Panna Lal Mahto @ Ganjhu Aged About 39 ... vs U.O.I. Through Directorate Of ...

The prosecution case in brief is that the

investigation under the Prevention of Money Laundering

Act, 2002 was initiated by recording ECIR No.

RNSZO/12/2020 dated 30.05.2020 against the accused

persons on the basis of information received that the Anti

Human Trafficking Unit (AHTU), District Khunti,

Jharkhand had registered several cases related to the

offences of Human Trafficking wherein the charge-sheet

has also been filed.

The FIR bearing No. 07/2019 dated 19.07.2019 of

Anti Human Trafficking Unit(AHTU) Jharkhand Police,

Khunti has been taken over by the National Investigation

Agency(NIA), Ranchi, Jharkhand wherein the NIA has filed

first supplementary charge-sheet vide no. 09/2021 dated

27.02.2021 for violation of section 120B, 363, 370(2),

370(3), 370(4), 370(5), 370A, 371, 374, 376, 420 and 34 of

2 IPC, section 6 and 12 r/w section 25 of Inter-State Migrant

Workmen (Regulation of Employment Rules and Services of

condition) Act, 1979 and section 79 of Juvenile Justice

(Care and Protection) Act, 2015 against Panna Lal Mahto @

Panna Lal Ganjhu (Petitioner), Sunita Devi, Shiv Shankar

Ganjhu, Gopal Oraon, who were running Human

Trafficking racket in connivance with several placement

agencies in Delhi.

Since the offences registered under the FIR

mentioned contains Scheduled offences under PML Act,

2002 also, hence to prevent Money Laundering related to

proceeds of crime including its concealment or possession

or acquisition or use or projecting as untainted property

and claiming as untainted property, enquiries were initiated

by the department and it was found that the accused

persons have amassed huge property out of the indulgence

into the aforesaid activities related to illegal Human

Trafficking.

The details of proceeds of crime attached/ seized/

frozen from the accused persons are mentioned in the

charge-sheet. The properties (movable/immovable) are

worth Rs. 3,36,65,968.86/- (Rupees Three Crore Thirty Six

Lacs Sixty Five Thousand and Nine Hundred Sixty Eight

and Eighty Six Paise) were provisionally attached by

authorized officers of Directorate of Enforcement after

3 finding specific role of the accused persons in the

commission of offence of Money Laundering by

directly/indirectly attempt to indulge or knowingly assist or

knowingly is a party or is involve in concealment/

possession/ acquisition or use in projecting or claiming

proceeds of crime as untainted property.

5. It needs to refer herein that the learned counsel

appearing for the petitioner, Mr. Saurav Kumar Das, who

has entered his appearance after getting NOC from the

earlier counsel, namely, Niranjan Kumar and Kumari

Supriya, has submitted that he is not pressing the present

application on merit although, the bail application has been

taken into consideration by the learned sessions court on

merit which would be evident from the order rejecting the

prayer for regular bail.

6. The submission has been made that he is only

pressing the present application on the ground of

completion of 1/3rd of the custody out of the maximum

punishment under the Section in which the charge has

been framed.

7. Learned counsel for the petitioner has referred the

provision of Section 479 of the BNSS, 2023. It has been

submitted that the alleged offence has been said to be

committed by the petitioner under Section 3/4 of the

Prevention of Money Laundering Act, 2002 and the

4 maximum punishment under Section 3 is 7 years and out

of which 1/3rd has already been undergone and therefore,

considering the completion of custody of 1/3rd and applying

the position of law as per the provision as contained under

Section 479 of the BNSS, the petitioner may be directed to

be released on bail.

8. Learned counsel for the petitioner has relied upon

an order passed by the Hon'ble Apex Court in the case of

Badshah Majid Malik Vrs. Directorate of Enforcement

and Ors., passed in Special Leave Petition (Cri.)

No.10846 of 2024.

9. As per the learned counsel for the petitioner, the

Hon'ble Apex Court by taking note of the provision of Sub-

section 1 of Section 479 of the BNSS as also taking into

consideration the fact that 1/3rd of the period has been

undergone in the custody, hence, has passed an order for

release of the appellant of the said case, namely, Badshah

Majid Malik on regular bail.

