Sujit Kumar And Ors vs Directorate Of Enforcement

Heard the parties.

Since in both these applications, a common issue is involved, the same are being disposed of by this common order.

Petitioners are accused in connection with ECIR/02/PAT/11/AD. It has been alleged that the petitioner Manoj Kumar @ Manoj Kumar Singh (in B. A. No. 2134 of 2020) while working as a Private Secretary to Sri Mrigendra Pratap Singh, the then Vidhan Sabha Speaker, Jharkhand during the period from August 2004 to December 2004 and subsequently to Sri Chandra Prakash Choudhary, the then Minister of Water Supply and Sanitation during the period 09.10.2006 to 23.08.2008 had in the name of Sri Manoj Singh (HUF) acquired assets worth Rs. 12,95,47,971/- which is disproportionate to his known sources of income. It has been alleged that Sri Manoj Singh had acquired proceeds of crime and placed the said proceeds of crime in the form of fixed deposit and other deposits. In the commission of the said offence, Sri Manoj Kumar Singh had been intentionally assisted by the other accused persons.

Based on the aforesaid allegation, a complaint case was lodged which was registered as ECIR/02/PAT/11/AD in which cognizance has been taken for the offences under Sections 3 and 4 of the Prevention of Money Laundering Act.

The background facts prior to the institution of the complaint is that on 15.10.2009 and 21.10.2009, searches were conducted by the Income Tax Department at Ranchi and in the village of Sri Manoj Kumar, in course of which there was a recovery of 169 fixed deposit receipts investing Rs. 12,54,45, 499/- with Uttar Pradesh Chhetriya Gramin Bank, Magarpal, Murtaza branch, Chhapra; 24 fixed deposits worth Rs. 12,75,000/- invested with United Bank of India, R. K. Mission Extension Counter, Morhabadi, Ranchi; Rs. 4,49,000/- in the savings bank account of Sri Manoj Kumar in United Bank of India, R. K. Mission Extension Counter, Morhabadi, Ranchi and Rs. 23,77,977 from the savings bank account of Sri Manoj Kumar from Uttar Pradesh Chhetriya Gramin Bank, Magarpal, Murtaza branch, Chhapra.

Pursuant to the search and seizure as indicated above, the Vigilance Bureau, Jharkhand had registered an FIR being Vigilance Case No. 23 of 2009. On completion of investigation, charge-sheet has been submitted only against Sri Manoj Kumar under Sections 13 (1) (E) read with Section 13 (2) of the Prevention of Corruption Act and Sections 467, 468, 469, 471 and 420 of I.P.C. and accordingly cognizance was also taken under the aforesaid provisions of law. The order taking cognizance was challenged by Sri Manoj Kumar Singh in Cr.M.P. No. 1913 of 2013 and vide order dated 07.03.2014, the order dated 16.04.2010 under which cognizance was taken under Sections 467, 468, 469, 471 and 420 of I.P.C. was set aside. Pursuant to the charge-sheet submitted by the Vigilance Bureau, the Directorate of Enforcement had instituted the complaint case.

It has been stated by Mr. Rajendra Krishna, learned counsel for the petitioners that in B.A. No. 2134 of 2020 in the Vigilance Case, the petitioner had been granted bail by this Court in B. A. No. 4392 of 2010. He has referred to the order passed in Cr.M.P. No. 1913 of 2013 by which the cognizance order dated 16.04.2010 was set aside so far as Sections 467, 468, 469, 471 and 420 I.P.C. are concerned. Learned counsel furthers his argument by stating that the petitioner has fully cooperated in investigation and documents in defence was also submitted. He has stated that the petitioner Manoj Kumar had given suitable explanation regarding his unsourced income. Reference has been made to the communication of the Circle Officer which categorises the agricultural income of the petitioner - Manoj Kumar. The agricultural income is itself to the tune of Rs. one crore. Mr. Rajendra Krishna has further submitted that the gold and diamonds were purchased from the agricultural income from time immemorial. The gold and diamonds were taken to the Valuer Sri Ramesh Kumar Soni for the valuation and the cost of the gold and diamonds were assessed at Rs. 10 crores approximately. He has also drawn the attention of the Court to the statement of Sri Ramesh Kumar Soni recorded under Section 15 of the Prevention of Money Laundering Act, in which he has stated about the valuation done and the charges taken by him and which has been shown in the Income Tax return for the financial year 2005-06. It has been submitted that the petitioner has given suitable explanation about his income and it cannot be said that the income generated by the petitioner was from the proceeds of crime. Mr. Rajendra Krishna has also referred to the case of "Shri P. Chidambaram Vs. Central Bureau of Investigation" reported in 2020 (1) JBCJ 28 (SC) and has stated that the criteria laid down for grant of bail does not disentitle the petitioner to the same. He has further submitted that the petitioner is in custody since 15.02.2020 and no custodial interrogation of the petitioner is required. So far as the petitioners in B. A. No. 2806 of 2020 are concerned, learned counsel submits that the petitioners have been implicated for being the brothers of Manoj Kumar. In course of investigation, none of the witnesses have taken the name of these petitioners. It has been stated that both the petitioners are in custody since 28.02.2020. Learned counsel for the petitioners has also referred to a judgment in the case of "Sanjay Chandra vs. Central Bureau of Investigation" reported in (2012) 1 SCC 40. Mr. Amit Kumar Das and Mr. Prashant Vidyarthy, learned counsel for the Directorate of Enforcement have drawn the attention of the court to the investigation which came to the conclusion that Valuer had prepared the valuation report without physical verification, only for the purposes of pecuniary gain. While relying on the investigation, reference has been made to the purported sale of diamonds by the accused Manoj Kumar which were found to be false. He has also submitted that the agricultural income as shown by the accused Manoj Kumar, in view of the statement of some of the buyers has also been falsified. Learned counsels also indicated about the conduct of the petitioners to the effect that they had only surrendered once processes under Sections 82 & 83 Cr.P.C. have been issued. It has been submitted that the Prevention of Corruption Act and the Prevention of Money Laundering Act operate in different fields with respect to the factors guiding consideration of bail. Mr. Das has submitted that in the case of "Shri P. Chidambaram" (supra), bail was granted on the parameters of the accused person being aged 74 years and was suffering from illness. In such circumstances, as noted above, a prayer has been made for rejecting the bail applications preferred by the petitioners.

