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2024:CGHC:38639

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

ORDER RESERVED ON 17.09.2024

ORDER DELIVERED ON 30.09.2024

MCRC No. 4769 of 2024

1 - Trilok Singh Dhillon S/o Lt. Surta Singh Dhillon Aged About 59 Years

R/o Block 12-B, Plot No. 123, Nehru Nagar East, Bhilai, Dist. - Durg,

Chhattisgarh-490020

... Applicant

versus

1 - State Of Chhattisgarh Through The Investigating Officer, Economic

Offences Wing/ Anti-Corruption Bureau, Gaurav Path, Opp. Jai Jawan

Petrol Pump, Telibandha, Raipur, Chhattisgarh-492001.

... Respondent

For Petitioners:Mr. Siddarth Agrawal, Sr. Advocate assisted by

Mr. Harshwardhan Parganiha, Ms. Arshiya

Ghose, Mr. Anshul Rai, Ms. Saloni Verma and Mr.

Harshit Sharma, Advocates

For

Respondent/State

:Mr. Mahesh Jethmalani, Sr. Advocate assisted by

Mr. Vivek Sharma, Addl. Advocate General and

Ms. Mugdha Pandey, Advocate

(Hon’ble Shri Justice Arvind Kumar Verma)

C A V Order

This is the first bail application under Section 439 of the Cr.P.C.

for grant of regular bail filed by the applicant as he has been arrested in

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connection with FIR No.04/2024 dated 17.01.2024 (arrested on

25.04.2024) registered by the EOW/ACB, Chhatisgarh for commission

of offences punishable under Sections 420,467, 471 & 120(B) of the

IPC and Sections 7 and 12 of the Prevention of Corruption Act.

2.Brief facts of the case are as under:

(i) An income tax complaint was filed on 11.05.2022 against Anil Tuteja,

Anwar Dhebar and 12 others under Sections 276(c), 277, 278,278E of

IT Act read with Section 120-B, 190,191,199,200,204 IPC for the

alleged collection of kickbacks through an organized syndicate.

(ii) ECIR/RPZO/11/2022 (“ECIR 11”) was registered by ED in

Preventionof Money Laundering Act (PMLA Act) on 18.11.2022 on the

basis of Section 120-B in the aforesaid IT complaint. The applicant was

arrested on 11.05.2023 and the prosecution complaint was filed on

04.07.2023 against seven accused persons including the applicant.

(iii) The ED had sent a letter dated 11.07.2023 under Section 66(2) of

the PMLA to the ACB, Chhattisgarh disclosing that the investigation in

ECIR 11 had allegedly disclosed generation of INR 2161 Crore

proceeds of the crime. Pertinently, the applicant was not named therein.

It is further alleged that the applicant is involved in collecting illegal

commission charged from the liquor suppliers for sale of liquor and also

in sale of off-the record unaccounted illicit country liquor from State run

shops. On the basis of this letter, the present FIR No. 04/2024 was

registered by ACB Chhattisgarh on 17.01.2024.

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(iv) On 08.04.2024, the Hon’ble Supreme Court quashed the

prosecution complaint filed in ECIR 11 inter alia holding that there is no

scheduled offence and hence, there can be no proceeds of crime under

the PMLA Act.

(v) The charge sheet came to be filed on 29.06.2024 against the

applicant and three others (ie. Arunpati Tripathi, Anwar Dhebar and

Arvind Singh). The allegation against the present applicant is that he

and his entities (Dhillon City Mall and Petrosun Bio Refineries) received

commissions and unsecured loans from FL10A license holders and rice

millers on behalf of Anwar Dhebar and the applicant utilized the same to

purchase 18 flats in the name of his employees and further investigation

is going on.

3.Contention of the learned Sr. Counsel Mr. Siddarth Agrawal for

the applicant is that:

(a) the investigation qua the applicant is concluded and the trial is likely

to take time therefore custodial detention is no longer necessary and is

violation of the rights of the applicant under Article 21 of the Constitution

of India.

(i) It has been consistently held by the Hon’ble Supreme Court that the

right to speedy trial is enshrined in Article 21 of the Constitution,

irrespective of the nature of crime and bail cannot be withheld as a

punitive measure without trial. He has relied upon the judgment of

Javed Gulam Nabi Shaikh Vs. State of Maharastra and Another,

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2024 SCC Online SC 1693; Satender Kumar Antil Vs. CBI and

Another (2022) 10 SCC 51 and Sanjay Chandra Vs. CBI (2012) 1

SCC 40.

