Gujarat High Court
Pasumarthi Venkata Satyanarayana ... vs The Assistant Director, Enforcement ... on 6 May, 2021
Author: A. S. Supehia
Bench: A.S. Supehia
R/CR.MA/2774/2021 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC. APPLICATION NO. 2774 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the
judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the
judgment ? NO
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India or any order made
thereunder ? NO
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PASUMARTHI VENKATA SATYANARAYANA SARMA
Versus
THE ASSISTANT DIRECTOR, ENFORCEMENT DIRECTORATE
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Appearance:
MR IH SYED, SENIOR ADVOCATE MR ANIQ A KADRI for the Applicant
MR ARJUN M JOSHI(11247) for the Applicant(s) No. 1
MR DEVANG VYAS(2794) for the Respondent(s) No. 1
MS MOXA THAKKER, APP (2) for the Respondent(s) No. 2
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CORAM: HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 06/05/2021
ORAL JUDGMENT
1. Heard the learned advocates for the respective parties through video conferencing.
FACTS:
2. The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.) read with Sections 44 and 45 of the Prevention of Money Laundering Act, 2002 (for short "the PMLA Act") seeking regular bail in connection with the arrest order dated ECIR/01/STSZO/2020, passed by the Enforcement Directorate, whereby the applicant came to be arrested on 26.11.2020 under Section 19(1) of the PMLA Act.
Page 1 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021R/CR.MA/2774/2021 JUDGMENT
3. The case of the prosecution as mentioned in the arrest order dated 26.11.2020 is that, the applicant and one Shri Sitaram Adukiya are the Directors of M/s.Sanket Media Private Limited, which is engaged in printing and publishing a newspaper "Satyam Times," in Gujarati and English languages. The arrest order reveals that, the applicant and Shri Sitaram Adukiya have falsely declared very high numbers of circulation of these newspapers i.e. 23,500 and 6,000-6,300 copies daily for the Gujarati and English editions respectively, whereas actual circulation was much less i.e. only 300-600 and 0-290 respectively. It is stated that false figures of higher circulation were used to attract the prospective advertisement agencies, including Directorate of Advertisement and Visual Publicity. By virtue of forgery and use of such fraudulent circulation claims, the applicant and Shri Sitaram Adukiya cheated the Government and private advertisement agencies and thereby gained Rs.2,70,00,000/- towards advertisement. They used bogus purchase invoices and made false entries in the Books of Accounts for showing higher circulation and commission of the fraud. It appears that the applicant and the co-accused Shri Sitaram Adukiya had committed the scheduled offence and thereby generated proceeds of crime to the tune of Rs.2,70,00,000/-. Accordingly, the applicant was arrested and thereafter the authority, by undertaking necessary exercise in detail and confiscating the necessary papers in connection with the aforesaid offence, had filed the complaint being PMLA Case No.1 of 2021 before the Principal District and Sessions Judge, Ahmedabad (Rural), Dist. Ahmedabad. An F.I.R being CR-I/11210048201414/2020 was also registered at Umra Police Station, District Surat for the offence punishable under sections 465, 468, 471,420 and 120(B) of the Indian Penal Code, 1860 (the I.P.C.).
SUBMISSIONS OF THE APPLICANT
4. Learned Senior Advocate Mr.I.H.Syed appearing with Mr.Aniq Kadri, learned advocate appearing for the applicant has Page 2 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT submitted that at the most looking to the papers of the investigation and the complaint, it can be said that the Government agencies are cheated to the extent of Rs.70 Lacs only, whereas the rest of the amount of Rs.2 Crores pertains to private transactions with private agencies. He has submitted that the Coordinate Bench of this Court, while releasing the applicant on regular bail in connection with the offences punishable under Sections 465, 468, 471, 420 and 120B of the IPC vide order dated 18.03.2021 passed in Criminal Misc. Application No.732 of 2021, had directed the applicant to deposit an amount of Rs.50,00,000/- within a period of twelve (12) months in periodical monthly installments and Rs.10,00,000/- within a period of 01 (one) week from the date of his actual release.
