Tripura High Court
Sri Goutam Kundu vs Union Of India & Another on 5 March, 2025
Page 1 of 7
HIGH COURT OF TRIPURA
AGARTALA
Crl.Petn. No.01 of 2025
Sri Goutam Kundu
.........Petitioner(s);
Versus
Union of India & another
.........Respondent(s).
For Petitioner(s) : Mr. Bibhal Nandi Majumder, Sr. Advocate,
Mr. Kushal Deb, Advocate,
Mr. Bikash Paul, Advocate.
For Respondent(s) : Mr. Bidyut Majumder, Deputy SGI,
Mr. Amitabha Ray Barman, Advocate,
Mr. Somraj Datta, Advocate.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
05/03/2025
Petitioner is an accused in ECIR/GWZO/01/2015 instituted on
19.03.2015 by the Enforcement Directorate. The said case arose out of West
Agartala P.S. Case No.141/2013 dated 15.05.2013 registered under Sections
420, 406 read with Section 34 of the Indian Penal Code, 1860 and Section 3 of
the Tripura Protection of Interest of Depositors (In Financial Establishment)
Amendment Act, 2011. The same is pending before the learned Special Court, West
Tripura, Agartala which is the designated Court to conduct trial of offences
punishable under Section 4 of the Prevention of Money-Laundering Act, 2002
[hereinafter referred to as PMLA, 2002] as per notification No.S.O.372(E) dated
05.02.2016 issued by the Government of Tripura. He was arrested on
23.11.2021 as is reflected from the order dated 25.01.2022 [Annexure-3 of reply
affidavit] passed by the learned Special Judge in Spl. (PMLA) 01 of 2018. His bail
applications have earlier been rejected by the orders dated 25.01.2022,
23.05.2023 and lastly by the impugned order dated 07.12.2024. Being
aggrieved by the rejection of his bail application, petitioner has preferred the
instant petition under Section 482 of the Code of Criminal Procedure. Petitioner
has prayed for quashing of the impugned order dated 07.12.2024 and also a
direction upon the learned Special Judge, West Tripura, Agartala to consider
the bail application of the petitioner in Spl. (PMLA) 01 of 2018 on merits.
2. Mr. Bibhal Nandi Majumder, learned senior counsel for the
petitioner, has drawn the attention of this Court to the impugned order which
reads as under:
"Mr. Koushik Dutta, learned Special P.P is present along with
Smti.Malika Chadda, Legal consultant, Enforcement Directorate.
Mr. Jibesh Chakraborty, learned advocate for accused Goutam Kundu is
present today by filing his memo of appearance.
Mr. Prasenjit Debnath, learned advocate for accused Shibamoy Datta
files his memo of appearance.
Heard learned Special P.P on the bail application filed for and on behalf
of accused Goutam Kundu on 12.11.2024 and considered.
It appears from the record that in this case the prosecution side never
produced the charge sheeted accused persons before this Court under arrest for
which it is very difficult to entertain any bail petition for the accused persons in
this case. Similarly, prosecution side cannot be allowed to drag the case for a long
time without production of the accused persons physically before this Court.
Hence, bail petition filed for accused Goutam Kundu on 12.11.2024 is
hereby rejected.
The prosecution side is hereby directed to arrange for production of all
the charge sheeted accused persons before this Court on the next date, so that trial
can be commenced as early as possible.
Supply a copy of this order to learned Special P.P
Fix 30-01-2025 for further order."
It is submitted that a mere perusal of the impugned order would
show that his bail application has been rejected only on the ground that the
prosecution has never produced the charge-sheeted accused persons before the
Court under arrest. Learned senior counsel for the petitioner has also drawn the
attention of this Court to the order dated 30.09.2021 passed in Criminal Petition
No.36 of 2021 in the case of the petitioner. Petitioner had then challenged an
order dated 15.12.2020 passed by the leaned Special Judge refusing the request
of the petitioner for production through video conferencing. A Coordinate
Bench of this Court presided over by the then Chief Justice vide order dated
30.09.2021 was pleased to set aside the impugned order dated 15.12.2020 with
the following observations:
"[6] As per this proviso thus no Magistrate can authorize detention of the
accused in custody of the police unless the accused is produced before him in
person for the first time and subsequently every time till the accused remains in
custody. The Magistrate may extend further detention in judicial custody upon
production of the accused either in person or through the medium of electronic
video linkage. This provision thus requires physical production of the accused for
the first time before the Magistrate who may authorize his detention. Subsequent
production can be through video linkage. However, the fundamental question is,
does this provision in the present case apply at all?
[7] Section 167 of Cr.P.C as correctly pointed out by the counsel for the
petitioner provides for a procedure when investigation cannot be completed
within 24 hours. This provision would have no applicability when the
investigation is complete and the trial has commenced. In the present case, upon
completion of investigation against the petitioner, the trial had to commence
which could not proceed without the presence of the petitioner. The petitioner
being lodged in a jail in a different state and also looking to the coronavirus
spread, he himself had requested that such production may be done through video
conferencing. Section 167(2)(b) would not prevent the Court from granting such
request. In fact, as noted, elaborate provisions have made in the said Rules to
enable such production.
[8] Under the circumstances, impugned order dated 15.12.2020 is set aside.
It is provided that the petitioner shall be produced before the Special Court
through video conferencing and without insisting on his physical presence before
the Court on the future occasions, unless for reasons to be recorded in writing at
an appropriate stage, the learned Judge may insist on his presence through video
conferencing."