The Supreme Court in Sanjay Chandra v. CBI, (2012) 1 SCC 40,

has observed as under:

"21. In bail applications, generally, it has been

laid down from the earliest times that the

object of bail is to secure the appearance of

the accused person at his trial by reasonable

amount of bail. The object of bail is neither

punitive nor preventative. Deprivation of liberty

must be considered a punishment, unless it is

required to ensure that an accused person will

stand his trial when called upon. The courts

owe more than verbal respect to the principle

that punishment begins after conviction, and

that every man is deemed to be innocent until

duly tried and duly found guilty.

22. From the earliest times, it was appreciated

that detention in custody pending completion

of trial could be a cause of great hardship.

From time to time, necessity demands that

some unconvicted persons should be held in

custody pending trial to secure their

attendance at the trial but in such cases,

"necessity" is the operative test. In this

country, it would be quite contrary to the

concept of personal liberty enshrined in the

Constitution that any person should be

punished in respect of any matter, upon which,

he has not been convicted or that in any

circumstances, he should be deprived of his

liberty upon only the belief that he will tamper

with the witnesses if left at liberty, save in the

most extraordinary circumstances.

23. Apart from the question of prevention

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being the object of refusal of bail, one must not

lose sight of the fact that any imprisonment

before conviction has a substantial punitive

content and it would be improper for any court

to refuse bail as a mark of disapproval of

former conduct whether the accused has been

convicted for it or not or to refuse bail to an

unconvicted person for the purpose of giving

him a taste of imprisonment as a lesson.

24. In the instant case, we have already

noticed that the "pointing finger of accusation"

against the appellants is "the seriousness of

the charge". The offences alleged are

economic offences which have resulted in loss

to the State exchequer. Though, they contend

that there is a possibility of the appellants

tampering with the witnesses, they have not

placed any material in support of the

allegation. In our view, seriousness of the

charge is, no doubt, one of the relevant

considerations while considering bail

applications but that is not the only test or the

factor : the other factor that also requires to be

taken note of is the punishment that could be

imposed after trial and conviction, both under

the Penal Code and the Prevention of

Corruption Act. Otherwise, if the former is the

only test, we would not be balancing the

constitutional rights but rather "recalibrating

the scales of justice.

25. The provisions of CrPC confer

discretionary jurisdiction on criminal courts to

grant bail to the accused pending trial or in

appeal against convictions; since the

jurisdiction is discretionary, it has to be

exercised with great care and caution by

balancing the valuable right of liberty of an

individual and the interest of the society in

general. In our view, the reasoning adopted by

the learned District Judge, which is affirmed by

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the High Court, in our opinion, is a denial of

the whole basis of our system of law and

normal rule of bail system. It transcends

respect for the requirement that a man shall be

considered innocent until he is found guilty. If

such power is recognized, then it may lead to

chaotic situation and would jeopardize the

personal liberty of an individual."

(ii) The principle that ‘bail is the rule and jail is the exception’ has been

emphasized by the Hon’ble Supreme Court in a plethora of recent

decisions, even in the context of special statutes with more stringent

conditions for bail. He has relied upon the judgment of Manish Sisodia

Vs. ED, 2024 SCC Online SC 1920; Kalakuntla Kavita Vs. ED, 2024

SCC Online SC 2269.

In Kalvakuntla Kavita (supra),it has been held by the Supreme

Court that

“10.On perusal of the record, we find that in

CBI case, charge sheet has been filed and in

ED case complaint has been filed. As such, the

custody of the appellant herein is not necessary

for the purpose of investigation.

11.The appellant has been behind the bars

for the last five months. As observed by us in

the case of Manish Sisodia (supra), taking into

consideration that there are about 493

witnesses to be examined and the documents to

be considered are in the range of about 50,000

pages, the likelihood of the trial being concluded

in near future is impossible.

12.Relying on the various pronouncements

of this Court, we had observed in the case of

Manish Sisodia (supra) that the prolonged

incarceration before being pronounced guilty of

an offence should not be permitted to become

punishment without trial.”

