Chattisgarh High Court
Anwar Dhebar vs State Of Chhattisgarh on 20 December, 2024
1
2024:CGHC:50583
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ORDER RESERVED ON 19.12.2024
ORDER DELIVERED ON 20.12.2024
MCRC No. 3455 of 2024
1 - Anwar Dhebar S/o Late Haji Zikar Dhebar Aged About 50 Years R/o
Dhebar House, Pension Bada Raipur, Chhattisgarh.
... Applicant
versus
1 - State Of Chhattisgarh Through Its Station House Officer Police
Station E.O.W./A.C.B. District Raipur (C.G.)
... Respondent
For Petitioner(s) : Shri Arshdeep Singh Khurana, Advocate
along with Shri Sourabh Dangi and Shri
Sajal Kumar Gupta, Advocates
For Respondent/State : Shri Vivek Sharma, Addl. Advocate General
(Hon’ble Shri Justice Arvind Kumar Verma)
C A V Order
This is the applicant’s first bail application filed under Section 439
of Cr.P.C. The applicant is implicated in connection with Crime No. FIR
2
No. 04/2024 registered by the Anti-Corruption Bureau, Chhattisgarh for
commission of offence punishable under Sections 420,468, 471,120(B)
of the IPC and Sections 7 and 12 of the Prevention of Corruption Act.
2. Facts of the case in brief is that after receiving a communication
from the Enforcement directorate on 11.07.2023, prima facie a
cognizable offence for commission of the offences under Sections 7 &
12 of the Prevention of Corruption Act and Sections 420,468, 471,
120(B) of the IPC was registered against the applicant. As per the FIR a
criminal syndicate of high level State government officials, private
persons and political executives of the State government was operating
in the State of Chhattisgarh by collecting illegal bribes and controlling
the high level management of important State Departments and State
Public Sector undertakings. The sale of liquor in the State of
Chhattisgarh was one of the major sources of illegal earning of the
syndicate in which the applicant along with co-accused Anil Tuteja,
Arunpati Tripathi, MD CSMCL and other associates ie. Vikas Agrawal @
Subbu, Arvind Singh, Sanjay Diwan and Distillers, Excise Officials were
the main actors of the syndicate. The syndicate used to collect illegal
money in three different ways from the sale of liquor in the State of
Chhattisgarh :
I. Part-A : Illegal commission charged from the liquor
suppliers on the accounted sale of liquor in Chhattisgarh.
ii. Part -B Sale of off-the-record unaccounted country liquor
(popular in Chhattisgarh) from State run shops. This was done with the
3active involvement of distillers, Hologram manufacturers, bottle makers,
transporters, man power management and district excise officials.
III. Part-C Annual commission paid to allow distillers to operate in the
State.
After analyzing the information and date shared by the Income
Tax Department, it is established that a well planned systematic
conspiracy was executed by the syndicate to ear illegal commission in
the sale and licensing of liquor in the State of Chhattisgarh. Accordingly,
FIR bearing Crime No. 4/2024 was registered and investigation was
initiated.
3. The application in brief is that between 26.02.2020-01.03.2020,
the Income Tax Department carried search and seizure operation on
several premises owned by the applicant and his family. Subsequently,
statements of various individuals were recorded who are alleged to be
part of an imaginary liquor syndicate in the State of Chhattisgarh. It is
alleged that nothing has been recorded by the Income Tax Department
with regard to the liquor trade, payment or receipt of any bribe amount
by either the distillers or other stakeholders in the business of liquor in
the State of Chhattisgarh and there was no discrepancy in awarding
tenders to any of the stakeholders in the liquor business in the State of
Chhattisgarh. Pursuant to the said raid, despite of denial of any
incriminating statements, the Income Tax Department filed a false and
frivolous complaint against the applicant in the form of a Complaint
Case bearing Ct. Case No. 1183/2022 under Sections 276
4(C)(1)/277/278/278E of the Income Tax Act, 961 read with Sections 120-
B/191/199/200/204 of the IPC for the A.Y. 2020-21 before the learned
ACMM, Tis Hazari Court, New Delhi. Though it is alleged that there exist
a fictitious illegal liquor syndicate in the State of Chhattisgarh and
payment of bribe to various Govt. Officials by certain distillers and other
individuals, none of them have been made accused in the IT Complaint
or any proceeding has been initiated against these individuals by the IT
Department.
4. On 18.11.2022, the Enforcement Directorate in an illegal manner,
against all the settled principles of law, illegally registered an ECIR
bearing ECIR/RPZO/11/2022 under Section 120-B IPC. Thereafter on
28.04.2023 (Annexure-A/2), two co-accused in the IT complaint and the
ECIR 11 were granted protection by the Hon’ble Supreme Court
observing that
“the allegation is about offences under the
Income Tax Act so far as the predicated offence
in concerned and the cognizance has not been
taken by the competent Court. At this stage, he
only seeks protection so far as any coercive
step is concerned and submits that he has
already joined the investigation.
No coercive steps be taken against the
petitioner(s) till the next date. ”
5. On 02.05.2023, the applicant filed a writ petition (W.P. No. 208 of
2023) before the Apex Court seeking quashment of the ECIR 11 and on
506.05.2023, despite of the aforesaid protection granted to the co-
accused persons, the ED had illegally arrested the applicant.
6. Pursuant to the arrest of the applicant, he was remanded to the
ED custody from time to time and subsequently was remanded to
judicial custody. During this period, the officers of the ED were apprised
that the applicant is suffering from various ailments, in support of which,
relevant documents have also been annexed. Thereafter on
16.05.2023, Hon’ble Supreme Court was pleased to grant protection
from any coercive action to the wife of the applicant in relation to ECIR
11 (Annexure A/4). On 21.05.2023, the ED, illegally investigated without
any jurisdiction and issued a provisional attachment order No.03/2023
followed by an Original Complaint No. 2001/2023 seeking confirmation
of the Provisional Attachment Order No. 03/2023. From perusal of the
said complaint, it clearly shows that bogus and flawed allegations and
fictitious case was made out by the ED against the applicant. However,
the statements of the individuals recorded by the ED before the Income
Tax Department had denied the allegations of illegal liquor trade in the
State of Chhattisgarh and the allegation of alleged scam of over Rs.
2000 crores is a figment of imagination by the ED as there was no
recovery of the amount or incriminating material, illegal liquor bottle or
duplicate holograms from the applicant or any of his associates. The
investigation carried out by the ED is plethoric and inconsistent and is
malafide.
6
7. The Hon’ble Supreme Court quashed the prosecution complaint
dated 04.07.2023 filed against the applicant and has categorically held
that there was neither any scheduled offence in the ECIR 11 nor there
was any criminal proceedings and therefore the entire genesis of
registration of the FIR including the issuance of the letter under Section
66 of the PMLA, 2002 by the ED which led to the registration of the
subject FIR has been quashed and held to be illegal by the Hon’ble
Supreme Court. The OC No. 2001/2023 which forms the basis of the
subject FIR has also been dismissed by the adjudicating authority. On
11.07.2023, the applicant was summoned by the ACB, Raipur in
pursuance of preliminary enquiry initiated subsequent to the letter dated
11.07.2023. On 24.07.2023, the applicant was granted interim bail by
this Court to the applicant on medical ground which was stayed by the
Hon’ble Supreme Court in relation to ECIR 11 as prima facie it was
found to be illegal. On 28.07.2023, the ED informed UP Police and
sought registration of FIR against the applicant in relation to the alleged
transaction and sought for registering an FIR with the ACB, Raipur. On
30.07.2023, FIR bearing No. 196/2023 under Sections 420,468 and 471
IPC was registered at PS Kasna Police, Greater Noida, Uttar Pradesh
without any preliminary enquiry within two days. On 18.08.2023,
preliminary enquiry has been initiated by the EOW, Raipur. On
21.08.2023, Hon’ble Supreme Court continued the interim protection
granted earlier vide order dated 07.08.2023 in relation to the FIR lodged
at UP. Thereafter, regular bail application of the applicant was dismissed
7
by this Court on 6.10.2023 despite the fact that the proceedings in
relation to ECIR 11 was stayed by the Hon’ble Supreme Court.
8. Thereafter application was filed on behalf of the applicant on
19.10.2023 and the Hon’ble Supreme Court has ordered that the
dismissal of regular bail application of the applicant and the issuance of
NBW was completely untenable in law and therefore the interim bail
granted to the applicant would continue and the order issuing NBW is
stayed. On 17.01.2024, FIR No. 04.2024 was registered by the ACB,
Chhatisgarh under Sections 420,467,468,471 and 120-B IPC read with
Sections 7 & 12 of the Prevention of Corruption Act, 1988 against the
applicant. The applicant preferred an application bearing No.
