Punjab-Haryana High Court
Bharat Bhushan Sharma @ Ashu vs Enforcement Of Directorate on 20 December, 2024
Author: Mahabir Singh Sindhu
Bench: Mahabir Singh Sindhu
Neutral Citation No:=2024:PHHC:172170
CRM-M-53947-2024 (O&M)
326
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
CRM-M-53947-2024 (O&M)
Date of Decision: 20th December, 2024.
Bharat Bhushan Sharma @ Ashu .......Petitioner
Versus
Enforcement of Directorate ........Respondent
CORAM: HON'BLE MR. JUSTICE MAHABIR SINGH SINDHU
Present: Mr. Bipan Ghai, Senior Advocate with
Mr. Nikhil Ghai, Advocate and
Mr. Amit Agnihotri, Advocate,
for the petitioner.
Mr. Satya Pal Jain, Additional Solicitor General of India with
Ms. Promila Nain, Senior Panel Counsel and
Ms. Isha Dhingra, Advocate,
for the respondent-E.D.
MAHABIR SINGH SINDHU. J.
Present petition has been filed, under Section 483 of Bharatiya
Nagarik Suraksha Sanhita (for short "BNSS"), 2023 for seeking bail pending
trial in complaint filed under Prevention of Money Laundering Act, 2002 (for
short, "PMLA") bearing No. COMA/24/2024 dated 26.09.2024
(ECIR/JLZO/16/2022) arising out of :-
(i) FIR No.11 dated 16.08.2022, registered under Sections 409, 420, 467,
468, 471, 201 and 120-B of Indian Penal Code, 1860, (for short
"IPC") and Sections 7, 7-A, 8, 12 and 13(2) of Prevention of
Corruption Act, 1988, as amended vide Amendment Act, 2018 (for
short "PC Act") at Police Station, Vigilance Bureau, District Ludhiana
and;
1
1 of 10
::: Downloaded on - 22-12-2024 08:46:29 :::
Neutral Citation No:=2024:PHHC:172170
CRM-M-53947-2024 (O&M)
(ii) FIR No.18 dated 22.09.2022, registered under Sections 409, 420, 467,
468, 471, and 120-B of IPC and Sections 7, 8, 12 and 13(2) of PC Act
at Police Station, Vigilance Bureau, District Jalandhar.
2. BRIEF FACTS:
2.1 It transpires that one Gurpreet Singh son of Shri Swaran Singh,
resident of House No.218, Street No.4, Durgapuri Vistar, Police Station,
Nandnagri, Delhi-110093 (now residing at Guru Teg Bahadur Nagar, District
Shaheed Bhagat Singh Nagar, Punjab) submitted written complaint dated
02.03.2022 to Chief Director, Vigilance Bureau, Punjab, which was forwarded
to Deputy Superintendent of Police, Vigilance Bureau, Ludhiana, resulting into
registration of FIR No. 11 dated 16.08.2022 against petitioner and other co-
accused.
2.2 Another complaint was made by one Honey Kumar, President, R.S.
Cooperative Labour & Construction Society, SBS Nagar resulting into
registration of FIR No. 18 dated 22.09.2022 against the petitioner as well as
other co-accused.
2.3 Primarily, allegations in both the aforesaid FIRs are that petitioner
being Minister of Food, Civil Supplies & Consumer Affairs, Government of
Punjab made certain amendments while notifying "The Punjab Foodgrains
Labour & Cartage Policy 2020-2021" (for short "the Policy for 2020-21").
It is further alleged that in the Policy for previous year i.e. 2019-
2020, there was no clause with regard to minimum turnover and every person
was eligible to take part in the bidding process; however, in the year 2020-21,
new sub-clause-G in clause 5 was inserted regarding "minimum turnover" from
the cartage work of foodgrains of Govt. agencies in any one financial year out
of previous 3 financial years i.e. from 2017-2018 to 2019-2020; hence the fresh
participants were debarred being ineligible.
2
2 of 10
::: Downloaded on - 22-12-2024 08:46:29 :::
Neutral Citation No:=2024:PHHC:172170
CRM-M-53947-2024 (O&M)
It is also alleged that due to amendment in the Policy for 2020-21,
the capacity of cluster was increased and as a result thereof, the competition
was decreased. In this manner, it is alleged that contracts were allotted to some
'favorites' of the petitioner and bids of other contractors were rejected. Again
alleged that huge loss was caused to the public exchequer by the petitioner in
connivance with other co-accused while hatching criminal conspiracy,
committing forgery, using forged documents as genuine and some of the
government official(s) receiving kickbacks in return.