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(iii) Charges cannot be framed at this stage as further investigation

remains pending. Further the first Charge sheet itself has over 295

prosecution witnesses and 146 documents running into thousands of

pages. Thus, there is no likelihood of completion of trial in the near

future.

4.It is further contended that even after the grant of bail to the

applicant in ECIR 11, he did not abscond and cooperated with the

investigation. There is no material to allege any reasonable

apprehension that the applicant may be a flight risk or tamper with the

evidence. On merits, it is the prosecution case that the applicant

conspired with the illegal liquor syndicate and received commissions on

behalf of co-accused Anwar Dhebar which is not supported by any

credible evidence.

5.Further contention of the counsels for the applicant is that the

prosecution has acted in a pick and choose manner in investigation,

which is impermissible. The charge sheet is silent on the role of the

distillery owners and FL10A license holders who are admittedly part of

the conspiracy and beneficiaries of the same.

The Distillery Owners Naveen Kedia (Chhattisgarh Distillery Ltd.)

Bhupendra Pal Singh Bhatia (Welcome Distillery) and Rajendra

Jayaswal (Bhatia Wine Distillers) have not even made an accused,

though the three distiller entities are named as Accused No. 45-47 in

the FIR.

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FL10A license holders: Mukesh Manchanda (Om Sai Beverages);

Atul Kumar Singh and Vijay Bhatia (Om Sai Beveragees); Abhishek

Singh and Manish Mishra (M/s. Nexgen Power Engitech) and Asheesh

Saurabh Kedia (Disha Ventures) were named as Accused No. 38-44 in

FIR but neither they were arrested nor named as absconding in the

charge sheet.

6.In fact some of the rice millers who have admitted to over

invoicing along with distillers who have detailed the alleged role played

by the distilleries in raising commissions, such as Manish Kedia and

Sanjeev Fatehpuria have not been made an accused. It has been

contended by the State that further investigation is pending and hence,

a conclusive determination of their role is yet to be made. However, the

said persons have already been named as prosecution witnesses in the

charge sheet (at Sl. No. 17 and 105 of the list of the prosecution

witnesses).

7.A pick and choose manner of investigation raises a doubt on the

credibility of evidence, specially where the evidence of similarly placed

persons is then relied upon against the other accused.Thus, it may be

considered a relevant factor for grant of bail. Reliance has been placed

in the matter of Soma Chakravarty Vs. State (2007) 5 SCC 403;

State of Madhya Pradesh Vs. Sheetla Sahai and Others (2009) 8

SCC 617; Ramesh Manglani Vs. ED (2023) SCC Online Del 3234;

Sanjay Kansal Vs. ED, 2024 DHC 3765.

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8.It has been contended that the applicant has already undergone

incarceration of 95 days on the very same set of allegations and there

was no necessity of arrest in the present case. Lastly, it is contended

that the applicant is aged about 60 years and established businessman

in Bhilai, Chhattisgarh and besides his implication in ECIR 11, he has no

criminal antecedents. It is contended that one of the co-accused has

been granted bail by this Court vide order dated 15.02.2024 in M.Cr.C.

No. 60/2024 and the other co-accused has been protected by the High

Court in Cr.M.P. No.721/2024 vide order dated 01.04.2024 therefore the

present applicant may be released on bail.

9.Per contra, learned Sr. Counsel, Mr. Mahesh Jethmalani on

behalf of the State opposing the submissions of the learned Senior

Counsel for the applicant submits that a criminal syndicate comprising

of high level State Government officials, private persons and political

executives of the State Government were operating in the State of

Chhattisgarh and the accused/applicant and three others were the

main conspirators of this syndicate along with Anil Tuteja, Anwar Dhebar

and Others. It is further contended that this syndicate collected illegal

money in three different ways which is as follows:

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

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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.

10.Contention of Mr. Jethmalani, learned Sr. counsel on behalf of the

State is that a total sum of Rs. 1660,41,00,056/- earning was made by

the syndicate from the financial year 2019-20 to financial year 2022-23

which is nothing but loss caused to the State Exchequer which has

been acquired by the criminal syndicate from the offence of conspiracy.

