Chattisgarh High Court
Arun Pati Tripathi vs State Of Chhattisgarh on 30 September, 2024
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2024:CGHC:38638
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ORDER RESERVED ON 17.09.2024
ORDER DELIVERED ON 30.09.2024
MCRC No. 5081 of 2024
1 - Arun Pati Tripathi S/o Lt. Sh. Prakash Pati Tripathi Aged About 55
Years R/o House No. 1a, Street-Spa, Sector 9, Bhilai-Durg,
Chhattisgarh.
... Applicant
versus
1 - State of Chhattisgarh through ACB/EOW, Raiipur, Chhattisgarh.
... Respondent
For Applicant : Mr.Rajeev Shrivastava, Sr. Advocate assisted by Mr. Aditya Tiwari, Advocate For Respondent/State : Mr. Mahesh Jethmalani, Sr. Advocate along with Mr. Vivek Sharma, Addl. Advocate General and Ms. Mughdha Pandey for the State (Hon'ble Shri Justice Arvind Kumar Verma) C A V Order This is the first bail application under Section 439 of the Cr.P.C. for grant of regular bail filed by the applicant as he has been arrested in connection with Crime No.04/2024 dated 12.04.2024 (arrested on 12.04.2024) registered by the Anti Corruption Bureau District Raipur, 2 / 33 Chhattisgarh for commission of offences punishable under Sections 420,467,468,471 & 120(B) of the IPC and Sections 7 and 12 of the Prevention of Corruption Act.
2. It is the case of the applciant that he was an erstwhile Special Secretary of the Excise Department in the State of Chhattsigarh and Managing Director of M/s. Chhattisgarh State Marketing Corporate Limited (CSML). He is an Indian Telecom Service (ITS) Officer of Department of Telecom, Ministry of Communication. He was working under the Government of Chhattisgarh on deputation and was relieved for joint parent department ie. Department of Telecommunication, Ministry of Communication and Information Technology, New Delhi on 22.12.2023. He does not have any criminal antecedents. It is alleged that in between 26.02.2020 to 01.03.2020, an attempt to harras the applicant and his family the Income Tax department carried out search and seizure operation on several premises owned by the applicant and his family however nothing incriminating was recovered from the premises of the applicant.
3. Subsequently, the Income Tax Department recorded statements of various individuals alleged to be part of an imaginary liquor syndicate in the State of Chhattsigarh. It is pertinent to mention that none of these individuals had given any incriminating statement against the applicant. Every person whose statement was recorded by the Income Tax Department had completely denied any criminality in relation to the way 3 / 33 the liquor trade was carried out in State of Chhattisgarh. There was no where mentioned about the payment or receipt of any bribe amount by either of the distillers or other stakeholders in the liquor business in the State of Chhattisgarh. There was no allegation of any discrepancy in awarding tenders to any of the stakeholders in the liquor business in the State of Chhattisgarh.
4. Pursuant to the above raids and despite the fact that no incriminating statement was given by any individual against the applicant, the Income tax Department filed a completely false and frivolous complaint against the applicant in the form of a Complaint Case bearing Complaint case No. 1183/2022 under Sections 276(C) (1)/277/278/278E of the Income Tax Act, 1961 read with Sections 120- B/191/199/200/204 of the IPC for the Annual Year 2020-21 before the learned ACMM, Tis Hazari Court, New Delhi. Though the complaint alleges the existence of a fictitious illegal liquor syndicate in the State of Chhattisgarh and payment of bribe to various Government officials by certain distillers and other individuals, none of these alleged bribe givers/distillers have been made accused in the said complaint nor any proceeding has been initiated against these persons by the IT Department.
5. On 18.11.2022, the Directorate of Enforcement (ED) in a completely illegal manner and against all principles of settled law, illegally registered an ECIR bearing ECIR/RPZO/11/2022 wherein the 4 / 33 alleged offence of Sec. 120-B IPC was alleged. Notably the liquor EECIR was registered even though the IT complaint was pending at the stage of cognizance before the ACMM. This act of registration of the liquor ECIR was completely illegal.
