and M.Cr.C.(A) No.484 of 2020 Alok Shukla, S/o Late Shri T.C. Shukla, aged 59 years, R/o C-1/4, Officers Colony, Raipur, Chhattisgarh, Currently Posted As Principal Secretary to Government of Chhattisgarh

---- Applicant versus

1. Directorate of Enforcement, through the Director, 6 th Floor, Lok Nayak Bhawan, Khan Market, New Delhi - 110003

2. Directorate of Enforcement, through the Special Director, Central Region, Delhi MTNL Building, 1st and 2nd Floor, Jawahar Lal Nehru Marg, New Delhi - 110002

3. Directorate of Enforcement, through the Joint Director, PJZO, Jeevan Vishwas Building, 1st and 2nd Floor, E.D.C. Complex, Patto Plaza, Panaji, Goa- 403001 2

4. Directorate of Enforcement, through the Deputy Director, Raipur Sub-Zonal Office, A-1 Block, Pujari Complex, New Dhamtari Road, Pachpedi Naka, Raipur, Chhattisgarh

5. Directorate of Enforcement, through Assistant Director, Room No.17, 10A, Jam Nagar House, Akbar Road, New Delhi - 110001

---- Respondents For Applicants : Shri Avi Singh and Shri Aayush Bhatia, Advocates For Respondents : Shri B. Gopa Kumar, Assistant Solicitor General and Dr. Saurabh Kumar Pande, Advocate Hon'ble Shri Justice Arvind Singh Chandel C.A.V. ORDER

1. Since both the anticipatory bail applications arise out of a common offence and crime/ECIR case registered with the Directorate of Enforcement, they are heard and disposed of together.

2. The instant are first applications for grant of anticipatory bail to the Applicants. They are apprehending their arrest in connection with Crime/ECIR No.ECIR/RPSZO/01/2019 registered with the Directorate of Enforcement, Raipur (now, as submitted by Learned Assistant Solicitor General, said ECIR case has been transferred to the Directorate of Enforcement, New Delhi) for offence punishable under Sections 3 and 4 of the Prevention of Money- Laundering Act, 2002 ('PMLA' for brevity).

3. The case, in brief, is that the Anti Corruption Bureau/Economic Offences Wing (ACB/EOW for short), Raipur had registered First Information Report bearing FIR No.9/2015 dated 12.2.2015 against Shiv Shankar Bhatt and 26 other persons in which both the present Applicants were also roped in for alleged commission of offence punishable under Sections 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 and Sections 109 and 120B of 3 the Indian Penal Code in the supplementary charge-sheet filed by the ACB/EOW on 5.12.2019. It is alleged that at the relevant time Applicant Alok Shukla was working as the Chairman and Applicant Anil Tuteja was working as the Managing Director in the Public Distribution Corporation (Nagrik Apurti Nigam (in short 'NAN'). It is further alleged that both the Applicants involved in corruption and criminal conspiracy in which the ACB/EOW raided few offices and residences and amongst other things a pen drive was also seized from possession of Girish Sharma, P.A. to Applicant Anil Tuteja consisting of details of transactions between government officials, whereby it was found that Applicant Anil Tuteja received an amount of Rs.2,21,94,000 and Applicant Alok Shukla received an amount of Rs.1,51,43,000 illegally during the period from 30.5.2014 to 18.2.2015 and 1.7.2014 to 18.2.2015, respectively. Allegedly, during that period, both the Applicants patronized and developed a system of illegal collection of money. The money was collected as bribe by the NAN officials and Quality Inspectors posted in all the districts of the State of Chhattisgarh for procuring poor quality of rice from rice millers. It is alleged that during the Applicants' tenure, lakhs of quintals of poor quality of rice were procured and a system of regular collection of crores of rupees was developed and systematic accounts of district-wise collection were also maintained and inter-districts transportation was done contrary to government orders. Further case of the Respondents is that statements of Girish Sharma and Jeetram Yadav recorded under Section 50 of PMLA reveal that some expenses like airline tickets, taxi payments, hospital payments, forex exchanges, institute/club payments, LIC payments were also made by Girish 4 Sharma on behalf of both the Applicants and it also reveals that both the Applicants had allowed movement of rice against the prevalent guidelines of NAN and they had also unauthorisedly allowed Shiv Shankar Bhatt to put up files relating to transportation of rice, whereas M.N. Prasad Rao was authorised to deal with those files. On 13.3.2020, the Directorate of Enforcement issued summons to the Applicants for production of records. Therefore, apprehending their arrest the Applicants have moved the instant applications for their release on anticipatory bail.

