Satish Kumar v. Directorate of Enforcement

10. The Applicant after receiving the said information used to submit the said information to the DIG who reported the same to the IG. After the preparation of seizure memo, the same along with the seized cattle, is deposited with the concerned customs office. The Customs department then tallies and initiate process of auction of seized cattle whereby the highest bidder is handed over the seized cattle. The role of BSF is limited to the seizure of the cattle, preparation of seizure memos, and transfer of custody of the seized cattle to the Customs Department.

11. The Applicant’s role is alleged to be that he had a direct nexus with the main accused Md. Enamul Haque, and owing to this nexus the Applicant had given free access to the accused, of Border out Posts (BOPs) of the BSF Battalion under his command, during 2015-2017. It is alleged that the Applicant accepted bribe from the main accused Md. Enamul Haque into the joint accounts of his wife Tania Sanyal and father-in-law, Mr. Badal Krishna Sanyal, who are also accused persons in the FIR.

12. It is submitted that the role of the Applicant as a BSF officials and the BSF as a whole ended after the preparation of seizure memos and handingover of the custody of seized cattle to the Customs Department. The allegations leveled by the ED and CBI are false, baseless, and without any prima facie evidence, and in the absence of any prima facie evidence of commission and involvement of the scheduled offence, the offences under the PMLA are unsustainable and the custody of the Applicant is in violation of Article 21of Constitution.

13. In regards to the allegations pertaining to the proceeds of crime (PoC) received by the wife and father-in-law of the Applicant, they are also asserted to be baseless and without any proof of their connection with the alleged acts of cattle smuggling. The amount of Rs. 12.80 Crores (alleged PoC) was deposited by Sh. Badal Krishna Sanyal in the bank in furtherance of the Income Declaration Scheme, 2016 and Rs. 5,67,45,000/- was paid as income tax. The Applicant has no relation nor has any knowledge of the said amount.

14. It is further submitted that the Applicant has been accused of manipulating the records such as seizure memos by the BSF Officials and Customs Officials, but none has been arrayed as an accused which indicates that the Applicant is being used as a scapegoat, for it is unfathomable that the Applicant could have committed these acts of alleged manipulation alone, especially when the seizure memos were prepared by the Companies involved in the seizure of cattle being smuggled and the Applicant merely had a supervisory role.

15. The Applicant has sought bail on the ground that the allegations leveled are false, baseless, and without any prima facie evidence, and that the Applicant has been falsely implicated in the corruption case without any iota of evidence of his involvement in the alleged offences and without any evidence of receiving the proceeds of crime generated from the aforesaid alleged acts of corruption.

16. The Applicant asserts that even after long investigation conducted by both CBI and the ED and after the submission of two Charge Sheets in the matter by the CBI & ED, there is no cogent direct or indirect evidence on record to even prima facie show the involvement of the Applicant in the alleged acts of corruption, cattle smuggling, and receiving bribe from the main accused Mr. Md. Enamul Haque and his associates. Further, the allegations regarding the complicity of Applicant are vague and presumptuous, and the Applicant has nothing to do with the alleged offences. Furthermore, the allegation that the Applicant assisted the main accused Mr. Md. Enamul Haque and his associates, is baseless and without any documentary or oral evidence. The Applicant has only played a supervisory role being the Commandant of the Battalion.

17. The allegation that the Applicant was paid bribe by Md. Enamul Haque through his staff, Mr. Manoj Sana, who was maintaining a diary of cash deposits in the name of the Applicant, is unsubstantiated and no statement of Mr. Manoj Sana has been recorded till date either by ED or the CBI to substantiate the allegation pertaining to the alleged diary. Moreover, mere appearance of the Applicant’s name in the said Diary cannot be the basis to impute criminal conspiracy, especially when he does not even know Mr. Manoj Sana. In this regard reliance has been placed on CBI vs. V.C. Shukla, (1998) 3 SCC 410.

18. It is submitted that the Applicant has no relation with the alleged Proceeds of Crime, for the amount of Rs. 12.80 Crores was deposited his father-in-law deposited the said money under IDS and there is no evidence that the same formed part of the proceeds of crime.

19. It is submitted that “bail is the rule and jail is exception”, and that the Applicant has satisfied the twin conditions for the grant of Bail under S.45 of PMLA and has made out reasonable grounds that the Applicant is not guilty of the alleged offences; that the Applicant is not likely to commit similar offence under any circumstances. Furthermore, there was no need to arrest the accused for he was cooperating in the investigation. In any case, pendency of investigation cannot be a ground for continued incarceration of the Applicant.

20. The matter is at the stage of trial which would not be completed in the near future, keeping in view the number of witnesses to be examined and the volume of evidence that needs to be appreciated. Hence, keeping the applicant in prison for the trial of the alleged acts which he did not commit, would cause grave injustice. Reliance has been placed upon Jairam Rathod vs. State of Haryana, SLP (Crl.) 1554/2022, and Sujai U. Desai vs. SFIO, SLP (Crl.) 1185/2022.