10. Herein also since the petitioner has already

completed more than 1/3rd of the custody out of maximum

punishment prescribed for the penal offence, hence, it is a

fit case where the petitioner deserves to be released on bail.

11. While on the other hand, Mr. Amit Kumar Das,

learned counsel appearing for the Enforcement Directorate,

has vehemently opposed the prayer for bail.

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12. The submission has been made that in pursuance

to the order dated 05.07.2024, a detailed counter affidavit

has been filed raising the complicity of the petitioner in the

present case as also in the cases of Scheduled Offences in

which the petitioner is facing trial registered under Sections

363/370/371/372/323 and 34 of the IPC as also the

investigating agency of the present case, i.e., the

Enforcement Directorate, has instituted 5 cases said to be

of predicate offences and in addition to that criminal

antecedent of nine cases pertaining to the Scheduled

Offences.

13. The argument has been advanced that although,

the prayer for regular bail of the petitioner was pressed

before the learned Sessions Judge on merit and no ground

was taken so far as his release on the basis of completion of

1/3rd custody. However, here before this Court, no pleading

is also there that his prayer for regular bail may be

considered on the ground of completion of 1/3 rd of the

custody against the maximum punishment prescribed.

14. However, submission has been made that the

pleading has been added by filing additional affidavit

wherein the said ground has been taken.

15. Learned counsel for the respondent-ED has

submitted that the provision as contained under Section

479 of the BNSS is not blanket in nature, rather, if the

6 second proviso to the aforesaid provision will be taken into

consideration, such power is to be exercised after providing

an opportunity to the Public Prosecutor concerned which

itself suggests that the gravity of the offence is required to

be considered.

16. The submission has been made that herein the

allegation against the present petitioner is of serious nature

of trafficking as also under the Scheduled Offences and

basis from which, huge wealth has been earned which, as

per the allegation which has come in course in

investigation, is being used in laundering.

17. The further submission has been made that the

provision of Section 479(1) of the BNSS cannot be used

with respect to the person who is facing the charge but has

committed so many offences which is habitual of

committing the offences of like nature.

18. The submission has been made that so far as the

applicability of the order passed by the Hon'ble Apex Court

in the case of Badshah Majid Mallick Vrs. Directorate of

Enforcement and Ors. (Supra) wherein, the factual aspect

involved is that the person concerned in the said appeal

was facing prosecution for commission of Scheduled

Offences under Section 132, 135(1)(a)(ii) and 135(1)(b)(ii)

read with Section 140 of the Custom Act, 1862 for which

the maximum punishment is three years.

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19. It has been submitted that here in the present case,

the Scheduled Offences are also there and in consequence

thereof, the cases have been instituted under PMLA and so

far as the predicate offence is concerned for which the

maximum sentence is ten years and it cannot be said that

the appellant has completed 1/3rd of his custody.

20. Learned counsel for the respondent-ED, on the

basis of the aforesaid argument, has submitted that it is

not a case to release the petitioner on bail and as such, the

present application is fit to be rejected.

21. This Court has heard the learned counsel for the

parties and gone through the pleading as also the finding

recorded by the learned court while rejecting the prayer for

regular bail.

22. Since the argument has been advanced on behalf of

the petitioner that the present application is not being

pressed on merit but even then the issue on merit is

required to be delved into, reason being that the argument

has been advanced regarding applicability of the provision

of Section 479 of the BNSS, 2023.

23. As per the statutory requirement for the purpose of

granting benefit under Section 479 of the BNSS, the

conduct of the person concerned who is facing the

prosecution is required to be seen.

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24. Such conclusion has been arrived by this Court

after going through the scheme of the provision of Section

479 of the BNSS which comprises in three parts having

three sub-sections, for ready reference Section 479 of the

B.N.S.S. is being referred herein :-

479. Maximum period for which undertrial prisoner can be detailed - (1) Where a person has, during the period of investigation, inquiry or trial under this Sanhita of an offence under any law (not being an offence for which the punishment of death or life imprisonment has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on bail:

Provided that where such person is a first-time offender (who has never been convicted of any offence in the past) he shall be released on bond by the Court, if he has undergone detention for the period extending up to one-third of the maximum period of imprisonment specified for such offence under that law:

Provided further that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail bond instead of his bond:

Provided also that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.--In computing the period of detention under this section for granting bail, the period of

9 detention passed due to delay in proceeding caused by the accused shall be excluded.