5. Learned Senior Advocate, Mr.Syed, on instructions, has submitted that the applicant is ready and willing to deposit some reasonable amount before the concerned court and the applicant, since being aged about 56 years and is suffering from different ailments, he may be released on bail.
6. With regard to the complicity of the present applicant, learned Senior Advocate Mr.Syed has submitted that in fact as per the complaint of the Department, the applicant had become a Director in the year 2019 and the period of the alleged irregularities is from 2008 to 2020. It is further submitted that the property worth Rs.4 Crores has already been attached by the Department in the proceedings and hence, the applicant, now having fully co-operated with the investigation, may be released on bail. He has also invited the attention of this Court to the advertisement contract, which specifies the rates issued by the Directorate of Advertising and Visual Publicity, which falls under the Ministry of Information and Broadcasting, Government of India. It is submitted by the learned Senior Advocate that it is not the case of the Enforcement Directorate that the Directorate of Advertising and Visual Publicity has Page 3 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT alleged any irregularities or misuse of the rates fixed by them. Learned Senior Advocate Mr.Syed has also referred to Section 45 of the PMLA Act, more particularly, Sub-section (1) clauses (i) and (ii) thereof. In reference thereto, he has placed reliance on the judgment of the Apex Court rendered in the case of Nikesh Tarachandra Shah vs. Union of India, (2018) 11 S.C.C. 1, and has submitted that both the conditions, as envisaged in section 45 of the PMLA Act, are set aside by the Apex Court and the Court has to decide the bail application only in light of the provisions of Section 439 of the Cr.P.C. Reference is also made to the order of the Delhi High Court rendered in the case of D.K.Shivakumar vs. Director of Enforcement, (2019) 264 D.L.T. 586. He has also placed reliance on the judgment of the Apex Court rendered in the case of P. Chidambaram vs. Directorate of Enforcement, 2020 (13) S.C.C.
791. Lastly, he has placed reliance on the judgment of the Kerala High Court dated 25.01.2021 passed in Bail Application No.7878 of 2020 rendered in the case of M. Sivasankar vs. Union of India, and submitted that even if, prima facie, the complicity of the applicant is established, clause (ii) of sub- section 1 of Section 45 of the PMLA Act envisages two eventualities, first being that, the Court must be satisfied that there are reasonable grounds for believing that an accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. It is submitted that even if it is assumed that the twin conditions of section 45 of the PMLA Act are applied then also the applicant is entitled to bail in view of the Proviso attached to section 45 of the PMLA Act, which exempts the accused, who is sick and if the sum of money laundering is less than one crore since as per the case of the E.D, the applicant has allegedly cheated the Government to the tune of Rs.70,0000/- and rest of the amount of Rs.2 Crores concerns only the private agencies and not a single private agency has filed any complaint against the applicant. He has submitted that in the present case, it is not the case of the Enforcement Directorate that the applicant will indulge Page 4 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT again in the same offence, if he is released on bail. He has also submitted that since now further custodial interrogation of the applicant is not needed and the trial proceedings will also take considerable time as there is only one Court which is dealing with such offences, the applicant may be released on bail by imposing suitable conditions. Lastly, it is urged by the learned advocate for the applicant that considering the aforesaid aspects of the matter, the applicant may be released on bail.
SUBMISSIONS OF THE ENFORCEMENT DIRECTORATE:
7. Vehemently opposing the aforesaid averments made by the learned Senior Advocate, learned Assistant Solicitor General Mr.Devang Vyas appearing on behalf of the respondent authority has submitted that the complicity of the applicant is prima facie established by the Department, after undertaking necessary investigations and also on verification of various firms, it was found that this company is benefited with the income of Rs.2,70,00,000/- from the financial year 2008 to financial year 2020 - 2021 by using forged documents by way of earning additional income from the advertisement. It is submitted by Mr.Vyas that the present applicant and Sitaram Adukiya - both being the Directors of M/s.Sanket Media Pvt.