21. Furthermore, mere apprehension of interfering in further investigation and tampering with evidence is unfounded and in any case, mere apprehensions of tampering with evidence or influencing witnesses, without any concrete basis in fact, cannot be grounds for denying bail to accused persons. In this regard, reliance is placed on State of Maharashtra Vs. Nainmal Punjaji Shah, (1969) 3 SCC 904 and P. Chidambaram v. CBI,

22. Further, mere gravity of offence and even in case of allegations of grave economic offences, is no ground to deny bail as has been observed in

Amarendra Dhari Singh vs. Directorate of Enforcement, Bail App. No.2293/2021 dated 05.08.2021.

23. Also, the merits of the case cannot be gone into at the stage of bail, as has been held in Niranjan Singh &Anr. v. Prabhakar Rajaram Kharote & Ors., (1980) 2 SCC 559,P. Chidambaram (supra), and Amarendra Dhari Singh (Supra).

24. The Applicant undertakes to abide by all the conditions as may be imposed by this Hon’ble Court for grant of regular bail.

25. The Respondent by way of Status Report has submitted that the Applicant along with Md. Enamul Haque, Md. Anarul Sk, Md. Golam Mustafa, other unknown public servant(s) and private person(s) were involved in illegal activities relating to smuggling of cattle through which they generated and acquired proceeds of crime. After completion of the investigation, a Report u/s 173 Cr.P.C. dated 06.02.2021 was filed by CBI in the scheduled offence against Applicant and others, wherein it was mentioned that Enamul Haque had arranged to deposit around Rs. 12.[8] crores in cash into the joint bank account of Badal Krishna Sanyal and Mrs. Tania Sanyal through his employee/handler Manoj Sana, staff of Enamul Haque.

26. The Applicant was summoned by the ED for his appearance on 12.04.2022 and his statement under section 40 PMLA was recorded on 21.04.2022 and 22.03.2022. However, the Applicant did not cooperate with investigation and gave evasive replies and/or intentionally and deliberately did not disclose facts before the Investigating Agency, more specifically with respect to cash deposit of Rs 12.80 crores in the joint bank account of his wife and father-in-law, his relation with co-accused Md. Enamul Haque, his son's (namely Bhaskar Bhuvan) employment in Haque group of Companies for 6 months, relation with three promoters of JHM group of Companies, relation with Manoj Sana, relation with Biswajit Malakar, Rajan Poddar, CA and proceed of crime (PoC) received for giving favour in the scheduled offence of cattle smuggling.

27. In regards to the role of the Applicant, it is submitted by the Respondent that during the course of investigation, cash deposit slips of 12 joint accounts bearing a/c no. 916010061149024 held by Tania Sanyal and Badal Krishna Sanyal in Axis Bank were collected. These cash deposits were made on account of disclosure made by Badal Krishna Sanyal under IDS, 2016. During investigation, it was revealed that cash deposits were made by Mr. Manoj Sana on the same dates of entries against the name of the Applicant mentioned in his diary. The said cash deposit slips were also signed by Mr. Manoj Sana.

28. It was further revealed by investigation that Applicant’s wife and father-in-law, in whose account Rs. 12.[8] Crores were deposited, could not explain the source of the same. Further, the conversation between Tania Sanyal, Rajan Poddar and the Applicant would reveal that they were complicit in laundering proceeds of crime generated by cattle smuggling activities.

29. The respondent has submitted that the Applicant’s contention that mere appearance of his name in the diary of Mr. Manoj Sana would not be sufficient to impute his involvement in criminal activity, is unfounded in view of Section 22 of PMLA which provides for presumption/admissibility of records.

30. Further, involvement of the Applicant is evidenced from the fact that due to the nexus of the Applicant with Md. Enamul Haque, whose Company M/s Haque Mercantile Pvt. Ltd. as the Applicant’s son Bhaskar Bhuvan was made a Director within 1 month of his employment in this Company.