26705/2024 in WP (Crl.) No. 208/2023 seeking protection on
01.02.2024. During the pendency of this application before the Hon’ble
Supreme Court, the respondent conducted search and seizure
proceedings in the premises of the applicant and vide order dated
01.04.2024, notice was issued and interim protection from any coercive
action against the two co-accused persons in Cr.M.P. No. 721 of 2024
(Anil Tuteja & Another Vs. Union of India and Others). On 03.04.2024,
the applicant filed a writ petition seeking quashing of FIR against him
vide Cr.M.P. No. 4510/2024 and has also sought for similar relief as has
been granted to the above co-accused. However, on 04.04.2024, during
the listing of this petition, without any prior notice, the applicant was
intercepted and detained while he was traveling and taken to the office
of the Respondent. On 08.04.2024, the Hon’ble Supreme Court
8
quashed the prosecution complaint filed against the applicant dated
04.07.2023 and held that neither there was any scheduled offence in
the ECIR 11 nor there was any criminal proceedings and therefore the
entire genesis of the registration of the FIR including the issuance of the
letter under Section 66 of the PMLA, 2002 by the ED leading the
registration of the FIR was quashed. Thereafter the applicant was
produced before the learned Special Judge and sought for his remand
in police custody for eight days from 8.04.2024 to 16.04.2024 which
was further extended for a period fo 4 days i.e. till 12.04.2024 and the
respondent conducted search operation at the residential premises of
the relatives of the applicant. The police custody was further extended
to six days ie. till 18.04.2024 and subsequently the applicant was
remanded to judicial custody till 02.05.2024 and it was further extended
to 16.05.2024. On 02.05.2024, the applicant preferred application under
Section 439 Cr.P.C. seeking his release on regular bail in the said FIR.
9. The said bail application was allowed on the ground that “the
applicant was suffering from various medical issues and needs constant
medical supervision and treatment and therefore this court was of the
view that proper and effective medical treatment is a right of every
individual. The allegations made by the prosecution are yet to be tested
during the course of trial. It also appears that some of the co-accused
persons in the present case are protected by the High Court by ordering
that no coercive steps shall be taken against them. It is also pertinent to
mention here that there is no seizure of a single piece of duplicate
9
hologram. Therefore, in view of the above facts and circumstances of
the case, I am inclined to release him on regular bail. Accordingly, his
application filed under Section 439 Cr.P.C. is allowed.”
10. Against this order, the State has filed SLP (Crl.) No. 9395/2024
before the Apex Court against the order of the High Court wherein it
was directed that the applicant herein shall be examined by the Medical
Board of All India Institute of Medical Sciences (AIIMS), Raipur
Chhattisgarh. It was opined by the Medical Superintendent of AIIMS on
10th September 2024 that there is no evidence of medical condition as
mentioned in the impugned order and has recorded that the condition of
the respondent is stable with no significant ailments. The bail granted on
medical grounds cannot be sustained. However, the case of the
respondent for grant of bail on merits will have to be considered.
Accordingly, the impugned order dated 14.06.2024 was set aside and
restored the petition bearing M.Cr.C. No. 3455 of 2024 to the file of the
High Court. Hence, the applicant has filed the bail application before
this Court.
11. Shri Khurana, learned counsel for the applicant submits that total
three cases have been registered against the applicant in relation to the
same alleged liquor scam making the same allegations. The period of
incarceration suffered by the applicant in relation to the offence as on
date is as follows:
Sl. No. Case Period of custody/status
1. ECIR/RPZO/04/2024 6 days of ED custody and 128
10
Dated 11.04.2024 days of judicial custody
2. FIR No. 1196/2023 4 days of police custody and 52
dated 30.07.2023 days of judicial custody
3. FIR No. 04/2024 14 days of police custody and
dated 17.01.2024 83 days of judicial custody
4. ECIR/RPZO/11/2023 14 days of ED custody and 66
dated 18.11.2024 days of judicial custody
12. It is contended that the investigation qua the applicant is complete
and the charge sheet has been filed on 1.07.2024 by the State and the
statement of the applicant has not been recorded even once by the ACB
after the police custody. He contended that total three charge sheets
against 11 accused persons spanning nearly 13,000 pages with 457
witnesses have been filed by the investigating agency and the
investigation is still going on. He contended that the proceedings before
the learned Special Judge are at the verge of Section 207 Cr.P.C.
proceedings and the charge sheet has not yet been filed and the trial is
not likely to conclude in the near future. He contended that the FIR has
been registered illegally which is evident from the fact that 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 ACB has not
only registered an illegal FIR but has also arrested individuals with the
sole intent of frustrating their fundamental and constitutional rights.
13. Further contention of the counsel for the applicant is that the
applicant has already undergone 340 days of custody in relation to the
alleged liquor scam and has a fundamental right to liberty and his liberty
11
cannot be curtailed in an indefinite manner and it is violative of Article
21 of the Constitution of India. He has placed his reliance in the matter
of Manish Sisodia Vs. ED SLP Crl. No. 8781 of 2024, wherein it has
been held as under:
49. We find that, on account of a long period of
incarceration running for around 17 months and
the trial even not having been commenced, the
appellant has been deprived of his right to
speedy trial.
50. As observed by this Court, the right to
speedy trial and the right to liberty are
sacrosanct rights. On denial of these rights, the
trial court as well as the High Court ought to
have given due weightage to this factor.
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54. In the present case, in the ED matter as well
as the CBI matter, 493 witnesses have been
named. The case involves thousands of pages of
documents and over a lakh pages of digitized
documents. It is thus clear that there is not even
the remotest possibility of the trial being
concluded in the near future. In our view, keeping
the appellant behind the bars for an unlimited
period of time in the hope of speedy completion
of trial would deprive his fundamental right to
liberty under Article 21 of the Constitution. As
observed time and again, the prolonged
incarceration before being pronounced guilty of
an offence should not be permitted to become
punishment without trial.
14. He has further placed his reliance in the matter of Bibhav Kumar
Vs. State (NCT of Delhi) 2024 SC OnLine SC 2646, wherein the bail
was granted inter alia on the ground that he has been in custody for 100
12days. It further reads as under:
“4. It is not a matter of dispute that the
investigation is complete and the charge sheet
has been filed. Keeping that stage in mind, we
do not deem it necessary to hear learned Senior
Counsel for the petitioner or learned Additional
Solicitor General of India on the point as to
whether a prima facie case under Section 308
IPC is made out or not. That issue exclusively
falls within the domain of the Trial Court and the
parties shall be at liberty to raise their respective
contentions in this regard before the Trial Court
at an appropriate stage.
5. Adverting to the prayer made by the petitioner
for grant of bail, we find that there are more than
51 witnesses proposed by the prosecution to be
examined as can be seen from the charge
sheet, a copy whereof has been placed on
record. The conclusion of trial will, thus, take
some reasonable time. The petitioner is already
in custody for more than 100 days. In the event
of his release, the petitioner, at this stage, is not
likely to hamper or cause impediment in the
investigation which is already complete.”
15. In yet another decision of the Apex Court in the matter of Javed
Gulam Nabi Sheikh Vs. State of Maharashtra 2024 SCC OnLine SC
1693, it has been observed as under:
7. Having heard the learned counsel appearing
for the parties and having gone through the
materials on record, we are inclined to exercise
our discretion in favour of the appellant herein
keeping in mind the following aspects:
(i) The appellant is in jail as an under-trial
prisoner past four years;
(ii) Till this date,the trial court has not been able to
13even proceed to frame charge; and
(iii) As pointed out by the counsel appearing for
the State as well as NIA, the prosecution intends
to examine not less than eighty witnesses.
XXXX XXXX XXXX
9.Over a period of time, the trial courts and the
High Courts have forgotten a very well settled
principle of law that bail is not to be withheld as a
punishment.
10. In the aforesaid context, we may remind the
trial courts and the High Courts of what came to
be observed by this Court in Gudikanti
Narasimhulu & Ors. v. Public Prosecutor, High
Court reported in (1978) 1 SCC 240. We quote:
“What is often forgotten, and therefore
warrants reminder, is the object to keep
a person in judicial custody pending trial
or disposal of an appeal. Lord Russel,
C.J., said [R V. Rose, (1898) 18 Cox] :
“I observe that in this case bail was refused for
the prisoner. It cannot be too strongly impressed
on the, magistracy of the country that bail is not
to be withheld as a punishment, but that the
requirements as to bail are merely to secure the
attendance of the prisoner at trial.
XXXX XXXXX XXXX
20. In his statement of 04.08.2023, he stated that
he knew Bishnu Kumar Agarwal and has met him
during Marriage Events; that Punit Bhargava was
like his younger brother who hailed from his
native place, and he had known him since
childhood. That in his statement of 03.08.2023,
14he stated that persons including Afshar Ali used
to visit him for the Cheshire Home property and
that he introduced him to Rajdeep Kumar and
got the property verified. That with the consent of
Punit Bhargava, he got the property registered in
the name of Punit Bhargava and later the
property was sold to Bishnu Kumar Agarwal at a
consideration of Rs. 1.78 crore. The statement,
as summarized, taken as it is does not prima
facie make out a case of money laundering
against the appellant. It also does not point to the
involvement of the appellant prima facie in the
forgery.”
16. It is contended that the co-accused Trilok Singh Dhillon has been
granted bail by the Apex Court with effect form 15.01.2025 vide order
dated 27.11.2024 in SLP No. 14697/2024. However the Apex Court has
granted interim protection to the co-accused namely Yash Tuteja in
SLP (Crl.) No. 11790/2024; Vidhu gupta (Hologram Manufacturer) in
SLP (Crl.) No. 12517/2024; Niranjan Das (Commissioner, Excise
Department) in SLP (Crl.) No. 12864/2024; Nitesh Purohit in SLP (Crl.)
