Kusum Lata vs Union Of India Thru. Directorate ...
2023 Latest Caselaw 7761 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 16
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2891 of 2023
 

 
Applicant :- Kusum Lata
 
Opposite Party :- Union Of India Thru. The Directorate Of Enforcement
 
Counsel for Applicant :- Pranjal Krishna
 
Counsel for Opposite Party :- Kuldeep Srivastava
 

 
Hon'ble Subhash Vidyarthi J.
 
    1. Heard Sri S. C. Mishra, Senior Advocate assisted by Sri Purnendu. Chakrawarti and Sri. Pranjal Krishna Advocates, the learned counsel for the applicant, Sri Kuldeep Srivastava, the learned counsel for the Directorate of Enforcement and perused the record.
 
    2. This is the second bail application for release of the applicant on bail in Complaint Case No. 4 of 2018 (Assistant Director, Directorate of Enforcement, Lucknow Vs. Yadav Singh and others) in the Court of Session Judge / Special Judge, PMLA, Lucknow under Sections 3 and 4 of Prevention of Money Laundering Act, 2002, (hereinafter referred as ''PMLA, 2002') arising out of Complaint No. ECIR/05/PMLA/LZO/2015, registered with the Directorate of Enforcement, Lucknow Zonal Office, Lucknow.
 
    3. On 30.07.2015, a First Information Report No. 3 of 2015 was lodged in furtherance of an order dated 16.07.2015 passed by this Court in Writ Petition No. 12396 (M/B) of 2014 against (i) Yadav Singh, the then Chief Engineer, Noida/Greater Noida, Yamuna Expressway Authorities and (ii) the applicant, who happens to be the wife of Yadav Singh, (iii) the applicant's daughter Ms. Garima Bhushan, (iv) the applicant's son Sri. Sunny Yadav and (v) one Sri. Rajinder Manocha, who is described as an associate of  Yadav Singh,  and some unknown persons. The FIR states that Yadav Singh had joined as Junior Engineer in New Oklha Industrial Development Authority on 17.03,1980 and he was promoted as Assistant Project Engineer om 1989, Senior Project Endineer in 1997, Chief Maintenance Engineer in 2002 and ultimately he was promoted to the post of Chief Engineer and was in-charge of New Oklha Industrial Development Authority, Greater NOIDA Industrial Development Authority and Yamuna Expressway Authority. He was involved in allotting to himself and to the members of his family and associates plots of land of high values and he acquired benami properties in the name of his family members and also in the name of benami / shell companies, in which he, his family members and associates have beneficial interests. It is further alleged that Yadav Singh, his family members and associates were involved in setting up shell companies for investing the commission received in respect of the award of contracts.
 
    4. On 17.01.2018, the Enforcement Directorate filed a Complaint No.13 of 2017, ECIR/05/PMLA/LZO/2015 against Yadav Singh, the applicant and 8 other persons but the applicant's son and daughter were not arrayed as parties to the complaint. The complaint states that the accused persons were found in possession of disproportionate assets. The applicant and co-accused Vidya Singh had started PGP Charitable Trust on 01.07.2009 and the trust deed was amended from time to time and dummy trustees were inducted in the trust. The trust was used to convert the ill-gotten money of Yadav Singh into white money. Properties of PGP Trust worth Rs.5,90,55,776/- had been provisionally attached by means of an order dated 21.12.2017.
 
    5. On 28.12.2018 a supplementary complaint was filed stating that the proceeds of crime had been generated in the form of cash and assets / immovable and movable properties. Cash and properties worth Rs.14,48,15,830/- was attached vide order dated 08.05.2018.
 
    6. By means of an order dated 07.09.2018 passed in Writ Petition (Criminal) No. 177 of 2018, the Hon'ble Supreme Court had allowed the applicant to appear before the Trial Court within two weeks and had given her the liberty to file a bail application, which was directed to be considered by the Trial Court forthwith. The order further provided that even if the bail application was rejected, the applicant would not be arrested for a period of 30 days in order to enable her to approach the higher forum.
 
    7. By means of an order dated 11.07.2018, the period of interim protection granted vide order dated 07.09.2018, was further extended by 30 days.
 
    8. The applicant surrendered before the Trial Court on 15.09.2018 and moved a bail application which was rejected by the Special Court on the same day. The applicant thereafter, filed Criminal Misc. Bail Application No. 42111 of 2018 and by means of an order dated 01.11.2018, a Division Bench of this Court had granted interim bail to the applicant, after considering the facts that the applicant is an old lady who is suffering from various old aged diseases. However, the bail application 42111 of 2018 was rejected by means of an order dated 18.12.2018. 
 
    9. The applicant again approached the Hon'ble Supreme Court by filing Special Leave to Appeal (Crl.) No(s). 322-325 of 2019 and the Hon'ble Supreme Court passed an interim order dated 10.01.2019 providing that no coercive action will be taken till the next date of hearing. On 07.12.2022, the Hon'ble Supreme Court dismissed the Special Leave Petition and provided that if the applicant surrenders within a week and applies for regular bail, her bail plea may be considered by the Trial Court expeditiously and on priority. It was further provided that the interim protection granted to the applicant shall continue for a period of one week or till her bail plea is considered by the Trial Court, whichever be the earlier. The period of one week granted in the aforesaid order dated 07.12.2022, was extended to four weeks by means of an order dated 16.12.2022.
 
