the need and justification for arrest. The accused persons shall not be arrested in a robotic fashion. Arrest needs to occur only if there are grounds and need to arrest, not otherwise. It goes without saying that if deemed fit, and in exercise of his discretion, the officer formally arrests the accused then when such a formal arrest is effected in prison, the accused does not come into the physical custody of the officer subsequently effecting the formal arrest at all, instead, he continues to be in judicial custody in connection with the other case. If the officer decides not to effect formal arrest, it will be lawful for him to straightaway make an application to the Jurisdictional Magistrate for issuance of P.T. warrant for transmitting the accused from prison before him for the purpose of remand. On such request, if the Magistrate finds that the requirements of Section 267 of the Code of Criminal Procedure are satisfied, he shall issue P.T. Warrant for the production of the accused on or before a specific date. It cannot be stressed upon enough to remind the Judicial Magistrates of their constitutional obligation, while exercising their right to remand an individual, since it involves the curtailment of right to life, as guaranteed in Article 21 of the Constitution of India. The procedure that has been provided under the Cr.PC is common to both lighter offences and serious offences and hence irrespective of the nature of offence, the police is expected to follow the correct procedure failing which it will result // 28 // in the violation of the fundamental right guaranteed under Article 21 of the Constitution of India.
33. The question of applicability of Cr.P.C. to the PML Act has been dealt with by the Hon'ble Supreme Court in the case of Ashok Munilal Jain v. Directorate of Enforcement, reported in (2018) 16 SCC 158 has held as follows:
"3. We have gone through the orders passed by the trial court as well as by the High Court. We may state at the outset that insofar as the High Court is concerned, it has not given any reasons in support of its aforesaid view except endorsing the view of the trial court to the effect that the provisions of Section 167(2) CrPC are not applicable to the cases under the PMLA Act. This position in law stated by the trial court does not appear to be correct and even the learned Attorney General appearing for the respondent could not dispute the same. We may record that as per the provisions of Section 4(2) CrPC, the procedure contained therein applies in respect of special statutes as well unless the applicability of the provisions is expressly barred. Moreover, Sections 44 to 46 of the PMLA Act specifically incorporate the provisions of CrPC to the trials under the PMLA Act. Thus, not only that there is no provision in the PMLA Act excluding the applicability of CrPC, on the contrary, provisions of CrPC are incorporated by specific inclusion. Even Section 65 of the PMLA Act itself settles the controversy beyond any doubt in this behalf which reads as under:
"65. Code of Criminal Procedure, 1973 to apply.--The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, insofar as they are not inconsistent with the provisions of this Act, to arrest, search and seizure, attachment, confiscation, investigation, prosecution and all other proceedings under this Act."
34. In the context of the present case, it would be apt to state here that while considering the present bail application, a detailed // 29 // examination of the material on record especially touching upon the merits of the case are not required to be undertaken, however, this Court is expected to supply sound reasons while exercising its discretionary power to enlarge the accused on pre arrest bail, as has been observed by the Hon'ble Supreme Court in many cases.
35. It would be pertinent to refer to another judgment of the Hon'ble Supreme Court delivered in Vijay Madanlal Choudhary and Ors. v. Union of India and Ors. reported in 2022 SCC OnLine SC 929, laying emphasis upon the further need to assign reasons as it contains an embargo against the grant of bail to a person accused of an offence under PML Act, unless the Public Prosecutor has been given an opportunity to oppose the application and the Court is satisfied that there are reasonable grounds for believing that such person is not guilty of such offence and that if released on bail, he is not likely to commit any offence, while on bail. The learned counsels for the Enforcement Department as well as the petitioner relied upon this judgment in course of their argument before this court.
36. A useful reference in this context can be made to a three Judge Bench judgment of the Supreme Court in the case of Ranjitsingh Brahmajeetsing Sharma v. State of Maharashtra reported in (2005) 5 SCC 294 wherein the contours of the power of the Court to grant bail in the face of the prohibition contained in Section 21(4) of the Maharashtra Control of Organized Crime Act, 1999 arose for consideration. The prohibition against the grant of bail under Section 21(4) of the MCOC Act, 1999 is pari materia to the bar contained in Section 45(1) of the PMLA. In Ranjitsingh Sharma (supra) the Supreme Court elaborately narrated the approach to be adopted in arriving at the satisfaction as to whether the accused is "not guilty of // 30 // such offence" and that the accused is "not likely to commit any offence while on bail". The relevant paragraphs are quoted hereunder:
"35. Presumption of innocence is a human right. [See Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699, para 31] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-Section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause
(b) of Sub-section (4) of Section 21 must be given a proper meaning.