6. On 29.03.2023-30.03.2023, search and seizure proceedings were carried on the premises of the applicant by the ED and nothing incriminating was seized. It is alleged that the officers of the ED entered the premises, threatened and harassed the applicant to give false statement implicating various individuals on the directions of the ED. Thereafter on 31.03.2023, 01.04.2023, 03.04.2023, 08.04.2023, 19.04.2023 and 20.04.2023, multiple statements of the applicant were recorded by the officers of the ED. On 28.04.2023, two of the co- accused in the complaint case and the liquor ECIR were granted protection by the Hon'ble Supreme Court from not taking any coercive action from the ED. Thenceforth on 04.05.2023, the applicant filed petition before the Hon'ble Supreme Court seeking quashing of the liquor ECIR and subsequent applications were filed by the applicant in the same. The applicant at the relevant time ie. 11.05.2023, was in Mumbai, where he was confronted with 5-6 officers of the ED and he was forced to travel back to Raipur under their custody/ Around 4-4.30 pm on 12.05.2023 it was orally intimated to the wife of the Applicant that he was arrested and she can arrange a lawyer. Pursuant to the arrest of the applicant, he was remanded to the custody of the ED from time to 5 / 33 time and was subsequently remanded to judicial custody and ultimately he was released on 15.02.2024.
7. Contention of Mr. Rajeev Shrivastava, learned Senior Counsel for the applicant is that:
i) the FIR has been registered illegally and is not tenable. The mala fide nature of the FIR is evident from the fact despite being aware of the registration of the UP FIR and that the subject FIR amounts to second FIR arising from the same alleged transaction on the complaint filed by the same complainant ie. the ED, the EOW has not only registered on illegal FIR but has also arrest individuals with the sole intent of frustrating their fundamental and constitutional rights.
ii) It is contended that two of the co-accused have already been protected in relation to the FIR on the ground that the same could not have been registered by the EOW by the Hon'ble Supreme Court. The Hon'ble Supreme Court granted protection in relation to the UP FIR which was registered in illegal manner as the subject FIR. The complainant in the said UP FIR was also the ED Officer. It is further contended that in the liquor ECIR, the bail of the applicant and the co-
accused persons was dismissed by the High Court of Chhattisgarh and the Hon'ble Supreme Court granted protection to the co-accused persons.
iii) It is submitted by the learned Sr. Counsel for the applicant that since it is a matter of record that the ED Officers have personally caused the registration of the FIR while stay order dated 18.07.2023 6 / 33 passed by the Hon'ble Supreme Court was in operation. The complainant in the FIR is the Investigating Officer/Deputy Director of the ED and has caused the registration of the subject FIR with the aim of creating and usurping jurisdiction for its illegal investigation in the Liquor ECIR. This is a willful contempt and breach of the order of the Hon'ble Supreme Court dated 18.07.2023 and such illegality cannot be allowed to perpetuate.
iv) He contends that the investigation carried out by the ED in the Liquor ECIR is a nullity, void ab initio, without jurisdiction and illegal, and the FIR which has been registered on the complaint of the ED which is without jurisdiction. Similarly Section 66 of the PMLA and the material collected by the ED cannot form the basis of any tenable action in law including registration of an FIR and resultantly all proceedings arising therefrom including the arrest of the applicant are illegal. He submits that the entire genesis of registration of FIR, including the issuance of the letter under Section 66 of the PMLA 2002 by the ED which led to the registration of the FIR ha been quashed and held to be illegal by the Supreme Court.
8. He further contends that various attempts have been made by the ED to create a scheduled offence and usurp jurisdiction to persecute the applicant and the present FIR is one such illegal attempt on the part of the ED to falsely create its jurisdiction for taking coercive measures against the applicant. The FIR,the arrest of the applicant and his subsequent remand is a continuation of illegality and which is untenable 7 / 33 as per law. He has relied upon the judgment of State of Punjab Vs. Davinder Pal Singh Bhullar (2011) 14 SCC 770. The FIR has been registered on the basis of the same alleged transaction alleging overlapping offences similar to UP FIR. As per settled law, two FIRs on the basis of same transaction are not sustainable and thus the FIR is liable to be quashed. He has relied upon the judgment of TT Anthony Vs. State of Kerala (2001) 6 SCC 181; Upkar Singh Vs. Ved Prakash (2004) 13 SCC 292.
