Jharkhand High Court
Pramod Kumar Fatepuria vs Assistant Director on 9 November, 2023
Author: Rajesh Kumar
Bench: Rajesh Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
A.B.A. No.4404 of 2023
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Pramod Kumar Fatepuria .... .... Petitioner(s)/Applicant(s) Versus Assistant Director, Enforcement Directorate, Zonal Office, Government of India, 1st Floor, Chandpura Place, Bank Road, Patna .... .... Opposite Party
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CORAM: HON'BLE MR. JUSTICE RAJESH KUMAR
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For the Petitioner(s)/Applicant(s) : Mr. Indrajit Sinha, Advocate : Mr. Rajiv Bhatnagar, Advocate For the Opposite Party.-E.D : Mr. A.K. Das, Advocate
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05/Dated: 09th November, 2023
1. Heard the parties.
2. The present anticipatory bail application has been filed apprehending the arrest of the applicant in connection with ECIR Case No.2/2021, registered for the offence under Sections 3 & 4 read with Section 70 of the Prevention of Money Laundering Act, 2002, pending in the court of learned A.J.C. XVIII-cum-Special Judge, PMLA, Ranchi
3. The flow of facts are as follows:-
(i) It appears that the Central Bureau of Investigation has lodged the F.I.R No.RC 220 2016 E 0017 dated 20th September, 2016 under Sections 420 & 120B of the Indian Penal Code read with Sections 13(2) & 13(1)(d) of the Prevention of Corruption Act, 1988.
(ii) It further appears that the investigation is still going on and the petitioner has not been made an accused in this case till date.
(iii) It further appears that on the strength of the above F.I.R, the Enforcement Directorate has lodged the present prosecution by registering ECIR Case No.2/2021.
(iv) It further appears that during investigation, the applicant has been arrested on 06.01.2021. It also appears that a Complaint Petition has been filed on 08.01.2021 before the Spl. Judge, (PMLA), Patna.
(v) It further appears that the petitioner has objected the jurisdiction of the Special Court, Patna. It further appears that the co-accused has filed a petition being Criminal Miscellaneous No.21445 of 2021 before the Hon'ble Patna High Court and the same has been disposed of vide order dated 16.04.2021. The operative portion of the Criminal Miscellaneous No.21445 of 2021 is as follows:-
"Having considered the rival contentions of the parties, admittedly, Patna Court has no jurisdiction to take cognizance in the matter and pass the order of remand. Accordingly, the order of cognizance dated 08.01.2021 passed in Special -2- A.B.A No.4404 of 2023 Trial No.(PMLA) 01 of 2021 is set aside. This Court gives direction to the Presiding Officer of the Court to return the entire complaint petition to the prosecuting agency. The prosecuting agency will be at liberty to file complaint before the appropriate Court of Jharkhand.
With the aforesaid observations and directions, this petition is allowd to the above extent.
However, it is clarified that we have not expressed any opinion on the merit of the case."
(vi) As per the mandate of the Hon'ble Patna High Court, the complaint has been returned to the Directorate of Enforcement on 18.05.2021 and thereafter, the same has been filed on 20.05.2021 before the Special Judge-I, C.B.I (ACB)-cum-PMLA, Ranchi and it has been numbered as ECIR Case No.2/2021.
(vii) It further appears that cognizance has been taken on 20.05.2021 against the present applicant and M/s. Usha Martin Ltd. The summon has been issued on the same date.
(viii) It further appears that the applicant has been released from the custody on 16.05.2021 in pursuance of the order of the Hon'ble Patna High Court passed on dated 16.04.2021.
(ix) It further appears that the applicant has filed a petition under Section 205 of Cr.P.C for exemption and the same has been rejected and against that the applicant has come before this Court and ultimately, that has been withdrawn.
(x) Thereafter, it further appears that the present anticipatory bail application has been filed before this Court on 16.05.2023. The interim protection has been granted to the applicant by this Court vide order dated 26.06.2023.
