Chh HC | Undertrial prisoners facing trial under PCA/PMLA, cases investigated by CBI/ED/NIA/ SFIO etc. are not entitled to be released

Chhattisgarh High Court: Narendra Kumar Vyas, J., rejected bail and dismissed the petition being devoid of merits.

The facts of the case are such that the petitioners are engaged in trading of gold and silver ornaments in shop owned by petitioner 1 situated at Rajnandgaon where search and seizure was conducted upon receiving an intelligence output. The petitioners were thereby arrested by respondent authorities for alleged commission of offence under Section 135 of the Customs Act, 1962 (for short “the Act, 1962”) and was also held to be an offence under provision of the Money Laundering Act, 2002 (for short “the Act, 2002”) by Enforcement Directorate (ED). The petitioners moved an application for grant of interim bail for 90 days before Chief Judicial Magistrate, Raipur as per direction of Supreme Court in the matter of Suo Motu Petition (C) No. 01/2020 in Contagion of Covid 19 Virus in prisons for releasing them for 90 days looking to the present scenario of pandemic Corona (Covid-19) which was rejected. Assailing this, instant writ petition under Article 226 of the Constitution of India for grant of interim bail was filed.

Relevant recommendation made by the High Power Committee on 12.05.2021 reads as under:

“Criteria for release of Under trial prisoners:

“…… The under trial prisoners, who are satisfying the following criteria shall be released:

  1. Under Trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 07 years or less;
  2. Under trial prisoners (UTPs), who are senior citizens of 60 or more than 60 years of age and are in custody for three months or more, facing trial in a case which prescribes a maximum sentence of 10 years or less”

“It has further been resolved that following category of UTPs, even if falling in the above criterion should not be considers:-

  1. Those under trial prisoners who are facing trial under Prevention of Corruption Act (PC Act)/ PMLA; and
  2. Case investigated by CBI/ED/NIA/Special Cell, Crime Branch, SFIO, Terror related Cases, Riot cases, cases under Anti-National Activities and Unlawful Activities (Prevention) Act etc.”

The Court observed that as per the submission of the petitioners it is clear that that as per Section 135 (1)(b) of the Act, 1962, the case of the petitioners is squarely covered in clause 3 of recommendation issued by the High Power Committee, which provides that the under trial prisoners (UTPs)/ Remand Prisoners (with respect to whom, charge sheet are yet to be filed), who are in custody for 15 days or more, facing trial in a case which prescribes a maximum sentence of 7 years or less shall be released, whereas it reflects from clause 5 & 6 of the recommendation as mentioned above that person belong to the under trial prisoners category even if following in the above criterion should not be considered for release. The under trial prisoners, who are facing trial under Prevention of Corruption Act/ Prevention of Money Laundering Act, 2002 and cases investigate by CBI/ED/NIA/ Special Cell, Crime Branch, SFIO, Terror related cases, Riot cases, under Anti-National Activities and Unlawful Activities (Prevention) Act etc., are not entitled to be released.

The Court observed that prima facie it is established that the petitioners are habitual offenders and are very much involved in smuggling of gold and silver, which is injurious to economic growth of the nation. Further, the investigation is in a primary stage and may take some time, and since they are big financial resource persons, possibility of influencing the witnesses, cannot be ruled out.

The Court relied on judgment State of Kerala v. Mahesh, Criminal Appeal No. 343 of 2021 wherein it was held:

“37. In Suo Motu Writ Petition (Civil) No.1 of 2020 In Re: Contagion of Covid 19 Virus In Prisons, this Court expressed concern over the possibility of spread of COVID-19 amongst prisoners lodged in overcrowded correctional homes and accordingly issued directions from time to time, directing the authorities concerned to inter alia take steps as directed by this Court, to minimize the risk of spread of COVID amongst the inmates of correctional homes. This Court also directed that a High Powered Committee be constituted by the States and Union Territories to consider release of some prisoners on interim bail or parole during the Pandemic, to prevent overcrowding of prisons.

  1. It appears that the High Court has completely mis- appreciated the object, scope and ambit of the directions issued by this Court from time to time in In Re : Contagion of Covid 19 Virus In Prisons. This Court did not direct release of all under-trial prisoners, irrespective of the severity of the offence. By way of example, this Court directed the States/Union Territories to consider release of prisoners convicted of minor offences with prescribed punishment of seven years or less. The orders of this Court are not to be construed as any direction, or even observation, requiring release of under-trial prisoners charged with murder, and that too, even before investigation is completed and the chargesheet is filed. The Respondent Accused, it is reiterated, is charged with murder in the presence of an eye witness, and the impugned order granting bail was filed even before the chargesheet was filed. The Chargesheet appears to have been filed on 01.01.2021. Moreover, the Respondent Accused had been absconding after the incident.”

The Court thus held “The possibility of the accused /petitioners absconding or otherwise defeating or delaying the course of justice, reasonable apprehension of witnesses being threatened or influenced or of evidence being tempered, therefore, the petitioners are not entitled to get benefit from order of the Supreme Court and the recommendation of the High Power Committee.” [Vijay Baid v, Assistant Director, Director of Revenue Intelligence, 2021 SCC OnLine Chh 1952, decided on 07-07-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioners: Mr. Shashank Thakur

For Respondent: Mr. Ramakant Mishra

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