Bhimendra Kumar Goyal B.K. Goyal ... vs Enforcement Directorate
2021 Latest Caselaw 3388 AP

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

             CRIMINAL PETITION NO.4430 of 2021

ORDER:-

      This petition is filed under Sections 437 and 439 of Criminal

Procedure Code, 1973 (for short 'Cr.P.C.') seeking regular bail to

the petitioner in connection with ECIR/VSKZO/03/2017 registered

by Enforcement Directorate, Visakhapatnam registered for the

offence under Section 3 r/w 4 of Prevention of Money Laundering

Act, 2002 (for short "PMLA Act").


2.    The facts stated in the petition, in brief, are that on

11.05.2017   basing   on   the   report   of   Income   Tax   Office,

Investigation, Unit-III, Visakhapatnam, the Station House Officer,

MVP Police Station, Visakhapatnam registered F.I.R No.181 of

2017 for the offences punishable under Sections 120-B, 420, 465,

468 & 471 r/w 34 of the Indian Penal Code, 1860 (for short "IPC")

against Vaddi Mahesh and others on the allegation that in

pursuance of their conspiracy created false and forged documents

for the purpose of cheating and used the said false documents as

genuine knowing fully well as false and made transactions in

various banks fraudulently and dishonestly and had a wrongful

gain to them correspondently loss to the Government of India by

way of transferring Rs.569 crores in foreign exchange transferring

the amount outside India i.e. Singapore, Hongkong and China on

the basis of bogus documents. Thereafter, the Enforcement

Directorate registered the case in ECIR/VSKZO/03/2017 under

Section 3 r/w 4 of PMLA Act.

Vaddi Mahesh in his statement stated that the funds which

were being transferred to abroad belong to the petitioner and the

same would be utilized for adjustment of the undervaluation of

goods imported by some of the importers in India and that

petitioner is wanted by DRI for smuggling activities and evasion of

customs duties. Likewise, Thankiesh Aravindan, Director of M/s

Eagle Mount Trading Ltd., in his statement stated that in his

association with the petitioner, he never observed him doing a

genuine business transaction in any imports relating to India. One

Chellathurai Maheswaran, Nominee Director of M/s SRV Group

International Pte. Ltd., Singapore in his statement stated that the

petitioner requested him to act as Nominee Director of the

company and he handed over USB Dongle and signed cheques to

the petitioner with effect from May, 2016 for operation of bank

account No.503-312-977-301-USD & account No.695-354-324-

001 of M/s SRV Global with OCBC Bank, Singapore and that the

bank accounts were handled by him and the same can be

confirmed by IP address in the net banking of the above accounts.

Basing on the above confession statements, the petitioner was

arrayed as an accused.

It is also stated that the petitioner was in custody for about

60 days in Central Prison, Visakhapatnam, but his statement was

not recorded by the Enforcement Directorate and subsequently, on

P.T. Warrant, the petitioner was produced before the Court below

and remanded to judicial custody on 03.09.2020. Petitioner was

granted bail under Section 167 (2) of Cr.P.C on 11.11.2019.

Thereafter, again on 04.02.2020 the petitioner was detained in

connection with detention order issued by the Joint Director,

COFEPOSA and the petitioner is in Central Jail No.7, Tihar, New

Delhi as a preventive detention detenue. The Enforcement

Directorate officials visited the Central Jail No.7, examined the

petitioner from 16.03.2020 to 19.03.2020 and recorded the

statement of petitioner in terms of Section 50 of PMLA Act. P.T.

Warrant was issued on 27.04.2020 and the petitioner was

produced before the Court below and remanded in this case on

03.09.2020. The petitioner's custody was given to Enforcement

Directorate for 5 days.

It is further stated that the petitioner filed Crl.M.P.No.1301

of 2020 on the file of Metropolitan Sessions Judge-cum-I

Additional District & Sessions Judge, Visakhapatnam, seeking

regular bail, but the same was dismissed on 11.11.2020. Again

the petitioner filed Crl.M.P.No.1673 of 2020 before the

Metropolitan Sessions Judge-cum-I Additional District & Sessions

Judge-cum- Special Judge for Trial of PMLA, Visakhapatnam, but

the same was also dismissed on 28.12.2020.