36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever?
37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on records only for grant of bail and for no other purpose .
38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ............
44. The wording of Section 21(4), in our opinion, does // 31 // not lead to the conclusion that the Court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the Court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence.
45.It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, // 32 // without in any manner being prejudiced thereby."
37. Interestingly, the Hon'ble Supreme Court even in the case of Vijay Choudhary (supra) has observed as follows:
"400. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act. While dealing with a similar provision prescribing twin conditions in MCOCA, this Court in Ranjitsingh Sharma (supra) held as under:
44.....
45.....
46..... (extracted above).
401. We are in agreement with the observations made by the Court in Ranjitsing Sharma (supra). The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weight the evidence to find the guilt of the accused which is, of course, the work of trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial.
As explained by this Court in Nimmagadda Prasad, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt."
Therefore, there is no doubt that the restrictions in the matter // 33 // of grant of bail are required to be considered reasonably. If the Court having regard to the material brought on record is satisfied that, in all probability, the accused may not be ultimately convicted, an order granting bail may be passed. Conversely, it is not a mandatory requirement that the Court must arrive at a positive finding that the Petitioner has not committed an offence under the Act. This view has also been followed by the Hon'ble High Court of Bombay in Anil Vasantrao Deshmukh v. State of Maharashtra and Anr. vide it's judgment and order dated 4.10.2022 in Bail Application No. 1021 of 2022, which has in turn attained finality after Special Leave Petition (Crl.) Diary No. 32078 of 2022 filed against aforesaid order dated 4.10.2022 which was disposed of by the Hon'ble Supreme Court recently vide it's order dated 11.10.2022.
38. The Petitioner in the case at hand has been charged under Sections 4 of the PML Act which provides for a maximum punishment of seven years. Section 13 (1) (c) (d) of the Prevention of Corruption Act which provides for the maximum punishment of seven years and under Sections 120 B, 379,409, 411 and 420 of the IPC. A perusal of Section 2(y) of the PML Act provides for the scheduled offences thereunder and Paragraph 1 relates to offences under the IPC which are "scheduled offences" within the meaning of the PML Act. Section 409 of the IPC does not figure as a scheduled offence under the schedule to the act. Therefore, all the other offences including the offences under the IPC have a maximum punishment of up to 7 years imprisonment.
39. Now reverting back to the facts of the present case, the core allegation which forms the foundation of the alleged offence is that the petitioner along with the other accused persons performed illegal // 34 // mining in the Uliburu Iron Ore Mines and in that process amassed and mobilized illegal monies by defrauding the state exchequer and caused loss to it. On that basis an FIR was registered at Balasore Vigilance PS bearing No. 20 of 2013 for alleged offences under sections 13 (2) r/w 13 (1) (c) (d) of the Prevention of Corruption Act 1988, Sections 120-B/420/379/409/411 of IPC, Section 4 and 21 (1) of MMDR Act, 1957 and Section 3 of Forest Conservation Act, 1980. A final charge-sheet bearing number No. 6/2014 was submitted on 24.06.2014 by Vigilance Police, Balasore, Odisha before the Ld. Special Judge, Vigilance Court at Keonjhar. The Opposite Party registered the Enforcement Case Information Report bearing ECIR No. 01/2014/BSZO as some of the offences under the alleged offences mentioned above were coming under "scheduled offences" as defined in the PMLA under Section 2(y) by lodging a complaint under Section 45 of the PMLA.
40. The substratum of the allegation with regard to the predicate offences seems to be one of illegal mining. The allegation is that under valuation has been done with regard to the quantum of material is raised and the state exchequer has been defrauded on account of non-payment of royalty. The primary contentions raised by the opposite party seems to be that at no stage had they taken the petitioner into "custody" and in any case no formal arrest had been affected. That being the case, although the petitioner has been enlarged on bail in the vigilance case and the fact remaining that the opposite party herein has never formally arrested the petitioner herein, nothing stops them from seeking his custody at the stage for custodial interrogation. It is for this reason that in their affidavit they have sought to stress and impress upon this court that the Petitioner's // 35 // remand was sought under Section 267 CrPC and not under Section 167 CrPC. It is the opposite parties case that insofar as the enforcement cases concerned only "remand" was directed by the competent court and therefore could not be said that the petitioner had been arrested by the opposite party. Since no "arrest" had been affected by the opposite party in the enforcement case they now seek to take the petitioner into custody by effecting a formal arrest if and when required insofar as the enforcement cases are concerned. It is also stated by them that the fact that bail was granted by this court in the vigilance case and confirmed by the Hon'ble Supreme Court primarily on the ground that the petitioner had undergone a period of about six years and the maximum quantum of punishment was about seven years will have no consequence, insofar as the enforcement case is concerned.
