Anup Majee v. Directorate of Enforcement

15. On 01.07.2024, the Predicate Agency / CBI furnished a 2nd Supplementary Chargesheet in the proceedings emanating from the Subject FIR before the learned Special Judge, CBI against 7 additional accused persons.

16. Vide order dated 03.07.2024 in Special CBI Case No. 1/2022, the learned Special Judge, CBI recalled proceedings under Sections 82 and 83 of the CrPC against the Applicant.

17. Vide order dated 10.12.2024, in Special CBI Case No. 1/2022, charges came to be framed under Sections 379, 411, 414, 420 & 471 of the IPC; Section 8 of the PC Act; under Section 120B read with Sections 379, 409, 420, 471, 411, 414 of the IPC; under Section 120B read with Sections 7, 8, 13 (2) read with Section 13(1)(a) of PC Act. Vide order dated 16.01.2025, the learned Special Judge, CBI confirmed the regular bail granted to the Applicant.

18. Vide order dated 25.04.2024, the Applicant was granted interim protection from arrest in relation to the proceedings emanating from the ECIR, which came to be extended from time-to-time.

19. It is submitted by the Applicant that on 06.05.2025, the Applicant addressed a Letter to Respondent Agency requesting to join the investigation, however, there was no response from the Respondent Agency.

20. Vide order dated 15.05.2025, the learned Special Court directed the Respondent Agency to provide the Applicant with a copy of (i) the Prosecution Complaint; and (ii) the Supplementary Prosecution Complaint on account of the reliance placed by the Respondent Agency on such document(s).

21. Vide order dated 22.05.2025, the learned Special Judge dismissed the Applicant‟s Anticipatory Bail Application and, consequently, vacated the interim protection granted to the Applicant.

22. Hence, the Applicant has filed the present Application.

SUBMISSIONS ON BEHALF OF THE APPLICANT:

23. The learned Senior Counsel for the Applicant has submitted that the investigation for this matter commenced 53 months ago and the Applicant has appeared before the Respondent Agency and recorded his statement under Section 50 of PMLA at least 13 times and has also supplied information by way of written representations.

24. It is submitted that despite joining the investigation and supplying the document, the Respondent Agency has continued to summon the Applicant under Section 50 of the PMLA without any justifiable reason. It is submitted that the investigation/inquiry in relation to ECIR commenced on 28.11.2020 and has culminated into (i) a prosecution complaint dated 13.05.2021; and (ii) supplementary prosecution complaint dated 24.07.2022.

25. It is submitted that there is absolutely no requirement for custodial interrogation as the Applicant has joined the investigation on multiple occasions and fully cooperated with the Respondent Agency.

26. It is further submitted by the Applicant that the Respondent Agency has already attached the properties of the Applicant and, thus, no recovery is to be affected from the Applicant. The learned Senior Counsel for the Applicant submitted that between 14.12.2022 and 30.11.2023, the Respondent Agency served the Applicant with 5 additional summons under Section 50 of PMLA. However, the said summons were duly responded by the Applicant by way of a written representations.

27. It is further submitted that the Applicant had preferred an Anticipatory Bail before the learned Special Court by way of a Bail Matter No. 68/2025. However, the same was dismissed vide order dated 22.05.2025 and consequently, the interim protection granted to the Applicant was vacated without appreciating the true facts and legal landscape relating to the Applicant’s anticipatory bail.

28. It is submitted that there has been a considerable delay in the investigation as the same has been pending for about 5 years since the registration of the ECIR. It is further submitted by the learned Senior Counsel for the Applicant that there is no material based on which the Respondent Agency can form an opinion about the reason to believe that the Applicant has been guilty of an offence punishable under PMLA.

29. It is submitted by the learned Senior Counsel for the Applicant that the Respondent Agency has relied upon loose sheets of documents recovered from the possession of the chartered accountant, who is yet to be examined by the Respondent Agency. In view of the same, there is no evidence to demonstrate that the Applicant was involved in any money laundering activity.