9. He contended that the respondent has suppressed a prior preliminary enquiry conducted by the same Investigating Officer of the ACB who has not registered the present FIR , do not find commission of any offence. It appears that the result of the preliminary enquiry was ignored as the same does not even find mentioned in the FIR which is a violation of law as has been laid down in Lalita Kumari Vs. Government of UP and others (2014) 2 SCC 1 in so far as the investigating officer ought to have applied his mind and the FIR ought to have disclosed the reasons as to why FIR has been registered after the preliminary enquiry.
10. It is contended that the departmental enquiry conducted by the Commercial Tax (Excise) Department, State of Chhattisgarh, in relation to the same allegations did not find any illegality in relation to the same transactions. However the same has been suppressed while registering the FIR despite the fact that in case of exoneration on merits in a 8 / 33 Departmental Enquiry, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue. He has relied upon the judgment in the matter of Radheshyam Kejriwal Vs. State of West Bengal and Another (2011)3 SCC 581.
11. He submits that the FIR had been registered in a completely malafide manner. The respondent and the investigating agencies are acting at the behest of the political masters and have made repeated attempts to somehow arrest the applicant and others in relation to the same alleged offence and that prima facie no offence is made out as there is no admissible incriminating material against the applicant on record. He further contends that there are material infirmities and the mala fidee of the respondent is evident from the fact that Section 467 IPC has been added though he has not committed any forgery.
12. He contends that in the present case, no notice or summons were issued or given to the applicant prior to his arrest. The applicant was detained amidst a search operation by the respondent at his residence and was shown to be arrested at the headquarters of the respondent agency on 11.04.2024. the applicant had been summoned by the respondent as part of preliminary enquiry. He has placed his reliance in the matter of Arnesh Kumar Vs. State of Bihar (2014) 8 SCC 273 and Satendrer Kumar Antil Vs. Central Bureau of Investigation (2022) 10 SCC 51.
13. In Arnesh Kumar (supra), the parameters on which the power of 9 / 33 arrest under Section 41 of the Cr.P.C. ought to be exercised and it has been held by the Supreme Court as under:
"From a plain reading of the aforesaid provision, it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further ofence, or for proper investigation of the case; or to prevent such person from committing any further offence; or for proper investigation of the case, or to prevent the accused from causing the evidence of the offence to disappear or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested his presence in the court wherever required cannot be ensured. These are the conclusions which one may reach based on facts."
14. He contends that the sole basis for registration of the FIR against the applicant is the letter purportedly sent by the ED to the respondent. Vide order dated 08.04.2024, the Hon'ble Supreme Court has quashed the prosecution complaint in the liquor ECIR as being without any jurisdiction as there was no predicate offence and as such, all actions by the ED pursuant to the registration of the liquor ECIR including the statements recorded under Section 50 of the PMLA , the material collected and the letter purportedly issued under Section 66 of the 10 / 33 PMLA 2002 by the ED which led to the registration of the subject FIR, ha been quashed and held to be illegal. It is contended that the applicant is in judicial custody and the period of custodial interrogation is concluded and during which the applicant ha duly cooperated and his statements were recorded, therefore no useful purpose would be served in keeping the applicant in custody. He has placed his reliance in a plethora of judgments wherein it has been upheld that the basic Rule of ......Bail, Not Jail" (State of Rajasthan Vs. Balchand (1977) 4 SCC
308) and "..... bail is the rule and committal to jail an exception"
(Gurucharan Singh Vs. (Delhi Admn.), (1978) 1 SCC 118) and has held that the object of bail is neither punitive nor preventive.