From the investigation done till date, it is clear that massive

corruption has taken place in the Excise Department of Chhattisgarh

since 2019. The evidence against the present applicant is that the

applicant is a liquor contractor. In order to siphon the commission

amounts, companies namely AFS Agro Private Limited and Petrosun

Bio Refinery Private Limited were formed. Petrosun Bio Refinery Private

Limited is formed in the year 2019 and belongs to the applicant and in

both the companies, the purchase of broken rice (kanaki rice) supplied

by the rice millers (which was required by the distilleries as raw material

for liquor production) was started. This rice purchased from the rice

millers was then sold to the three distilleries. However, the rice millers

directly supplied kanaki rice to all the three distilleries. In both these

companies 20% profit was being earned on paper only through over

invoicing. Both the companies ran their business from the year 2019 to

2022 only. The company of the applicant collected 5.50 crores through

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over invoicing which was actually money given by the distillers of the

syndicate as petty commission, called as Part- A commission.

11.During investigation, the statement of rice millers namely, Jugal

Kishor Paliwal, Manish Kedia, Harsh Goyal, Manoj Agarwal, Rajendra

Agrawal, Sachin Agrawal and Santosh Agrawal were recorded and all of

them have stated that the rice millers were already supplying Kanaki

rice to the three distilleries. A meeting was held to transfer the amount

of Rs. 50 crores owed to the syndicate in the account of Trilok Singh

Dhillon’s firm.

12.An amount of Rs. 23 crores was deposited as unsecured loan in

the account of Trilok Singh Dhillon’s firm ie. Dhillon City from 16

companies including Dishita Ventures and Om Sai Beverages. Out of

these 16 companies, 14 companies were benami and used to show

entries in the accounts by showing the business of rice etc. During

investigation, it was revealed that the money which came into the

account of Trilok Singh Dhillon’s firm was to be used by the people of

the syndicate. From the statements given by the rice millers namely

Jugal Kishor Paliwal, Manish Kedia, Harsh Goyal, Manoj Agarwal,

Rajendra Agrawal, Sachin Agrawal and Santosh Agrawal confirm that

they supplied rice to Dhillon’s companies on the instructions of the

Syndicate and then this rice was further sold by the companies of the

present applicant to distilleries by over invoicing. Reliance has been

placed in the judgment of Hon’ble Supreme Court in the matter of State

of UP Vs. Amarmani Tripathi (2005) 8SCC 21 in paras 16 to 19 and

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21 wherein certain factors have been enunciated to be considered while

granting bail.

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 :

"4. 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

concession of bail during the trial."

17.They also relied on the decision in S.N.

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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 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

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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 338."

19.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

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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."

20.In Panchanan Mishra Vs. Digambar Mishra

(2005) 3 SCC 143:2005 SCC (Cri) 660, this Court

observed:

“the object underlying the cancellation of

bail is to protect the fair trial and secure justice

being done to the society by preventing the

accused who is set at liberty by the bail order

from tampering with the evidence in the heinous

crime…. It hardly requires to be stated that once

a person is released on bail in serious criminal

cases where the punishment is quite stringent

and deterrent, the accused in order to get away

from the clutches of the same indulge in various

activities like tapering with the prosecution

witnesses, threatening the family members of the

deceased victim and also create problems of law

and order situation.”

21. Therefore,the general rule that this Court will

not ordinarily interefere in maters relating to bail,

is subject to exceptions where there are special

circumstances and when the basic requirements

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for grant of bail are completely ignored by the

High Court. “

13.Further reliance has been placed in the matter of Gulabrao

Babukar Deokar Vs. State of Maharastra (2013) 16 SCC 190, it has

been held 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.”

14.Similarly, in the mater of Mahipal Vs. Rajesh Kumar (2020) 2

SCC 118, it has been held as under:

“14. The provision for an accused to be released

on bail touches upon the liberty of an individual. It

is for this reason that this Court does not

ordinarily interfere with an order of the High Court

granting bail. However, where the discretion of

the High Court to grant bail has been exercised

without the due application of mind or in

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contravention of the directions of this Court, such

an order granting bail is liable to be set aside. The

Court is required to factor, amongst other things,

a prima facie view that the accused had

committed the offence, the nature and gravity of

the offence and the likelihood of the accused

obstructing the proceedings of the trial in any

manner or evading the course of justice. The

provision for being released on bail draws an

appropriate balance between public interest in the

administration of justice and the protection of

individual liberty pending adjudication of the case.