30. It is submitted that the statement of one Mr. Niraj Singh, which was recorded under Section 132(2) of the IT Act, which cannot be used for the purpose of investigation under the PMLA. The Respondent Agency is wrongly relying upon a private ledger and loose sheets of documents maintained by Mr. Niraj Singh to presume that the money allegedly mentioned in the private ledger emanated from the Applicant, however, there is no evidence to show any nexus. It is further submitted that the private ledger/loose sheet of paper cannot be termed as a books of account and, therefore, is not an admissible evidence under Section 34 of the Indian Evidence Act, 1872.

31. The learned Senior Counsel for the Applicant has relied upon the decision in the case of Common Cause (A Registered Society) and Others v. Union of India & Ors. order dated 11.01.2017 passed by the Supreme Court of India in Interlocutory Application Nos.[3] and 4 of 2017 in Writ Petition (Civil) No.505 of 2015 to submit that the value of entries in the books of account shall not alone be sufficient evidence to charge any person with liability, even if they are relevant and admissible, and that they are only corroborated evidence. It was further held that independent evidence is necessary to prove the trustworthiness of those entries to fasten the liability.

32. The learned Senior Counsel for the Applicant has also relied upon the decision of the Supreme Court in Arvind Kejriwal v. Directorate of Enforcement:(2025) 2 SCC 248 which holds that:

argument overlooks the requirement that the designated officer should and must, based on the material, reach and form an opinion that the arrestee is guilty of the offence under the PML Act. Guilt can only be established on admissible evidence to be led before the court, and cannot be based on inadmissible evidence. While there is an element of hypothesis, as oral evidence has not been led and the documents are to be proven, the decision to arrest should be rational, fair, and as per law. Power to arrest under Section 19(1) is not for the purpose of investigation. Arrest can and should wait, and the power in terms of Section 19(1) of the PML Act can be exercised only when the material with the designated officer enables them to form an opinion, by recording reasons in writing that the arrestee is guilty.”

33. In view of the above, it is submitted that the guilt of the Applicant can only be established on admissible evidence and cannot be based on inadmissible evidence. It was submitted that the power to arrest under Section 19(1) of the PMLA can be exercised only when material is available to form an opinion by recording reasons in writing that the Applicant is guilty. In the instant case, there is no material available with the Respondent Agency, which can result in the forming of an opinion that can be recorded in writing that the Applicant is guilty of an offence under PMLA.

34. The learned Senior Counsel for the Applicant has also relied upon the decision of the Supreme Court in Pankaj Bansal v. Union of India and Ors.:(2024) 7 SCC 576 which holds that:

render him/her liable to be arrested under Section 19. As per its replies, it is the claim of ED that Pankaj Bansal was evasive in providing relevant information. It was however not brought out as to why Pankaj Bansal's replies were categorised as “evasive” and that record is not placed before us for verification. In any event, it is not open to ED to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an “evasive reply”. In Santosh v. State of Maharashtra [Santosh v. State of Maharashtra, (2017) 9 SCC 714: (2018) 1 SCC (Cri) 87], this Court noted that custodial interrogation is not for the purpose of “confession” as the right against self-incrimination is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not cooperating with the investigation. Similarly, the absence of either or both of the appellants during the search operations, when their presence was not insisted upon, cannot be held against them.”

35. In view of the above, it was submitted that any failure of the Applicant to respond to the questions put by the Respondent Agency would not be sufficient in itself for the Respondent Agency to opine that the Applicant is liable to be arrested under Section 19 of the PMLA. As per the provisions of Section 19 of PMLA, it is required that the Respondent Agency has to come to a conclusion that there is a reason to believe that the Applicant is guilty of an offence under the PMLA. Mere non-cooperation of the Applicant in responding to summons issued under Section 50 of PMLA would not be sufficient to arrest the Applicant under Section 19 of the PMLA.

36. In any event, the Applicant has fully cooperated and has appeared before the Respondent Agency for 13 occasions and also provided the necessary information. Even for the summons issued under Section 50 of PMLA between 14.12.2022 and 30.11.2023, the Applicant had responded to each of the 5 summons in writing providing the information or the justification for not being able to appear before the Respondent Agency on account of death of his mother-in-law, serious health issues of his family members, and severe back and spondylitis pain of the Applicant. Hence, the instant anticipatory bail may be granted as the Applicant never misused any liberty granted to him either in the Predicate Agency or in the present proceedings under PMLA. There is no necessity to arrest the Applicant as the Applicant has already recorded his statement before the agency on 13 occasions and has already offered to join investigation vide letter dated 06.05.2025.