No. 14901-14904/2024 and Yash Purohit in CLP (Crl.) No. 14901-
14904/2024.
17. Another FIR bearing FIR No. 196/2023 dted 30.07.20233 has
been registered at the behest of the ED at PS Kasna, Uttar Pradesh (ie.
“UP FIR”) with identical allegations and in which the accused persons
including the present applicant stand protected from arrest in the said
FIR. It is next contended by the counsel for the applicant that the
hologram manufacturer, Excise Commissioner and the person against
who the allegations of handling money are granted protection and the
15applicant against whom there is no admissible material is in custody. He
submit that as per settled law, a person being arrested must necessarily
be provided with the grounds of arrest in writing at the time of his arrest
and non-providing of the same would be a violation of his fundamental
right under Article 22 of the Constitution of India. He has placed his
reliance upon the judgment of the Apex Court in the matter of Prabir
Purkayashta Vs. State (NCT of Delhi) (2024) 8 SCC 254 which reads
as under:
“14. In the case of Pankaj Bansal(supra), this Court
after an elaborate consideration of the provisions
contained in PMLA, CrPC and the constitutional
mandate as provided under Article 22 held as
below: –
“38. In this regard, we may note that Article 22(1) of
the Constitution provides, inter alia, that no person
who is arrested shall be detained in custody
without being informed, as soon as may be, of the
grounds for such arrest. This being the
fundamental right guaranteed to the arrested
person, the mode of conveying information of the
grounds of arrest must necessarily be meaningful
so as to serve the intended purpose. It may be
noted that Section 45 of the Act of 2002 enables
the person arrested under Section 19 thereof to
seek release on bail but it postulates that unless
the twin conditions prescribed thereunder are
satisfied, such a person would not be entitled to
grant of bail. The twin conditions set out in the
provision are that, firstly, the Court must be
satisfied, after giving an opportunity to the public
prosecutor to oppose the application for release,
that there are reasonable grounds to believe that
the arrested person is not guilty of the offence and,
secondly, that he is not likely to commit any offence
while on bail. To meet this requirement, it would be
16essential for the arrested person to be aware of the
grounds on which the authorized officer arrested
him/her under Section 19 and the basis for the
officer’s ‘reason to believe’ that he/she is guilty of
an offence punishable under the Act of 2002. It is
only if the arrested person has knowledge of these
facts that he/she would be in a position to plead
and prove before the Special Court that there are
grounds to believe that he/she is not guilty of such
offence, so as to avail the relief of bail. Therefore,
communication of the grounds of arrest, as
mandated by Article 22(1) of the Constitution and
Section 19 of the Act of 2002, is meant to serve this
higher purpose and must be given due importance.
XXXX XXXX XXXX
42. That being so, there is no valid reason as to
why a copy of such written grounds of arrest should
not be furnished to the arrested person as a matter
of course and without exception. There are two
primary reasons as to why this would be the
advisable course of action to be followed as a
matter of principle. Firstly, in the event such
grounds of arrest are orally read out to the arrested
person or read by such person with nothing further
and this fact is disputed in a given case, it may boil
down to the word of the arrested person against
the word of the authorized officer as to whether or
not there is due and proper compliance in this
regard. In the case on hand, that is the situation
insofar as Basant Bansal is concerned. Though the
ED claims that witnesses were present and
certified that the grounds of arrest were read out
and explained to him in Hindi, that is neither here
nor there as he did not sign the document. Non-
compliance in this regard would entail release of
the arrested person straightaway, as held in V.
Senthil Balaji (supra). Such a precarious situation
is easily avoided and the consequence thereof can
be obviated very simply by furnishing the written
grounds of arrest, as recorded by the authorized
17officer in terms of Section 19(1) PMLA , to the
arrested person under due acknowledgment,
instead of leaving it to the debatable ipse dixit of
the authorized officer.
43. The second reason as to why this would be the
proper course to adopt is the constitutional
objective underlying such information being given
to the arrested person. Conveyance of this
information is not only to apprise the arrested
person of why he/she is being arrested but also to
enable such person to seek legal counsel and,
thereafter, present a case before the Court under
Section 45 to seek release on bail, if he/she so
chooses. In this regard, the grounds of arrest in V.
Senthil Balaji (supra) are placed on record and we
find that the same run into as many as six pages.
The grounds of arrest recorded in the case on hand
in relation to Pankaj Bansal and Basant Bansal
have not been produced before this Court, but it
was contended that they were produced at the time
of remand. However, as already noted earlier, this
did not serve the intended purpose. Further, in the
event their grounds of arrest were equally
voluminous, it would be well- nigh impossible for
either Pankaj Bansal or Basant Bansal to record
and remember all that they had read or heard
being read out for future recall so as to avail legal
remedies. More so, as a person who has just been
arrested would not be in a calm and collected
frame of mind and may be utterly incapable of
remembering the contents of the grounds of arrest
read by or read out to him/her. The very purpose of
this constitutional and statutory protection would be
rendered nugatory by permitting the authorities
concerned to merely read out or permit reading of
the grounds of arrest, irrespective of their length
and detail, and claim due compliance with the
constitutional requirement under Article 22(1) and
the statutory mandate under Section 19(1) of the
Act of 2002.
18
44. We may also note that the grounds of arrest
recorded by the authorized officer, in terms of
Section 19(1) of the Act of 2002, would be personal
to the person who is arrested and there should,
ordinarily, be no risk of sensitive material being
divulged therefrom, compromising the sanctity and
integrity of the investigation. In the event any such
sensitive material finds mention in such grounds of
arrest recorded by the authorized officer, it would
always be open to him to redact such sensitive
portions in the document and furnish the edited
copy of the grounds of arrest to the arrested
person, so as to safeguard the sanctity of the
investigation.
45. On the above analysis, to give true meaning
and purpose to the constitutional and the statutory
mandate of Section 19(1) of the Act of 2002 of
informing the arrested person of the grounds of
arrest, we hold that it would be necessary,
henceforth, that a copy of such written grounds of
arrest is furnished to the arrested person as a
matter of course and without exception. The
decisions of the Delhi High Court in Moin Akhtar
Qureshi (supra) and the Bombay High Court in
Chhagan Chandrakant Bhujbal (supra), which hold
to the contrary, do not lay down the correct law. In
the case on hand, the admitted position is that the
ED’s Investigating Officer merely read out or
permitted reading of the grounds of arrest of the
appellants and left it at that, which is also disputed
by the appellants. As this form of communication is
not found to be adequate to fulfill compliance with
the mandate of Article 22(1) of the Constitution and
Section 19(1) of the Act of 2002, we have no
hesitation in holding that their arrest was not in
keeping with the provisions of Section 19(1) of the
Act of 2002. Further, as already noted supra, the
clandestine conduct of the ED in proceeding
against the appellants, by recording the second
ECIR immediately after they secured interim
protection in relation to the first ECIR, does not
19commend acceptance as it reeks of arbitrary
exercise of power. In effect, the arrest of the
appellants and, in consequence, their remand to
the custody of the ED and, thereafter, to judicial
custody, cannot be sustained.” (emphasis supplied)
XXXX XXXX XXXX
19. Resultantly, there is no doubt in the mind of
the Court that any person arrested for allegation of
commission of offences under the provisions of
UAPA or for that matter any other offence(s) has a
fundamental and a statutory right to be informed
about the grounds of arrest in writing and a copy of
such written grounds of arrest have to be furnished
to the arrested person as a matter of course and
without exception at the earliest. The purpose of
informing to the arrested person the grounds of
arrest is salutary and sacrosanct inasmuch as, this
information would be the only effective means for
the arrested person to consult his Advocate;
oppose the police custody remand and to seek bail.
Any other interpretation would tantamount to
diluting the sanctity of the fundamental right
guaranteed under Article 22(1) of the Constitution
of India.
XXXX XXXX XXXX
21. The right to be informed about the grounds of
arrest flows from Article 22(1) of the Constitution of
India and any infringement of this fundamental right
would vitiate the process of arrest and remand.
Mere fact that a charge sheet has been filed in the
matter, would not validate the illegality and the
unconstitutionality 3 (2000) 8 SCC 590 committed
at the time of arresting the accused and the grant
of initial police custody remand to the accused.”
18. It is contended that the grounds of arrest cannot be a lip service.
The reasons for arrest and grounds of arrest have been distinguished in
as much as while reasons for arrest are formal in nature, the grounds of
arrest would be required to contain all the details with the Investigating
20
officer which necessitated the arrest of the accused person. Further it
has been held in Prabir Purkayashta (supra) that the provisions of the
statute in context to the constitutional scheme and has laid down that
the grounds of arrest have to be conveyed to the accused in writing
expeditiously, the said ratio becomes the law of the land binding on all
the Courts in the country by virtue of Article 141 of the Constitution of
India.
“47. Now, coming to the aspect as to whether
the grounds of arrest were actually conveyed to
the appellant in writing before he was
remanded to the custody of the Investigating
Officer.