(2) Notwithstanding anything in sub-section (1), and subject to the third proviso thereof, where an investigation, inquiry or trial in more than one offence or in multiple cases are pending against a person, he shall not be released on bail by the Court. (3) The Superintendent of jail, where the accused person is detained, on completion of one-half or one-

third of the period mentioned in sub-section (1), as the case may be, shall forthwith make an application in writing to the Court to proceed under sub-section (1) for the release of such person on bail.

25. In accordance with Section 479 of the BNSS, if an

accused, during the period of investigation/inquiry/trial,

undergoes one-half of the maximum period of

imprisonment specified for the offence, he is entitled to bail.

However, Section 479 of the BNSS is not without

qualifications. In accordance with Section 479 of the BNSS,

for any offence for which the punishment of death or life

imprisonment is specified as one of the punishments,

Section 479 of the BNSS would not apply.

26. It is however pertinent to mention that

the proviso to Section 479 of the BNSS provides that when

the accused is a first-time offender, the accused shall be

released on bond if the accused undergoes detention for a

period extending up to one-third of the maximum period of

imprisonment specified for such offence.

10

27. Thus, the first proviso to Section 479 to urge that a

first-time offender (who has never been convicted for any

offence in the past) is required to be released on bond by

the Court, if he has undergone detention for the period

extending up to one-third of the maximum period of

imprisonment specified for such an offence under a

particular law.

28. But, before applying the said provision, two provisos

are also to be taken into consideration. Herein, the

implication of second proviso is relevant by which it has

been provided that before taking any decision under Sub-

section (1) of Section 479 of B.N.S.S., an opportunity of

hearing is to be provided to Public Prosecutor in order to

come to the conclusion as to whether the provision of Sub-

section (1) of Section 479 of the B.N.S.S. is to be applied.

Otherwise, there was no purpose for insertion of Second

proviso to give an opportunity of hearing to the Public

Prosecutor on the issue regarding release in pursuance to

Sub-section (1) of Section 479 of the B.N.S.S.

29. Further, Section 479(2) specifies that individuals

facing multiple charges are not eligible for bail, even if they

have served more than one-third or one-half of the

maximum sentence for any of those charges. Thus it is

evident from bare perusal of Section 479(2) that this

11 section disqualifies those involved in multiple offences or

cases from seeking bail.

30. It needs to refer herein that the Section 479 of

BNSS makes it clear that the benefit of first proviso to

Section 479 is subject to Section 479(2) of BNSS and the

Court has to take note of the third proviso, thereof, wherein

investigation, inquiry or trial in more than one offence are

in multiple cases are pending against a person, he shall not

be released on bail by the Court.

31. The counter affidavit has been filed on behalf of the

Enforcement Directorate giving therein the details of the

material collected in course of the investigation, for ready

reference, the same is being referred herein :-

"9. As per the chargesheet filed by NIA in case no. RC- 09/2020/NIA/DLI dated 04.03.2020, Panna Lal Mahto and his accomplices were running various placement Agencies namely (i) Birsa Bhagwan Tribal Welfare Society (ii) Birsa Security and Placement Agency (iii) Laxmi Placement Service (iv) Panna Lal Placement Services (v) Secureluck Consultancy and (vi) Pahal Security Service (Pvt.) Ltd., which were being operated from the same location i.e. M- 662/663, M- Block, DDA Flats, Shakurpur, J.J. Colony Saraswati Vihar, North West Delhi-110034, Out of the above agencies, the following placement agencies are mentioned to be registered with the Labour Department, Delhi NCT:

Sr. Particulars of Registration Name of Name of No. the Placement Number & date the owner the Agency manager 1 Birsa Bhagwan i) 2011024073 Shiv Panna Lal Placement Dated 13.07.2011 Shankar Mahto Bureau Ganjhu 2 Birsa Security i) 2012000502 Shiv Gopal and Placement Dated 04.01.2012 Shankar Oraon Ganjhu