37. It is further submitted by the learned Senior Counsel for the Applicant that Applicant has extended his full and complete cooperation with the Respondent Agency as well as the Predicate Agency and is willing to further cooperate and provide full information to the Respondent Agency, as and when required.

38. The learned Senior Counsel for the Applicant has submitted that the ‘twin conditions’ under Section 45 is satisfied as there is reasonable ground to believe that the Applicant is not guilty of the offence under PMLA and that the Applicant is not likely to commit any offence while on bail.

39. In view of the above submissions, it is prayed by the Applicant that the Applicant be granted Anticipatory Bail on conditions that may be found appropriate by this Court.

SUBMISSIONS ON BEHALF OF THE RESPONDENT AGENCY:

40. Pursuant to the Notice issued by this Court vide order dated 28.05.2025, the Status Report has been filed by the Respondent Agency.

41. The learned Special Public Prosecutor (‘SPP’) for the Respondent Agency has submitted that during the course of the investigation carried out by the Respondent Agency in the predicate offence, it is revealed that illegal excavation and theft of coal was done by the criminal elements from the leasehold area of ECL in active connivance of official of ECL, CISF, Indian Railways and other concerned departments. It is submitted that the Applicant was one of the main organizers of the syndicate for the illegal mining at ECL area and transportation of illegally excavated/stolen coal. It is submitted that the Applicant was running these activities in connivance with the public servants and misappropriated the coal from the leasehold area of ECL.

42. It is further submitted that there are 16 FIRs registered against the Applicant during the period 2000 to 2015 pertaining to illegal excavation/pilferage of coal, wherein a Chargesheet has also been filed. However, given the extent of influence and protections enjoyed by the Applicant on account of his syndicate, no case was registered by the Local Police. The Applicant had engaged staff to maintain accounts of the quantity of misappropriated coal dispatched to different beneficiary companies and during course of investigation, it was revealed that coal worth ₹2,742.32 crores (inclusive of taxes/royalty) was misappropriated from the ECL leasehold area by way of illegal coal excavation and pilferage by the Applicant.

43. It was further submitted that during the search and seizure operations conducted by the Respondent Agency under Section 17 of the PMLA at 46 different places from January to April, 2021. It was revealed that Mr. Niraj Singh, accountant of the Applicant, used to maintain the records of proceeds of crime generated from illegal coal mining. These records were seized by Income Tax Department during their search proceedings and forwarded to the Respondent Agency for further investigation. The statement of Mr. Niraj Singh was recorded by the Income Tax Department, where it was admitted that he was working for the Applicant and not involved in any other work. Mr. Niraj Singh also provided the details of cash received and payment made for the period 01.07.2018 to 31.03.2020. He also stated that the details after 01.04.2020 had not been entered in tally and these were the entries for the cash collected.

44. The Status Report also provides the details of the statement recorded under Section 50 of the PMLA of the Directors of M/s Brightstar Tie-Up Private Limited; M/s Sungold Vincom Private Limited; M/s Knockout Sales Private Limited; M/s Starlight Devcon Private Limited; M/s Starrose Marketing Private Limited; M/s Bhanupriya Projects Consultants Private Limited; M/s Prabhat Nursery Private Limited. During the investigation, it was found that these companies were shell companies and the Applicant had appointed the Directors whose statements have been recorded by the Respondent Agency and it was admitted in those statements that the Applicant used to send Mr. Niraj Singh for signing documents of these companies and none of them had attended any board meeting of these companies and that they were dummy Directors and had no idea about working, banking transaction and nature of these companies.

45. It is further submitted by the learned SPP that during the course of investigation, total 11 summons were issued by the Respondent Agency to the Applicant. However, the Applicant appeared only once and evaded joining the investigation after 2021. It is also submitted that the Applicant has willfully not appeared before the Respondent Agency despite issuance of summons dated 30.11.2023, 10.08.2023, 21.06.2023, 11.05.2023 and 14.12.2022. Accordingly, a complaint has been filed by the Respondent Agency before the Court of learned CMM, Patiala House Court for the commission of offence under Section 174 of IPC.