3. Thereafter, apparently petitioner was produced through video
conferencing on 23.11.2021 as taken note of earlier. It is submitted that
petitioner has appeared through video conferencing before the learned Special
Court thereafter on different subsequent dates. Learned senior counsel for the
petitioner also submits that if the learned Trial Court considers it necessary for
reasons to be recorded that the accused should appear physically on any date,
the petitioner cannot have any objection thereto.
4. Learned counsel for the Enforcement Directorate, Mr. Barman has
pointed out that the case has been posted for framing of charge by order dated
31.05.2024. Again by order dated 30.01.2025 the trial court has ordered for
physical production of the accused so that charges can be framed and trial
commences. The relevant part of the order dated 30.01.2025 is extracted
hereunder:
"Heard learned Counsel of both the parties at length and considered.
It appears from the record that on 18.1.2025 upon filing of a special
application by the complainant an order was passed by this Court directing the
Superintendent, Presidency Correctional Home, Alipore, Kolkata to produce 3
accused persons namely, Goutam Kundu, Ashok Kumar Saha and Shibamoy
Datta before this Court physically on 30.1.2025 and in compliance of that order 3
separate production warrant was also issued, but today the Superintendent,
Presidency Correctional Home, Alipore, Kolkata neither produces the above
named 3 accused persons before this Court physically nor submits any prayer
praying for further time to produce the accused persons before this Court.
Accordingly, office is directed to issue reminders for physical
production of all the 3 accused persons before this Court on the next date.
Fix 10-04-2025 for production of the accused persons physically and
further order."
4. Learned senior counsel for the petitioner submits that if the Court
insists upon physical presence of the accused for the purposes of framing of
charge, the petitioner cannot have any objection. However, his application for
bail has been rejected by the impugned order dated 07.12.2024 on totally non-
est grounds without any application of mind on the merits of the prayer and
discussion on the case of the parties. Therefore, the impugned order may be set
aside. The learned Special Court may be directed to consider the bail
application of the petitioner on its own merits in accordance with law. He
submits that the petitioner may be allowed to file a fresh bail application.
5. Mr. Barman, learned counsel for the respondent-ED, has filed a
detailed counter affidavit giving reference to multiple cases in which the
petitioner has been accused in connection with the same nature of offences in
different states including Tripura. He also submits that earlier the bail
application of the petitioner was twice rejected on 25.01.2022, 23.05.2023 and
lastly on 07.12.2024. No fresh grounds have been made out on the part of the
petitioner to seek bail. He has also made reference to Section 479 of the
Bharatiya Nagarik Suraksha Sanhita (BNSS). It is submitted that the direction
of the learned Special Court for physical production of the accused vide order
dated 30.01.2025 is not under challenge. It is also submitted that respondent-
ED has no objection if his bail application is considered in accordance with law
on its own merits since the impugned order indisputably does not reflect any
consideration on the plea of bail on merits.
6. I have considered the submission of learned counsel for the parties
and taken note of the facts relevant for determination of the issue herein. The
impugned order has been extracted in the opening paragraphs of this order.
In a case under the PMLA, 2002, the conditions enumerated under
Section 45 therof have to be duly taken into account by the learned Court while
considering the bail application of an accused. Section 45 of the Act of 2002
reads as under:
"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 a 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, [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:
Provided further that the Special Court shall not take cognizance of any offence
punishable under Section 4 except upon a complaint in writing made by--
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorised in
writing in this behalf by the Central Government by a general or special order
made in this behalf by that Government.
[(1A) Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), or any other provision of this Act, no police officer shall
investigate into an offence under this Act unless specifically authorised, by the
Central Government by a general or special order, and, subject to such conditions
as may be prescribed.]
(2) The limitation on granting of bail specified in sub-section (1) is in addition to
the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any
other law for the time being in force on granting of bail.
[Explanation.--For the removal of doubts, it is clarified that the expression
"Offences to be cognizable and non-bailable" shall mean and shall be deemed to
have always meant that all offences under this Act shall be cognizable offences
and non-bailable offences notwithstanding anything to the contrary contained in
the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers
authorised under this Act are empowered to arrest an accused without warrant,
subject to the fulfillment of conditions under section 19 and subject to the
conditions enshrined under this section.]"
A perusal of the impugned order does not reflect any discussion or
consideration on the plea of the petitioner for bail on merits keeping into regard
the statutory mandate and the judgments rendered by the Apex Court. The
prayer for bail has been rejected apparently on the ground that the prosecution
side never produced the charge-sheeted accused persons before the Court under
arrest. The anxiety of the learned Court to proceed with the trial upon framing
of the charges can be well understood. From the orders passed earlier such as
31.05.2024 and also the impugned order dated 07.12.2024, it appears that the
learned Trial Court has sought production of the charge-sheeted accused
persons so that the trial can be commenced as early as possible. The petitioner
does not object to his physical production if insisted by the learned Trial Court
for reasons to be recorded. It appears that repeated directions have been issued
upon the Superintendent, Presidency Correctional Home, Alipore, Kolkata to
produce the accused persons including the petitioner. Since the impugned order
does not reflect any application of mind on merits on the prayer of bail made by
the petitioner, the same cannot be sustained in the eye of law. It is accordingly
set aside. Petitioner is at liberty to file a fresh bail application before the learned
Special Court which shall be considered in accordance with law after due
opportunity to the learned public prosecutor as per the mandate of the PMLA,
2002. The instant petition stands disposed of.
7. Let it be made clear that this Court has not gone into the merits of
the plea for bail raised on behalf of the petitioner.
8. Pending application(s), if any, shall stand disposed of.
(APARESH KUMAR SINGH), CJ
Pijush/
MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2025.03.07 16:09:58 +05'30'