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i) Laxmi ii) 2013012116 Gopal Gopal Placement Dated 19.04.2013 Oraon Oraon Service

11. It has also been established that none of the victims were registered under the provision of "The Inter- State Migrant Workmen (Regulation of Employment and Conditions of Service) Act, 1979" which was enacted to regulate the condition of service of inter-state labourers and to protect workers, whose services are requisitioned outside their native States in India, which is violation of sections 6 & 12 r/w section 25 of abovesaid Act. Further, the petitioner Panna Lal Mahto and his accomplices used to ill-

treat the victims and did not allow them to return back to their respective native villages and forced them to work against their desire.

12. It has further been ascertained from the NIA's charge sheet that a total of 22 victims including 09 victims, who were rescued during the investigation, have revealed that the petitioner and his accomplices, facilitated these victims to indulge in domestic work through their placement agencies and collected their monthly payment from their employers, but these victims had never received any money/remuneration for their services even after rendering many years of service. He and his accomplices used to ill-treat the victims and did not allow them to return to their respective native village and forced them to work against their desire. Several of them were found to be minor as per the medical report of Civil Surgeon, Sadar Hospital, Khunti. Panna Lal Mahto has amassed huge property out of the indulgence into the aforesaid activities related to illegal Human Trafficking.

13. During the course of investigation, statement of Smt. Birtha @ Sumitra Purti, Ms. Jambi Tiru and Smt. Rupam Saroj Kumari, all resident of District Khunti, Jharkhand, who were trafficked have been recorded. In their statement, they narrated their ordeal that when they were minors, they were trafficked in the pretext for providing them employment by the petitioner through placement agency and taken to Delhi. The petitioner Panna

13 Lal Mahto and his accomplices, facilitated them to indulge in household work through their placement agencies and collected their monthly payments from the house owners, but no payment was made to them for their services.

14. The petitioner Panna Lal Mahto in connivance with his accomplices indulged in the abovestated illegal activities and had trafficked about 5000 persons, through their well-organized placement agency racket in Delhi, which has also been admitted in his statement recorded under section 50 of PMLA, 2002. They supplied trafficked women and girls as domestic servants, but they were instead ploughed into either cheap labour or subjected to extreme conditions of Bonded/Forced labour. These placement agencies did not pay the employed person properly, although they collected the payment from the employers on their behalf. The petitioner acquired proceeds of crime in his name & his wife' Sunita Kumal and projected and claimed the same as untainted properties while in possession, acquisition and use of the same

15. During the course of investigation Statement of Gopal Oraon an accomplice of Panna Lal Mahto was recorded on 22.01.2022 in Birsa Munda Central Jail, Hotwar, Ranchi under section 50 of PMLA 2002 vide order dated 21.01.2022 passed by the Ld. Special Court (NIA), Ranchi, Jharkhand, wherein he revealed that the petitioner and his associates in the guise of Placement Agencies had trafficked 05 to 06 thousand persons, in which mostly consists of minor girls, from the rural areas of Jharkhand to Delhi and other metropolitan cities, without the consent of their family members, after luring them, in the pretext of providing them job and money. He has further stated that payment of domestic workers was collected by placement agency, either by him, or the petitioner or Sunita Kumari and disbursement to a smaller extent was made to them by the petitioner Panna Lal Mahto. After working for years, when the girls wanted to return to their home, the part payment was made promising that when they would again come to Delhi, the remaining payment will be made. But actual

14 wages or promised wages was never been paid and Panna Lal Mahto used to grab their remuneration. In addition, Panna Lal Mahto also used to take commission from the owners, where the girls were employed. In this process he has acquired more than 05 crore rupees from engagement of 5000 boys and girls in domestic work. 6000

16. Bank accounts and statements as gathered during investigation under PMLA, 2002 revealed that the money generated from offences under Section 120 B, 418, 420, 467,471 of Indian Penal Code, 1860 and section 16 & 18 of the Bonded Labour System (Abolition) Act, 1976 (schedule offence) are 'proceeds of crime and the same was deposited in the account opened in the name of Panna Lal Mahto (Petitioner), Sunita Kumari, Gopal Oraon, Shiv Shankar Ganjhu and the account of placement agencies. They were possessing and projecting these amounts as legitimate property by investing it in various pieces of land, movable assets i.e. vehicle and also channelising these 'proceeds of crime" through bank accounts to project the same as untainted. The petitioner Panna Lal Mahto was also operating the accounts opened in the name of Birsa Bhagwan Tribal Welfare Society as individual beneficiary. Commission of such an act and omission constitutes the offence of money laundering as defined under section 3 of PMLA."