15. Lastly, he contends that the allegation that the applicant has been levied with the entire process of hologram tender, storage of hologram, numbering of holgoram and issuance of hologram to liquor manufacturers, the entire process of hologram processing is governed under the direction of Commissioner Excise and the applicant had no role in the same as it was beyond his power. The allegation of developing new license system of FL10A and FL10B and proceed license to persons of his confidence for ensuring extortion of commission , this entire process of allotment of liquor license was under
the jurisdiction of the Commissioner Excise and prosecution has failed to come up with any evidence against the applicant. Lastly, he submits that the applicant has not misused the provisions and conditions of bail when he was enlarged on bail and therefore looking to the entirety of 11 / 33 the above fact and looking to the fact that the charge sheet has been filed and the fact that the co-accused has been released on bail, the applicant is in custody since nine months therefore, the applicant may be released on bail. The Supreme Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40, has observed as under:
"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 12 / 33 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.
24. In the instant case, we have already noticed that the "pointing finger of accusation"
against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice.
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by 13 / 33 the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual."
(ii) The principle that 'bail is the rule and jail is the exception' has been emphasized by the Hon'ble Supreme Court in a plethora of recent decisions, even in the context of special statutes with more stringent conditions for bail. He has relied upon the judgment of Manish Sisodia Vs. ED, 2024 SCC Online SC 1920; Kalakuntla Kavita Vs. ED, 2024 SCC Online SC 2269.
16. In Kalvakuntla Kavita (supra),it has been held by the Supreme Court that "10. On perusal of the record, we find that in CBI case, charge sheet has been filed and in ED case complaint has been filed. As such, the custody of the appellant herein is not necessary for the purpose of investigation.
11. The appellant has been behind the bars for the last five months. As observed by us in the case of Manish Sisodia (supra), taking into consideration that there are about 493 witnesses to be examined and the documents to be considered are in the range of about 50,000 pages, the likelihood of the trial being concluded in near future is impossible.
12. Relying on the various pronouncements of this Court, we had observed in the case of Manish Sisodia (supra) that the prolonged incarceration before being pronounced guilty of 14 / 33 an offence should not be permitted to become punishment without trial."
(iii) Charges cannot be framed at this stage as further investigation remains pending. Further the first Charge sheet itself has over 295 prosecution witnesses and 146 documents running into thousands of pages. Thus, there is no likelihood of completion of trial in the near future and that one of the co-accused has been granted bail by this Court vide order dated 15.02.2024 in M.Cr.C. No. 60/2024 and the other co-accused has been protected by the High Court in Cr.M.P. No.721/2024 vide order dated 01.04.2024 therefore the present applicant may be released on bail.
17. Per contra, Mr. Mahesh Jethmalani, learned Senior Counsel for the State opposing the submissions of the learned Senior Counsel for the applicant submits that a criminal syndicate comprising of high level State Government officials, private persons and political executives of the State Government were operating in the State of Chhattisgarh and the accused/applicant and three others were the main conspirators of this syndicate along with Anil Tuteja, Anwar Dhebar and Others. It is further contended that this syndicate collected illegal money in three different ways ie.
Part A- illegal commission charged from liquor supplier for official sale of liquor in the State of Chhattisgarh.
Part B - Sale of unaccounted illicit countrymade liquor from State run shops done with the involvement of distillers, hologram 15 / 33 manufacturers, bottle makers, transporters, man power management and District Excise Officials.
Part C - Annual Commission from distillers for allowing them to operate a syndicate and divide the market share amongst themselves.
18. Contention of the learned Senior Counsel for the State is that a total sum of Rs. 1660,41,00,056/- earning was made by the syndicate from the financial year 2019-20 to financial year 2022-23 which is nothing but loss caused to the State Exchequer which has been acquired by the criminal syndicate from the offence of conspiracy.
From the investigation done till date, it is clear that massive corruption has taken place in the Excise Department of Chhattisgarh since 2019. The evidence against the applicant is as under:
i) EOW investigation reveals that the applicant (ITS Officer) was chosen by the syndicate to lead CSMCL and later in May 2019 was made the Managing Director of the organization at the behest of Anwar Dehbar.