2.4 The contents of above FIRs were scrutinized by the Enforcement
Directorate (for short "E.D") and it was found that offences under Sections
120-B, 420, 467 & 471 IPC and Sections 7, 8 & 13 of PC Act are falling within
the definition of "scheduled offence" as envisaged under Section 2(y) of the
Prevention of Money Laundering Act, 2002 (for short, "PMLA") and covered
under Part-A of the Schedule thereof.
As a result of the above, ECIR No. JLZO/16/2022 was recorded by
the E.D on 23.12.2022 against petitioner as well as other co-accused.
2.5 On 29.7.2024, petitioner was summoned under Section 50 of
PMLA to appear before the E.D officials on 01.8.2024. On the said date, he
appeared in their Zonal Office, Jalandhar and was arrested by the E.D on that
very day at 7.15 p.m. Thereafter, petitioner was remanded to E.D custody twice
by learned Special Court on 02.08.2024 & 07.08.2024 and since 12.08.2024, he
is in judicial custody; hence, present petition.
CONTENTIONS
3. ON BEHALF OF THE PETITIONER
3.1 Learned Senior counsel contends that petitioner has been arrested
in violation of Section 19 of PMLA. He was issued summons for the first time
under Section 50 of PMLA on 29.07.2024 to appear on 01.08.2024. The E.D
3
3 of 10
::: Downloaded on - 22-12-2024 08:46:29 :::
Neutral Citation No:=2024:PHHC:172170
CRM-M-53947-2024 (O&M)
had issued summons for his appearance as a witness on the basis of evidence
they had collected. Petitioner appeared in the E.D. office on that day at 10.00
a.m.; cooperated with the E.D officials throughout the day and ultimately, he
was illegally arrested at 7.15 p.m.
3.2 Also contends that under the predicate offences in both the FIRs
i.e. FIR Nos. 11 & 18, petitioner has already been granted bail pending trial by
the Coordinate Bench of this Court vide separate order(s) dated 24.03.2023 (P-
25 & P-26).
3.3 Further contends that as per the Policy for 2020-21, there was a
Tender Allotment Committee for each district in the State of Punjab, headed by
District Controller consisting of 07 members, who were responsible for
conducting the e-auction and giving the tenders. At that time, although
petitioner was Minister of Food, Civil Supplies & Consumer Affairs,
Government of Punjab, but he was not the member of any of the District Tender
Allotment Committees and as such, no decision regarding the allotment of
tender was taken by him. Even for District Ludhiana, there was an independent
District Tender Allotment Committee, headed by Mr. Manish Narula, Deputy
Director as its Chairman. The approval for amendment in the Policy for 2020-
21 was accorded by respective District Tender Allotment Committees and
thereafter, the matter was sent to the Department of Finance, Government of
Punjab for its concurrence. On receipt of the consent from the Finance
Department, the case was forwarded to the Cabinet for its approval, which was
duly granted and thereafter the amendment in the Policy for 2020-21 was
carried out. Thus, it is wrong to allege that it is only the petitioner, who being a
Minister, had amended the Policy for 2020-21.
3.4 Again contends that Policy for 2020-21 is applicable to all and
sundry; thus it cannot be said that it has been framed to give benefit to a
4
4 of 10
::: Downloaded on - 22-12-2024 08:46:29 :::
Neutral Citation No:=2024:PHHC:172170
CRM-M-53947-2024 (O&M)
particular person and/or contractor. Also contends that E.D, instead of
investigating the case under PMLA has gone beyond its jurisdiction. Even the
E.D had investigated vigilance case as well while recording statements of
members of District Tender Allotment Committee and in which it has
specifically emerged that there was no arbitrariness whatsoever in the Policy for
2020-21 framed by the Government.
3.5 Vehemently contends that the Policy for 2020-21, which is alleged
to have been amended by the petitioner to benefit certain contractor(s), was
challenged before this Court in CWP No. 10707 of 2020 and CWP No. 10656
of 2020. However, the writ petitions were dismissed and the amendment was
upheld by the then Division Bench(es) vide separate orders dated 28.07.2020 &
27.07.2020 (P-18 & P-19, respectively).
3.6 Also contends that E.D has made the mountain out of a molehill by
including the simple household things while calculating the proceeds of crime
and they have failed to prove that alleged money has come from a tainted
source.
3.7 Lastly contended that Vigilance Bureau in derogation of mandatory
provision of Section 17-A of PC Act, which bars from conducting any enquiry,
inquiry or investigation against any public servant where the actions under
challenge are relatable to any recommendation made or decision taken by the
said Public servant in discharge of his official functions or duties, without
previous sanction, registered the aforesaid FIRs and unnecessarily bent upon to
harass the petitioner.