32. It is further evident that in addition to the

culpability so shown in the counter affidavit based upon

the statement recorded under Section 50 of the P.M.L. Act,

one case of P.M.L.A. is pending which the present one.

33. Further, 05 criminal cases have also been instituted

under the predicate offence which would be evident from

paragraph 8 as available in the counter affidavit which

reads hereunder as :-

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8. That, an ECIR/RNSZO/12/2020 dated 30.05.2020 was recorded' under PMLA, 2002 by the Directorate of Enforcement, Ranchi Zonal Office on the basis of scheduled offences as mentioned under the following FIR's registered by Anti-Human Trafficking Unit (AHTU), Khunti Police, Jharkhand related to the offences of human trafficking, wherein the consequent charge sheets have also been filed inter alia as under:

i. FIR 'no. 15/2014 dated 02.09.2014 under section 363, 370, 371, 372, 323, 34 of IPC was registered by Anti- Human Trafficking Unit (AHTU), Khunti Police Station, District Khunti, Jharkhand on the basis of complaint of informant Smt Aman Lili Dodrai regarding kidnapping and trafficking of her minor daughter Rupam Saroj Kumari by Panna Lal Mahto and his associates. In this case Anti- Human Trafficking Unit (AHTU), Khunti filed Charge sheet No. 06/2014 dated 27.10.2014 in the Court of Ld. Chief Judicial Magistrate, Khunti under sections 363, 370, 371, 372, 323and 34 of IPC alongwith the first supplementary charge sheet No. 08/2014 dated 09.12.2014 under sections 363, 370, 371, 372, and 34 of IPC and 2ndsupplementary charge sheet vide No. 11/2015 dated 19.05.2015 under sections 363, 370, 371, 372, 323, 418, 420, 467, 468, 471 and 34 of Indian Penal Code (IPC), 1860 (as amended). ii. FIR no. 24/2015 dated 14.08.2015 under section 363, 370(4), 120B of IPC was registered by Anti- Human Trafficking Unit (AHTU), Khunti Police Station, District Khunti, Jharkhand on the basis of complaint of informant Smt Anuradha Singh, officer in-charge of AHTU, Khunti regarding rescue of a minor girl Soboduni Mudari @ Birsi Mundri, age 12 years from a train, while she was being trafficked to Delhi by Navin Ganjhu, nephew of Panna Lal Mahto for providing her employment through the placement agency operated by Panna Lal Mahto. In this case Anti- Human Trafficking Unit (AHTU), Khunti filed Charge sheet No. 22/2015 dated 06.11.2015 in the Court of Ld. Chief Judicial Magistrate, Khunti under sections 363, 370(4), 120B of IPC.

16 iii. FIR no. 06/2018 dated 06.08.2018 under section 363, 370(4), 371, 374, 354 (A), 120 (B) of IPC, sections 16 18 of the Child Labour System (abolition) Act and section 8 of POCSO Act was registered by Anti-Human Trafficking Unit (AHTU), Khunti Police Station, District Khunti, Jharkhand, Child Welfare on the basis of complaint of Committee, District Khunti, Jharkhand regarding exploitation and sexual harassment of a minor girl called Aasarita Bhuiya, who was trafficked to Delhi and engaged by placement agency of Panna Lal Mahto in domestic work. In this case Anti-Human Trafficking Unit (AHTU), Khunti filed Charge sheet No. 32/2019 dated 08.09.2019 in the Court of Ld Sub- Divisional Judicial Magistrate Khunti under section 363, 370(3), 370(4), 371, 374, 354 (A), 120 (b) of IPC, section 16 &18 of The Child Labour System (Abolition) Act and section 8 of Protection of Children from Sexual Offences (POCSO) Act, 2012 alongwith supplementary charge sheet No. 09/2019 dated 26.10.2019 filed before the Ld. District and Session Court, Khunti under sections 363, 370 (3), 370(4), 371, 374, 354 (A), 120 (b) of IPC, section 16 & 18 of the Child Labour System (Abolition) Act and section 8 of POCSO Act.