Ltd., had violated the advertisement contract given to them and have illegally gained the aforesaid amount. While referring to the provisions of Section 45 of the PMLA Act, he has submitted that after the decision of the Apex Court in the case of Nikesh Tarachandra Shah (supra), the Legislature has amended the provisions and in fact, the amended provisions do not dilute the two conditions. In this regard reference is also made to the decision of the Apex Court in the case of P.Chidambram vs Enforcement Directorate, 2019 (9) S.C.C. 24. He has submitted that the applicant has satisfied that he is not guilty of the offence and he will not again commit the same offence while on bail. Further, reference is also made to Section 24 of the PMLA Act, which shows that the burden is on the accused to prove Page 5 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT contrary that he is not involved in the money laundering. Mr.Vyas has also referred to Section 3 of the PMLA Act, which stipulates that the offence of money laundering and Section 50 of the PMLA Act, which prescribes the production of records, receiving evidence on affidavits, issuing commissions for examination of witnesses and documents, etc. It is submitted by Mr.Vyas that the applicant was given various opportunities to satisfy that he has not gained Rs.2,70,00,000/- and after threadbare examination of the evidences, including the affairs of the Company, its revenue and expenditures, the Department has arrived at the aforesaid amount. It is also submitted that the contention raised by the applicant with regard to the loss caused to the Government of Rs.70 lacs will not make any difference since the total amount of illegal gains as per the investigation comes to Rs.2.70 crores. Mr.Vyas has also placed reference on the decision dated 11.06.2020 of the High Court of judicature at Patna passed in Cr.Misc. No7305 of 2019, wherein it is referred that the issue is pending before the Supreme Court in the case of E.D. Vs. Upendra Rai, Criminal Diary No.5150 of 2020, wherein, the Apex Court has stayed the judgment of the High Court of Delhi rendered in the case of Upendra Rai vs. Directorate of Enforcement. To further fortify his submissions, he has placed reliance on the decisions of Apex Court reported in (2018) 11 S.C.C. 46 (Rohit Tandon vs. Directorate of Enforcement Supreme Court), (2019) 9 S.C.C. 165 (Serious Fraud Investigation Office vs. Nitin Johari), (2013) 7 S.C.C. 439 (Y S Jagan Mohan Reddy v/s Central Bureau of Investigation), Criminal Misc. No.73325/2019 (Vidyut Kumar Sarkar @ Ashok Das v/s State of Bihar and Ors.) (Patna High Court), and (2019) S.C.C. OnLine P&H 4985 Jainam Rathod v/s State of Haryana and Ors.
OPINION:
8. From the conspectus of the aforenoted judgements which are pressed by the learned advocates at the Bar, it manifests that Page 6 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT there are contrary views taken by the High Courts with regard to the revival / existence of the twin conditions envisaged under section 45 of the PMLA Act, after it was struck down by the Supreme Court in the case of Nikesh Tarachand (supra). It appears that the dispute with regard to the twin conditions is pending before the Apex Court in the case of Directorate of Enforcement vs Upendra Rai, wherein the Apex Court has, vide order dated 03.06.2020 passed in SLP (Cri.)No.5150 of 2020, stayed the order dated 09.07.2019 passed in Bail Application No.249 of 2019 by the High Court of Delhi High. The Delhi High Court has held that the amendment in section 45 of the PMLA Act reinforcing twin conditions attached thereto will not have any effect since they were set aside by the Supreme Court. Similar view has been taken by the High Court of Delhi in the case of D.K.Shivakumar (supra). In the case of P.Chidambaram (supra) (2019 (9) S.C.C. 24), the Supreme Court, while examining the case of the applicant for grant of anticipatory bail, has incorporated both - former and later provisions of section 45 the PMLA Act,i.e before and after Nikesh Tarachands case, but the issue of relevancy or applicability of the twin conditions after the amendment was not before the Apex Court, and no opinion in this regard has been expressed.