However, the grant of bail is to be secured within

the bounds of the law and in compliance with the

conditions laid down by this Court. It is for this

reason that a court must balance numerous

factors that guide the exercise of the discretionary

power to grant bail on a case by case basis.

Inherent in this determination is whether, on an

analysis of the record, it appears that there is a

prima facie or reasonable cause to believe that

the accused had committed the crime. It is not

relevant at this stage for the court to examine in

detail the evidence on record to come to a

conclusive finding.

15. The decision of this Court in Prasanta has

been consistently followed by this Court in Ash

Mohammad v Shiv Raj Singh, (2012) 9 SCC 446:

(2012) 3 SCC (Cri) 1172, Ranjit Singh v State of

Madhya Pradesh (2013) 16 SCC797:(2014) 6

SCC (Cri) 405, Neeru Yadav v State of U.P.(2014)

16 SCC 508:(2015)3 SCC (Cri.) 527,

Virupakshappa Gouda v State of Karnataka

(2017) 5 SCC 406:(2017) 2 SCC(Cri.) 542 and

State of Orissa v Mahimananda Mishra (2018) 10

SCC 516:(2019)1 SCC (Cri) 325.

15. The considerations that guide the power of an

appellate court in assessing the correctness of an

order granting bail stand on a different footing

from an (2012) 9 SCC 446 (2013) 16 SCC 797

(2014) 16 SCC 508 (2017) 5 SCC 406 (2018) 10

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SCC 516 assessment of an application for the

cancellation of bail. The correctness of an order

granting bail is tested on the anvil of whether

there was an improper or arbitrary exercise of the

discretion in the grant of bail. The test is whether

the order granting bail is perverse, illegal or

unjustified. On the other hand, an application for

cancellation of bail is generally examined on the

anvil of the existence of supervening

circumstances or violations of the conditions of

bail by a person to whom bail has been granted.

In Neeru Yadav v State of Uttar Pradesh,12 the

accused was granted bail by the High Court. In an

appeal against the order of the High Court, a two

judge Bench of this Court surveyed the precedent

on the principles that guide the grant of bail.

Justice Dipak Misra (as the learned Chief Justice

then was) held:

“12.…It is well settled in law that cancellation of

bail after it is granted because the accused has

misconducted himself or of some supervening

circumstances warranting such cancellation have

occurred is in a different compartment altogether

than an order granting bail which is unjustified,

illegal and perverse. If in a case, the relevant

factors which should have been taken into

consideration while dealing with the application

for bail and have not been taken note of bail or it

is founded on irrelevant considerations,

indisputably the superior court can set aside the

order of such a grant of bail. Such a case belongs

to a different category and is in a separate realm.

While dealing with a case of second nature, the

Court does not dwell upon the violation of

conditions by the accused or the supervening

circumstances that have happened subsequently.

It, on the contrary, delves into the justifiability and

the soundness of the order passed by the Court.”

17. Where a court considering an application for

bail fails to consider relevant factors, an appellate

court may justifiably set aside the order granting

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bail. An appellate court is thus required to

consider whether the order granting bail suffers

from a non-application of mind or is not borne out

from a prima facie view of the evidence on record.

It is thus necessary for this Court to assess

whether, on the basis of the evidentiary record,

there existed a prima facie or reasonable ground

to believe that the accused had committed the

crime, also taking into account the seriousness of

the crime and the severity of the punishment. The

order of the High Court in the present case, in so

far as it is relevant reads:

“2. Counsel for the petitioner submits that the

petitioner has been falsely implicated in this

matter. Counsel further submits that, the

deceased was driving his motorcycle, which got

slipped on a sharp turn, due to which he received

injuries on various parts of body including ante-

mortem head injuries on account of which he

died. Counsel further submits that the challan has

already been presented in the court and

conclusion of trial may take long time.

3.Learned Public Prosecutor and counsel for the

complainant have opposed the bail application.

4. Considering the contentions put-forth by the

counsel for the petitioner and taking into account

the facts and circumstances of the case and

without expressing opinion on the merits of the

case, this court deems it just and proper to

enlarge the petitioner on bail.”

14.In the matter of Indresh Kumar Vs. State of Uttar Pradesh in

Cr.A. No. 938 of 2022 , it has been held that at the stage of bail,

statements made under Section 161 Cr.P.C. can be looked into.