48. We have carefully perused the arrest
memo(Annexure P-7)and find that the same
nowhere conveys the grounds on which
theaccused was being arrested. The arrest
memo is simply a proforma indicating the
formal ‘reasons’ for which the accused was
being arrested.”
19. Simultaneously, the grounds of arrest informed in writing must
convey to the arrested accused all basic facts on which he was being
arrested so as to provide him an opportunity of defending himself
against custodial remand and to seek bail. Thus, the ‘grounds of arrest’
would invariably be personal to the accused and cannot be equated
with the ‘reasons of arrest’ which are general in nature.
20. He further contended that the Apex Court has issued notice and
granted protection to various accused persons in the Chhattisgarh FIR
and has further granted liberty to co-accused persons to file application
for grant of interim relief. The Investigating Agency is acting in a
21
malafide and targeted manner which is unfair, malicious, selective and
pick and choose manner. The persons who ought to have been made
the main accused are made witnesses and innocent persons have been
made accused. It is submitted that the excise officials, placement
agency, cash handling agencies and none of the distillers have been
made accused nor proceedings under Section 8 of the Prevention of
Corruption Act have been initiated. One of the distiller Naveen Kedia of
M/s. Chhattisgarh Distilleries caught selling 20 lac bottles of illegal liquor
yet no action has been taken by ACB against them. Certain distillers ie.
Bhupendra Pal Singh Bhatia, Rajendra Jayaswal who are also involved
in the sale of illegal liquor amounting to over 1200 crores without paying
excise duty, giving bribes to the officials to the tune of over 500 crores
and huge benefit from evading excise duty, GST and Income Tax, but
no action appears to have been taken against these individuals by any
of the investigating authority and the ED which had made allegations. It
has also been contended that no action has been taken against these
individuals and none of the properties/assets belonging to these
distillers and businessmen have been attached by the ED despite the
fact that these persons are benefited from the alleged liquor scam and
payment of bribe.
21. He submits that while allegations of a multi crore syndicate that
has caused loss to the State exchequer in the State of Chhattisgarh has
been made by the ED and the State, despite the change in government,
neither any change has been brought to the existing liquor policy nor
22
any license of any hologram manufacturer/distillers/cash collection
agency etc. has been canceled. The FIR has been registered on the
basis of the material collected by the ED during the course of illegal
investigation carried out by it in relation to the ECIR 11. The FIR, arrest
of the applicant and his subsequent remand is thus a continuation of
such illegality and untenable under the law. He has placed his reliance
in the matter of State of Punjab Vs. Davinder Pal Singh Bhullar
(2011) 14 SCC 770. It is further submitted that the FIR has been
registered on the basis of the same alleged material, making identical
allegations forming part of the same alleged transaction alleging
overlapping offenes and the UP FIR. He has placed his reliance in the
matter of T.T.Anthony Vs. State of Kerala (20010 6 SCC 181 and
Upkar Singh Vs. Ved Prakash (2004) 13 SCC 292. He submits that
the FIR has 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 arrest the
applicant in relation to the alleged offence.
22. He further contended that the respondent has added Section 467
of the IPC as one of the alleged offence in the FIR despite the fact that
there is no forgery whatsoever and it has been added only to
circumvent the due procedure set out in Section 41 A of the Cr.P.C. In
the said FIR, there is allegation of illegal sale of duplicate holograms
and hence erroneously alleged that an offence under Section 467 IPC
has been committed. In the present case, the framework of the PMLA
23
as upheld by the Apex Court in Vijay Mandal Choudhary Vs. Union of
India, 2022 SCC Online SC 929, wherein it has been observed that
the registration of the ECIR necessarily follows the registration of the
Scheduled offence, has been turned on its head. In the present case, in
a completely unconstitutional and illegal manner the ED in an attempt to
perpetuate their completely jurisdictionless and illegal investigation in
the ECIR 11 has got registered the FIRs including the subject FIR
against the applicant which is a reversal of the procedure established by
law under the PMLA.
23. It is contended that the applicant had satisfied that triple test for
grant of bail. He has relied upon the judgment of the Supreme Court in
the matter of Satendra Kumar Antil Vs. CBI (2022) 10 SCC 51
wherein it has been observed as under:
“14. Innocence of a person accused of an
offense is presumed through a legal fiction,
placing the onus on the prosecution to prove
the guilt before the Court. Thus, it is for that
agency to satisfy the Court that the arrest
made was warranted and enlargement on bail
is to be denied.
15. Presumption of innocence has been
acknowledged throughout the world. Article 14
(2) of the International Covenant on Civil and
Political Rights, 1966 and Article 11 of the
Universal Declaration of Human Rights
acknowledge the presumption of innocence,
as a cardinal principle of law, until the
individual is proven guilty.
16. Both in Australia and Canada, a prima
facie right to a reasonable bail is recognized
based on the gravity of offence. In the United
States, it is a common practice for bail to be a
24cash deposit. In the United Kingdom, bail is
more likely to consist of a set of restrictions.
17.The Supreme Court of Canada in Corey
Lee James Myers v. Her Majesty the Queen,
2019 SCC 18, has held that bail has to be
considered on acceptable legal parameters. It
thus confers adequate discretion on the Court
to consider the enlargement on bail of which
unreasonable delay is one of the grounds. Her
Majesty the Queen v. Kevin Antic and Ors.,
2017 SCC 27:
“The right not to be denied reasonable
bail without just cause is an essential element
of an enlightened criminal justice system. It
entrenches the effect of the presumption of
innocence at the pre-trial stage of the criminal
trial process and safeguards the liberty of
accused persons. This right has two aspects:
a person charged with an offence has the right
not to be denied bail without just cause and
the right to reasonable bail. Under the first
aspect, a provision may not deny bail without
“just cause” there is just cause to deny bail
only if the denial occurs in a narrow set of
circumstances, and the denial is necessary to
promote the proper functioning of the bail
system and is not undertaken for any purpose
extraneous to that system. The second aspect,
the right to reasonable bail, relates to the
terms of bail, including the quantum of any
monetary component and other restrictions
that are imposed on the accused for the
release period. It protects accused persons
from conditions and forms of release that are
unreasonable.
While a bail hearing is an expedited
procedure, the bail provisions are federal law
and must be applied consistently and fairly in
all provinces and territories. A central part of
the Canadian law of bail consists of the ladder
25principle and the authorized forms of release,
which are found in S. 515(1) to (3) of the
Criminal Code. Save for exceptions, an
unconditional release on an undertaking is the
default position when granting release.
Alternative forms of release are to be imposed
in accordance with the ladder principle, which
must be adhered to strictly: release is favoured
at the earliest reasonable opportunity and on
the least onerous grounds. If the Crown
proposes an alternate form of release, it must
show why this form is necessary for a more
restrictive form of release to be imposed. Each
rung of the ladder must be considered
individually and must be rejected before
moving to a more restrictive form of release.
Where the parties disagree on the form of
release, it is an error of law for a judge to order
a more restrictive form without justifying the
decision to reject the less onerous forms. A
recognizance with sureties is one of the most
onerous forms of release, and should not be
imposed unless all the less onerous forms
have been considered and rejected as
inappropriate. It is not necessary to impose
cash bail on accused persons if they or their
sureties have reasonably recoverable assets
and are able to pledge those assets to the
satisfaction of the court. A recognizance is
functionally equivalent to cash bail and has the
same coercive effect. Cash bail should be
relied on only in exceptional circumstances in
which release on a recognizance with sureties
is unavailable. When cash bail is ordered, the
amount must not be set so high that it
effectively amounts to a detention order, which
means that the amount should be no higher
than necessary to satisfy the concern that
would otherwise warrant detention and
proportionate to the means of the accused and
the circumstances of the case. The judge is
under a positive obligation to inquire into the
26ability of the accused to pay. Terms of release
under s. 515(4) should only be imposed to the
extent that they are necessary to address
concerns related to the statutory criteria for
detention and to ensure that the accused is
released. They must not be imposed to
change an accused person’s behaviour or to
punish an accused person. Where a bail
review is requested, courts must follow the bail
review process set out in R. v. St-Cloud, 2015
SCC 27, [2015] 2 S.C.R. 328.”
17. We may only state that notwithstanding the
special provisions in many of the countries
world-over governing the consideration for
enlargement on bail, courts have always
interpreted them on the accepted principle of
presumption of innocence and held in favour
of the accused.
18.The position in India is no different. It has
been the consistent stand of the courts,
including this Court, that presumption of
innocence, being a facet of Article 21, shall
inure to the benefit of the accused. Resultantly
burden is placed on the prosecution to prove
the charges to the court of law. The weightage
of the evidence has to be assessed on the
principle of beyond reasonable doubt.
XXXX XXXX XXXX
55. Section 389 of the Code concerns itself
with circumstances pending appeal leading to
the release of the appellant on bail. The power
exercisable under Section 389 is different from
that of the one either under Section 437 or
under Section 439 of the Code, pending trial.
This is for the reason that “presumption of
innocence” and “bail is the rule and jail is the
exception” may not be available to the
appellant who has suffered a conviction. A
mere pendency of an appeal per se would not
be a factor.