In course of investigation by the Vigilance Bureau, it was detected that so far as the valuation of gold and diamonds are concerned, the jewellery was not physically taken to the Valuer, but instead the Valuer had given a back dated valuation report and in lieu thereof, he was given an amount of Rs. 1,26,042/-. Sri Ramesh Kumar Soni, the Valuer in his statement under Section 15 of the Prevention of Money Laundering Act has specifically stated about the valuation being made after the gold and diamonds were brought before him by the accused which is contrary to what has been stated by him before the Vigilance Bureau. In course of investigation, it has also come that the petitioner Manoj Kumar had submitted some invoices in support of his claim regarding sale of diamonds worth Rs. 8,17,21,664/- to one M/s. Star Traders, Mumbai/Surat which was a proprietorship firm of Raj Kumar Patodia. However, the income tax return does not indicate regarding the claim of Sri Manoj Kumar about the sale of diamonds as stated above. It has also come during course of investigation that the address of M/s. Star Traders has been given in the invoices submitted by Sri Manoj Kumar which is apparently false as there is no firm in existence in the name of M/s. Star Traders at Surat. In fact the son of Raj Kumar Patodia had denied being aware of any purchase of diamond or of the residential address of his father which had been provided by the petitioner - Manoj Kumar. In fact, with respect to the agricultural income for which reliance has been placed on various documents by the learned counsel for the petitioner, but in course of investigation, the statements of several persons who were said to have purchased the agricultural produce have stated otherwise which also contradicts the claim of the petitioner - Manoj Kumar Singh regarding his explanation with respect to the income from agricultural produce. So far as the petitioner in B. A. No. 2806 of 2020 is concerned, they appear to have been implicated being the brothers of the main accused - Sri Manoj Kumar.

At this juncture, it would be relevant to refer to some of the pronouncements which have been relied upon by the learned counsel for the petitioners. In the case of "Shri P. Chidambaram Vs. Central Bureau of Investigation" (supra), it has been held with respect to the factors guiding consideration of bail as follows:

"The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General that "flight risk" of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country. The same cannot, in our view, be put in a straight-jacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to "flight risk" is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved."

In the case of "Sanjay Chandra vs. Central Bureau of Investigation" (supra), it has been held as follows:

"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.

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.

Apart from the question of prevention 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.

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".

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 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 recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual."

As has been noted in the present case, the entire allegations appear to be centered around the petitioner in B. A. No. 2134 of 2020. So far as the petitioners in B. A. No. 2806 of 2020 are concerned, there does not appear to be any specific allegation levelled against them and they being the brothers of main accused - Sri Manoj Kumar have been proceeded against in the case of money laundering. All the petitioners are in custody since 28.02.2020 and at the present juncture, no custodial interrogation is necessary. It further appears that the precursor to the investigation carried out by the Directorate of Enforcement appears to be the case instituted by the Vigilance Bureau in which the said Manoj Kumar @ Manoj Kumar Singh has been granted bail in B. A. No. 4392 of 2010. Judgments referred to above have categorically underlined the principle that the ultimate consideration in a case of bail will have to be a case to case basis on the facts involved therein and securing the presence of the accused to stand trial.

An economic offence is a grave offence and considering the role played by the petitioner in B. A. No. 2134 of 2020 in which he had misused his position of being the Private Secretary of the then Speaker as well as the then Minister while amassing a huge wealth which is disproportionate to his known source of income and having miserably failed to submit any appropriate explanation for such income from the proceeds of crime, I am not inclined to grant bail to him. The prayer for bail of the petitioner in B. A. No. 2134 of 2020 is hereby rejected.

So far as the petitioners in B. A. No. 2806 of 2020 are concerned, I am inclined to grant bail to the said petitioners.

Accordingly, the petitioners in B. A. No. 2806 of 2020 above named are directed to be released on bail on furnishing bail bond of Rs. 10,000/- (Ten Thousand) with two sureties of the like amount each, to the satisfaction of learned Additional Judicial Commissioner I cum Special Judge, PMLA, Ranchi in connection with ECIR/02/PAT/11/AD.