Patna High Court - Orders
Baban Singh vs Union Of India Through Enforcement ... on 4 October, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.34015 of 2024
Arising Out of PS. Case No.-14 Year-2023 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Baban Singh
... ... Petitioner/s
Versus
Union Of India Through Enforcement Directorate Government Of India
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 34485 of 2024
Arising Out of PS. Case No.-14 Year-2023 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Mithilesh Kumar Singh
... ... Petitioner/s
Versus
Union of India Through Enforcement Directorate Government of India, Bank
Road, Chandpura Place
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 34951 of 2024
Arising Out of PS. Case No.-14 Year-2023 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Surendra Kumar Jindal
... ... Petitioner/s
Versus
Union Of India Through Enforcement Directorate, Govt. Of Inda, Bank Road,
Chandpura Place, Patna-1
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 43608 of 2024
Arising Out of PS. Case No.-14 Year-2023 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Krishna Mohan Singh
... ... Petitioner/s
Versus
Union of India Through Enforcement Directorate Govt. of India, Bank Road,
Chandpura Place, Patna
... ... Opposite Party/s
======================================================
with
CRIMINAL MISCELLANEOUS No. 49347 of 2024
Arising Out of PS. Case No.-14 Year-2023 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024
2/13
======================================================
Subhash Prasad Yadav
... ... Petitioner/s
Versus
The Union Of India, Through The Assistant Director, Enforcement
Directorate, Patna Zonal Office
... ... Opposite Party/s
======================================================
Appearance :
(In CRIMINAL MISCELLANEOUS No. 34015 of 2024)
For the Petitioner/s : Mr. Anshuman Sinha, Adv.
Mr.Md. Nadim Seraj, Adv.
Mr. Vijay Kr. Pandey, Adv.
Mr. Prakhar Prakash, Adv.
Mr. Shailesh Kumar, Adv.
Mr. Ali M. Ahmad, Adv.
For the Opposite Party/s : Mr. K.N. Singh(A.S.G.)
(In CRIMINAL MISCELLANEOUS No. 34485 of 2024)
For the Petitioner/s : Mr. Md. Nadim Seraj, Adv.
For the Opposite Party/s : Mr. K.N. Singh, Sr. Adv. (A.S.G.)
(In CRIMINAL MISCELLANEOUS No. 34951 of 2024)
For the Petitioner/s : Mr. Nadim Seraj, Adv.
For the Opposite Party/s : Mr. K.N.Singh, Sr. Adv. (A.S.G)
(In CRIMINAL MISCELLANEOUS No. 43608 of 2024)
For the Petitioner/s : Mr. Shailesh Kumar, Adv.
For the Opposite Party/s : Mr. Dr Krishna Nandan Singh, Sr. Adv. (A.S.G.)
(In CRIMINAL MISCELLANEOUS No. 49347 of 2024)
For the Petitioner/s : Mr. Suraj Samdarshi, Adv.
For the Opposite Party/s : Mr. Dr. K.N Singh, Sr. Adv. (A.S.G.)
Mr. Manoj Kumar Singh, Adv.
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL ORDER
9 04-10-2024Learned Counsel appearing on behalf of petitioners in initial four criminal miscellaneous application continues his argument today and submits that the basis of the complaint case filed by ED is the statement taken by the Enforcement Directorate from the accused persons in addition to other points. Counsel placed reliance on Table-C of the complaint case in which, from Serial No.1 to 7, are the statements of accused persons of the complaint case itself. Counsel further submits that the said statements have been collected by the ED using its Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 3/13 power under Section 50 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA'). Counsel put reliance on the judgment of Hon'ble Supreme Court of India and Hon'ble High Court of Delhi with a view to show that what is the importance of statement recorded under Section 50 of the PMLA and upto what extent, those statements shall be relied upon, at least at the stage of bail. First of all, he put reliance on paragraph no.32 of the judgment passed in case of Prem Prakash vs. Union of India through Directorate of Enforcement reported in MANU/SC/0943 of 2024 and submits that the Hon'ble Supreme Court of India has pleased to hold that when an accused is in custody under PMLA, irrespective of the case for which he is under custody, any statement under Section 50 of PMLA to the same investigating agency is inadmissible against the maker. The reason being that the person in custody pursuant to the proceeding investigated by the same investigating agency is not a person who can be considered as one operating with free mind.