Likewise, in the matter of Girish Sharma and others Vs. State of

Chhattisgarh and Others (2018) 15 SCC 192, it is held that

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“the prosecution is entitled to cite accused as

witness even without recourse to Section 306 IPC

having regard to larger interest of justice to

strengthen prosecution case against more serious

accused.”

15.It is contended that 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. Lastly, it has been

contended that the ED is investigating the offence committed by the

applicant under PMLA and ACB/EOW is investigating the offences of

PC Act and IPC. Both the offences are separate and distinct from each

other and the jurisdiction of both the agencies are different and

independent. The period spent in jail for one offence cannot be counted

for other offences and for the above reason, the bail application filed by

the present applicant ought to be rejected.

16.I have heard learned Senior counsels for the parties and perused

the documents available on record with utmost circumspection.

17.The instant FIR has been filed against the applicant pursuant to

the reference received from ED under Section 66(2) of the PMLA on

11.01.2024 on the basis of material collected during investigation of

ECIR11. It is the case of the prosecution that the Enforcement

Directorate has conducted money laundering investigation in file No.

ECIR RPZO11/2022 based on the complaint filed by the IT Investigation

Wing at Tis Hazari Court and it has been revealed that a criminal

syndicate has been operating in the State of Chhattisgarh which was

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extorting illegal commission in the sale of liquor and was also involved

in unauthorized sale of unaccounted liquor through government liquor

shops. During the course of investigation, plethora of evidence

regarding criminal involvement and illegal gratification of number of

government officers including the applicant has been unearthed and

their role in the crime has been established. The investigation revealed

that the applicant played a pivotal role in facilitating the payment of

bribes to the syndicates in collusion with other co-accused.

18.It has been pointed by Mr. Jethmalani, the learned Senior counsel

on behalf of the State that till date, in the ACB case i.e. FIR NO. 4/2023,

the charge sheet has been filed against the applicant and after going

through the facts of the case, it appears that prima facie offence is

made out against the applicant. The material collected during the

investigation goes to show that the nature of the offence committed by

the applicant has caused huge financial loss to the State exchequer and

the estimated proceeds of crime is around Rs. 2161 crores. In the

matter of State of Gujarat v. Mohanlal Jitamalji Porwal (1987) 2 SCC

364, the Supreme Court while considering a request of the prosecution

for adducing evidence inter alia, observed as under:-

“5. ……..The entire community is aggrieved if the

economic offenders who ruin the economy of the

State are not brought to book. 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

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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……..”

19. In State of Maharashtra through CBI, Anti Corruption Branch,

Mumbai v. Balakrishna Dattatreya Kumbhar,(2012) 12 SCC 384, the

Supreme Court has held that corruption is violation of human right and

observed as under:-

“Corruption is not only a punishable offence

butalso undermines human rights, indirectly

violating them, and systematic corruption, is a

human rights’ violation in itself, as it leads to

systematic economic crimes.”

20.Further, in the matter of Nimmagadda Prasad v. Central Bureau

of Investigation, (2013) 7 SCC 466, the Supreme Court has held that

economic offence is a grave offence affecting the economy of the

country as a whole and observed as under:-

“23. Unfortunately, in the last few years, the

country has been seeing an alarming rise in

white-collar crimes, which has affected the fibre

of the country’s economic structure.

Incontrovertibly, economic offences have serious

repercussions on the development of the country

as a whole.

25. Economic offences constitute a class apart

and need to be visited with a different approach

in the matter of bail. The economic offence

having deep-rooted conspiracies and involving

huge loss of public funds needs to be viewed

seriously and considered as a grave offence

affecting the economy of the country as a whole

and thereby posing serious threat to the financial

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health of the country.”

21. In the matter of Subramanian Swamy v. Central Bureau of

Investigation, (2014) 8 SCC 682 the Supreme Court (Constitution

Bench) while declaring Section 6-A of the Delhi Special Police

Establishment Act, 1946 unconstitutional, observed as under:-

“Corruption is an enemy of nation and

trackingdown corrupt public servants and

punishing such persons is a necessary mandate of

the PC Act, 1988. It is difficult to justify the

classification which has been made in Section 6-A

because the goal of law in the PC Act, 1988 is to

meet corruption cases with a very strong hand and

all public servants are warned through such a

legislative measure that corrupt public servants

have to face very serious consequence.”