41. A thorough scrutiny of the factual background of the present case indicates that the petitioner herein had been taken into custody and not "arrested" by the Opposite Party is evident from a perusal of the orders passed by the special court PMLA, Bhubaneswar. Orders dated 3.07.2014, 10.07.2014 and 14.07.2014 would indicate that the Petitioner had been taken into custody at the request of the opposite party by moving an application and upon such request, they were granted "remand" of the petitioner by the court concerned for a period of seven days and thereafter for an additional period of 10 days.
42. The analysis of the various judicial pronouncements in the preceding paragraphs with regard to the concept of arrest and custody unequivocally demonstrate that the Petitioner in the present enforcement case has never been "formally arrested" by the Enforcement Directorate but has been remanded to their custody for // 36 // the purposes of investigation. In the said context, the argument advanced before this court by Mr. Agarwal, learned counsel for the E.D. has substance in it. Therefore, it appears to this court that most likely the Enforcement Directorate officials have chosen to not exercise their discretionary power to "formally arrest" the Petitioner, probably because they did not feel the need to do so. Furthermore, since lodging of the ECIR to till date, the E.D. officials never bothered to formally arrest the petitioner and while the petitioner was in custody in connection with the vigilance case, he was taken on remand for interrogation by E.D. officials. After investigation was concluded, probably the necessity of arrest was never felt by E.D. The Petitioner had cooperated with investigation and had recorded his statement before the Enforcement Directorate which had led the Enforcement Directorate to state that they no longer require the custody of the Petitioner for the purposes of investigation. As such Section 167 CrPC which talks about the benefits of default bail when investigation cannot be completed post arrest is not applicable to the present factual situation and the Petitioner cannot claim any benefit of the said provision. Moreover, the orders passed by the Ld. Special Judge, Special PMLA Court at Bhubaneswar on 03.07.2014, 10.07.2014 and 24.07.2014 were in line with the provisions of Section 267 of the CrPC. Such ground realities also entail that the present pre arrest bail at the instance of the petitioner is maintainable, furthermore, the Petitioner can apply for and seek grant of anticipatory bail as he justifiably apprehends his formal arrest in the enforcement case by the E.D. officials, never having been arrested in the enforcement case before. This court is also unable to convince itself as to why the E.D. vehemently opposes the bail application of the petitioner at this juncture when they did not do // 37 // anything for past several years to formally arrest the petitioner. The reply of Mr. Agarwal to the courts query was found lacking in many aspects and this court is unable to fathom the approach and strategy of the E.D. in opposing the bail application of the petitioner.
43. This being the peculiar situation of the present matter at hand, the question of the custody of the petitioner being granted to the Opposite Party all over again in respect of the same enforcement case is flawed in concept and misconceived in law. Once bail in the vigilance case had been granted by this court and affirmed by the Hon'ble Supreme Court that too the petitioner was detained in custody for almost 6 years out of maximum quantum of punishment that could be inflicted for the scheduled offences is 7 years, therefore, this court deems it proper and justified to consider the question of bail with regard to the Enforcement case from the standpoint of collective and combined view of the whole issue on conspectus of all the facts involved and the law applicable thereto.
44. In Anokhi Lal v. State of Madhya Pradesh reported in (2019) 20 SCC 196 it has been reiterated that expeditious disposal of criminal matters should not be at the expense of basic elements of fairness and opportunity to the accused. In the case of Sanjay Chandra v. CBI reported in (2012) 1 SCC 40 while dealing with a matter involving a public scam which was extremely prejudicial in nature, the Hon'ble Supreme Court sounded a word of caution while dealing with such matters and had that in cases where under trial prisoners are detained in jail custody indefinitely, Article 21 of the Constitution stands violated. In matters involving scams it was noted that usually a large number of witnesses are present and the trial usually takes a considerable amount of time to be completed. In such // 38 // cases once the charge-sheet has been filed, the court may depending on the facts of the case, the court in seisin ought to decide such bail application on its own merits. While holding so it was alive to the fact that in some situations such lengthy trials may even prolong beyond the maximum sentence provided under the relevant law. In that case the punishment for the offence was for a maximum period of imprisonment of seven years. It was held therein that even if the accused had a likelihood of being convicted, the period of detention already undergone during the trial stage would have a great bearing while deciding a bail application and such a factor should also be taken into consideration.