4. ON BEHALF OF THE RESPONDENT
4.1 Per Contra, learned Senior counsel for respondent opposes the
prayer of the petitioner while submitting that petitioner, being the Minister of
Food, Civil Supplies & Consumer Affairs, was solely responsible for
5
5 of 10
::: Downloaded on - 22-12-2024 08:46:29 :::
Neutral Citation No:=2024:PHHC:172170
CRM-M-53947-2024 (O&M)
amendment in the Policy for 2020-21. The amendment was made by the
petitioner with an ulterior motive to extend benefit to the persons who were
near and dear to him.
4.2 Further submits that petitioner had acquired proceeds of crime in
the form of immovable properties amounting to Rs.4,69,63,750/-; he concealed
the same; used it as investments and as such, he is in possession of the proceeds
of crime by claiming the same to be untainted property.
4.3 Again submits that petitioner has acquired the proceeds of crime in
the form of gold and bullion amounting to Rs.2,12,46,000/- and concealed the
same in the lockers of his relatives.
4.4 Not only that, the tenders were allotted to the desired persons and
money was obtained from them. The proceeds of crime, which were generated
by petitioner, were further laundered through Amit Ashish Sharma {brother-in-
law (Sandu) of petitioner}. Said Amit Ashish Sharma handed over cash
collected as bribe to one Kamal Sharma, who through shell entities M/s Advik
Traders & M/s Accurate Traders, provided entries in the bank accounts of
Kamlesh Rani (mother-in-law of petitioner), Geetanjali Sharma (sister-in-law of
petitioner) and Amit Ashish Sharma. The money generated in the bank account
of Kamlesh Rani was transferred in the bank accounts of Saurav Nain, Surbhi
Romesh and Shelly Sharma, who are son, daughter and sister-in-law of
petitioner, respectively, through which he invested the money in three
properties. The gold, which was recovered from the locker in the name of Amit
Ashish Sharma and his wife Geetanjali Sharma, also belong to petitioner.
Mamta (wife of petitioner) and Shelly Sharma (another sister-in-law of
petitioner) had got deposited money in their bank accounts from a jeweller by
showing that they had sold certain jewellery, but in fact, the same was a sham
transaction.
6
6 of 10
::: Downloaded on - 22-12-2024 08:46:29 :::
Neutral Citation No:=2024:PHHC:172170
CRM-M-53947-2024 (O&M)
5. Heard learned counsel for the parties and perused the paper book.
6. FINDINGS AND OBSERVATIONS
6.1 Before proceeding further, the relevant clause of the Policy for
2020-21 is recapitulated as under:-
"GOVERNMENT OF PUNJAB
DEPARTMENT OF FOOD, CIVIL SUPPLIES AND
CONSUMER AFFAIRS
ANAJ BHAVAN, SECTOR 39-C, CHANDIGARH
------
THE PUNJAB FOODGRAINS LABOUR & CARTAGE POLICY 2020-2021
-----
The Government of Punjab, through its Food Procuring Agencies and the Food Corporation of Indía procures food grains (mainly paddy and wheat) on behalf of the Government of India, from various purchase centers situated in the State of Punjab. The procured food grains are then stored at different plinths /Godowns owned/ hired by State Procurement Agencies. The Cartage of food grains from mandis to various storage points, including rice mills, situated up to 8 KM from such mandi(s) is got done from various contractors and the Labour operations in the godowns (including P.E.G) are got carried out from Labour & Construction Societies, Worker Management Committees and other labour contractors, on the basis of contracts awarded through competitive tenders. The Policy, for Labour and Cartage of foodgrains for the year 2020-21 shall be as under: -
1 to 4 .............................................................................
5. Technical Qualifications:-
A to F .......................................................................................... G. In case of tenderer applying for cartage, either alone or along with labour, Tenderer must have minimum turn over from the cartage work of foodgreins of Govt agencies in any one financial year out of previous 3 financial years i.e., from 2017-18 to 2019-20 depending upon the capacity of cluster applied for:-
Sr. Total arrival of wheat/paddy(whichever is Minimum higher) in Mandis in previous year falling turnover No. under one cluster. required (In Rupees) (Only Mandi(s) from which cartage has to 7 7 of 10 ::: Downloaded on - 22-12-2024 08:46:29 ::: Neutral Citation No:=2024:PHHC:172170 CRM-M-53947-2024 (O&M) be done to be included to calculate capacity).