27
XXXX XXXX XXXX
90. What is left for us now to discuss are the
economic offences. The question for
consideration is whether it should be treated
as a class of its own or otherwise. This issue
has already been dealt with by this Court in
the case of P. Chidambaram v. Directorate of
Enforcement, (2020) 13 SCC 791, after taking
note of the earlier decisions governing the
field. The gravity of the offence, the object of
the Special Act, and the attending
circumstances are a few of the factors to be
taken note of, along with the period of
sentence. After all, an economic offence
cannot be classified as such, as it may involve
various activities and may differ from one case
to another. Therefore, it is not advisable on the
part of the court to categorize all the offences
into one group and deny bail on that basis.
Suffice it to state that law, as laid down in the
following judgments, will govern the field:-
Precedents
91. P. Chidambaram v. Directorate of
Enforcement, (2020) 13 SCC 791:
23. Thus, from cumulative perusal of the
judgments cited on either side including the
one rendered by the Constitution Bench of this
Court, it could be deduced that the basic
jurisprudence relating to bail remains the same
inasmuch as the grant of bail is the rule and
refusal is the exception so as to ensure that
the accused has the opportunity of securing
fair trial. However, while considering the same
the gravity of the offence is an aspect which is
required to be kept in view by the Court. The
gravity for the said purpose will have to be
gathered from the facts and circumstances
arising in each case. Keeping in view the
consequences that would befall on the society
in cases of financial irregularities, it has been
28held that even economic offences would fall
under the category of “grave offence” and in
such circumstance while considering the
application for bail in such matters, the Court
will have to deal with the same, being sensitive
to the nature of allegation made against the
accused. One of the circumstances to
consider the gravity of the offence is also the
term of sentence that is prescribed for the
offence the accused is alleged to have
committed. Such consideration with regard to
the gravity of offence is a factor which is in
addition to the triple test or the tripod test that
would be normally applied. In that regard what
is also to be kept in perspective is that even if
the allegation is one of grave economic
offence, it is not a rule that bail should be
denied in every case since there is no such
bar created in the relevant enactment passed
by the legislature nor does the bail
jurisprudence provide so. Therefore, the
underlining conclusion is that irrespective of
the nature and gravity of charge, the
precedent of another case alone will not be the
basis for either grant or refusal of bail though it
may have a bearing on principle. But ultimately
the consideration will have to be on case-to-
case basis on the facts involved therein and
securing the presence of the accused to stand
trial.
92. Sanjay Chandra v. CBI (2012) 1 SCC
40:
“39. Coming back to the facts of the present
case, both the courts have refused the
request for grant of bail on two grounds: the
primary ground is that the offence alleged
against the accused persons is very serious
involving deep-rooted planning in which, huge
financial loss is caused to the State
exchequer; the secondary ground is that of
29the possibility of the accused persons
tampering with the witnesses. In the present
case, the charge is that of cheating and
dishonestly inducing delivery of property and
forgery for the purpose of cheating using as
genuine a forged document. The punishment
for the offence is imprisonment for a term
which may extend to seven years. It is, no
doubt, true that the nature of the charge may
be relevant, but at the same time, the
punishment to which the party may be liable,
if convicted, also bears upon the issue.
Therefore, in determining whether to grant
bail, both the seriousness of the charge and
the severity of the punishment should be
taken into consideration.
40. The grant or refusal to grant bail lies
within the discretion of the court. The grant or
denial is regulated, to a large extent, by the
facts and circumstances of each particular
case. But at the same time, right to bail is not
to be denied merely because of the
sentiments of the community against the
accused. The primary purposes of bail in a
criminal case are to relieve the accused of
imprisonment, to relieve the State of the
burden of keeping him, pending the trial, and
at the same time, to keep the accused
constructively in the custody of the court,
whether before or after conviction, to assure
that he will submit to the jurisdiction of the
court and be in attendance thereon whenever
his presence is required.
xxx xxx xxx
46. We are conscious of the fact that the
accused are charged with economic offences
of huge magnitude. We are also conscious of
the fact that the offences alleged, if proved,
may jeopardise the economy of the country. At
the same time, we cannot lose sight of the fact
30that the investigating agency has already
completed investigation and the charge-sheet
is already filed before the Special Judge, CBI,
New Delhi. Therefore, their presence in the
custody may not be necessary for further
investigation. We are of the view that the
appellants are entitled to the grant of bail
pending trial on stringent conditions in order to
ally the apprehension expressed by CBI.”
ROLE OF THE COURT
93.The rate of conviction in criminal cases in
India is abysmally low. It appears to us that
this factor weighs on the mind of the Court
while deciding the bail applications in a
negative sense. Courts tend to think that the
possibility of a conviction being nearer to rarity,
bail applications will have to be decided
strictly, contrary to legal principles. We cannot
mix up consideration of a bail application,
which is not punitive in nature with that of a
possible adjudication by way of trial. On the
contrary, an ultimate acquittal with continued
custody would be a case of grave injustice.
94. Criminal courts in general with the trial
court in particular are the guardian angels of
liberty. Liberty, as embedded in the Code, has
to be preserved, protected, and enforced by
the Criminal Courts. Any conscious failure by
the Criminal Courts would constitute an affront
to liberty. It is the pious duty of the Criminal
Court to zealously guard and keep a
consistent vision in safeguarding the
constitutional values and ethos. A criminal
court must uphold the constitutional thrust with
responsibility mandated on them by acting
akin to a high priest.”
24. So far as the triple test for grant of bail is concerned, learned
counsel for the applicant submits that in catena of judgments at the time
of consideration of an application for bail, the court should consider
31
three facts ie. (i) flight risk or likelihood of fleeing justice (ie. leave the
country); (ii) likelihood of tampering with evidence and (iii) likelihood of
influencing witnesses. All these factors are satisfied in favour of the
applicant and therefore the applicant may be granted bail.It is next
submitted by the learned counsel for the applicant that the prosecution
agency has placed reliance on certain statements of other co-accused
persons. He has placed his reliance upon the judgment of the Apex
Court in the matter of Haricharan Kurmi Vs. State of Bihar AIR 1964
SC 1184, wherein it has been held as under:
“13. As we have already indicated. this question
has been considered on several occasions by
judicial decisions and it has been consistently
held that a confession cannot be treated as
evidence which is substantive evidence against
a co-accused person. in dealing with a criminal
case where the prosecution relies upon the
confession of one accused person against
another accused person, the proper approach to
adopt is to consider the other evidence against
such an accused person, and if the said
evidence appears to be satisfactory and the
court is inclined to hold that the said evidence
may sustain the charge framed against the said
accused person, the court turns to the
confession with a view to assure itself that the
conclusion which it is inclined to draw from the
other evidence is right. As was observed by Sir
Lawrence Jenkins in Emperor v. Lalit Mohan
Chuckerbuttv(1) a confession can only be used
to “lend assurance to other evidence against a
co-accused”. In In re. Peryaswami Noopan,(2)
Reilly J. observed that the provision of s. 30
goes not further than this : “where there is
evidence against the co-accused sufficient, if,.
believed, to support his conviction, then the kind
32of confession described in s. 30 may be thrown
into the scale as an additional reason for
believing that evidence.” In Bhuboni Sahu v.
King(1) the Privy Council has expressed the
same view. Sir. John Beaumont who spoke for
the Board observed that a confession of a co-
accused is obviously evidence of a very weak
type. It does not indeed come within the
definition of “evidence” contained in s. 3 of the
Evidence Act. It is not required to be given on
oath, nor in the presence of the accused, and it
cannot be tested by cross-examination. It is a
much weaker type of evidence than the
evidence of an approver, which is not subject to
any of those infirmities.”
25. Further contention of the learned counsel for the applicant is that
the applicant is not a flight risk, considering his social stand, the family
and business which is entirely based in India and that the applicant has
cooperated in the investigation and his statements have been duly
recorded. He further contended that as per the Investigating Agency, it
is a big scam with wide implication in the society but the role of each of
the applicant should be seen individually. There is no substantial
evidence brought on record by the respondent/Agency against the
applicant showing his involvement in the manufacturing of duplicate
holograms, acquiring illegal commission from the liquor suppliers for
unaccounted sale of liquor or sale off the record, unaccounted illicit
country made liquor. He has placed his reliance in the matter of
Jalaluddin Khan Vs. Union of India, Cr.A. No. 3173/2024 before the
Apex Court wherein it has been observed as under:
19. Therefore, on plain reading of the charge
33sheet, it is not possible to record a conclusion
that there are reasonable grounds for believing
that the accusation against the appellant of
commission of offences punishable under the
UAPA is prima facie true. We have taken the
charge sheet and the statement of witness Z as
they are without conducting a mini-trial. Looking
at what we have held earlier, it is impossible to
record a prima facie finding that there were
reasonable grounds for believing that the
accusation against the appellant of commission
of offences under the UAPA was prima facie
true. No antecedents of the appellant have been
brought on record.
20. The upshot of the above discussion is that
there was no reason to reject the bail
application filed by the appellant.