    10. In furtherance of the aforesaid order passed by the Hon'ble Supreme Court, the applicant filed a bail application, which was rejected by the Sessions Judge, Lucknow by means of an order dated 02.02.2023. Regarding the plea of the applicant's sickness, the Trial Court observed that: -
 
"It could not be ruled out at this stage that only in order to create evidence in her favour, such papers of her sickness are procured by her. It also reflects that accused applicant is indulged in creating evidences of her sickness, as and when required. There is nothing on record to show that earlier, in the span of seven years, barring some period, accused/applicant got herself treated in the Hospital."
 
    11. It has been stated in the affidavit filed in support of the bail application that the complaint in question has been filed on the basis of the allegations contained in FIR No. RC/DST/2015/A/0003 under Section 109 read with 120 B IPC read with 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 filed on 30.07.2015, in furtherance of which a charge-sheet was submitted on 26.09.2017 and the trial of the aforesaid case has been stayed by the Hon'ble Supreme Court by means of an order dated 17.12.2018 passed by the Hon'ble Supreme Court in Writ Petition (Criminal) No. 322 of 2018. It has also been stated in the affidavit that the applicant is the only accused person who is in custody and no other accused person is in custody.
 
    12. Sri S.C. Mishra Senior Advocate, the learned counsel for the applicant has submitted that the principal co-acused Yadav Singh has already been granted bail by means of an order dated 13.03.2023 passed by this Court in Criminal Misc. Bail Application No. 4044 of 2018 and  it is only the applicant who is still languishing in jail in the present case.
 
    13. Sri Mishra has further submitted that the applicant is a woman and she is suffering from various diseases. One of the kidneys of the applicant has been removed and she is surviving with one kidney. The applicant is also suffering from anxiety, depression, and panic attacks. The applicant had to remain admitted to a hospital from 16.01.2023 and 17.01.2023 and copies of documents regarding her ailments and treatment have been annexed with the affidavit. He has submitted that keeping in view the aforesaid facts, the applicant is entitled to be released on bail.
 
    14. The Enforcement Directorate has filed a counter affidavit for opposing the bail application. Sri. Kuldeep Srivastava, the learned Counsel for the Enforcement Directorate has vehemently opposed the prayer for grant of bail to the applicant. He has submitted that the applicant is a beneficiary of proceeds of crime. He has further submitted that there is no sufficient ground for this Court to believe that the applicant is not guilty of being in possession of proceeds of crime and, therefore, her bail application is liable to be rejected. Sri Srivastava, has relied upon the judgments of the Hon'ble Supreme Court in the case of Vijay Madanlal Choudhary and others Vs. Union of India and others, 2022 SCC Online SC 929, wherein the Hon'ble Supreme court held that: -
 
"412. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering."
 
    15. Sri. Srivastava has relied upon the judgment of the Hon'ble Supreme Court in Y. S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, wherein the Hon'ble Supreme Court held that: -
 
"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
 
    16. The learned Counsel for the respondent has also relied upon the dictum of the Hon'ble Supreme Court in State of Bihar v. Amit Kumar, (2017) 13 SCC 751, wherein it was held that: - 

"13.... It is well settled that socio-economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. Usually socio-economic offence has deep-rooted conspiracies affecting the moral fibre of the society and causing irreparable harm, needs to be considered seriously."

17. I have considered the aforesaid facts and circumstances and the submissions advanced by the learned counsel for the parties.

18. Section 45 (1) of the Prevention of Money Laundering Act, 2002, provides that the offences under the Act will be cognizable and non-bailable. The relevant provision of Section 45 (a) of the Act reads thus: -

"Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence (under this Act) shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:

Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm 112(or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees), may be released on bail, if the Special Court so directs:"

19. In Vijay Madanlal Choudhary and others Vs. Union of India and others (Supra), the Hon'ble Supreme Court held that: -

"401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma (2005) 5 SCC 294. The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad (2013) 7 SCC 466, the words used in Section 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt."

20. The bail application of the applicant has to be decided keeping in view the provision contained in Section 45 (1) of the PMLA.

21. From a narration made above, it transpires that the instant case has been lodged primarily with the allegation that the named co-accused Yadav Singh had committed corrupt practices while awarding certain engineering works and he has acquired disproportionate benami assets in the name of himself and his family members. The applicant happens to be the wife to Yadav Singh. The applicant is a woman and one of her kidneys has been removed and she is surviving with one kidney and she is suffering from anxiety, depression and panic attacks. The Proviso appended to Section 45 (1) of PMLA provides that a woman or a sick or infirm person may be released on bail.

22. The principal co-accused Yadav Singh has already been granted bail. whereas the applicant alone is languishing in jail for an offence which carries the maximum punishment of imprisonment for a period of seven years, alongwith fine.

23. Without making any observations of the facts and merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid case.

24. Accordingly, this bail application stands allowed.

25. Let the applicant Kusum Lata be released on bail in Complaint Case No. 4 of 2018 (Assistant Director, Directorate of Enforcement, Lucknow Vs. Yadav Singh and others) in the Court of Session Judge/ Special Judge, PMLA, Lucknow under Sections 3 and 4 of Prevention of Money Laundering Act, 2002, arising out of Complaint No. ECIR/05/PMLA/LZO/2015, registered with the Directorate of Enforcement, Lucknow Zonal Office, Lucknow on furnishing a personal bond and two sureties each for Rs.1,00,000/- each to the satisfaction of magistrate/court concerned, subject to the following conditions:-

(i) the applicant shall not tamper with the prosecution evidence;

(ii) the applicant shall not pressurize the prosecution witnesses;

(iii) the applicant shall appear on each and every date fixed by the trial court.

(iv) the applicant shall not go out of the Country without obtaining prior permission of the Court.

26. In case of breach of any of the above conditions, the prosecution shall be at liberty to move an application for cancellation of bail before this Court.

Order Date :- 17.3.2023

Preeti.