iv. FIR no. 07/2019 dated 19.07.2019 lodged by Anti- Human Trafficking Unit (AHTU), Khunti Police Station, District Khunti, wherein it is mentioned that a minor girl namely Jambi Tiru D/o Lt Mangra Tiru R/o Ithe Pokla, PS- Murhu, Dist- Khunti, Jharkhand, who was trafficked to Delhi long ago, did not return to her native village. Further, Shri Madho Gudiya father of Ms. Kishma Guriya R/o Sondar, PS Torpa, Dist Khunti has alleged that about 15 years ago, when her daughter was minor, she was trafficked by Panna Lal Mahto In this case Anti-Human Trafficking Unit (AHTU), Khunti filed Charge sheet No. 08/2019 dated 16.10.2019 before the Court of the Ld. Chief Judicial Magistrate, Khunti under sections 363, 370(A), 371, 374, 120 B, 420& 34 of IPC and sections 166 18 of the Bonded Labour System (Abolition) Act, 1976.

17

v. Further, the FIR bearing no.07/19 dated 19.07.2019 of AHTU (Anti Human Trafficking Unit), Jharkhand Police, Khunti has been taken over by the National Investigation Agency (NIA), Ranchi, Jharkhand and the said FIR re- registered was as RC- 09/2020/NIA/DLI dated 04.03.2020, wherein the NIA has filed 1st Supplementary Charge Sheet vide No. 09/2021 dated 27.02.2021 under section 173 of Cr.P.C. in the Court of Ld. Special Judge, NIA's Cases, Ranchi, Jharkhand for violation of sections 1208, 363, 370(2), 370 (3), 370 (4), 370 (5), 370A, 371, 374, 376, 420 & 34 of Indian Penal Code (IPC), Sections 06 & 12 r/w section 25 of Inter-State Migrant workmen (Regulation of Employment and Conditions of Services) Act, 1979 and section 79 of the Juvenile Justice (Care and protection) Act, 2015 against Panna Lal Mahto @ Panna Lal Ganjhu S/o Late Choyata Mahto R/O Ganaloya PS Murhu, Dist Khunti Jharkhand his wife Sunita Devi D/o MatukSahu, brother Shiv Shankar Ganjhu S/o Late Choyata Mahto R/O Ganaloya PS Murhu, Dist Khunti Jharkhand and Gopal Oraon S/o Pramod Oraon R/o village Tungaon, PS Karra Dist Khunti Jharkhand, who were running Human Trafficking racket in the guise of and through several placement agencies in Delhi."

34. This Court, therefore, is of the view that the

provision of Section 479(1) of B.N.S.S. is required to be

considered along with second proviso as contained therein.

Such requirement is there, reason being that the petitioner

has relied upon the provision of Sub-section(1) of Section

479 of the B.N.S.S. and based upon that, the order passed

by Hon'ble Apex Court in the case of Badshah Majid

Mallick Vrs. Directorate of Enforcement and Ors.

(Supra).

18

35. Serious opposition is there with respect to the

nature of the gravity of charge so far as the involvement of

present petitioner is concerned.

36. Further, the nature of allegation as also the

antecedents against the petitioner and 05 cases instituted

under the predicate offences is the basis of making serious

opposition in passing an order directing to release the

present petitioner on bail.

37. There is no dispute that the statutory arrangement

by providing provision under Section 479(1) of the B.N.S.S.

is there but the same cannot be applied in a blanket

manner which would be evident from the Second proviso to

Section 479(1) of the B.N.S.S.

38. The Hon'ble Apex Court has considered the

provision of Section 479(1) of the B.N.S.S. in the case of

Badshah Majid Mallick Vrs. Directorate of Enforcement

and Ors. (Supra) which has been placed reliance by the

learned counsel for the petitioner, has been considered by

this Court.