21. Before we part with the Judgment, we must
mention here that the Special Court and the
High Court did not consider the material in the
charge sheet objectively. Perhaps the focus was
more on the activities of PFI, and therefore, the
appellant’s case could not be properly
appreciated. When a case is made out for a
grant of bail, the Courts should not have any
hesitation in granting bail. The allegations of the
prosecution may be very serious. But, the duty
of the Courts is to consider the case for grant of
bail in accordance with the law. “Bail is the rule
and jail is an exception” is a settled law. Even in
a case like the present case where there are
stringent conditions for the grant of bail in the
relevant statutes, the same rule holds good with
only modification that the bail can be granted if
the conditions in the statute are satisfied. The
rule also means that once a case is made out
for the grant of bail, the Court cannot decline to
grant bail. If the Courts start denying bail in
deserving cases, it will be a violation of the
rights guaranteed under Article 21 of our
Constitution.”
34
26. He has further placed his reliance in the matter of State of
Maharastra Vs. Nainmal Punjaji Shah (1969) 3 Scc 904, wherein it
has been held that in matters of allegation of tampering with evidence or
absconding there must be “absolute certainty” before an accused can
be incarcerated on that ground. It is submitted that mere ipse dixit of the
Investigating Agency cannot be permitted to prejudice the liberty of a
citizen fo this country. He further contended that it is a settled law that
the merits are not to be considered at the stage of considering bail and
the allegations made are a matter of trial. In any event, there was no
recovery of any unaccounted money, incriminating material, illegal liquor
bottles or duplicate holograms made from the applicant. The allegation
that there is alleged scam of Rs. 1,660 crores but there is no recovery
of the same by the investigating agencies. It is further contended that
the applicant does not have any financial transaction with the distillers
or Sanjeev Fatehpuria or Siddarth Singhania or any of the distillers
against whom the allegations have been made and no financial
transaction took place with the officials of the excise department. The
whatsapp chats have also been denied by the learned counsel for the
applicant and has stated that it is a matter of trial and therefore the
applicant cannot be kept in custody. Further allegation of the
Investigating Agency that the applicant is the mastermind, kingpin and
brain child of the alleged scam but the prosecution has failed to produce
any concrete or credible evidence to substantiate these allegations. It
has been denied by the counsel for the applicant that the applicant had
35
any close connection with any of the politicians and has not extended
any benefit from them. It is contended that the applicant is not indulged
in any form of corruption or illegal activity as alleged in relation to the
alleged liquor scam.
27. Further, it has been contended by the learned counsel for the
applicant that the allegations made in the FIR No 196/2023 registered at
PS Greater Noida on 30.07.2023 are identical and overlapping with the
Chhattisgarh FIR registered on the basis of the prosecution complaint in
ECIR 11. The impugned FIR No. 04/2024 registered by the ACB
Chhattisgarh on 17.01.2024 also shows the same allegations and basis
of material found in PSAO 3/2023 in ECIR 11. He has placed his
reliance in the matter of T.T. Antony Vs. State of Kerala (2001) 6 SCC
181; Upkar Singh Vs. Ved Prakash (20040 13 SCC 292 and Amitbhai
Anilchandra Shah Vs. CBI and Anr. (2013) 6 SCC 348.
28. He contended that the memorandum statement which has
allegedly been attributed to the applicant does not bear the signature of
the applicant and has been falsely been implicated. The premises from
where the duplicate holograms were allegedly seized as per the case of
the State, it was not in possession of the applicant. The recovery of the
holograms was allegedly made on the basis of a statement of co-
accused Anurag Dwivedi and it has come to the knowledge of the
applicant that said Anurag Dwivedi has retracted from his statement
before the learned Special Judge. He was forced to sign the blank
papers and the alleged holograms were planted at the site and were
36
shown to have been recovered from the said place. He has placed his
reliance upon the judgment of the Apex Court in the matter of Raman
Buararia Vs. ED (2022) 4 HCC (Del) 197: ED Vs. Raman Buraria SLP
(Crl.) No. 9047/2023 which reads as under:
56. Hence, the question which I am
confronted with is not whether these
retracted statements are admissible but
whether these retracted statements are
reliable? At this stage, I have to see the
reliability of these retracted statements in the
facts and circumstances of this case.
57. The reliability of the retracted statements
has been discussed by the division bench of
this court Central Excise v. Vishnu & Co. Pvt.
Ltd., 2015 SCC OnLine Del 13824:
“40. In fact Ms. Sharma too insisted
upon reading from such retracted
statements in order to persuade the
Court to hold that the impugned order of
the CESTAT is perverse. According to
her the retraction made more than 20
months after the making of the initial
statements “would have no effect in the
eye of law”. She too submitted that the
responsibility of ensuring the presence
of such persons for cross-examination
was of the noticees themselves.
41. What the above submission
overlooks is the “reliability‟ of such
statements. Once it is shown that the
maker of such statement has in fact
resiled from it, even if it is after a period
of time, then it is no longer safe to rely
upon it as a substantive piece of
evidence. The question is not so much
as to admissibility of such statement as
much as it is about its “reliability‟. It is
37the latter requirement that warrants a
judicial authority to seek, as a rule of
prudence, some corroboration of such
retracted statement by some other
reliable independent material. This is the
approach adopted by the CESTAT and
the Court finds it to be in consonance
with the settled legal position in this
regard.”
58. In the present case as well, the question
is not regarding the admissibility but the
reliability. The statements had concretely
named the applicant. However, in their
subsequent retraction the reliability of the
statements themselves become doubtful.
Statements of Employees of SBFL,
Accommodation Entry Operators (Devki
Nandan Garg & Ashok Kumar Goel) are a cut
copy paste job with even the punctuation
marks of commas, full stops not differing.
59. Prima facie in view of the retraction, the
reliability of these statements is
questionable. The retracted statements
cannot form the basis of the guilt of the
applicant of the offences as alleged. Prima
facie, I find it difficult to place the guilt of the
offence under PMLA on the applicant, based
on these statements. Further, the questions
as to why the statements were retracted are
questions of trial.
60. The ED has placed reliance on Rohit
Tandon v. Directorate of Enforcement, (2018)
11 SCC 46 and submitted that Economic
Offences are to be treated on a different
footing since economic offences have deep-
rooted conspiracies and involve huge loss of
public funds which need to be viewed
seriously and considered as grave offences
affecting the economy of the country as a
whole and thereby posing serious threat to
38
the financial health of the country.”
29. It is further contended that the statements relied upon by the
State are completely inadmissible and irrelevant. Statement of one
Sanjeev Fatehpuria who works in the Chhattisgarh Distilleries Ltd.
owned by Naveen Kedia has been relied upon by the State but the
allegations are false. It is a settled law that statements of the co-
accused is the weakest form of evidence and is inadmissible in law
because false and concocted statements cannot be made basis for
keeping the applicant in custody. Lastly, he contended that there was no
recovery of any alleged mobile phone or sim card made from the
applicant while he was in custody.
30. Opposing the submissions of the learned counsel for the
applicant, it has been contended by the Shri Vivek Sharma, learned
State counsel that on 11.03.2023, the EOW after receiving
communication and due verification on being satisfied that prima facie a
cognizable offence was committed, FIR No. 04/2024 was registered
against the applicant and other co-accused persons (total of 71
accused) under Sections 7 & 12 of the Prevention of Corruption Act and
Sections 420,467,468,471 and 120-B IPC. From the said charge sheet,
it has been revealed that the applicant along with the co-accused was
the head of the criminal syndicate comprising of the high level State
government officials, private persons executives of the State
government were operating in the State of Chhattisgarh. This alleged
syndicate collected illegal money in three different ways:
39
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 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.
31. EOW has analyzed the information and the data shared by the
income tax department. On the basis of these documents and records,
it is established that a well planned systematic conspiracy was executed
by the syndicate to earn illegal commission in the sale and licensing of
liquor in the State of Chhattsigarh. The investigation conducted by the
EOW revealed that the liquor was divided into two categories namely
country liquor (CL) and Indian Manufactured Foreign Liquor (IMFL). The
country liquor is produced in the State of Chhattisgarh only from three
distilleries ie. M/s. Chahttisgarh Distilleries Ltd., M/s. Bhatia Wines and
Merchants Private Ltd. and M/s. Welcome Distilleries Pvt. Ltd. It was
further revealed in the investigation that since it was difficult to extract
cash bribes for foreign liquor makers in respect of IMFL and FL and that
there was strong demand for good quality foreign brands, in the month
of April 2020, the syndicate introduced a fourth type of mechanism to
extort bribes from FL makers by introducing the concept of FL-10A
licenses. These licenses were against given to there chosen associates
of the applicant Anwar Dhebar. These license holders were to act as the
40
‘collectors’ or intermediary and buy foreign liquor and then sell it to the
Chhattisgarh Government warehouses and generated commission of
about 10% on foreign liquor.
