AFROZ MOHMAD HASANFATTA Vs. DEPUTY DIRECTOR

JUDGEMENT

(1.) By this application under section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") read with section 45 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the PML Act"), the applicant has challenged the order dated 07.10.2014 passed by the learned Sessions Judge and Designated Judge, Ahmedabad (Rural) under the provisions of the PML Act in Criminal Miscellaneous Application No.1072 of 2014, and seeks to be enlarged on regular bail in connection with the complaint being PMLA Case No.3 of 2015 pending in the court of the learned Special Judge, Ahmedabad District, Ahmedabad (Rural) arising out of ECIR No.1/SRT/2014 -15 registered with the Directorate of Enforcement, Ahmedabad (ED).

(2.) The facts giving rise to the present application are that a search came to be carried out under the provisions of the Foreign Exchange Management Act, 1999 (hereinafter referred to as "FEMA") at the registered office of M/s Nile Industries Pvt. Ltd. as well as the residence of the applicant at Surat, pursuant to which, certain documents were seized under FEMA. The statement of the applicant also came to be recorded by the officers of the Directorate of Enforcement under the provisions of FEMA. On 11.04.2014, a first information report being C.R. No.16/2014 came to be registered against M/s R.A. Distributors and its Directors by the Manager of ICICI Bank, Surat for the offences punishable under sections 420, 465, 467, 468, 471, 477A and 120B of the Indian Penal Code, wherein the applicant was not named as an accused. Subsequently, on 13.04.2014, another first information report came to be registered being C.R. No.17/2014 against M/s Harmony Diamonds Pvt. Ltd., M/s Agni Gems Pvt. Ltd. and its Directors by the Manager of ICICI Bank, Surat for the offences punishable under sections 420, 465, 467, 468, 471, 477A and 120B of the Indian Penal Code. Once again, the applicant was not named in the said first information report; however, subsequently, he was arrested in connection with the said scheduled offence. Later on, the Directorate of Enforcement registered a case being ECR No.1/2014 on 17.04.2014 wherein, the applicant was not named. On 23.04.2014, summons came to be issued to the applicant under section 50 of the PML Act. However, the applicant could not remain present due to health issues. On 29.04.2014, the applicant appeared before the Directorate of Enforcement pursuant to the summons and his statement came to be recorded under section 50 of the PML Act. On 08.05.2014, the applicant appeared before the Directorate of Enforcement pursuant to summons, however, on that date, no statement was recorded. On 21.05.2014, the applicant appeared before the Directorate of Enforcement in pursuance of the summons and his statement came to be recorded under section 50 of the PML Act and he came to be arrested on the very same day. It is the case of the applicant that he, however, was not brought before the Judicial Magistrate or the Metropolitan Magistrate, as prescribed under section 19(3) of the PML Act, but was brought before the Special Court designated under section 43 thereof. The applicant submitted an application for bail on 21.5.2014. The Directorate of Enforcement prayed for remand, pursuant to which, on 22.05.2014, the Designated Court granted three days remand. According to the applicant, during the period of remand, he had provided all documents that were demanded from him by the Directorate of Enforcement and upon completion of the period of remand on 25.05.2014, the Directorate of Enforcement did not pray for any further remand and since then the applicant is in judicial custody. On 17.07.2014, a co - accused Madanlal Jain was arrested by the Directorate of Enforcement in connection with ECIR No.1/2014 and on the same date, the Deputy Director, Directorate of Enforcement passed an order provisionally attaching the properties of the applicant and his family members under section 5 of the PML Act. On 18.07.2014, the Directorate of Enforcement filed a complaint before the Special Court which was numbered as PMLA Complaint No.3/2014. The applicant, therefore, withdrew that bail application being Bail Application No.709 of 2014 with liberty to file a fresh bail application. The applicant thereafter filed a bail application being Bail Application No.1072 of 2014 before the Designated Court. By an order dated 7.10.2014, the Designated Court rejected the bail application, pursuant to which the applicant has filed the present bail application.

(3.) It may also be pertinent to note certain other facts which have some bearing having regard to the case put forth on behalf of the applicant. On 20.08.2014, the applicant came to be arrested in connection with the first information report being C.R. No.16/2014 by the DCB, Surat and nine days remand of the applicant was granted. On 01.09.2014, another co -accused Rakesh Manekchand Kothari was arrested in connection with the ECIR No.1/2014. On 07.10.2014, the bail application filed by the applicant before the Special Court being Criminal Miscellaneous Application No.1072 of 2014 came to be rejected. On 29.10.2014, the Directorate of Enforcement filed supplementary complaint in the Special Court against eight persons and two companies, which came to be numbered as PML ACT No.4/2014. By an order dated 24.12.2014, the bail application filed by the applicant herein in connection with the first information report registered vide C.R. No.16/2014 came to be rejected by the Sessions Court, Surat. On 16.01.2015, the applicant moved a habeas corpus petition before this court being Special Criminal Application No.4672 of 2014 challenging the constitutional validity of section 45 of the PML Act as well as his illegal custody and detention, which came to be dismissed by a Division Bench of this court by a judgement and order dated 16.01.2015. On 04.03.2015, a review application came to be filed in the above referred special criminal application wherein, the court observed that the observations made in the said decision would not come in the way of the bail application and that the bail application may be decided on merits. By an order dated 05.03.2015, this court allowed the bail application filed by the applicant being Criminal Miscellaneous Application No.2191 of 2015 and granted him regular bail. Thereafter, Rakesh Kothari, a co - accused, who had also filed a habeas corpus petition before this court, which had been rejected by a common order along with the habeas corpus petition filed by the petitioner, presented another habeas corpus petition before this court being Special Criminal Application No.4247 of 2015, wherein a Division Bench of this court by an order dated 03.08.2015, granted interim relief releasing the said co -accused and admitted the matter as it was of the opinion that the same required deeper consideration.