Hari Charan Gupta vs State Of Odisha
2023 Latest Caselaw 10886 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                   ABLAPL No.7092 of 2023

                 Hari Charan Gupta                   ....            Petitioner
                                             Mr. Ashok Mohanty, Sr. Advocate
                                                                  along with
                                                        H.K. Mund, Advocate

                                            -versus-

                 State of Odisha                       ....           Opp. Party
                                        Mr. Gopal Agarwal, Advocate for the E.D.


                                         CORAM:

                              JUSTICE A.K. MOHAPATRA
                                        ORDER

Order No.                              05.09.2023
    04.     1.      This matter is taken up through Hybrid Arrangement
            (Virtual /Physical Mode).

2. Heard Mr. Ashok Mohanty, learned Senior Counsel along with Mr. H.K. Mund, learned counsel, appearing for the Petitioner as well as Mr. Gopal Agarwal, learned retainer counsel appearing for the Opposite Party-Enforcement Directorate. Perused the bail application as well as the materials on record.

3. The present bail application has been filed by invoking Section 438 of Cr.P.C. for release of the Petitioner on anticipatory bail in connection with complaint case (PMLA No.40 of 2018), arising out of ECIR No.01/2014/BSZO at // 2 //

Bhubaneswar Sub-Zonal office of the Enforcement Directorate, pending in the Court of learned Special Judge, Special Court, PMLA, Bhubaneswar.

4. The present complaint case was lodged by the Enforcement Directorate involving commission of an offence under the Prevention of Money Laundering Act, 2002. Accordingly, a case has been registered for alleged commission of offence under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002. The Petitioner, who happens to be the father of principal accused, namely, one Deepak Gupta and is aged about 72 years and at the moment suffering from various ailments, has approached this Court seeking protection from arrest in the hands of the Enforcement Directorate in connection with the above named complainant case.

5. Mr. Ashok Mohanty, learned Senior Counsel appearing on behalf of the Petitioner, at the outset, submitted that the complaint case, out of which the present bail application arises, is based on the ECIR of the year 2014 and the corresponding complaint case bearing PMLA No.40 of 2018. He further contended that although the aforesaid complaint case was lodged several years ago, however, the Investigating Agency has not been able to file the final charge sheet as of now. Mr. Mohanty, learned Senior Counsel appearing on behalf of the Petitioner also contended that the present Petitioner, who is the father of one Deepak Gupta, another co-

// 3 //

accused in this case, is aged about 72 years. The present Petitioner is suffering from various ailments, as a result of which, he is undergoing treatment. Therefore, it is submitted by Mr. Mohanty that in the event the Petitioner is not protected by this Court and he is allowed to be arrested and put behind the bar by the Enforcement Directorate, the Petitioner is likely to suffer irreparable injury to his health.

6. In course of his argument, learned Senior Counsel appearing for the Petitioner contended that the son of the present Petitioner, namely, one Deepak Gupta has also been arrayed as an accused in the above named complaint case. The above named co-accused approached this Court by filing a bail application under Section 438 of Cr.P.C., which was registered as ABLAPL No.9695 of 2022. This Court after hearing the learned counsels at length, vide a detailed order dated 25.11.2022 was pleased to release the Petitioner on anticipatory bail subject to the terms and conditions mentioned in the order dated 25.11.2022.

7. Mr. Mohanty, learned Senior Counsel appearing for the Petitioner further contended that the case initiated at the instance of the Enforcement Directorate is lingering unnecessarily. The Petitioner is ready and willing to cooperate with the investigation and in fact he has been cooperating with the Investigating Agency to conclude the investigation as expeditiously as possible, however, the Investigating Agency instead of concluding the investigation and filing the final // 4 //

charge sheet pursuant to thereto, is only interested in causing harassment to the Petitioner by keeping the investigation open for almost several years since the date of initiation of the complaint case by the Enforcement Directorate. In the aforesaid background, Mr. Mohanty, learned Senior Counsel appearing for the Petitioner referring to the Article 21 of the Constitution of India, submitted before this Court that the essence of Article 21 of Constitution of India lies not only in ensuring that no citizen is deprived of life and person liberty except according to the procedure established by law, but also such procedure ensures both fairness and expeditious conclusion of the trial. In the aforesaid context, learned counsel for the Petitioner referred to the judgment of the Hon'ble Supreme Court in Babubhai Bhimabhai Bokhiria vrs. State of Gujarat, reported in (2013) 9 SCC 500. He also referred to various other judgments of the Hon'ble Supreme Court in the context of applicability of Article 21 of the Constitution of India, so far the criminal cases are concerned.

8. This Court is of the view that referring to such judgments at this stage would amount to mere repetition of the position which has already been crystallized by several judgments of the Hon'ble Supreme Court and by now the same has been accepted by the Courts in India as a settled principle of law.