It is further stated that petitioner also approached the

Hon'ble Supreme Court by filing W.P. (Crl.) No.18 of 2021 seeking

declaration that reading of twin limitation for grant of bail into

Section 45 (1) of PMLA Act without any specific reincorporation or

resurrection thereof by any legislative amendment in Section 45 (1)

of PMLA Act, despite the clause (ii) of Section 45 (1) having already

been wiped out from the Statute since inception by holding the

same as ultra vires and also sought for quashing of investigation

under PMLA conducted by the Enforcement Directorate,

Visakhapatnam. The petitioner also filed SLP (Crl.) 327 of 2021

before the Hon'ble Supreme Court challenging the order dated

28.12.2020 in Crl.M.P.No.1673 of 2020 passed by the learned

Special Judge.

It is also stated that in pursuance of the resolution dated

12.05.2021 passed by the High Powered Committee of High Court

of Andhra Pradesh, the petitioner approached the Special Judge,

PMLA, Visakhapatnam for grant of interim bail for 90 days. But on

05.07.2021 the learned Special Judge dismissed the said

application by observing that the petitioner already filed writ

petition before the Hon'ble Apex Court in I.A.No.33033 of 2021

seeking interim bail in W.P. (Crl.) No.18 of 2021 and SLP (Crl.)

No.327 of 2021, which are pending adjudication and petitioner is

not supposed to approach two forums for same relief for interim

bail. Thereafter on 19.07.2021, the entire batch matters including

SLP (Crl.) No.327 of 2021 was listed before the Hon'ble Supreme

Court and the same were disposed of as withdrawn with liberty to

approach the High Court against the impugned order passed by

the trial Court. In view of the liberty granted by the Hon'ble Apex

Court, the petitioner has approached this Court.

It is also stated that petitioner is a senior citizen who is aged

about 62 years and is suffering from various aged related ailments

including Bronchial Asthma, Hyperlipidemia with Coronary Artery

Disease, hypertension, uncontrolled diabetes mellitus, essential

hypertension, Severe Osteoarthritis Bilateral Knee Joints, Grade-2

internal hemorrhoids with bleeding per rectum, anxiety neurosis,

vertigo with Syncopal Attack and Cervical Spondylitis with

Radiculopathy, as such his case may be considered for grant of

bail.

3. The 2nd respondent filed a detailed counter affidavit interalia

contending that several show cause notices were issued to the

petitioner by Directorate of Revenue Intelligence (DRI), Delhi and

Kolkata Zone Officer for evasion of customs duty and for smuggling

goods. Petitioner was detained under Conservation of Foreign

Exchange and Prevention of Smuggling Activities Act, 1974 (for

short "COFEPOSA") in the past and he is currently under detention

under COFEPOSA in Tihar Jail. It is stated that from the

information obtained from the officials of DRI that using several

firms in Nepal, the petitioner was making imports through India

into Nepal via Customs Transit Declaration (CTD) Scheme and he

was smuggling high value undeclared goods into India in those

containers without paying customs duty and he was making

payments to the overseas sellers of those smuggles goods.

It is also stated that documents retrieved by forensic

analysis revealed that the computer of the petitioner contained

statements of various bank accounts of several firms showing

banking transactions with companied operated by Vaddi Mahesh

viz., M/s Meghana Softech Pvt. Ltd. and M/s Kaustav Exports and

Imports Pvt. Ltd. It is stated that funds transferred to the above

said companies in Singapore and Hongkong were further

transferred to other companies in Singapore and Hongkong viz.,

M/s Swiss Fox Pvt. Ltd., Singapore, M/s Wow Deals Pvt. Ltd.,

Singapore and M/s Newrise Industrial Limited, Hongkong and M/s

Pacific International China Ltd., Hongkong. The petitioner did not

cooperate with the respondent during his custody and gave evasive

answers.

It is further stated that the petitioner is a big flight risk as

he is having deep roots in Singapore and Hongkong and if bail is

granted, the petitioner would not be present for trial. The

petitioner has a long history of fleeing from justice. The petitioner

did not respond to the summons issued by the respondent under

Section 50 of PMLA Act. The COFEPOSA detention order issued by

the Government of India in the year 2015 could not be executed till

2020 as the petitioner fled India and continued to abscond till

2019 and as such the petitioner is not entitled for bail.

4. Heard Sri Vikram Chowdary and Sri P.Veerareddy, learned

Senior Counsel representing Sri Gnani Vivek Karri, learned

counsel for the petitioner and Sri Josyula Bhaskara Rao, learned

Standing Counsel for Enforcement Directorate.