4. Mr. Indrajit Sinha, learned counsel for the applicant has claimed for anticipatory bail on the following arguments:-
(i) It has been submitted that the petitioner has never been arrested during investigation, rather, at the verge of investigation he has been arrested on 07.01.2021 and the Complaint Petition has been filed on 08.01.2021.
(ii) The complaint is on the strength of statement given by the applicant on 06.01.2021, while he was not under arrest. The investigating agency has not arrested the applicant during the investigation, then the rigor of Section 45 of the PMLA is not appicable.
(iii) It has further been submitted that the applicant has remained in custody for about 05 and ½ months due to wrong Forum selected by the Enforcement Directorate and this count, the petitioner has suffered.
-3- A.B.A No.4404 of 2023(iv) It has further been submitted that the applicant is a sick person having following ailments:-
(i). Chronic Obstructive Pulmonary Disease
(ii). Avascular Necrosis
(iii). Gross Hydronephrosis
(v) It has further been submitted that entire transaction has been done by the company and the applicant is related only on the strength of an employee of the company as General Manager. He has no control so far as the company is concerned. He is merely a paid employee and as such, the applicant has prima facie a good case and otherwise, the applicant is entitled for privilege of anticipatory bail under Section 45 of the Prevention of Money Laundering Act, 2002.
(vi) It has further been submitted that the sale has been undertaken after getting permission of the State Government. Subsequently, that permission has been withdrawn and again, it has been granted on 27.08.2011, but the same has been challenged in the Public Interest Litigation being W.P (PIL) No.5259 of 2011, which has been disposed of vide order dated 14.02.2012. The operative portions of the order dated 14.02.2012 passed in W.P (PIL) No.5259 of 2011 are as follows:-
"17. A bare perusal of sub-rule (6) of the Rules of 1988 will reveal that it has been provided that the rejects of tailing from mine, beneficiation, or metallurgical plants shall be deposited and disposed in a specifically prepared tailings disposal area. Rejects, tailings and fines also have been included in sub-rule(6) and, therefore, it appears from sub-rule(6) of Rule-33 that though fines might have been referred to here, but that does not meant that fines, which can be utilized and used for any other purpose, is also a rejects in any manner so as to permit its use only for the purpose, as provided under sub-rule (4) of Rule-33, which provides that wherever possible, the waste rock, overburden, etc. shall be back-filled into the mine excavations with a view to restoring the land to its original use as far as possible. As per said sub-rule (6), for keeping these fines, rejects and tailings, a caution has been given so that they are not allowed to flow away and cause land degradation or damage to agriculture field, pollution of surface water bodies and ground water or cause floods. Here, in this case, there are materials which indicate that because of the accumulation of the fines in huge quantity, the authorities found that it is creating pollution in the surface water bodies and also creating huge pollution for the environment and causing deforestation also. Therefore, the fines if are required to be deposited then it does not mean that sub-rule (6) of Rule 33 prohibits sale of the fines in any way. In view of the above. Rule 33(6), as interpreted by the petitioner, cannot be accepted to mean that fines are required to be kept deposited and can only be disposed of in specially prepared tailing disposal area.
20. Be that as it may, in totality the order dated 11th December, 2009 and the impugned notification dated 27th August, 2011 have been issued without any authority of law by the State Government and from the provisions of law referred above that a right given to the lessee in Form 'K' and other relevant rules authorize -4- A.B.A No.4404 of 2023 them to dispose of all minerals including the fines. Therefore, the present writ petition has no merit and hence is liable to be dismissed.
21. Learned counsel for the respondents vehemently submitted that in such matters some cost should have been imposed. For that purpose, throughAnnexure-2 was found to be illegal and without jurisdiction, issued by the State Government, this Court has not passed any interim order in favour of the writ petitioner and as such we do not propose to impose any cost upon the writ petitioner.