9. Mr. Gopal Agarwal, learned counsel appearing for the Opposite Party-Enforcement Directorate has filed a detailed // 5 //

objection/reply on 10.08.2023. Referring to the said objection/reply affidavit, submitted before this Court that the Petitioner has not appeared even once before the learned trial court despite several opportunities given to the Petitioner by the court. Further, referring to the own admission of the Petitioner, Mr. Agarwal, learned counsel appearing for the Enforcement Department contended before this Court that so far the Petitioner has not been arrested by the Enforcement Directorate and moreover, the learned trial court has not passed any coercive orders against the Petitioner. In such factual background, it is contended before this Court that the Petitioner has failed to demonstrate the basis of apprehension for his arrest by the Enforcement Directorate in connection with the above noted complaint case. As such, the application for grant of anticipatory bail, in the absence of any apprehension of arrest, is not maintainable in law.

10. With regard to the role of the present Petitioner in the alleged occurrence, Mr. Agrawal referring to the reply affidavit, contended before this Court that the Petitioner was the Director of some of the companies and, as such, was responsible for the affairs of such companies at the relevant point of time. He also contended that the Petitioner in his capacity as Director of the Companies had a direct an active role in the illegal mining activities carried out by such companies and the consequential money laundering activities by such companies. In such view of the matter, it is argued // 6 //

before this Court that a case under Section 3 read with Section 70 of the PMLA Act which is punishable under Section 4 of the said Act is well made out against the present Petitioner.

11. Learned counsel appearing for the Enforcement Directorate further expresses his apprehension with regard to the safety of the materials collected in connection with the aforesaid complaint case. He also contended that in the event the Petitioner is granted anticipatory bail, he would get emboldened thereby as such would make attempt to destroy the prosecution evidence and further make attempt to influence the prosecution witnesses. In the context of lack of apprehension of arrest which is the sole basis for grant of an anticipatory bail under Section 438 of Cr.P.C., learned counsel for the Enforcement Directorate referred to the judgment of this Court in Pramod Kumar Panda v. Republic of India (BLAPL No.19817 of 2014 decided on 15.12.2014) as well as the judgment of the Allahabad High Court in Pankaj Grover v. Directorate of Enforcement, Govt. of India (Criminal Misc. Anticipatory Bail Application U/s. 438 of Cr.P.C. No.7661 of 2021, decided on 26.08.2021). He also referred to the judgment in the case of P. Chidambaram v. Directorate of Enforcement, reported in (2019) 9 SCC 24.

12. Upon hearing learned counsels appearing for the respective parties, particularly the objections raised by the learned counsel appearing for the Enforcement Directorate, this Court observed that most of the objections raised by the // 7 //

Enforcement Directorate in their affidavit has already been answered by this Court in its detailed order dated 25.11.2022 passed in ABLAPL No.9695 of 2022 (Deepak Gupta v. Enforcement Directorate of India). The above named Deepak Gupta is a co-accused in the present complaint under the PMLA Act. After taking into consideration several aspects as well as the questions of law raised by the learned counsels, this Court vide order dated 25.11.2022 has inclined to grant anticipatory bail to the above named accused. Since the Petitioner stands in similar footing and is a co-accused in the very same case where this Court had already granted anticipatory bail to one of the co-accused persons, namely, Deepak Gupta, the principle of parity demands that the Petitioner to be treated at par with the above named accused.

13. In view of the aforesaid analysis of law as well as the factual background involved in the present case and further considering the materials on record, this Court is inclined to exercise its discretion under Section 438 of Cr.P.C and, accordingly, keeping in view the interest of justice, is inclined to protect the Petitioner by granting anticipatory bail subject to certain terms and conditions.

14. Accordingly, it is directed that the Petitioner be released on bail in the event of his arrest by the Enforcement Directorate Officials in connection with compliant case (PMLA No.40 of 2018) pending before the learned Special Judge, Special Court, PMLA, Bhubaneswar, Khurda subject // 8 //

to the following terms and conditions:-

I. The Petitioner shall appear before the Learned Special Judge, Special Court, PMLA, Bhubaneswar on each and every date the case is posted to without fail. In case of default in appearance for any insufficient reason it is open for the learned Trial Court to issue NBW against the Petitioner.

II. While on pre-arrest bail, the Petitioner shall not make any attempt whatsoever to tamper with or destroy the prosecution evidence.

III. While on pre-arrest bail, the Petitioner shall not make any attempt whatsoever to threaten, influence, induce, gain over any of the prosecution witnesses.

IV. The Petitioner shall cooperate with investigation if his cooperation is sought for by the Enforcement Directorate.

V. The Petitioner shall not leave the country under any circumstances and shall surrender his travel documents like passport etc., if not already surrendered before the trial court.

VI. The Petitioner shall keep on informing // 9 //

about his whereabouts to the E.D. and shall provide his address and mobile number to the E.D. and keep the same updated from time to time.

Violation of any of the conditions mentioned herein above would entail cancellation of the bail granted to the Petitioner.

15. With the aforesaid observation and direction the ABLAPL is disposed of.

( A.K. Mohapatra) Judge

Debasis

Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Designation: Secretary Reason: Authentication Location: OHC CUTTACK Date: 15-Sep-2023 10:37:31