46. The learned SPP has relied upon the decision by the Supreme Court in case of Directorate of Enforcement v. M. Gopal Reddy:2022 OnLine SC 1862, and, Enforcement Directorate v. V.C. Mohan:(2022) 16 SCC 794 to submit that the condition under Section 45 of the PMLA have to be complied with for grant of anticipatory bail. It is submitted that the Supreme Court has held that the ‘twin conditions’ under Section 45 of the PMLA shall also be applicable for grant of Anticipatory Bail under Section 438 of CrPC. It was submitted that in the present case, the said ‘twin conditions’ have not been satisfied, which are mandatory for granting anticipatory bail.

47. It is submitted that it is no longer res integra that the ‘twin conditions’ under Section 45 of PMLA viz. reasonable grounds for believing that an accused is not guilty of offence of money laundering and that said accused is not likely to commit any offence while on bail, have necessarily to be satisfied prior to the grant of bail. In support of this submission, the learned SPP has relied upon the cases in Vijay Madanlal Choudhary and Ors. v. Union of India and Ors.:2022 SCC Online 929; Gautam Kundu v. Manoj Kumar, Assistant Director:(2015) 16 SCC 1; Gautam Thapar v. Directorate of Enforcement:2022 SCC OnLine Del 642: (2022) 289 DLT 148; Satyendar Kumar Jain v. Directorate of Enforcement:2023 SCC OnLine Del 1953: (2023) 301 DLT 764; Benoy Babu v. Directorate of Enforcement:2023 SCC OnLine Del 3771; Tarun Kumar v. Assistant Director, Directorate of Enforcement:2023 SCC OnLine Del 4173.

48. It is further submitted that it has been established that the Applicant alongwith his associates was the main kingpin, who organized most of the illegal mining at ECL area and for transportation of illegally excavated/stolen coal.

49. The learned SPP submits that the statement of Mr. Niraj Singh recorded under the IT Act is admissible for the purpose of the PMLA under Section 22(1) of PMLA, which provides as under:

50. In view of the above, it is submitted that there is a presumption that the record recovered in the possession or control of any person in the course of survey or a search, such record belongs to such person and the contents of such records are true. Accordingly, the contention of the Applicant that the record of ledger recovered from Mr. Niraj Singh not being admissible, is not tenable.

51. The learned SPP has also relied upon Section 45 (1) of PMLA which provides as under:

52. In view of the above, it is submitted that there are no reasonable ground for this Court to believe that the Applicant is not guilty of the offences committed by him under PMLA and that the Applicant is not likely to commit any offence while on bail as the Applicant is deliberately scuttling the investigation and there is every apprehension that the Applicant, who has continue to evade the process of law for the last 4 years would do so with impunity, if he is granted Anticipatory Bail by this Court. Hence, ‘twin conditions’ required under Section 45 of the PMLA have not been satisfied.

53. It is submitted by the learned SPP for the Respondent Agency that the mere fact that the Applicant has been granted bail in the scheduled offences would not justify grant of anticipatory bail to the Applicant. In support of this contention, the learned SPP has relied upon the decision of the Supreme Court in Directorate of Enforcement v. Aditya Tripathi:2023 SCC OnLine SC 619 to submit that mere factum of grant of bail in the Predicate Offence would not automatically entitle the Applicant for the grant of Anticipatory Bail under PMLA. It is submitted that the Applicant is at flight risk and any liberty granted to the Applicant will be misused as the Applicant has been evading summons issued by the Respondent Agency over a long period of time.

54. In addition, on a conspectus of investigation conducted and the material available with the Respondent Agency, it cannot be held that the Applicant is not guilty of alleged offences or that he is not likely to commit any offence while on bail as required under Section 45(1) of PMLA.

55. The learned SPP has also relied upon the decision of the Supreme Court in P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24 to submit that the grant of anticipatory bail at the investigation may frustrate the Investigating Agency in interrogating the accused and in collecting the useful information and also the material which might have been concealed. It was further held by the Supreme Court that success in such interrogation would elude if the accused knows that he is protected by the order of the Court. It was held that grant of Anticipatory Bail, particularly, in economic offences would definitely hamper the effective investigation.

56. The learned SPP has also relied upon the decision of the Supreme Court in State v. Anil Sharma: (1997) 7 SCC 187 which holds that:

in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.”