5. Learned senior counsel submitted arguments mainly

highlighting Section 45 of PMLA Act. He submits that twin

conditions contemplated under Section 45 of PMLA Act were held

to be unconstitutional as it violates Articles 14 and 21 of the

Constitution of India by the Hon'ble Apex Court in Nikesh

Tarachand Shah Vs. Union of India and another1 and thereafter

an amendment was carried out vide Finance Act, 2018 (Act 13 of

2018) with effect from 19.04.2018, but however the original

Section 45 (1)(ii) has not been revived or resurrected by the said

Amendment Act and further, the amending Section 45 (1) of PMLA

Act, which came into effect from 19.04.2018 is silent about its

retrospective applicability. Hence, as of today, there is no rigor of

said two further limitations under original Section 45(1)(ii) of PMLA

Act for releasing a person on bail under the said Act.

6. Learned senior counsel submits that the petitioner has

nothing to do with the companies either in India or abroad and the

accused Vaddi Mahesh himself admitted the ownership of various

(2018) 1 SCC 1

companies, as such the petitioner has been implicated in this case

without any basis. He submits that the petitioner has been

arrested on extraneous considerations at the behest of vested

interests, who want to deter the petitioner from releasing from jail.

He submits that the petitioner has been in jail from 02.05.2020 till

date i.e. he has been in prison for more than 360 days. He submits

that prosecution cannot have any apprehension that the petitioner

may abscond, if he is released on bail. It is submitted that on

09.09.2019 petitioner himself voluntarily surrendered before the

Court and submitted himself to the jurisdiction of the Court.

7. Learned senior counsel submits that the petitioner is a

senior citizen and he has been suffering from various aged related

ailments including Bronchial Asthma, Hyperlipidemia with

Coronary Artery Disease, hypertension, uncontrolled diabetes

mellitus, essential hypertension, Severe Osteoarthritis Bilateral

Knee Joints, Grade-2 internal hemorrhoids with bleeding per

rectum, anxiety neurosis, vertigo with Syncopal Attack and

Cervical Spondylitis with Radiculopathy, as such his case may be

considered for grant of bail.

8. Per contra, Sri Josyula Bhaskara Rao, learned Standing

Counsel for Enforcement Directorate has strenuously opposed bail

and would submit that petitioner who is the main accused and

beneficiary of the proceeds of crime, has settled in Singapore and

most of the proceeds of crime has been layered and parked in

Singapore and Hongkong by him and the investigation is being

done to identify, attach and confiscate those proceeds of crime.

9. Learned Standing Counsel submits that Hon'ble Apex Court

in catena of cases observed that while granting bail the Court has

to keep in mind the nature of accusation, the nature of evidence in

support thereof, the severity of the punishment which conviction

will entail, the character of the accused, circumstances which are

peculiar to the accused, reasonable possibility of securing the

presence of accused at the trial, reasonable apprehension of the

witness being tampered with and the larger interest of

Public/State. He submits that the economic offences are class

apart. The present case involves hundreds of crores. These kind

of cases will have larger impact on the economy of the country and

have to be treated separately. He relied on several judgments of

the Hon'ble Apex Court in this regard.

10. This Court without going into merits of the case, taking into

consideration the factors that the petitioner has been languishing

in jail from the last 360 days, petitioner himself voluntarily

surrendered before the Court below in the year 2019, other

accused were already enlarged on bail and the health condition of

petitioner, this Court deems it appropriate to grant interim bail to

the petitioner for a period one month on certain conditions.

11. The petitioner shall be enlarged on interim bail for a period

of one month i.e. from 08.09.2021 to 07.10.2021 (both days

inclusive) in connection with ECIR/VSKZO/03/2017 registered by

Enforcement Directorate, Visakhapatnam on his executing a bond

for a sum of Rs.10,00,000/- (Rupees ten lakhs only) with two

sureties each for a like sum to the satisfaction of learned

Metropolitan Sessions Judge-cum-Additional District and Sessions

Judge-cum-Special Judge for Trial of Prevention of Money

Laundering Act, Visakhapatnam. On such release, the petitioner

shall not leave the country and shall not tamper with evidence and

influence the witnesses. The petitioner shall appear before the

Assistant Director, Directorate of Enforcement, Visakhapatnam on

every day during the interim bail period between 10.00 a.m. and

12.00 p.m.

Post this matter on 05.10.2021.

___________________________ LALITHA KANNEGANTI, J

7th September, 2021

PVD

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CRIMINAL PETITION NO.4430 of 2021

7th September, 2021

PVD