He was also serving as Special Secretary in the Excise Department.
ii) Thereafter the applicant was assigned with the task to maximize the commission of bribe collected on liquor procured by M/s. CSMCL and to make necessary arrangement for sale of non-duty paid liquor in the CSMCL run shops. The applicant was supported by one Anwar Dhebar and one IAS Officer in the said operation. The applicant was the inside man of the Excise department who held meetings with IMFL makers and District level Excise Officers to ensure that the entire scam run without any hitch and all the decisions of the syndicate were 16 / 33 implemented by the applicant from increasing the landing price of Part A liquor, tenders to Manpower suppliers, hologram suppliers, cash tender, procurement from Distillers, concept of FL10A license etc. When the distillers were skeptical about paying commission, he increased the landing price to accommodate it. When the syndicate was not able to extract cash from Foreign liquor suppliers, he introduced the concept of FL-10A license and he play a key role in enacting the nefarious scheme of sale of unaccounted liquor through CSMCL shops. Moreover, he was the one who arranged meetings with the district excise heads of the 15 top revenue generating districts where the Part B liquor was to be sold and gave detailed instructions relating to the enactment of the plan. He used to arrange supply of duplicate holograms with one Vidhu Gupta and got awarded tender to supply holograms to the Excise Department.
iii) It is further contended that the applicant took a bribe of Rs. 90,00,000/- as part of the deal to award tender of supplying Holograms to M/s. Prizm Holography 8s Films Securities Pvt. Ltd.. and misused his official position to modify the terms and conditions of the bidding process in favour of M/s. Prizm holography an Films Securities Pvt. Limited.
iv) it has further been revealed that the applicant has commuted his share of illegal commission to his benami offshore entities by making unsanctioned foreign trips and for which disciplinary action has been taken against him. He has transferred large amount of cash to Netherlands and UAE to acquire benami foreign assets. It is contended 17 / 33 that statements of witnesses under Section 164 Cr.P.C. were recorded during investigation, which is part of the case diary and it goes to prove the involvement of the present applicant as the main mastermind of the entice scam. He therefore contends that the investigation is still underway and the accused/applicant if released is likely to tamper with the evidence and therefore the application filed under Section 439 Cr.P.C. for grant of bail deserves to be rejected.
19. The findings of the Hon'ble Supreme Court in the matter of State of UP Vs. Amarmani Tripathi (2005) 8SCC 21 are applicable to the present case. In paras 16 to 19 and 21, certain factors have been enunciated to be considered while granting bail.
Reliance is next placed on Dolat Ram and others vs. State of Haryana 1995 (1) SCC 349, wherein the distinction between the factors relevant for rejecting bail in a non-bailable case and cancellation of bail already granted, was brought out :
"4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession 18 / 33 granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."
17. They also relied on the decision in S.N. Bhattacharjee vs. State of West Bengal 2004 (11) SCC 165 where the above principle is reiterated. The decisions in Dolat Ram and Bhattacharjee cases (supra) relate to applications for cancellation of bail and not appeals against orders granting bail. In an application for cancellation, conduct subsequent to release on bail and the supervening circumstances alone are relevant. But in an appeal against grant of bail, all aspects that were relevant under Section 439 read with Section 437, continue to be relevant. We, however, agree that while considering and deciding appeals against grant of bail, where the accused has been at large for a considerable time, the post bail conduct and supervening circumstances will also have to be taken note of. But they are not the only factors to be considered as in the case of applications for cancellation of bail.
18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge;
(iii) severity of the punishment in the event of 19 / 33 conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT, Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR 1978 SC 179). While a vague allegation that accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar vs. Rajesh Ranjan, 2004 (7) SCC 528:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
a. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting 20 / 33 evidence.
b. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
c. Prima facie satisfaction of the court in support of the charge. (see Ram Govind Upadhyay vs. Sudarshan Singh, 2002 (3) SCC 598 and Puran vs. Ram Bilas 2001 (6) SCC 338."
19. This Court also in specific terms held that:
"the condition laid down under section 437(1)(i) is sine qua non for granting bail even under section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."