2. Learned Counsel for the petitioners further submits that a person in judicial custody being not a free person cannot be summoned and any statement to be recorded, will be after obtaining the permission of the Court which has remanded him to the judicial custody in other case. Counsel submits that Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 4/13 Hon'ble Supreme Court of India has further observed that keeping the statutory principle of Article 21 of the Constitution of India in mind and held that we hold that since, the words "Procedure established by Law" occurring under Article 21 of the Constitution of India has to be a reasonable and valid procedure, the statement of the appellant under Section 50 of the PMLA cannot be read upon in E.C.I.R even though the appellant was at that point of time in custody in E.C.I.R. Counsel further relied on a judgment in case of Hemant Soren Vs. Directorate of Enforcement reported in Manu/JH/0906/2024 whose paragraph no.56 acknowledged the principles emerged from Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors. case that the statements recorded under Section 50 of PMLA are to be meticulously appreciated only by the Trial Court during the course of the trial and there cannot be a mini trial at the stage of bail. It has been further held that the probative value of the statement of the witnesses and their credibility or reliability will be analyzed by the Trial Court only at the stage of the trial for arriving at a conclusive finding, apropos the guilt of the applicant. Counsel further relied on a judgment of Hon'ble High Court of Delhi in case of Chanpreet Singh Rayat Vs. Enforcement Directorate, pronounced on 09.09.2024 in Bail Application no.2095 of 2024 in which Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 5/13 paragraph no.80 of the said decision, it has been held that the twin conditions as provided in Section 45 of the PMLA is jurisprudence for grant of bail cannot deprived the constitutional right of personal liberty enshrined under Article 21 especially when there is a prospect of long incarceration without the conclusion of the trial.
3. Learned Counsel for the petitioners further submits that in case of Prem Prakash vs. Union of India through Directorate of Enforcement (supra), particularly in paragraph no.12, Hon'ble Supreme Court of India has discussed the situation relating to conditions of granting bail under PMLA and held that where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial without a short span, the rigors of section 45 of the PMLA can be suitably relaxed to afford the conditional liberty, keeping the person behind the bar for ultimate periods of time in hope of speedy completion of trial would deprive the fundamental rights of the persons under Article 21 of the Constitution of India and that the long incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial. Counsel submits that detention or jail before being pronounced guilty of an accused should not become punishment without trial. Counsel submits that in Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 6/13 conclusive portion of the said judgment particularly in paragraph no.12, it has been held by the Hon'ble Supreme Court of India that it is in this background that section 45 of the PMLA, needs to be understood and applied. Article 21 of the Constitution of India being a higher constitutional right, statutory provision should not align themselves to the said higher constitutional addict. Counsel further submits that in case of Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors. reported in 2022 SCC Online SC 929, Hon'ble Supreme Court of India has held that the Court while dealing with the application for grant of bail in PMLA, need not believe deep in the merits of the case and only a view of the Court based on the materials available on record is required. The Court is only required to place its view based on probability on the basis of reasonable material collected during the investigation. The word used in section 45 of the PMLA are reasonable grounds for believing which means that, the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt.
4. In this background, Learned Counsel appearing on behalf of petitioners in initial four cases submits that the legal grounds for consideration of bail argued by him above are applicable in all four cases and thereafter, he concludes his Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 7/13 argument case wise.
Criminal Miscellaneous No.34015 of 2024 (Baban Singh Vs. Union Of India through ED):-
5. Learned Counsel for the petitioners submits that in this Cr. Misc. No.34015 of 2024, the petitioner is Baban Singh who is alleged to be the Director of the Company. Counsel further submits that in paragraph 11.3 of the Complaint case, specific allegation has been made against accused Baban Singh. He further submits in defense of his argument for the petitioner that the allegation has been made against the Company and it has nowhere alleged that the petitioner is working Director of the Company. He submits that the Enforcement Directorate has evolved in establishment and narrates about functioning of the Syndicate. He further submits that the Syndicate theory has been evolved by the Enforcement Directorate only on the basis of loose sheets which according to him, may not be accepted in the light of judgment of Hon'ble Supreme Court of India discussed earlier. Counsel further submits that the allegation of money laundering made in the complaint is not actually the proceeds of crime. He submits that there is already dispute going on with the Government through its Mining Department relating to K- license for which arbitration proceeding reached upto Hon'ble Supreme Court of India and presently, matter is pending before Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 8/13 the Commercial Court, who is competent Court to resolve these issues.
6. Learned Counsel for the petitioners further submits that for the matter relating to Patna Depo, the Government itself adjusted the money and accepts that the sand seized by the Government and its value has been adjusted towards the demand of arrears. Counsel submits that as per the allegation made in the complaint, petitioner appears to be vicariously liable, and therefore in criminal law, he may not be charged for the entire action which alleged to be done by the Company. Counsel further submits that the petitioner is in custody since 03.11.2023 i.e. more than 11 months. Counsel submits that investigation under PMLA has already been completed, cognizance has been taken but charge has yet to be framed. He further submits that there are in total 22 F.I.Rs. which have been lodged against the company including other accused persons and in most of the cases, investigation of the said F.I.Rs. have not been completed till date but when it shall be completed, it is not yet known. In this view of the matter, the trial of PMLA may take years and years. Counsel further submits that the petitioner is aged about 71 years of age and he is suffering from several health ailments. Medical prescriptions are already annexed with the bail application, which shows that he need Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 9/13 continuous medical care. Counsel submits that in the light of the aforementioned situation which he has already argued in this case since last 3 days and today, the petitioner deserves for bail. He further submits that the petitioner is ready to fulfill all the conditions whatsoever shall be imposed upon him.