1. Up to 5000 M.T. 10,00,000
2. 5001 Μ.Τ. to 10,000 Μ.Τ. 20,00,000
3. 10,001 M.T. to 20,000 Μ.Τ. 40,00,000
4. 20,001 Μ.Τ. to 30,000 Μ.Τ. 60,00,000
5. 30,001 M.T. to 40,000 Μ.Τ. 80,00,000
6. 40,001 Μ.Τ. to 50,000 Μ.Τ. 1,00,00,000
7. 50,001 Μ.Τ. to 75,000 Μ.Τ. 2,00,00,000
8. 75,001 Μ.Τ. to 1,00,000 M.T. 3,00,00,000
9. Above 1,00,000 M.T. 4,00,00,000 Note 1:- Copy of the audited balance sheet of the concerned financial year shall be uploaded with the Technical Bid as proof of turnover." 6.2 A perusal of the Policy for 2020-21 reveals that aforesaid amendment was made to facilitate one and all. There was no intent to give benefit to a particular person. It is worthwhile to mention here that the amendment in the Policy was challenged at the hands of certain unsuccessful bidders in CWP No. 10707 of 2020 and CWP No. 10656 of 2020, which came to be dismissed by the then Division Bench(es) vide orders dated 28.07.2020 & 27.07.2020 (P-18 & P-19, respectively). For reference, the relevant paragraph of the order dated 28.07.2020 (P-18) passed in CWP-10707-2020, is reproduced as under:-
However, we do not find the afore-discussed contentions to be tenable at all because a bare perusal of the impugned order (Annexure P/6) reveals that it has been specifically mentioned therein that "cartage" which was categorized as "unskilled work" till the previous year, i.e. 2019-20, has now been included in the category of the "skilled work" as per the decision taken by the Council of Ministers, Punjab on 02.03.2020. Even otherwise, undoubtedly, the foodgrains are perishable goods/items. It being so, the timely and proper handling of the same after its harvesting, i.e loading, 8 8 of 10 ::: Downloaded on - 22-12-2024 08:46:29 ::: Neutral Citation No:=2024:PHHC:172170 CRM-M-53947-2024 (O&M) transportation, unloading and storage thereof, is of utmost importance to keep the same preserved for being distributed and utilized so as to achieve the object and the goal behind the enactment of the Food Corporation of India Act, 1964 (as amended from time to time) and this work certainly involves skill.
During the course of hearing, it was acknowledged by both sides that aforesaid orders passed by Division Bench(es) have attained finality as there was no further challenge to the same. Meaning thereby, the amendment so brought in the Policy for 2020-21 was judicially reviewed by the Division Bench(es) of this Court and the same was upheld.
6.3 It is not in dispute that petitioner has been granted bail pending trial by the Coordinate Bench in both the aforesaid FIRs vide separate orders dated 24.03.2023 (P-25 & P-26).
6.4 Apart that, petitioner is in custody in the present complaint case since 01.08.2024; after completion of investigation qua petitioner, complaint was filed against 29 accused by the E.D on 26.09.2024, but charges are yet to be considered by learned Special Court.
6.5 Above all, this Court while allowing CRM-M-43528-2023 & CRM-M-47928-2022 filed by petitioner, has quashed the predicate offences along with all consequential proceedings arising out of both the FIRs i.e. FIR No.11 dated 16.08.2022 and FIR No.18 dated 22.09.2022 (supra) vide order(s) of even date (20.12.2024); thus, in such a scenario, further incarceration of the petitioner would not serve any purpose.
7. Consequently, there is no option, except to allow the petition.
8. Ordered accordingly.
9. As a result, petitioner (Bharat Bhushan Sharma @ Ashu) is ordered to be released on bail in Complaint bearing No. COMA/24/2024 dated 9 9 of 10 ::: Downloaded on - 22-12-2024 08:46:29 ::: Neutral Citation No:=2024:PHHC:172170 CRM-M-53947-2024 (O&M) 26.09.2024 (ECIR/JLZO/16/2022) on furnishing bail bonds and surety bonds to the satisfaction of learned Special Court/Duty Magistrate.
10. Needless to say that this order be not construed as an expression of opinion on merits of the aforesaid complaint, in any manner.
Pending application(s), if any, shall also stand disposed off.
20th December, 2024 (MAHABIR SINGH SINDHU)
SN JUDGE
Whether speaking/reasoned : Yes/No
Whether Reportable: Yes/No
10
10 of 10
::: Downloaded on - 22-12-2024 08:46:29 :::