20. In Panchanan Mishra Vs. Digambar Mishra (2005) 3 SCC 143:2005 SCC (Cri) 660, this Court observed:
"the object underlying the cancellation of 21 / 33 bail is to protect the fair trial and secure justice being done to the society by preventing the accused who is set at liberty by the bailorder from tampering with the evidence in theheinous crime.... It hardly requires to be stated that once a person is released on bail in serious criminal cases where the punishment is quite stringent and deterrent, the accused in order to get away from the clutches of the same indulge in various activities like tapering with the prosecution witnesses, threatening the family members of the deceased victim and also create problems of law and order situation."
21. Therefore,the general rule that this Court will not ordinarily interefere in maters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court. "
20. Further reliance has been placed in the matter of Gulabrao Babukar Deokar Vs. State of Maharastra (2013) 16 SCC 190, it has been held that :
"28. In the instant case, the attempts made by the appellant to pressurize the witnesses and even the investigating officer are clearly placed on record through the affidavit of the Deputy S.P. Mr. Pawar. On that ground also it could be said that the appellant will be pressurizing the witnesses if he is not restrained. This being the position, we cannot find any fault with the order of the High Court cancelling the bail on that ground also. The order does record the cogent and overwhelming circumstances justifying cancellation of bail. The nature and seriousness 22 / 33 of an economic offence and its impact on the society are always important considerations in such a case, and they must squarely be dealt with by the Court while passing an order on bail applications."
21. Similarly, in the mater of Mahipal Vs. Rajesh Kumar (2020) 2 SCC 118, it has been held as under:
"14. The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in 23 / 33 detail the evidence on record to come to a conclusive finding.
15. The decision of this Court in Prasanta has been consistently followed by this Court in Ash Mohammad v Shiv Raj Singh,(2012) 9 SCC 446:
(2012) 3 SCC (Cri) 1172, Ranjit Singh v State of Madhya Pradesh (2013) 16 SCC797:(2014) 6 SCC (Cri) 405, Neeru Yadav v State of U.P.(2014) 16 SCC 508:(2015)3 SCC (Cri.) 527, Virupakshappa Gouda v State of Karnataka (2017) 5 SCC 406:(2017) 2 SCC(Cri.) 542 and State of Orissa v Mahimananda Mishra (2018) 10 SCC 516:(2019)1 SCC (Cri) 325.
15. The considerations that guide the power of an appellate court in assessing the correctness of an order granting bail stand on a different footing from an (2012) 9 SCC 446 (2013) 16 SCC 797 (2014) 16 SCC 508 (2017) 5 SCC 406 (2018) 10 SCC 516 assessment of an application for the cancellation of bail. The correctness of an order granting bail is tested on the anvil of whether there was an improper or arbitrary exercise of the discretion in the grant of bail. The test is whether the order granting bail is perverse, illegal or unjustified. On the other hand, an application for cancellation of bail is generally examined on the anvil of the existence of supervening circumstances or violations of the conditions of bail by a person to whom bail has been granted.
In Neeru Yadav v State of Uttar Pradesh,12 the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two judge Bench of this Court surveyed the precedent on the principles that guide the grant of bail.
Justice Dipak Misra (as the learned Chief Justice then was) held:
"12....It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have 24 / 33 occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail and have not been taken note of bail or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the Court does not dwell upon the violation of conditions by the accused or the supervening circumstances that have happened subsequently. It, on the contrary, delves into the justifiability and the soundness of the order passed by the Court."
17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment. The order of the High Court in the present case, in so far as it is relevant reads:
"2. Counsel for the petitioner submits that the petitioner has been falsely implicated in this matter. Counsel further submits that, the deceased was driving his motorcycle, which got slipped on a sharp turn, due to which he received injuries on various parts of body including ante- mortem head injuries on account of which he died. Counsel further submits that the challan has already been presented in the court and 25 / 33 conclusion of trial may take long time.
3.Learned Public Prosecutor and counsel for the complainant have opposed the bail application.
4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail."
