Suresh Kumar Maharwal vs Unknown
2023 Latest Caselaw 7359 Cal

01    08.11.2023
SB/   Ct. No.07                          C.R.M. (SB) No. 214 of 2023
CP

                   In Re: - An application for bail under Section 439 of the Code of
                   Criminal Procedure in connection with M. L. Case No. 04 of
                   2019 arising out of ECIR/KLZO/01/2018 under Section 3 of the
                   Prevention of Money Laundering Act, 2002.

                                                       And

                   In the matter of: - Suresh Kumar Maharwal
                                                                               ....petitioner.
                   Mr. Jaydeep Biswas
                   Mr. Mrityunjoy Chatterjee
                   Mr. Kaushik Ghosh
                                                                         ...for the petitioner.
                   Mr. Vipul Kundalia
                   Mr. Anurag Roy
                   Ms. Uneaza Ali
                                                       ...for the Enforcement Directorate.



                   1.

Heard Mr. Biswas, learned counsel appearing on behalf of the

petitioner.

2. It is adverted that out of 13 accused persons 10 have been

admitted on bail even the principal accused persons

surrendered before the Court and they were admitted on bail.

Ms. Pritimoy Chakraborty, one of the accused persons, was

admitted on bail on health ground.

3. The petitioner being similarly placed may be admitted on bail

who has spent nearly 100 days in custody.

4. Opposing such contention of Mr. Biswas, learned counsel

representing the Enforcement Directorate, submits that there

is every reason to presume that the accused person

committed offence. Section 45 of the Prevention of Money

Laundering Act, 2002, is to be taken into consideration before

exercising discretion in favour of the accused and that Act

says that Court is to be objectively satisfied that the person is

not guilty.

5. The content of the complaint, according to Mr. Kundalia

however, would show prima facie the complicity of the

accused person, therefore, the court may not exercise

discretion in admitting the accused person on bail at this

stage.

6. To buttress his argument, learned counsel for the

Enforcement Directorate relies upon the judgment of Hon'ble

Apex Court in Vijay Madanlal vs. Union of India, reported in

(2022) SCC online sc 929. In paragraph 401 of the said

judgment the Hon'ble Apex Court held:

"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.............".

7. Therefore, it goes without saying that before exercising

discretion while considering the application under Section

439 of the Code of Criminal Procedure, the court is under

obligation to consider the materials collected during

investigation.

8. To my surprise, I find that the prosecution has not come with

the case diary or the file as it is called to let the court

understand what are the materials collected in course of

investigation. This is a very fundamental obligation on the

part of the prosecution for which adverse inference should

have been drawn against the prosecution. However, learned

counsel representing the Enforcement Directorate, submits

that the prosecution would produce the case diary on the

next date and he is praying for fixing the date on 9th

November, 2023.

9. Mr. Biswas, learned counsel for the petitioner, is submitting

that the next date of hearing may be posted after the

vacation.

10. Accordingly, let the matter be placed before the Regular

Bench on 16th November, 2023.

(Siddhartha Roy Chowdhury, J.)