31. It is submitted that the Applicant has failed to satisfy the mandatory twin conditions for grant of bail under PMLA.

32. The learned counsel for the Respondent has placed reliance on Gautam Kundu vs. Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement, AIR 2016 SC 106, Arun Mukherjee vs. Enforcement Directorate, AIR OnLine 2018 Cal 1446, Deepak Talwar vs. Enforcement Directorate,AIROnLine 2019 Del 1573, Thomas Daniel vs. Directorate of Enforcement, MANU/KE/1424/2022, Bimal Kumar Jain vs. Directorate of Enforcement, Bail Appl. No. 2438/2022, Raj Singh Gehlot vs. Directorate of Enforcement, Bail Appl. No. 4295/2021, Sajjan Kumar vs. Directorate of Enforcement, Bail Appl. No. 926/2022, Union of India vs. Varinder Singh @ Raja &Anr.,Crl. Apl. No. 1223/2017, Gyan Prakash Sarawgi vs. The Directorate of Enforcement (Government of India), MANU/JH/1085/2022, Mohammad Arif vs. Directorate of Enforcement, Government of India,AIROnLine 2020 Ori 281, P. Anand vs. Assistant Director,Directorate of Enforcement, MANU/TN/8778/2022, Pooja Singhal vs. Directorate of Enforcement, Government of India, MANU/JH/1019/2022, Gautam Thapar vs. Directorate of Enforcement,Bail Appl. No. 4185/2021, Ahmed A.R. Buhari vs. The Assistant Director, Directorate of Enforcement, Crl. O.P. No. 6205/2022, State of Gujarat vs. Mohanlal JitamaljiPorwal&Anr., AIR 1987 SC 1321, Nimmagadda Prasad vs. Central Bureau of Investigation, AIR 2013 SC 2821, Y.S. Jagan Mohan Reddy vs. Central Bureau of Investigation, 2013 Cri. L.J. 2734, State of Bihar &Anr. vs. Amit Kumar @ Bacha Rai, AIR 2017 SC 2487, Rohit Tondon vs. Enforcement of Directorate, AIR 2017 SC 5309, Himanshu Chandravasan Desai &Ors. vs. State of Gujarat, MANU/SC/1750/2005, Dr. Vinod Bhandari vs. State of M.P., 2015 Cri. L.J. 1547, Surya Kirti Thapar &Anr. vs, State of NCT of Delhi, Bail Appl. NO. 334/2014, Central Bureau of Investigation vs. Ramendu Chattopadhyay, AIR OnLine 2019 SC 1516, Sunil Dahiya vs. State (Govt. of NCT of Delhi), MANU/DE/2797/2016, Mukesh Kumar Singh vs. The State, Bail Appl. NO. 2382/2022, Ajay Kumar vs. State (NCT of Delhi),Bail Appl. No. 2240/2021, Deepak Kindo vs. State of Odisha, MANU/OR/0198/2023, Sanjeev Kumar Sinha vs. State (Govt. of NCT of Delhi),Bail Appl. No. 1768/2021, Prahlad Singh Bhati vs. NCT of Delhi &Anr., AIR 2001 SC 1444, State vs. R. Vasanthi Stanley and Ors., MANU/SC/1028/2015, Meenu Dewan vs. State, Bail Appl. No. 736/2008, Leela Mahesh Motewar vs. Republic of India, MANU/OR/0485/2019, Preeti Bhatia vs. Republic of India, MANU/OR/0077/2015, Indu Dewan vs. Republic of India, MANU/OR/0400/2016, Chandrawati vs. State of U.P., MANU/UP/0211/1992, Naresh T. Jain vs. Union of India &Ors., Bail Appl. No. 167/2021, Naresh T. Jain vs. Union of India &Ors., SLP (Crl.) 2175/2022, Directorate of Enforcement vs. Preeti Chandra, SLP (Crl.) 7409/2023, Tarun Kumar vs. Assistant Director, Bail Appl. No. 152/2023, Saumya Chaurasia vs. Directorate of Enforcement, 2023 SCC OnLine SC 1674, and Kalvakuntla Kavitha vs. Directorate of Enforcement, Bail Appl. No. 1675/2024.

33. It is finally submitted that the Application is devoid of merits and is liable to be dismissed.

34. The detailed arguments have been addressed by the learned Senior Advocate on behalf of the Applicant and Written Submissions have also filed on behalf of the Applicant.

35. Learned Special Counsel on behalf of the Respondent has also addressed the arguments which are essentially on the same lines as detailed in its Reply by way of Status Report.

36. Submissions Heard and Record perused.

37. The Constitution of India guarantees Personal liberty of every individual through its Article 21. The fundamental principle of bail is “bail is the rule and jail is exception”, and the presumption is that of “innocence until proven guilty”.In Masroor v. State of Uttar Pradesh and Another, 2009 SCC OnLine SC 903, the Hon’ble Supreme Court observed that the courts must strike a balance between the valuable right of liberty of individual and the larger interest of society. The Hon’ble Supreme Court has time and again reiterated that the economic offences constitute a class apart and must be approached differently in regards to the bail, and the same is observed by the Hon’ble Supreme Court in various judgments State of Gujarat v. Mohanlal Jitamalji Porwal and Another, (1987) 2 SCC 364, Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation, (2013) 7 SCC 439, Nimmagadda Prasad v. Central Bureau of Investigation, (2013) 7 SCC 466, and Tarun Kumar v. Assistant Director, Directorate of Enforcement, 2023 SCC OnLine SC 1486.