9. On the backdrop of the aformentioned inter-meshed position on twin conditions of section 45 of the PMLA Act, I may examine the case of the applicant in light of the decision of the Apex Court in case of Nikesh Tarachand(supra). Section 45 post Nikesh Tarachand's decision reads as under:-
"45. Offence to be cognizable and non-bailable. - (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless :
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds, for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail Page 7 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees may be released on bail, if then Special Court so directs:"
10. It is apparent from the aforesaid provisions, that the legislature has not withdrawn the twin conditions from section 45 of the PMLA Act though in the case of Nikesh Tarachand (supra), the Supreme Court has struck down the same as being unconstitutional. I may not deal with all the decisions cited at the Bar since, they are repetitive and not germane and are considered by the Supreme court in the case of Nikesh Tarachand (supra). I may with profit mention a couple of observations made by the Apex Court:
"35. Another interesting feature of Section 45 is that the twin conditions that need to be satisfied under the said section are that there are reasonable grounds for believing that the accused is not guilty of "such offence" and that he is not likely to commit any offence while on bail. The expression "such offence" would be relatable only to an offence in Part A of the Schedule. Thus, in an application made for bail, where the offence of money laundering is involved, if Section 45 is to be applied, the court must be satisfied that there are reasonable grounds for believing that he is not guilty of the offence under Part A of the Schedule, which is not the offence of money laundering, but which is a completely different offence. In every other Act, where these twin conditions are laid down, be it the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985, the reasonable grounds for believing that the accused is not guilty of an offence is in relation to an offence under the very Act in which such section occurs. [See for example, Section 20(8) of TADA and Section 37 of the NDPS Act]. It is only in the 2002 Act that the twin conditions laid down do not relate to an offence under the 2002 Act at all, but only to a separate and distinct offence found under Part A of the Schedule. Obviously, the twin conditions laid down in Section 45 would have no nexus whatsoever with a bail application which concerns itself with the offence of money laundering, for if Section 45 is to apply, the court does not apply its mind to whether the person prosecuted is guilty of the offence Page 8 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. Bail would be denied on grounds germane to the scheduled or predicate offence, whereas the person prosecuted would ultimately be punished for a completely different offence -- namely, money laundering. This, again, is laying down of a condition which has no nexus with the offence of money laundering at all, and a person who may prove that there are reasonable grounds for believing that he is not guilty of the offence of money laundering may yet be denied bail, because he is unable to prove that there are reasonable grounds for believing that he is not guilty of the scheduled or predicate offence. This would again lead to a manifestly arbitrary, discriminatory and unjust result which would invalidate the section.
43. However, the learned Attorney General has argued before us that we must uphold Section 45 as it is part of a complete code under the 2002 Act. According to him, Section 45, when read with Sections 3 and 4, would necessarily lead to the conclusion that the source of the proceeds of crime, being the scheduled offence, and the money laundering offence, would have to be tried together, and the nexus that is provided is because the source of money laundering being as important as money laundering itself, conditions under Section 45 would have to be applied. We are afraid that, for all the reasons given by us earlier in this judgment, we are unable to agree. The learned Attorney General asked us to read down Section 45 in that when the court is satisfied that there are reasonable grounds for believing that a person is not guilty of an offence, it only meant that the court must prima facie come to such a conclusion. Secondly, the fact that he is not likely to commit "any offence" while on bail would only be restricted to any offence of a like nature. Again, we are afraid that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove. Also, we cannot agree with the learned Attorney General that Section 45 imposes two conditions which are akin to conditions that are specified for grant of ordinary bail. For this purpose, he referred us to Amarmani Tripathi [State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] at para 18, in which it was stated that, for grant of bail, the court has to see whether there is prima facie or reasonable ground to believe that the accused has committed the offence, and the likelihood of that offence being repeated has also to be seen. It is obvious that the twin conditions Page 9 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT set down in Section 45 are a much higher threshold bar than any of the conditions laid down in para 18 of the aforesaid judgment. In fact, the presumption of innocence, which is attached to any person being prosecuted of an offence, is inverted by the conditions specified in Section 45, whereas for grant of ordinary bail the presumption of innocence attaches, after which the various factors set out in para 18 of the judgment are to be looked at. Under Section 45, the Court must be satisfied that there are reasonable grounds to believe that the person is not guilty of such offence and that he is not likely to commit any offence while on bail.
46. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime. Absent any such compelling State interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a compelling State interest in tackling crimes of an extremely heinous nature."
11. Assuming that the twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words "under this Act"by deleting "offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule " only makes an ostensible change. The offence of money laundering as stipulated under section 3 of the PMLA Act stems out of the offences prescribed in the Schedules. The defects which the Supreme Court had pointed out while invalidating the existing law are not substantially removed by the amendment. The Supreme Court has asserted that, the twin conditions prescribed in Section 45 of the PMLA Act would have no nexus whatsoever with a bail application which concerns itself with the offence of Page 10 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT money laundering, for if Section 45 of the PMLA Act is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. It is observed that Section 45 of the PMLA Act is a drastic provision which affects the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India and turns on its head the presumption of innocence which is fundamental to a person accused of any offence. The Supreme Court has held that " that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove". Such observations facilitate the Courts to realize and interpret the legal effect of the twin conditions attached to section 45 of the PMLA Act. Finally, the Supreme Court has directed all the concerned Courts to decide the matter on merits without application of the twin conditions contained in section 45 of the PMLA Act as they are declared unconstitutional. The twin conditions still continue. Unquestionably, The amendment Act of 2018 which introduces the expression "under this Act"to section 45 of the PMLA Act, in no uncertain terms can obliterate or dilute the directions issued by the highest Court of land. The same is not written safe from judicial dismemberment. The law declared by the Supreme Court is the law of the land and it is precedent for itself and for all the Courts / Tribunals and the authorities of India. In wake of the aforesaid directions of the Apex Court, this Court cannot genuflect before the impact of the twin conditions even if they stand firm.
12. With regard to burden or proof on the person charged as envisaged in section 24 of the Act, the Supreme Court has held that section 45 of the PMLA Act only speaks of the scheduled offense in Part-A of the Schedule, whereas section 24 speaks of the offence of money laundering, and raises a presumption against the person prosecuted for the crime of money laundering Page 11 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT and such presumption has no application to the scheduled offence mentioned in section 45 of the PMLA Act. In the present case, the applicant is charged with scheduled offences as defined under section 2(u) of the Act. An F.I.R is registered for the offence under Sections 465, 468, 471, 420, 120B of the IPC which are specified in Paragraph No.2 of Part-A. The maximum punishment prescribed for the offences for which the applicant is charged is seven years. The applicant has been granted bail for the IPC offences on the condition of depositing Rs.50,00,000/-.
13. It is the case of the Enforcement Directorate that the applicant has illegally gained the aforesaid amount of Rs.2,70,0000/- by fallaciously inflating the numbers of circulation of the newspapers. Prima facie, from the documents on record, including the allegations leveled in the F.I.R. reveal that it appears that the applicant has gained Rs.70,00,000/-, by cheating the Government and has gained an amount of Rs.2,00,00000/- by cheating private advertisement agencies. It is also not disputed that no complaint has been filed by the private agencies alleging illegal cheating against the applicant. No private agency has come forward claiming illegal gains by the applicant from their private contracts. Such agencies are also not made co-accused. After the investigation, the properties to the tune of Rs.4 Crores are also attached. Though, the factum of release on bail in the I.P.C. / Scheduled offence cannot be a prime consideration of release for the offence of money laundering under the Act, the conditions imposed in the order of bail which are not adverse to the interest of the State cannot be ignored. The Coordinate Bench of this Court, while granting bail to the applicant for the offence punishable under Section 465, 468, 471, 420, 120B of the IPC has observed in para-5(iv), (vi) thus :
"5(iv) It is the case where the applicant allegedly represented over circulation of his publication in order to succeed in getting the advertisement from the Government Authorities as well as from Page 12 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT the private entities. Insofar as the government advertisement is concerned, the applicant allegedly benefited by Rs.70 Lacs.