39. It is evident therefrom that in the said case, the

offences were under Sections 132, 135(1)(a)(ii) and

135(1)(b)(ii) read with Section 140 of the Custom Act, 1862

said to be schedule offences wherein the maximum

punishment as prescribed is three years and out of which

1/3rd of the custody since has been completed, the same

19 has been taken into consideration for the purpose of release

of the said appellant on bail.

40. Herein, the distinguishable fact so far as the

present case is concerned, in comparison to that of the case

of Badshah Majid Mallick Vrs. Directorate of

Enforcement and Ors. (Supra) upon which the petitioner

has relied upon, is that the petitioner is facing the

prosecution/trial in 05 predicate offence cases and 09

cases arising out of schedule offences in addition to the

present one which has been instituted under Section 3/4 of

the P.M.L. Act.

41. Serious opposition has been made by filing counter

affidavit which this Court has taken note in view of the

statutory scheme as provided under Second proviso, hence,

the principle of parity is not applicable if the case of the

present petitioner will be taken into consideration and if it

will be compared to the case of Badshah Majid Mallick

Vrs. Directorate of Enforcement and Ors. (Supra)

wherein the appellant of the said case was facing

prosecution/trial under Sections 132, 135(1)(a)(ii) and

135(1)(b)(ii) read with Section 140 of the Custom Act, 1862

for which the maximum punishment is three years but

herein the case has been instituted under Section 3/4 of

the P.M.L. Act but the predicate offence cases which are 05

20 in number is of schedule offences and the maximum

punishment for the same is 10 years.

42. It is further evident from the counter affidavit that

the allegation against the present petitioner is inhuman in

nature, i.e., as per the material surfaced in course of

investigation, he is involved in trafficking of the minor

female child as also commission of rape upon the minor.

43. Further, it is pertinent to mention that while

deciding the question of bail, the court must carefully

balance the individual's right to liberty with the interests of

justice. While the presumption of innocence and the right

to liberty are fundamental principles of law, they must be

considered in conjunction with the gravity of the offence

and its impact on society.

44. This Court may also refer to the decision of the

Hon'ble Apex Court rendered in the case of Vijay Madanlal

Choudhary v. Union of India, 2022 SCC OnLine SC 929.

On the application of Section 436A of the Criminal

Procedure Code, 1973 which is corresponding Section to

the Section 479 of the BNSS, it has been categorically held

therein that:

"419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be

21 detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a given case, the detention can be continued by the Court even longer than one-half of the period, for which, reasons are to be recorded by it in writing and also by imposing such terms and conditions so as to ensure that after release, the accused makes himself/herself available for expeditious completion of the trial."

45. It needs to refer herein that Section 439 of CrPC has

been reincarnated into the BNSS, 2023 under Section 483.

The provision grants special powers to the High Court and

the Sessions Court regarding grant of bail under BNSS. It

leaves scope for the two Courts to release a person on bail

while imposing necessary conditions, and also improve or

set aside the bail orders passed by the Magistrate. There

are powers to cancel the bail granted and to order arrest

and custody of the person released on bail.

46. The Hon'ble Apex Court while taking in to

consideration of the core of Section 439 Cr.P.C. in the case

of Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010)

14 SCC 496 has opined that while exercising the power

under Section 439 of the Cr.P.C. High Court to exercise its

discretion judiciously, cautiously and strictly in compliance

with the basic principles of law. For ready reference the

22 relevant paragraph of the aforesaid judgment is being

quoted as under:

9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused.

However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

47. This Court has also considered the order passed by

the High Court of Karnataka at Bengaluru in the case of

Mr. K. Ramakrishna v. The Assistant Director,

Directorate of Enforcement in Criminal Petition

No.9930 of 2024 upon which Mr. Das, learned counsel for

the Enforcement Directorate, has relied upon wherein

23 taking into consideration the seriousness of the nature of

allegation, the benefit of the provision of Section 479(1) of

the B.N.S.S. has been denied.

48. This Court, considering the gravity of nature of

allegation as also as per the discussion made hereinabove,

is of the view that the present case is not of like nature for

passing an order for release of the petitioner on bail.

49. Accordingly, the present bail application is hereby

dismissed.

(Sujit Narayan Prasad, J.)

A.F.R. Birendra/

24