22. In the matter of Indresh Kumar Vs. State of Uttar Pradesh in Cr.A. No. 938 of 2022, it has been held that at the stage of bail, statements made under Section 161 Cr.P.C. can be looked into. Likewise, in the matter of Girish Sharma and others Vs. State of Chhattisgarh and Others (2018) 15 SCC 192, it is held that "the prosecution is entitled to cite accused as witness even without recourse to Section 306 IPC having regard to larger interest of justice to strengthen prosecution case against more serious accused."
23. Learned State counsel has contended that it is well settled that the matters to be considered in an application for bail are I) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ii) nature and gravity of the charge
iii) severity of the punishment in the event of conviction; iv) danger of accused absconding or fleeing if released on bail v) character, behaviour, means position and standing of the accused vi) likelihood of the offence being repeated vii) reasonable apprehension of the witnesses being tampered with and viii) anger, of course, of justice 26 / 33 being thwarted by grant of bail (see Prahlad Singh Bhati Vs. NCT Delhi 2001(4) SCC 280 and Gurcharan Singh Vs. State (Delhi Administration) AIR 1978 SC 179). He further contended that the court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any other devoid of such reasons would suffer from non application of mind. Lastly, it is contended that the mere fact that the accused has undergone certain period of incarceration (nearly three years in the ED case) by itself would not entitle the accused to be englarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail. The ED is investigating the offence committed by the application under the PMLA and ACB/EOW is investigating the offences of PC Act and IPC, as both the offences are separate and distinct from each other and jurisdiction of both the agencies are distinct and different therefore the period spent in jail for one offence cannot be counted for other offences and for the above reasons, the application filed by the applicant for grant of regular 27 / 33 bail ought to be rejected.
24. I have heard learned counsels for the parties and perused the documents available on record with utmost circumspection.
25. The instant FIR has been filed against the applicant pursuant to the reference received from ED under Section 66(2) of the PMLA on 11.01.2024 on the basis of material collected during investigation of ECIR11. It is the case of the prosecution that the Enforcement Directorate has conducted money laundering investigation in file No. ECIR RPZO11/2022 based on the complaint filed by the IT Investigation Wing at Tis Hazari Court and it has been revealed that a criminal syndicate has been operating in the State of Chhattisgarh which was extorting illegal commission in the sale of liquor and was also involved in unauthorized sale of unaccounted liquor through government liquor shops. During the course of investigation, plethora of evidence regarding criminal involvement and illegal gratification of number of government officers including the applicant has been unearthed and their role in the crime has been established. The investigation revealed that the applicant played a pivotal role in facilitating the payment of bribes to the syndicates in collusion with other co-accused.
26. It has been pointed by the learned State counsel that till date, in the ACB case i.e. FIR NO. 4/2023, the charge sheet has been filed against the applicant and after going through the facts of the case, it appears that prima facie offence is made out against the applicant. The 28 / 33 material collected during the investigation goes to show that the nature of the offence committed by the applicant has caused huge financial loss to the State exchequer and the estimated proceeds of crime is around Rs. 2161 crores. In the matter of State of Gujarat v. Mohanlal Jitamalji Porwal (1987) 2 SCC 364, the Supreme Court while considering a request of the prosecution for adducing evidence inter alia, observed as under:-
"5. ........The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest........"
27. In State of Maharashtra through CBI, Anti Corruption Branch, Mumbai v. Balakrishna Dattatreya Kumbhar,(2012) 12 SCC 384, the Supreme Court has held that corruption is violation of human right and observed as under:-
"Corruption is not only a punishable offence butalso undermines human rights, indirectly violating them, and systematic corruption, is a human rights' violation in itself, as it leads to systematic economic crimes."29 / 33
28. Further, in the matter of Nimmagadda Prasad v. Central Bureau of Investigation, (2013) 7 SCC 466, the Supreme Court has held that economic offence is a grave offence affecting the economy of the country as a whole and observed as under:-
"23. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fibre of the country's economic structure.
Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole.