22. However, we may observe here that in any public Interest Litigation, it is always desirable that a thorough research be done by the writ petitioner so as to assist the Court and particularly when it is a matter of State revenue. At this juncture, we further like to point out that the State of Jharkhand is a mineral rich State and the State itself without stay order passed by this Court prohibited itself from realising a huge amount of royalty and therefore, more caution should have been taken by the writ petitioner before filing the writ petition and he should have tried to find out what was the interest of the public."
5. Referring to the above fact, submission has been advanced by the learned counsel for the applicant that he has already faced the judicial scrutiny so far as the sale of iron-ore or fines is concerned. It has been further submitted that there is no loss to the public exchequer and further, royalty etc. has already been paid. It has further been submitted that the proceed of crime is neither appropriated, nor dealt with by this applicant and at best it is the company who has received the amount. Further, the amount, in question, has already been attached and now that is a protected money. On the above basis, the prayer for anticipatory bail has been made.
6. For this purpose, learned counsel for the applicant has relied upon the following judgments:-
(i) Satenender Kumar Antil vrs. Central Bureau of Investigation & Another, {(2022) 10 SCC 51}.
(ii) Satender Kumar Antil vrs. Central Bureau of Investigation & Another (order dated 21.03.2023).
(iii) Rana Kapoor vrs. Directorate of Enforcement, (2022 SCC Online, Del.
4065).
(iv) Govind Prakash Pandey vrs. Directorate of Enforcement, Government of India, 2023 (SCC Online All. 58).
(v) Amit Sarawgi vrs. Union of India through the Directorate of Enforcement, A.B.A No.10336 of 2022, (Jharkhand High Court)
(vi) Sanjay Rungta vrs. Union of India through the Directorate of Enforcement, A.B.A No.10906 of 2022 (Jharkhand High Court)
(vii) Deviki Nandan Garag vrs. Directorate of Enforcement, (2022 SCC Online Del. 3086).
7. Learned counsel for the opposite party has opposed the prayer for anticipatory bail by making following submissions:-
(i) It has been submitted that the applicant has been arrested in the present case during investigation and he has not cooperated during the investigation.
(ii) It has further been submitted that the statement of the applicant, he has been arrested on 07.01.2021 is wrong, rather, he has been -5- A.B.A No.4404 of 2023 arrested on 06.01.2021 and he has been remanded by the Court below on 07.01.2021. Since the statement has been taken after arresting of the applicant that has been used in the complaint petition itself and as such, the applicant was arrested during the investigation. Subsequently, judicial remand has also been taken from time to time. Since the applicant has already been arrested, and he has to make out the case under section 45 of the P.M.L. Act.
(iii) It has further been submitted that the questions put to him has not been answered by this applicant. Further, wrong reply has also been given by him.
(iv) The document produced by the company does not suggest that the iron-ore has ever been exported, but in fact it has been exported.
(v) Further, the specific allegation has been made in Complain Petition at paragraph Nos.10.1 (vii) & (viii) reads as under:-
{vii}. Mr. Pramod Kumar Fatepuria, the then GM Marketing and Commercial who was the Export Head, failed to comply the agreement as well as the undertaking submitted with the application. Defying the promise made in Form-1 and on undertaking was a major decision which cannot be taken without the idea and approval of the Export Head/GM Marketing and Commercial and the Managing Director.
{viii} During recording of their statements, the Officials of M/s. Usha Martin Ltd., failed to discharge burden of proof cast upon them under Section 24 of PMLA, 2002 on behalf of M/s Usha Martin Ltd. in furnishing the approvals/permissions of the competent authorities for export/sale of iron ore.
