Dinesh Choudhary vs Union Of India
2024 Latest Caselaw 4714 MP

Madhya Pradesh High Court

Dinesh Choudhary vs Union Of India on 19 February, 2024

Author: Vijay Kumar Shukla

Bench: Vijay Kumar Shukla

                                                             1
                            IN     THE      HIGH COURT OF MADHYA PRADESH
                                                  AT INDORE
                                                     BEFORE
                                     HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
                                              ON THE 19 th OF FEBRUARY, 2024
                                          MISC. CRIMINAL CASE No. 2438 of 2024

                           BETWEEN:-
                           DINESH    CHOUDHARY    S/O  SHRI  BANSHILAL
                           CHOUDHARY, AGED ABOUT 28 YEARS, OCCUPATION:
                           BUSINESS R/O 126, ANURAG NAGAR NEAR BOMBAY
                           HOSPITAL INDORE (MADHYA PRADESH)

                                                                                           .....APPLICANT
                           (SHRI SANKALP KOCHAR - ADVOCATE THROUGH VIDEO
                           CONFERENCING ALONGWITH NILESH SHARMA - ADVOCATE)

                           AND
                           UNION OF INDIA THROUGH ASSISTANT DIRECTOR
                           DIRECTORATE OF ENFORCEMENT BHOPAL ZONAL
                           OFFICE GOVT.OF INDIA BSNL BHAWAN ARERA HILLS
                           DISTT. BHOPAL (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                           (SHRI HIMANSHU JOSHI- DEPUTY SOLICITOR GENERAL)

                                 This application coming on for orders this day, th e court passed the
                           following:
                                                              ORDER

This is first bail application filed under section 438 of Cr.P.C in ECIR/INSZO/04/2021 registered at Directorate of Enforcement District Bhopal under section 3/4 of PMLA Act.

2. The facts of the case are that an FIR was registered at police station Vijay Nagar, Indore in crime no.474/2021 on information that certain individuals were standing near Hotel Infinity, who were trying to sell Remdesivir Injections at a higher price. On the basis of aforesaid information, the offence under

section 420, 488, 304, 308, 467, 468, 471, of IPC and 3/7 of Essential Commodities Act and section 3 of Epidemic Diseases Act was registered. Charge sheet was filed for the aforesaid offence. It is argued that the applicant filed application under section 439 of Cr.P.C before this Court and this court granted regular bail under section 439 of Cr.P.C.

3. Since the alleged offence fell within the realm of Part A of Schedule of offences under the Prevention of Money Laundering Act, 2002 (for short, Act, 2002). The investigation was initiated for commission of offence under section 3 of Act, 2002 punishable under section 4 of the Act, 2002. After the investigation, ECIR has been filed by Directorate of Enforcement before the

trial court. After filling of the charge sheet, the trial court has issued summons/bailable warrant. The applicant instead of appearing before the trial Court in pursuant to the said summon/bailable warrant filed application under section 438 of Cr.P.C for anticipatory bail apprehending their arrest. It is argued that the applicant has already co-operated with the investigation and no custody has been sought by the respondent at the time of filling of final report. The main submission of the applicant is that the applicant is not involved in the proceeds of crime, he was already granted bail and no custody has been sought by the respondent at the time of final report and therefore, the trial court ought to have granted anticipatory bail.

4. He relied on certain observation made by the High Court at the time of granting regular bail when the prosecution was launched by the police. He placed reliance on the judgment passed by the Apex Court in the case of Mahdoom Bava Vs. CBI reported in 2023 Live Lav (SC) 218. He referred para no.9 and 10, in which it is held that since CBI did not require custodial interrogation of the applicant during the period of investigation and therefore,

the trial court committed an error while rejecting the anticipatory bail. The said judgment has been followed in subsequent judgments. He also referred the order passed by the co-ordinate bench of this court in the case of Ashok Pipada VS. State of MP passed in M.Cr.C No.56523/2023 dated 24.01.2024, in which the anticipatory bail was granted in the case of PMLA Act.