32. The licenses were given with a promise that 50-60% final profit
amount of the FL-10A licensee be paid to the syndicate. The multi
national companies were briefed about this mechanism by co-accused
Arunpati Tripathi, who was appointed by one another co-accused Anil
Tuteja. The FL-10A license was given to three persons who were ready
to hike prices and ensure payment of cash bribes to Sanjay Mishra
(M/s. Nexgen Power Engitech Prviate Limited), Atul Kumar Singh and
Mukesh Manchanda (M/s. Om Sai Beverages Pvt. Ltd. and Asheesh
Saurabh Kedia (M/s. Dishita Ventures Private Limited) and thus a total
amount of Rs. 1660,41,00,056/- was made by the syndicate from the
financial year 2019-20 to financial year 2022-23 and had caused a huge
loss to the State Exchequer. Thus, from the investigation done till date,
it is clear that massive corruption had taken place in the Excise
Department of Chhattisgarh since the year 2019. The Excise
Departments were set up to regulate the supply of liquor, ensure quality
liquor to users and to prevent hooch tragedies and earn revenue for the
State have been misused by the criminal syndicate led by the applicant
who extorted maximum personal benefit for themselves with the help of
co-conspirators ie. Arunpathi Tripathi and Trilok Singh Dhilllon and
Others.
33. The excise policy in the State of Chhattisgarh was amended in
41
the year 2017 and Chhattisgarh State Marketing Corporation was
created for sale of retail liquor through its stores in the State of
Chhattisgarh. It has been contended by the learned counsel for the
State that during the course of investigation it was found that the
applicant is the main perpetrator of the illegal collection of money done
by the syndicate. There are various digital and other evidences to
demonstrate that he is one of the big beneficiaries of the syndicate. The
other accused persons derived powers from him. The place of co-
accused Arunpati Tripathi (ITS) as head of Chhattisgarh State Marketing
Co-operation Limited (CSMCL) was made possible through the power
and influence of co-accused Anil Tuteja (IAS). His posting was made at
the behest of the applicant. In the investigation it has come out that the
applicant though a business man, but due to his strong political links
he had control over the entire set up and extorted money from the liquor
manufacture. By misusing the position, with the support of the private
persons, he was indulged in large scale corruption through systematic
extorting and corruption via Quid-pro-quo-deals. He was main person
who controlled the complete cash collection and his associates were
placed at crucial places ie. providing FL 10A licenses, manpower and
they collected Part A, B and C commission running into thousands of
crores. They influenced the District Excise Officials and flying squad
staff and shared some portion of this loot to them. Thus, the applicant is
the main co-conspirator in the commission of the liquor scam and
therefore the learned Special Judge, ACB, Raipur has rightly rejected
42
his application seeking bail and the fact that nothing serious has been
found with respect to the purported grievance of the serious illness and
need of constant medical attention and also looking to the seriousness
and gravity of the offence.
34. It has been contended by Shri Sharma, that when the income tax
department conducted raid the mobile phone of the applicant was
seized and the information was gathered from the said phone by the IT
department with the ACB. From perusal of the said whatsapp chat, it
was revealed that the applicant was actively involved in collection and
distribution of money generated through the sale of Part -B liquor. The
facts thus clearly established that the applicant is one of the kingpin of
the syndicate.
35. During investigation, the ACB had also seized the duplicate
holograms from the godown of co-accused Anurag Dwivedi from where
the supply of bottles for sale of Part-B liquor, duplicate holograms to
various distillers for keeping, counting and distributing the money
generated through sale of Part-B liquor. Statements of some of the
witnesses under Section 161 Cr.P.C. were recorded wherein they have
stated that the applicant used to control all the operation of the
syndicate and thus had caused a huge loss to the State exchequer.
From the statement of one Sajeev Fatehpuria, it was revealed that the
meeting was organized in the month of February 2019 at Hotel
Vennigton Court which was owned by the applicant. In the said meeting
applicant informed and threatened all the distillers that the business of
43
liquor would be handled by him. He contended that the applicant and
his son are trying to tamper the evidence and threatening the witnesses
which can be perused from the FIR No 235/2024 dated 28.05.2024. It is
contended that the role of the present applicant in the instant crime is
graver and therefore he may not be granted bail. As has been held by
the Apex Court in the matter of State of UP Vs. Amanmani Tripathi
(2005) 8 SCC 21 which reads as under:
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 :
“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 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
44concession 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
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
45
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 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
46
338.”
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.”
36. He has contended that the factors enunciated to be considered
while granted bail, the Apex Court inter alia has held that:
(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; (vi)
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
47of the witnesses being tampered with; and (viii) danger, of course, of
justice being thwarted by grant of bail. Further it has held that mere fact
that the accused had been incarcerated for a certain period of time is
also not a factor for granting bail to the applicant.
37. As has been held by the Apex Court in the matter of Dolat Ram
Vs. State of Haryana 1995 (1) SCC 349 wherein the distinction
between the factors relevant for rejecting bail in a non-bailable cases
and cancellation of bail already granted have to be considered and
dealt with on different basis. The Apex Court in the matter of Gulabrao
Babukar Deokar Vs. State of Maharastra (2013) 16 SCC 190, has
observed 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 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.”
38. In another decision of the Apex Court in the matter of Mahipal Vs.
Rajesh Kumar (2020) 2 SCC 118 held that it is necessary to consider
relevant factors while granting bail and if those relevant facts (as
48
enumerated in Amarmani Tripathi (supra) have not been taken into
consideration while considering the application for bail, the bail is found
on irrelevant considerations, indisputably the superior court can set
aside the order of such a grant of bail. It has been further submitted that
at the stage of bail, the statements under Section1 61 Cr.P.C, can be
looked into and has relied upon the judgment of the Apex Court in the
matter of Indresh Kumar Vs. State of Uttar Pradesh in Criminal
Appeal No. 938 of 2022.
39. He submits that the applicant, on the instructions of the
syndicate, destroyed the holograms kept in his godown by burning and
erasing the evidence and thus had tried to tamper the evidence by
destroying the duplicate holograms, therefore the applicant is not
entitled for bail.
40. Heard learned counsel for the parties and perused the contents of
bail application and bestowed the thoughtful material aspects involved
in the case.
41. In the case in hand, the factors enumerating in the case which
should be taken in consideration while granting or refusing bail in a non-
bailable case are that there are three charge sheets filed against the
applicant in relation to the same allegations, 457 witnesses have been
cited and more than 13,000 pages have been filed before the Special
Court (PC) Raipur. The Apex court in the matter of State of UP Vs.
Amarmani Tripathi, reported in 2005 (8) SCC 21, vide paragraph- 18
and in Criminal Appeal no. 448 OF 2021 (@ Special Leave Petition
49
(Crl.) No. 3577 0F 2020) (Sudha Singh Versus The State of Uttar
Pradesh & Anr, judgment delivered on 24-04-2021] has decided
certain factors to be taken in consideration while deciding bail
application in non-bailable offences as under:-
“It is well settled that the matters to be considered in an
application for the bail are:-
(i) whether there is any prima-facie or reasonable ground to
believe that the accused has committed the offence;
(ii) nature and gravity of charge;
(iii) severity of the punishment in the event of conviction; (iv)
danger of the accused absconding or fleeing if released on
bail; (v) character, behavior, 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 the justice being
thwarted by grant of bail.
42. Indeed, these guidelines are not exhaustive, nonetheless, these
have to be considered while passing an order in a bail application in a
non-bailable offence. The aforementioned factors for grant or refusal of
bail in non- bailable offences as the case in hand are discussed under
the following headings.
Prima-facie or reasonable ground to believe that the
applicant/accused has committed the offence:-
“It is profitable to reiterate here, that case FIR No.
RC0042023A0003 dated 08.02.2023 has been
registered by the CBI, Jammu u/s 120-B of IPC r/w
50Section 7 of the Prevention of Corruption Act 1988
against the petitioner on the basis of complaint
dated 07.02.2023 lodged by one Pankaj Kumar
Verma S/o Sh. Sarvan Kumar R/o Lotus Villa, 232
Sector-1 Jalpura Greater Noida UP alleging
demand of bribe of Rs.2.30 lacs by accused Sajad
Ahmed Chief Accounts Officer JKTDC through
Shokat Ali for processing of payment in respect of
bills submitted by the complainant, on receipt of
the complaint the verification thereof was carried
out by Sh. Sanjay Kumar PSI wherein demand of
bribe by the accused Sajjad Ahmed from the
complainant through Shokat was confirmed,
pursuant to which a trap was laid and both the
accused persons namely, Sajjad Ahmed Chief
Accounts Officer JKTDC and Shokat Ali Lecturer
Govt. Polytechnic College Jammu were caught
red-handed while demanding and accepting bribe
of Rs.2.30 lacs from the complainant in presence
of independent witnesses and both the accused
were arrested and taken into custody on
08.02.2023 after following all the legal procedure.”
43. It is trite that the court while considering an application seeking
bail, is not required to weigh the evidence collected by the investigating
agency meticulously, nonetheless, the court should keep in mind the
nature of accusation, the nature of evidence collected in support
thereof, the severity of the punishment prescribed for the alleged
offences, the character of the accused, circumstances which are
peculiar to the accused, reasonable possibility of securing the presence
of the accused at the trial, reasonable apprehension of the witness
being tampered with, the larger interests of the public/State etc. Though,
the findings recorded by the Court while granting or refusing bail would
be tentative in nature, nonetheless the Court is expected to express
51
prima facie opinion for granting or refusing to grant bail which would
demonstrate an application of mind, particularly dealing with the
economic offences.