Criminal Miscellaneous No.34485 of 2024 (Mithilesh Kumar Singh Vs. Union of India through ED):-
7. Learned Counsel for the petitioners further submits that in the present Cr. Misc. No.34485 of 2024, the petitioner is Mithilesh Kumar Singh who is alleged to be the Director of the Company against whom the allegations have been mentioned in paragraph 11.2 of the Complaint Case. Counsel further submits that the petitioner is alleged to be the Director of the Company and the story of the Syndicate theory is also applicable upon him. Counsel submits that his defense is same that it is not the case that the petitioner is the working Director. The syndicate theory has been collected by virtue of loose sheets which is not acceptable in the light of the judgment of Hon'ble Supreme Court of India in case of Registered Society Vs. Union of India & Ors. reported in AIR 2017 SC 540. He further submits that the age of the petitioner is 68 years and he is in custody since 01.11.2023. Counsel further submits that the complaint has been filed on 09.11.2023, cognizance has been taken on 10.11.2023.
Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 10/13 But, charge has not been framed till date in this case. He also submits that the petitioner is suffering from several medical ailments which he has annexed as Annexure-P/3 of his bail application. He further submits that the petitioners are not named in the F.I.R., rather the Company is named in the F.I.R. and being the Director of the Company, they were made accused in this case. Counsel submits that since there is no time limit fixed for conclusion of trial when it has not started as yet and considering the custody, the petitioner deserves for bail.
Criminal Miscellaneous No.34951 of 2024 (Surendra Kumar Jindal Vs. Union of India through ED):-
8. Learned Counsel for the petitioners submits that in the present Cr. Misc. No.34951 of 2024, Surendra Kumar Jindal is the petitioner against whom allegations have come in paragraph 11.4 of the Complaint Case. Counsel further submits that the petitioner of the present bail application has already resigned from the Company from the post of Director on 11.11.2022 itself. Counsel submits that the petitioner is a matured businessman and have long standing experience of doing business since 1982-2023. He further submits that the same allegation i.e. the Syndicate theory has been applied on them by the Enforcement Directorate. In his defense also, Counsel submits that the Syndicate theory is the result of Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 11/13 collection of loose sheets, and therefore not acceptable in the light of judgment of Registered Society Vs. Union of India & Ors. (supra). Counsel further submits that the petitioner is in custody since 03.11.2023 and he is aged about 62 years and also suffering from medical ailments. In support, counsel has annexed Annexure-P/3 in his bail application.
Criminal Miscellaneous No.43608 of 2024 (Krishna Mohan Singh Vs. Union of India through ED):-
9. Learned Counsel for the petitioners submits that in the present Cr. Misc. No.43608 of 2024, Krishna Mohan Singh is the fourth petitioner who has not made accused in the Complaint Case No.08 of 2023 arising out of ECIR/PTZO/14/2023. Counsel further submits that the Enforcement Directorate has filed a supplementary complaint bearing Complaint Case No.02 of 2024 arising out of ECIR/PTZO/14/2023. He further submits that the present petitioner has already resigned from the Company as Director on 18.12.2017 due to his health ground. He further submits that the petitioner has resigned just two years after the Company has entered into the contract with sand mining with the Bihar Government and presently, he used to see only statutory and regulatory compliance of the Company. Counsel further submits the present status of the petitioner is that he is a salary paid Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 12/13 employee of the Company and left the company and detached himself from the Company as Director prior to filing of any of the F.I.R. He further submits that the petitioner is aged about 72 years and he is in custody since 17.03.2024. He further submits that the allegations have been made in paragraph 9.2 of the supplementary Complaint Case. Counsel submits that the said complaint case has been filed on 07.05.2024, cognizance has been taken on 08.05.2024, but charges are yet to be framed. He further submits that the Enforcement Directorate has called only once to this petitioner i.e., on 18.10.2023 and thereafter, taken for judicial remand for one day. He further submits that from the relevant dates, it transpires that the Enforcement Directorate has added this petitioner as accused, particularly when, he has already left in 2017 itself from the post of Director of the Company, but on the basis of loose sheets collected by the Enforcement Directorate. He further submits that the petitioner has several medical ailments for which he has annexed series of documents in his bail application.
10. Learned Counsel for the petitioners further submits that all the four accused persons for whom he is arguing have never absconded. They always appeared before the Enforcement Directorate whenever the ED called them except a few date. Counsel submits that petitioners are law abiding Patna High Court CR. MISC. No.34015 of 2024(9) dt.04-10-2024 13/13 citizens and they have every respect for law and their liberty provided by the Constitution under Article 21 have been infringed in the light of the discussions made by different judgments of Hon'ble Supreme Court of India and particularly, the interpretation made by the latest judgment of Hon'ble Supreme Court of India in case of Prem Prakash vs. Union of India through Directorate of Enforcement (supra) particularly, with regard to section 50 of the PMLA as well as section 45 of the PMLA and hence, the petitioners deserves bail. Counsel submits that all the petitioners are ready to fulfill all the conditions whatsoever shall imposed upon them.
11. Put up this case on 05.10.2024 for further arguments.
(Dr. Anshuman, J) Divyansh/-
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