8. So far as the allegation against the applicant is concerned, the reference has also been made to the different paragraph of the Complaint Petition. The relevant portion is quoted herein below:-
"This fact was also accepted by Pramod Kumar Fatepuria, G.M. Marketing & Commercial, M/s. Usha Martin Ltd. And Rajeev Jhawar, Managing Director, M/s. Usha Martin Ltd. in their statements recorded under Section 50 of Prevention of Money Laundering Act, 2002 on 11.01.2018 and 10.06.2018 respectively, wherein, they admitted that proceeds of exports and sales have been utilized in the normal business of company."
9. It has been submitted that so far as the medical condition of the present applicant is concerned, submission has been advanced by the learned counsel for the opposite party that medical conditions are not such warranting the anticipatory bail.
10. By making reference to the judgment in the case of Rohit Tondon vrs. Director of Enforcement reported in (2018) 11 SCC 46 (paragraph No.21) and it has been submitted that in economic offences, the court should be very slow in granting bail.
-6- A.B.A No.4404 of 202311. Similar view has been taken by the Hon'ble Apex Court in the case of P. Chidambaram vrs. Directorate of Enforcement reported in (2019) 9 SCC 24. Further, it has been submitted by referring to the judgment in the case of Vijay Madanlal Choudhary and Others vrs. Union of India of India & Others reported in 2022 SCC Online SC 929, specially at paragraph No.412 that rigor/condition of Section 45 of PMLA, 2002 is applicable, even for the application under Section 438 of the Cr.P.C.
12. Heard the learned counsel for the parties and perused the records and the judgments placed before me. This Court finds that:-
(i) The applicant has not been arrested during the period of investigation, rather, he has been arrested just before filing the complaint.
(ii) It also appears that the complaint has been made before a wrong Forum and the applicant has been taken into custody and ultimately, has to be released on the ground of filing the case before wrong forum.
(iii) The charge has been levelled against the applicant on the strength of Section 24 of the P.M.L Act, 2002 and no positive material has been collected by the Enforcement Directorate, rather, on the basis of presumptive value, he has been roped in the present case.
(iv) The documents, relied upon by the investigating agency is the documents retained by the company in its ordinary course of the business and it is the company, who maintained the records and this applicant is merely one of the employee, may be on the higher post.
(v) During the entire investigation, the investigating agency has not arrested the petitioner. Now, the cognizance has already been taken and participation of the petitioner has to be ensured in the trial.
(vi) The law has been settled to the extent that the investigating agency is only concerned with regard to the arrest of the petitioner during the investigation. Once, investigation is complete, the matters falls in the domain of the Court and the Court has to ensure the participation of the accused in the trial.
(vii) "Bail in Rule and Jail is exception" has not been replaced by concept that "Jail is Rule and Bail is exception". Rather it has been diluted under the special law, like present one.-7- A.B.A No.4404 of 2023
13. In view of the above facts and discussion, the applicant is granted privilege of anticipatory bail. Hence, in the event of his arrest or surrender within a period of four weeks from the date of this order, he shall be released on bail on furnishing bail bond of Rs. 10,000/- (Rupees Ten Thousand) with two sureties of the like amount each to the satisfaction of learned A.J.C. XVIII-cum-Special Judge, PMLA, Ranchi, in connection with ECIR Case No.2/2021, subject to the conditions as laid down under section 438(2) Cr. P.C. and also on the following conditions:
(i) The applicant will not influence the witnesses in any manner.
(ii) The applicant will submit his Passport and he will not leave the country without permission of the court below.
(iii) The applicant will faithfully participate in the trial on each and every date during the trial and his absence will be only with the permission of the Court below.
(iv) The applicant will submit self-attested photocopy of his Aadhaar Card and also submit his mobile number before the learned court below which he will always keep active and will not change it during pendency of this case without prior permission of the court. If the applicant wants to change the mobile number, he has to take permission from the trial court.
14. It is clarified that the discussions made in the present application, is only for the purpose of granting anticipatory bail, not otherwise.
15. In view of the disposal of the present anticipatory bail application, pending interlocutory application, if any, also stands disposed of.
(Rajesh Kumar, J.) Raja/-