44. There is no doubt that about 457 witnesses are to be examined
and 13,000 pages have to be looked into and the trial will take time to
conclude.
45. Another contention that prima facie it is clear that on the one
hand, the prosecution agency is claiming that it is a case of 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 causing huge financial loss to the State
exchequer and the estimated proceeds of crime is around Rs. 16000+
crores, yet they have not been made accused despite the fact that their
names are mentioned in the complaint as member of the syndicate.
Even though some of the witnesses have admitted in their statements
before the police and the statements 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. It is stated
by the learned counsel for the respondent that the applicant was
involved in the criminal syndicate and maximum personal benefits were
acquired by the syndicate but surprisingly, no recovery of unaccounted
52
money in relation to the earnings made by the illegal liquor has been
made from the present applicant. Be that as it may, the applicant
cannot take advantage at this stage because further investigation is
going on as per argument of learned Counsel for the State. In the
present case, the applicant was involved in the criminal acts of the
syndicate and that he received commission from the liquor suppliers.
However, no recovery of unaccounted money has been made in this
regard and as per the investigating agency, the investigation is pending,
hence, a conclusive determination of their role is yet to be made.
46. It is also proved that some of the co-accused have been granted
interim protection by the Apex Court and therefore on the ground that
the other co-accused who were similarly situated as the applicant, have
been granted bail, also cannot be accepted. It may be noted that parity
is not the law. While applying the principle of parity, the Court is required
to focus upon the role attached to the accused whose application is
under consideration. It is axiomatic that the principle of parity is based
on the guarantee of positive equality before law enshrined in Article 14
of the Constitution. There are three charge sheets filed against 11
accused persons spanning into nearly 13,000 pages with over 457
witnesses, cited by the investigating agency and further investigation is
going on. It is pertinent to mention here that 3-4 more charge sheets are
yet to be filed according to the State counsel and it is true that the trial is
unlikely to start and it will take time to conclude. It is also true that one
of the co-accused Trilok Singh Dhillon has been granted bail by the
53
Apex Court which will come into effect from 15 th January 2025 vide
order dated 27.11.2024 in SLP (Crl.) No. 14697/2024. It is also true that
five co-accused persons have been granted protection from arrest by
the Apex Court namely Yash Tuteja, Vidhu Gupta (Hologram
Manufacturer), Niranjan Das (Commissioner, Excise Department),
Nitesh Purohit and Yash Purohit. However, there is no concrete
evidence regarding tampering of evidence by the present applicant.
47. As has been held in catena of decisions, the economic offences
constitute a class apart and need to be visited with a different approach
in the matter of bail. The economic offences having deep-rooted
conspiracies and involving huge loss of public funds need to be viewed
seriously and considered as grave offences affecting the economy of
the country as a whole and thereby posing serious threat to the financial
health of the country. Undoubtedly, economic offences have serious
repercussions on the development of the country as a whole. To cite a
few judgments in this regard are Y.S. Jagan Mohan Reddy vs. Central
Bureau of Investigation, (2013) 7 SCC 439 Nimmagadda Prasad
vs.Central Bureau of Investigation,2013) 7 SCC 466 Gautam Kundu
vs. Directorate of Enforcement (supra), State of Bihar and Another
vs. Amit Kumar alias Bachcha Rai,2017) 13 SCC 751.
48. Thus, taking a serious note with regard to the economic offences
had observed as back as in 1987 in case of State of Gujarat vs.
Mohanlal Jitamalji Porwal and Another (1987) 2 SCC 364 as under:-
54
“5… The entire community is aggrieved if the
economic offenders who ruin the economy of the
State are not brought to books. 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…”
49. With the advancement of technology and Artificial Intelligence, the
economic offences like money laundering have become a real threat to
the functioning of the financial system of the country and have become
a great challenge for the investigating agencies to detect and
comprehend the intricate nature of transactions, as also the role of the
persons involved therein. Lot of minute exercise is expected to be
undertaken by the Investigating Agency to see that no innocent person
is wrongly booked and that no culprit escapes from the clutches of the
law. When the detention of the accused is continued by the Court, the
courts are also expected to conclude the trials within a reasonable time,
further ensuring the right of speedy trial guaranteed by Article 21 of the
Constitution.
50. Earlier, the applicant had been granted bail on medical grounds
vide order dated 14.06.2024. However, it has been held by the Apex
55
Court vide order dated 29.11.2024 in SLP (Crl.0 No. 9395/2024 that :
” …..the bail granted on medical grounds cannot
be sustained. However, the case of the
respondent for grant of regular bail on merits will
have to be considered.
Accordingly, we set aside the impugned
order dated 14th June 2024 and rstore the
petition bearing M.Cr.C. No 3455 of 2024 to the
file of the High Court. The restored petition shall
be listed before the roster bench of the High
Court on 6th December 2-24 in the morning. The
parties to this appeal shall be an obligation to
appear before the roster Bench on that day. The
High Court will fix an early date of hearing of the
bail application.
In the event, the respondent is enlarged on
bail in connection with the offence under the
Prevention of Money Laundering Act, 2002
(PMLA) we grant liberty to the respondent to
apply for interim bail before the High Court.
All contentions between the parties are left
open insofar as the bail on merits is concerned.
51. On perusal of the records and submissions of the learned State
counsel, it is apparent that the applicant is one of the main accused in
the liquor scam. Having regard to the nature of allegations made
against the applicant and the manner in which the present applicant is
alleged to have involved in the commission of the offence and that the
investigation is still going on and also taking note of the fact that the
applicant along with the co-accused persons has caused huge financial
loss to the State exchequer and the estimated proceeds of crime is
around Rs. 16000 + crores.
56
52. Thus, keeping in mind the constricting observations of their
Lordships of the Apex Court holding that Corruption is not only a
punishable offence but also undermines human rights, indirectly
violating them, and systematic corruption, is a human rights’ violation in
itself, as it leads to systematic economic crimes. In the aforesaid
backdrop as has been held that economic offences are grave offence
affecting the economy of the country as a whole and serious
repercussions on the development of the country and in view of the fact
that corruption is a really a human rights violation specially right to life
liberty, equality and non discrimination, and it is an enormous obstacle
to the realization of all human rights and looking to the seriousness of
the crime, the charges have been alleged against the applicant by the
prosecution agency and further taking into consideration the fact that
charge-sheet has been filed against the applicant this Court is not
inclined to grant regular bail to the applicant.
53. Thus, from cumulative perusal of the judgments cited on either
side, it could be inferred that the basic jurisprudence relating to bail
remains the same inasmuch as the grant of bail is the rule and refusal is
the exception so as to ensure that the accused has the opportunity of
securing fair trial. However, while considering the same the gravity of
the offence is an aspect which is required to be kept in view by the
Court.
54. While considering the grant of bail, the triple/tripod test would also
be a relevant consideration. The three factors as set out in the said test
57
are:- “(i) Whether the accused is a flight risk; (ii) Whether the accused
will tamper with the evidence, if granted bail & (iii) whether the accused
could influence the witnesses, if granted bail. 8. Therefore, broadly
speaking (subject to any statutory restrictions contained in Special
Acts), in economic offences involving the IPC or Special Acts or cases
triable by Magistrates once the investigation is complete, final
report/complaint filed and the triple test is satisfied then denial of bail
must be the exception rather than the rule. However, this would not
prevent the Court from granting bail even prior to the completion of
investigation if the facts so warrant.”
55. There is no denial to the fact that the economic offences constitute a
separate class of their own, but trite it is that presumption of innocence
is one of the bedrocks on which the criminal jurisprudence rests. Time
and again, Apex Court has reiterated the need to integrate the right of
investigating agencies to have effective interrogation of the accused
with the right of liberty of the accused.
56. In the instant case, the offence as alleged against the accused
persons is very serious involving deep- rooted planning in which, huge
financial loss is caused to the State exchequer. The gravity for the said
purpose will have to be gathered from the facts and circumstances
arising in each case. Keeping in view the consequences that would
befall on the society in cases of financial irregularities, it has been held
that even economic offences would fall under the category of “grave
offence” and in such circumstance while considering the application for
58
bail in such matters, the Court will have to deal with the same, being
sensitive to the nature of allegation made against the accused. One of
the circumstances to consider the gravity of the offence is also the term
of sentence that is prescribed for the offence the accused is alleged to
have committed. Such consideration with regard to the gravity of
offence is a factor which is in addition to the triple test or the tripod test
that would be normally applied. In that regard what is also to be kept in
perspective is that even if the allegation is one of grave economic
offence, it is not a rule that bail should be denied in every case but the
consideration will have to be on case-to-case basis on the facts
involved therein.
57. In view of the above observations, taking overall view of the
matter, the prayer for grant of bail to the applicant is liable to be rejected
and it is hereby rejected.
Sd/-
(Arvind Kumar Verma)
Judge
Digitally signed
suguna
SUGUNA by SUGUNA
DUBEY
DUBEY Date: 2024.12.21
03:30:00 -0500
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