38. The Bail Application under Section 45 of PMLA is to be decided by making reference to special nature of the offence of money laundering. In Saumya Chaurasia v. Directorate of Enforcement, 2023 SCC OnLine SC 1674, the Hon’ble Supreme Court observed that Section 45(1) of PMLA shows that the accused is required to cross the threshold of the twin conditions mentioned therein: (a) public prosecutor shall be given an opportunity to oppose the application for release of the accused; and (b) the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail at the time of seeking bail.

39. In Gautam Kundu v. Directorate of Enforcement (Prevention of Money-Laundering Act), Government of India, Through Manoj Kumar, Assistant Director, AIR 2016 SC 106, the Hon’ble Supreme Court observed that the twin conditions under Section 45 PMLA are mandatory and need to be complied with and the provision of Section 45 will have an overriding effect on the provisions of Cr.P.C. in case of conflict between them. Again in Tarun Kumar (Supra) the Hon’ble Supreme Court observed that “the Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.”

40. The allegations against the Applicant are that he had received bribes for facilitating the illegal business of cattle smuggling. The bribe was allegedly received by him in cash and the same is said to be evident from the diary entries made by one Mr. Manoj Sana of the cash received. The Applicant is an accused in the Predicate Offence registered by CBI and has also been charge sheeted.

41. In the recent decision of Manish Sisodia vs. Central Bureau of Investigation, 2023 SCC OnLine SC 139, the Hon’ble Supreme Court observed that right of liberty guaranteed under Article 21 of the Constitution of India is a sacrosanct right which needs to be accepted even in cases where stringent provisions are incorporated through special laws. It was held that prolonged incarceration before being pronounced guilty of an offence, should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that “bail is the rule and refusal is an exception”. The same has been reiterated by the Apex Court in while granting bail to similarly placed accused under PMLA, 2002 in Kalvakuntla Kavitha v. Directorate of Enforcement 2024 INSC 632 and Vijay Nair v. Directorate of Enforcement in SLP (Crl.) No. 22137/2024 vide order dated 02.09.2024.

42. In Prem Prakash v.Union of India SLP (Crl.) No. 5416/2024the Apex Court has held that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of PMLA, 2002 which has been reiterated by the Apex Court while granting bail under the PMLA 2002 in Vijay Nair (supra).

43. Pertinently, Sh. Anubrata Mondal has been admitted to bail by the Hon’ble Supreme Court in the case of Anubrata Mondal @ Kesto vs. The Central Bureau of Investigation and Anr. decided vide SLP(Crl) NO. 12769/2023 on 30.07.2024, essentially on the grounds of his long period of incarceration from 11.08.2022 and the case still being at the stage of Section 207 of Cr.P.C. 1973. Further, seeing the volume of pages in the Chargesheet and some of it being in Bengali and thus, require translation, were going to be contributing factors in the period of incarceration, and thus, co-accused Sh. Anubrata Mondal was admitted to bail.

44. In the present case, the allegations are that the Applicant was a party to cattle-smuggling in so much as he facilitated the same for money considerations. The investigations qua the Petitioner are already complete as the Complaint has been filed in the Court. Pertinently, the Applicant was named only in First Supplementary Charge Sheet. He is not a flight risk, considering his position of being a Commandant in the BSF and that he has deep roots in the Society. The evidence being essentially documentary, is not likely to be tampered or the witnesses influenced.

45. Applicant has been in judicial custody from 22.04.2022 i.e. for about two and a half years. The documents involved in the present case are voluminous and the trial may take a long time to get concluded as was observed in Anubrata Mondal (Supra), while granting the Bail to the coaccused.

46. Considering the above mentioned facts and in the light of the aforesaid discussion, the Applicant is admitted to bail on the following terms and conditions:a) the Applicant is directed to furnish a personal bond in the sum of Rs. 10,00,000/- and one surety of the like amount to the satisfaction of the learned Trial Court; b) the Applicant shall not leave Delhi/NCR without prior permission of the Court; c) the Applicant shall appear before the Court as and when the matter is taken up for hearing; d) the Applicant shall provide her mobile number to the IO concerned, which shall be kept in working condition at all times and he shall not change the mobile numbers without prior intimation to the Investigating Officer concerned; e) the Applicant shall inform the IO and the Jail Superintendent the address where she shall be available in Delhi; f) the Applicant shall not leave the country without prior permission of the learned Trial Court and shall surrender her passport, if any, before the learned Trial Court g) the Applicant shall not try to contact, threaten or influence any of the witnesses of this case; and h) the Applicant shall not indulge in any criminal activity and shall not communicate with or come in contact with the witnesses.

47. The Registry is directed to communicate this Order to the learned Trial Court and as well as to the concerned Jail Superintendent.

48. Accordingly, the present Application is disposed of.

JUDGE SEPTEMBER 30, 2024