(vi) Learned advocate for the applicant states that the applicant is ready and willing to deposit an amount of Rs.50 Lacs within stipulated period."
14. The Coordinate Bench has directed the applicant to deposit Rs.50,00,000/- before the trial court within a period of 12 (twelve) months. It is also observed that the applicant has allegedly benefited by Rs.70,00,000/-. Prima facie it appears that the complicity of the applicant in the offence with regard to gaining of an amount of Rs.70,0000/- by defrauding the government is established in the present case, however, while considering the aforesaid facts and circumstances and also in light of the Proviso to section 45 of the PMLA Act, which stipulate that "or is accused either on his own or along with other co-accused of money laundering a sum of less than one crore rupees, may be released on bail", this Court is inclined to grant bail to the applicant. However, it is clarified that the observations made by this Court in this regard may not be treated as adverse to the case of the Enforcement Directorate or the applicant in the trial proceedings. Another relevant aspect, which requires consideration is the satisfaction of three factors, viz: I) flight risk, ii) tempering with the evidence and iii) influencing the witnesses. It is not contended that the applicant is neither a flight risk nor it is established that he has the tendency to influence the witnesses or temper with the evidence. It is also not contended by the Enforcement Directorate that there is any propensity or possibility of the applicant of repeating the offence. The case of the prosecution is entirely premised on the documentary evidence, which is already collected by the Enforcement Directorate. The applicant has been in custody since 07.12.2020, he is also subjected to custodial interrogation and this Court finds that further incarceration of the applicant in the judicial custody will not serve any purpose since the Page 13 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021 R/CR.MA/2774/2021 JUDGMENT complaint is filed under section 45 of the PMLA Act before the Designated Special Court. The Supreme Court in the case of P.Chidambaram (supra) (2020 (13) S.C.C. 791), wherein the accused who was charged with the offence under the PMLA Act, has been released on bail under section 439 of the Cr.P.C by observing that "Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial".
15. In the result, the application is allowed and the applicant is ordered to be released on regular bail in connection with ECIR/01/STSZO/2020, on executing a personal bond of Rs.10,000/- (Rupees Ten Thousand Only) with one local surety of the like amount to the satisfaction of the learned Trial Court and subject to the conditions that he shall;
(a) not take undue advantage of liberty or misuse liberty;
(b) not act in a manner injurious to the interest of the prosecution;
(c) surrender his passport, if any, to the lower court within a week;
(d) not leave the State of Gujarat without prior permission of the concerned Trial Court;
(e) mark presence before the concerned Police Station on alternate every Monday for initial six months and thereafter, on alternate Monday of every English calendar month, for a period of six months, between 10:00 a.m. and 2:00 p.m.;
(f) furnish latest address of residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of the Trial Court;
(g) deposit Rs.5,00,000/- before the concerned court within a period of 10 (ten) days from the date of receipt of this order.
Page 14 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021R/CR.MA/2774/2021 JUDGMENT On deposit of the aforesaid amount, the applicant shall be released on bail. He shall also file an undertaking to the effect that he will deposit Rs.15,00,000/- within a period of 06 (six) months before the concerned court;
It is specifically clarified that any breach of any of the conditions will entail cancellation of the bail.
16. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Trial Court will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before the Trial Court having jurisdiction to try the case.
17. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, learned Trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. Rule is made absolute accordingly.
18. Registry is directed to intimate the concerned jail authority and the concerned Sessions Court about the present order by sending a copy of this order through Fax message, email and/or any other suitable electronic mode.
19. Learned advocate for the applicant is also permitted to send a copy of this order to the concerned jail authority and the concerned Sessions Court through Fax message, email and/or any other suitable electronic mode.
Sd/-
(A. S. SUPEHIA, J) dolly Page 15 of 15 Downloaded on : Fri Jul 16 03:06:52 IST 2021