5. Learned counsel for the respondent opposed the prayer and submitted that the application under section 438 for anticipatory bail is misconceived. The trial court has only issued summons and they have filed application for anticipatory bail in order to avoid appearance before the trial Court. He relied on the judgment passed by the Apex Court in the case of Vijay Madanlal Choudary VS Union of India passed in SLP (Cri) No.4634/2014 referring para 141 and 187, where the Apex Court considered the provision of section 45 of the Act, 2002 and laid down a criteria for grant of anticipatory bail in PMLA cases.

6. After hearing learned counsel for the parties, before adverting to the allegations against the applicant, it is apposite to refer the provisions of section 45 of the Act, 2002, which reads as under:-

"S.45 Offences to be cognizable and non-bailable - (1) [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 groundsfor 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 [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."

7. As per section 45 of the Act, 2002, the offence is cognizable and non- bailable. The bail can be granted only if two conditions are fulfilled in addition to other conditions of section 438 and 439 of Cr.P.C. The bail can be granted unless the court is satisfied that there are reasonable grounds to believe that he is not guilty of the offence and he is not likely to commit such offence while on bail otherwise, he should not be released on bail. In this regard, reference may be made to the judgment passed by Apex Court in the case of Y.S Jagan Mohan Reddy Vs. CBI reported in (2013) 7 SCC 439 and Vijay Madanlal Choudhary (Supra).

8. Thus, from reading the provision of section 45 of the Act, 2002, the general rule of bail not jail would not apply in such cases. The provision is otherwise as a presumption is attached that the accused is guilty and unless there are reasonable grounds to believe that he is not guilty of such offence and he is not likely to commit such offence then bail can be granted.

9. The Division Bench of this court has rejected anticipatory bail considering the aforesaid provisions in the case of Kishore Meena Vs. Union of India passed in M.Cr.C No.45420/2022 dated 05.01.2023. In the case of P.Chidambaram Vs. Directorate of Enforcement reported in (2019) 9 SCC 24, the Apex Court observed that the power under section 438 of Cr.P.C is extra ordinary power and the same has to be exercise sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases.

10. In the case of YS Jagan Mohan Reddy (supra) the court held that the economic offences are under the category of heinous offence and cannot be considered as ordinary offence.

11. The role of the applicant was that he was selling fake Remdesivir injection with the connivance of Sunil Mishra. He purchased fake Remdesivir injections from Dheeraj Sajnani at the rate of Rs. 11,000/- per injection. Dheeraj Sajnani is his childhood friend. Applicant didn't have the prescription of any doctor at that time. He purchased four fake Remdesivir injections as it was in great demand in society. He sold two fake Remdesivir injections to Gagan Bhaiya whose daughter was admitted in Synergy hospital, Indore at that time. (These are the same injections which Dhiraj Sajnani acknowledged that he sold to -Gagan Shukla, thus, he along with Dhiraj Sajnani sold these injections to the Gagan Shukla). He along with Dheeraj Sajnani were apprehended while selling fake Remdesivir injection and arrested by PS Vijay Nagar, Indore (MP) Police on 01.05.2021. This clearly establishes that he along with Sunil Mishra and others has earned money illegally through sale of fake Remdesivir injections at the cost of lives of the innocent people. The money so generated as stated above is nothing but the proceeds of crime accumulated after the commission of the Scheduled Offence as per the scheme of PMLA, 2002.

12. Apart from that, learned counsel for the respondent has produced the money trail of the present case and as per the allegation huge amount of Rs.2,89,00,000/- is proceeds of crime.

13. In view of the aforesaid submission and considering the money trail produced by the prosecution, which clearly proves involvement of the applicant in the present case, in which proceeds of crime is Rs.2,89,00,000/-, this court is of the view that in view of the rigor of section 45 of the Act, 2002, the applicant is not entitled for anticipatory bail. Accordingly, the application is dismissed. The judgment relied by counsel for the applicant in the case of Mahdoom Bava

(supra) would not render any assistance to the present case. That was not a case of PMLA Act.

14. There is no error in the order passed by the trial court. If the applicant appears before the trial Court, the trial Court shall proceed in the matter in accordance with law without being influenced by any observation made hereinabove.

(VIJAY KUMAR SHUKLA) JUDGE Sourabh