57. In view of the above, it is submitted by the learned SPP that the custodial interrogation is qualitatively more elicitation-oriented than questioning the Applicant who is well ensconced with a favourable order granting Anticipatory Bail. In view of the same, the learned SPP has prayed that the present Application be dismissed.

FINDINGS AND CONCLUSION:

58. Having considered the facts and circumstances of the case, the documents produced by the Applicant and the Respondent Agency and the respective submissions by the learned Senior Counsel for the Applicant and the learned SPP, it emerges that: i. The investigation is being carried out over a period of 5 years and during this period despite serving summons to the Applicant several times, no attempt was made by the Respondent Agency to apprehend the Applicant. ii. It is not denied by the Respondent Agency that the Applicant had joined the investigation and appeared 13 times before the Respondent Agency in addition to providing the documents as sought by the Respondent Agency. iii. Even when the Applicant did not appear in response to summons received under Section 50 of PMLA between 14.12.2022 and 30.11.2023, the Applicant had responded to each of the summons by giving the information sought by the Respondent Agency or justifying the reasons for not being able to appear before the Respondent Agency. iv. The Supreme Court has vide order dated 23.09.2022 in SLP (Crl.) No.8228/2022 has granted the Applicant protection from arrest in relation to the proceedings instituted by the learned Special Judge, CBI, Asansol, under Sections 82 and 83 of the CrPC, which is not misused by the Applicant. v. Vide order dated 14.05.2024, the learned Special Judge, CBI, Asansol, enlarged the Applicant on interim regular bail in relation to proceedings emanating from the FIR, which has been extended from time to time and confirmed vide order dated 16.01.2025. vi. The Applicant has not misused any liberty granted to him in the Predicate Offence in the present proceedings under PMLA. vii. The ‘twin conditions’ under Section 45 of PMLA has been satisfied in the facts and circumstances of the case as the learned SPP was given an opportunity to oppose this Application and this Court is satisfied that there are reasonable ground for believing that the Applicant is not guilty of the alleged offence under PMLA as the investigation has taken considerable time and the Respondent Agency has already filed a Chargesheet and a Supplementary Chargesheet without taking any steps to arrest the Applicant for custodial investigation. viii. The Applicant is not likely to commit an offence while on bail as the Status Report filed by the Respondent Agency does not mention that any offence has been committed since filing of the ECIR on 20.11.2020. ix. It is also not borne out of the record that the Applicant has violated any of the conditions imposed by the Supreme Court or the Special Court granting the Applicant interim protection. x. Therefore, the ‘twin conditions’ has required under Section 45 of PMLA for grant of Anticipatory Bail has been fulfilled. xi. Vide letter dated 06.05.2025, the Applicant has assured the Respondent Agency to join the investigation and provide all necessary assistance.

59. In view of the above analysis, the present Application for grant of Anticipatory Bail is deserved to be allowed. In the event of arrest, it is directed that the Applicant shall be released on bail on furnishing personal bond for ₹2,00,000/- (Rupees Two Lakhs only) with two sureties of the like amount subject to the satisfaction of the Respondent Agency, on the following terms and conditions: a. The Applicant shall join and cooperate with the investigation, if required, as and when directed by the Respondent Agency; b. The Applicant shall appear and cooperate with the Respondent Agency as and when summoned under Section 50 of PMLA; c. The Applicant shall provide all the documents and information as may be required by the Respondent Agency; d. The Applicant shall surrender the original Passport to the Respondent Agency and shall not leave India without the prior permission of the learned Special Judge; e. The Applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or tamper with the evidence of the case, in any manner, whatsoever; f. The Applicant shall appear before the learned Special Judge as and when directed; g. The Applicant shall provide the address where he would be residing after his release and shall not change the address without informing the Respondent Agency; h. The Applicant shall give his mobile number to the Respondent Agency and shall keep his mobile phone switched on at all times.

60. In the event of there being any violation of the stipulated conditions, it would be open to the Respondent Agency to seek redressal by filing an Application seeking cancellation of the bail.

61. It is clarified that the observations made in the present order are for the purpose of deciding the present Anticipatory Bail Application and should not influence the outcome of the Trial and should not be taken, as an expression of opinion, on the merits of the case.

62. The present Anticipatory Bail Application is allowed in the aforesaid terms.