45. The Opposite Party claims that investigation is continuing which necessitates custodial interrogation of the present Petitioner and has pressed upon us some evidence in its present Affidavit. At this juncture, however, we note that the present matter has gone beyond the stage of investigation qua the present Petitioner to a substantial extent although, the Enforcement Directorate seeks to keep the door open for further investigation. Here, this court observes that the investigation has almost been concluded and no new materials whatsoever were brought to the notice of this court, albeit the case is lingering for almost more than half a decade now. Further, custodial interrogation several years after the institution of the case does not stand to any legal reason and justification. Hence, in the absence of any new incriminating materials against the petitioner and Mr. Agarwal's attempt to demonstrate the case relying the materials which are already on record would not change the ground position substantially and to the disadvantage of the petitioner.
// 39 //
46. It may not be out of place to refer to the case of Satender Kumar Antil v. CBI (supra) where the Hon'ble Supreme Court dealt with Section 436A of the Cr.PC. In the said case comprehensive directions were passed to formulate and carry out directions with regard to provisions of bail. While the dealing with different fact situations the cases were categorised into A, B, C and D categories/types of offences. Category C was categorised as offences punishable under special acts containing stringent provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA (Section 43D), Companies Act (Section 212 (6), POCSO etc. while dealing with Section 436A of the code which has been inserted by Act 25 of 2005 the object of the amendment was gone into by the Hon'ble Apex court. The provision provides that when a person has undergone detention for a period extending to ½ of the maximum period of imprisonment specified for that offence, he shall be released by the court on his personal bond with or without securities. It has been noted that that the word "shall" clearly denotes the mandatory compliance of this provision. It has been noted therein that in cases where the provision applies the power has to be exercised sparingly with the principle governing the presumption of innocence of the accused has the provision is a substantive one, facilitating liberty being the core of the intendment of article 21. In fact the Hon'ble Supreme Court has also taken note of the earlier directions passed by it in the case of Bhim Singh v. Union of India reported in 2015 SCC 605 on the very same lines. Finally, the Hon'ble Supreme Court has concluded that with regard to category C of cases although the individual and enactments were not discussed individually as each special act has a specific objective behind it, followed by the rigours imposed therein, however, it has been clarified that the // 40 // general principle governing bail would apply to these categories also. Thus, to make it clear, the provision contained in Section 436A of the Code would apply to the special acts also in the absence of any specific provision. Therefore, this court would unhesitantly conclude that the rigour, as provided under the special acts such as Section 45 of the PMLA Act as in the present case, would not come in the way as the liberty of the individual is paramount under Article 21 of the Constitution of India.
47. The Petitioner has been in the custody of the Enforcement Directorate wherein his statement has been recorded. He has been stated not to be required by the Enforcement Directorate themselves which stands recorded in order dated 24.07.2014 of the Special PMLA Court, Bhubaneswar. All the documentary evidence to be unearthed against the Petitioner is already in the custody of the Opposite Parties and in fact, assets of the Petitioner and his family members to the tune of Rs.386 crores have admittedly already been attached which is almost equal to the value of the amount of monies allegedly misappropriated. The Petitioner has surrendered his passport to the investigating agency in T.R. Case No. 01 of 2014 and as such no risk exists with regard to the fact that the petitioner might flee away from the country and the court of law. Furthermore, my attention was also drawn to the judgement of the Hon'ble Supreme Court in Common Cause v. Union of India reported in (2017) 9 SCC 499 wherein similar allegations of illegal mining were levelled against multiple mining leaseholders in the State by the Central Empowered Committee. The Hon'ble Supreme Court in the aforementioned matter levied "penalty" on all mining leaseholders to compensate for the environmental damage and the loss to revenue // 41 // caused by their alleged actions. However, the Hon'ble Supreme Court had not deemed it appropriate to direct an enquiry by the Central Bureau of Investigation, as prayed for, against the mining leaseholders as it was held that "what is of immediate concern is to learn lessons from the past so that rapacious mining operations are not repeated in any other part of the country". Since the aforementioned judgment, hardly any mining leaseholder has been proceeded against criminally and even from amongst the handful who have been, nobody has been convicted yet of offences under IPC or the PML Act.