“Corruption is any enemy of nation and tracking

own corrupt public servant, howsoever high he

may be, and punishing such person is a necessary

mandate under the PC Act, 1988. The status or

position of public servant does not qualify such

public servant from exemption from equal

treatment. The decision making power does not

segregate corruption officers into two classes as

they are common crimedoers and have to be

tracked down by the same process of inquiry and

investigation.”

While granting or refusing to grant bail would be tentative in

nature, nonetheless the Court is expected to express prima facie

opinion while granting or refusing to grant bail which would demonstrate

an application of mind, particularly, dealing with the serious economic

offences.

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22.It is prima facie clear that on the one hand, the prosecution

agency is claiming that the matter is of a 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 worth

Rs.1200 crores have not been made accused despite the fact that their

name has been mentioned in the complaint made by the ED as member

of the syndicate. Even though some of the witnesses have admitted in

their statement before the police and statement 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. However,

Shri Jethmalani, learned Senior Counsel contended that the prosecution

agency has no time to make those persons accused as the investigation

is still going on. He further contended that 3-4 charge sheets are yet to

be filed and this is merely a preliminary charge sheet even though

there is no such provision as “preliminary charge sheet” in Cr.P.C. The

law provides that after completion of investigation, report shall be

forwarded to the Magistrate, who is empowered to take cognizance of

the offence based on a police report as provided under Section 173(2)

of the Cr.P.C. and the police has a right to further investigate the matter

and shall forward further report/reports to the Magistrate in the form

prescribed. Be that as it may, the applicant cannot take adavantage at

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this stage because further investigation is going on and as per

argument of lerned Sr. Counsel on behalf of the State, 3-4 charges

sheets are yet to be filed. In the present case, he was involved in the

criminal acts of the syndicate and is in possession of the proceeds of

crime and that he received commission from the liquor suppliers in his

bank account.

23.Another contention of the counsel for the applicant is that the

applicant may be granted bail on the ground of parity.

This Court in the bail application filed by the co-accused in

M.Cr.C. No.3455/2024 has granted bail mainly on medical grounds as

he was suffering from severe medical issues and was in need of

constant medical supervision therefore, looking to the seriousness of his

health condition (as mentioned in para 11 of the order), he was

permitted to take recourse to the treatment in a super specialty hospital

for the opinion of medical expert. In the present case, there is no such

serious medical issue with regard to the applicant and therefore, the

applicant in the present case cannot claim for grant of bail on the

ground of parity.

24.Coming back to the facts of the present case, it is an admitted

position that the applicant is in custody since 08.05.2024 and there are

several witnesses who are yet to be examined by the EOW and the

investigation is going on. However, the present status of the

proceedings is that the trial has not commenced. Though the statement

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under Section 161 Cr.P.C. by the applicant himself which unravels about

his role in the alleged offence and is corroborated by other witnesses.

25.The Court after examining the entire documents found substantial

material indicating a strong nexus between the applicant and the other

accused persons in the commission of the crime. There were

documents and evidences that reflected numerous cash transactions

and being involved in the extraction of illegal wealth.

26.Thus taking into consideration the facts and circumstances of the

case, noticed hereinabove and taking into account, the nature and

gravity of the offences, the role of the applicant and also taking into

account the severity of the punishment prescribed for the aforesaid

offences, relying upon the decisions of the Supreme Court in aforesaid

cases (supra), held that corruption is a enemy of the nation and tracking

down corrupt public servants and punishing such persons is a

necessary mandate of the Prevention of Corruption Act, 1988 and

further taking in view that corruption is really a human rights violation

specially right to life, liberty, equality and non-discrimination and it is an

economic obstacles to the realization of all human rights and also taking

into consideration that charge-sheet has been filed against the applicant

and the nature of accusation and gravity of offence, the applicant is

charged which is extremely serious therefore, in the opinion of this

Court, it is not proper to order release of present applicant on regular

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bail for the reasons mentioned hereinabove. Accordingly, I am not

inclined to allow the prayer for bail made by the applicant.

27.Consequently, the bail application filed by the applicant under

Section 439 of Cr.P.C. is rejected.

Sd/-

(Arvind Kumar Verma)

Judge