25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
29. In the matter of Subramanian Swamy v. Central Bureau of Investigation, (2014) 8 SCC 682 the Supreme Court (Constitution Bench) while declaring Section 6-A of the Delhi Special Police Establishment Act, 1946 unconstitutional, observed as under:-
"Corruption is an enemy of nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult to justify the classification which has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequence."30 / 33
"Corruption is any enemy of nation and tracking own corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision making power does not segregate corruption officers into two classes as they are common crimedoers and have to be tracked down by the same process of inquiry and investigation."
30. It is prima facie clear that on the one hand, the prosecution agency is claiming that the matter is of a huge economic loss to the State Exchequer and the offence is of highly serious nature and on the other hand, the distillers who are allegedly supplying illegal liquor worth Rs.1200 crores have not been made accused despite the fact that their name has been mentioned in the complaint made by the ED as member of the syndicate. Even though some of the witnesses have admitted in their statement before the police and statement recorded under Section 164 of the Cr.P.C. that they were involved in the syndicate crime but they are listed as prosecution witnesses without being granted pardon by the competent court. Prima facie it appears that the prosecution has adopted an inconsistent stance being both hot and cold in its approach and has acted in a pick and choose manner in investigation. However, Shri Jethmalani, learned Senior Counsel contended that the prosecution agency has no time to make those persons accused as the investigation is still going on. He further contended that 3-4 charge sheets are yet to be filed and this is merely a preliminary charge sheet even though 31 / 33 there is no such provision as "preliminary charge sheet" in Cr.P.C. The law provides that after completion of investigation, report shall be forwarded to the Magistrate, who is empowered to take cognizance of the offence based on a police report as provided under Section 173(2) of the Cr.P.C. and the police has a right to further investigate the matter and shall forward further report/reports to the Magistrate in the form prescribed. Be that as it may, the applicant cannot take adavantage at this stage because further investigation is going on and as per argument of lerned Sr. Counsel on behalf of the State, 3-4 charge sheets are yet to be filed. In the present case, he was involved in the criminal acts of the syndicate and is in possession of the proceeds of crime and that he received commission from the liquor suppliers.
31. Another contention of the counsel for the applicant is that the applicant may be granted bail on the ground of parity.
This Court in the bail application filed by the co-accused in M.Cr.C. No.3455/2024 has granted bail mainly on medical grounds as he was suffering from severe medical issues and was in need of constant medical supervision therefore, looking to the seriousness of his health condition (as mentioned in para 11 of the order), he was permitted to take recourse to the treatment in a super specialty hospital for the opinion of medical expert. In the present case, there is no such serious medical issue with regard to the applicant and therefore, the applicant in the present case cannot claim for grant of bail on the ground of parity.
32 / 33
32. Coming back to the facts of the present case, it is an admitted position that the applicant is in custody since 08.05.2024 and there are several witnesses who are yet to be examined by the EOW and further investigation is going on. However, the present status of the proceedings is that the trial has not commenced.
33. The Court after examining the entire documents found substantial material indicating a strong nexus between the applicant and the other accused persons in the commission of the crime. There were documents and evidences that reflected numerous cash transactions and being involved in the extraction of illegal wealth.
34. Thus taking into consideration the facts and circumstances of the case, noticed hereinabove and taking into account, the nature and gravity of the offences, the role of the applicant and also taking into account the severity of the punishment prescribed for the aforesaid offences, relying upon the decisions of the Supreme Court in aforesaid cases (supra), held that corruption is a enemy of the nation and tracking down corrupt public servants and punishing such persons is a necessary mandate of the Prevention of Corruption Act, 1988 and further taking in view that corruption is really a human rights violation specially right to life, liberty, equality and non-discrimination and it is an economic obstacles to the realization of all human rights and also taking into consideration that charge-sheet has been filed against the applicant 33 / 33 and the nature of accusation and gravity of offence, the applicant is charged which is extremely serious therefore, in the opinion of this Court, it is not proper to order release of present applicant on regular bail for the reasons mentioned hereinabove. Accordingly, the bail application of the applicant is rejected.
Sd/-
(Arvind Kumar Verma) Judge Digitally signed by SUGUNA SUGUNA DUBEY DUBEY Date:
2024.10.01 07:36:15 -0400