48. In light of the discussion made here in above coupled with a conspectus of the surrounding facts and circumstances of the present case as well as the fact that the petitioner was in custody for almost 6 years in connection with the vigilance case which forms part of scheduled offence for the present case under PML Act and the fact that the custodial interrogation of the petitioner is over and the E.D.'s statement before court that custody of the petitioner is no more required and above all the fact that the petitioner was not formally arrested by the E.D. in the present case since the institution of the case by registering the ECIR further considering the factual background of this case with the touchstone of the test enunciated in the case of Ranjitsingh Sharma (supra), this court is persuade to form a prima facie opinion that, in all probabilities, the Petitioner may not be ultimately convicted especially as none of the other mining leaseholders who were penalised by the Hon'ble Supreme Court in the Common Cause case (supra) have been successfully charged/ convicted of similar predicate offences.
49. Furthermore, the mining operation as well as the mining laws, // 42 // in the meanwhile, has undergone a drastic change, therefore, prima facie there exists no possibilities of such offences being repeated in the future. The apprehension of Mr. Agarwal that the petitioner might not cooperate with the trial and he may not appear before the trial court on each and every date the matter is posted to can very well be taken care of by imposing conditions while releasing the petitioner on pre arrest bail, further violation of such conditions would draw the penalty of curtailment of liberty granted to the petitioner by virtue of this order.
50. At this juncture, this Court as a constitutional would like to highlight another aspect of the matter. As has been said earlier, initially the Vigilance case was registered in the year 2013. The petitioner was arrested and taken into custody. Thereafter, the ECIR was submitted in 2014 and PMLA case was registered in 2018. After remaining custody for more than 6 years, the Petitioner was released on bail by this Court and later on the same was confirmed by the Hon'ble Apex Court. Since 2013, the criminal proceedings are pending and it is not known as to how long the trial will continue. Considering the list of witnesses and the documents, the trial is not likely to conclude in the near future. Under such factual scenario this Court is not expected to remain as a mere spectator and allow the fundamental rights of the accused citizen to be infringed by the prosecution. Therefore, this Court is also of the considered view that concept of right to fair and speedy trial as has been guaranteed under Article 21along with the observation of the Supreme Court in Babubhai's Case (Supra) i.e. the accused cannot be subjected to tyranny of legal process which may go on endlessly for no fault of the accused himself, squarely applies to the facts of the case in hand // 43 // and as such this court is under a constitutional obligation to protect such fundamental rights of the accused petitioner.
51. On a conspectus of the peculiar facts involved in the case at hand and the law applicable thereto, this Court, considers this the present case to be a deserving case for exercising it's discretion under Section 438 CrPC and to grant anticipatory bail to the present Petitioner and accordingly it is directed that the petitioner be released on bail in the event of his arrest by the E.D. officials in connection with Complaint Case (PMLA) No. 40 of 2018 pending before the Ld. Special Judge, Special Court, Bhubaneswar, Khurdha subject to such terms and conditions as the arresting officer would deem fit and proper in the facts and circumstances of the present case. Further, the release of the petitioner on pre arrest bail shall also be subject to following additional terms and conditions;
a. The Petitioner shall appear before the Ld. Special Judge, Special Court, PMLA, Bhubaneswar on each and every date the case is posted to without fail. In case of default in appearance for any insufficient reason it is open for the Ld. Trial Court to issue NBW against the Petitioner.
b. While on pre arrest bail the Petitioner shall not make any attempt whatsoever to tamper with or destroy the prosecution evidence.
c. While on pre arrest bail, the Petitioner shall not make any attempt whatsoever to threaten, influence, induce, gain over any of the prosecution witnesses.
d. The Petitioner shall cooperate with investigation if his cooperation is sought for by the Enforcement Directorate.
e. The Petitioner shall not leave the country under any circumstances and shall surrender his travel // 44 // documents like passport etc, if not already surrendered before the trial court.
f. The Petitioner shall keep on informing about his whereabouts to the E.D. and shall provided his address and mobile number to the E.D. and keep the same updated from time to time.
g. Violation of any of the conditions mentioned herein above would entail cancellation of the bail granted to the Petitioner.
52. It is made clear that the observations made herein are prima facie for the purposes of the instant application and the trial Court shall decide the case in question on its own merits uninfluenced by any of the observations/findings given in this order, strictly in accordance with law by following the procedure.
53. With the aforesaid observations/directions, the anticipatory bail application stands allowed.
( A.K. Mohapatra) Judge Jagabandhu