4. Learned Counsel appearing for the Applicants jointly submitted that both the Applicants have already been granted anticipatory bail in connection with Crime No.9/2015 registered with ACB/EOW for commission of offence punishable under Sections 109 , 120B , 409 , 420 of the Indian Penal Code and Section 13(1)(d) read with Sections 13(2) and 11 of the Prevention of Corruption Act. The orders granting anticipatory bail to the Applicants were passed by this Court in M.Cr.C.(A) No.1679 of 2018 ( Anil Tuteja v. State of Chhattisgarh ) (Annexure A-4) and M.Cr.C.(A) No.788 of 2019 ( Alok Shukla v. State of Chhattisgarh ) (Annexure A-4) on 29.4.2019 and 16.10.2019, respectively. It was further submitted that trial of predicate offence is at dormant stage by virtue of the order dated 24.9.2019 passed by this Court in Criminal Revision No.730 of 2019 ( State of Chhattisgarh v. Shivshankar Bhatt and others ) (Annexure A-5). No departmental inquiry has been initiated against any of the Applicants nor has even a show cause notice been issued to them. The Central Government and the State Government have granted sanctions to prosecute the 5 Applicants on 4.7.2016 and 17.7.2016, respectively. However, having no explained reason, the supplementary charge-sheet was filed on 5.12.2019 when the State was awaiting the results of election. The Directorate of Enforcement registered the ECIR case on 9.1.2019 and summons were received by the Applicants in March, 2020, i.e., after more than 1 year of registration of the ECIR case. The ECIR case was registered by the Directorate of Enforcement in the jurisdiction of sub-zonal office situated at Raipur and the summons dated 13.3.2020 were issued by Respondent No.5. Therefore, by issuing a summons, Respondent No.5, acting in a mala fide whimsical manner has chosen his own jurisdiction as per his own convenience boosted and motivated by political vendetta. Respondent No.5, in mala fide way, wants to transfer the jurisdiction of the case to Delhi. In predicate offence, the prosecution has cited 212 witnesses, out of which 153 witnesses have already been examined. All the 25 rice millers and all 5 transporters cited as prosecution witnesses have already deposed in the Trial Court that there was no demand of bribe by any person of NAN and they did not give any bribe to any person. Similarly, all 12 field employees of NAN and all 4 headquarter employees of NAN have also denied in their deposition before the Trial Court about collection and distribution of illegal money. It was further submitted that all the allegations are baseless, concocted and devoid of merit. There is no direct evidence against any of the Applicants. The events leading to the NAN scam relate to a period of 4-5 years ago. Therefore, the question of Applicants influencing any witness or tampering with any documentary evidence does not arise. Both the Applicants are 6 officers of All India Administrative Services and working with the Government of Chhattisgarh. They belong to respected families. They have no criminal antecedent. It was further submitted that during pendency of these bail applications, as directed by this Court, they have fully cooperated with the investigation and during the period of pandemic Covid-19 on being summoned by the Respondents both visited Delhi and the Directorate of Enforcement have interrogated them for 3 days at Delhi and both the Applicants have given their statements before the Directorate of Enforcement. Case of the Respondents is based only on the contents of the pen drive seized from Girish Sharma. There is no direct evidence against any of the Applicants. In the predicate offence also, no recovery was made by the prosecution from the present Applicants. They have fully cooperated with the investigation and their statements have also been recorded and, therefore, their custodial interrogation is not required. Hence, it was submitted that the Applicants may be granted benefit of anticipatory bail.

5. Learned Counsel appearing for the Respondents jointly opposed the anticipatory bail applications. First, referring to the judgment passed by the Allahabad High Court in Harendra Singh @ Harendra Bahadur v. The State of U.P. passed in Criminal Act Misc. Application No.6478 of 2019 (Bail), it was argued that the Applicants have preferred the instant bail applications under Section 438 of the Code of Criminal Procedure before this Court directly and they have not assigned any reason why did they not approach to the Court of Session seeking the said relief and, therefore, the present applications moved before this Court are not 7 maintainable. Further, referring to the judgment in Mrs. Nalini Chidambaram v. The Directorate of Enforcement passed by the Madras High Court in Writ Petitions No.32848 and 32849 of 2016 on 24.4.2014, it was submitted by Learned Assistant Solicitor General that the present investigation is being carried out against commission of offence of money laundering under PMLA and the same is nowhere connected with the investigation, inquiry, trial, any outcome of trial of the scheduled offence or any other case. The investigation and the proceedings in both the cases are different and same are not connected with each other by any stretch of imagination. Further, referring to the judgments in Union of India v. Hassan Ali Khan , ( 2011) 10 SCC 235 and Gautam Kundu v. Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement, Criminal Appeal No.1706 of 2015, it was submitted that under Section 24 of PMLA, the burden of proof to demonstrate non-involvement is upon the person charged with the offence of money laundering. Thus, the duty to prove innocence and not guilty of money laundering is upon the present Applicants. Further, referring to the provisions of Section 45 of PMLA, Learned Assistant Solicitor General submitted that since in the instant case, the money laundering which relates to the Applicants is of more than Rupees One Crore, the Applicants are not entitled to get benefit of anticipatory bail. It was further submitted by Learned Assistant Solicitor General that apart from the statements of Girish Sharma and Jeetram Yadav recorded under Section 50 of PMLA, from the data retrieved from the pen drive and voice transcripts of conversation took between Girish Sharma and Anil Tuteja and his son Yash Tuteja recorded by the 8 ACB, it is also evident that Girish Sharma delivered a sum of Rupees Twenty Seven Lakhs to Yash Tuteja, the son of Applicant Anil Tuteja in the month of January, 2015 as per the instructions of Applicant Anil Tuteja. Therefore, sufficient material is available against both the Applicants. Learned Assistant Solicitor General further referred to various judgments of the Supreme Court and submitted that granting anticipatory bail is extra ordinary in character and only in exceptional cases wherein it appears that a person is falsely implicated or frivolous case is lodged against him or there are reasonable grounds for holding that a person accused of offence is not likely to abscond or otherwise misuse his liberty while on bail, such power should be exercised. The present case involves laundering of huge money. Therefore, it was prayed that the present applications for grant of anticipatory bail may be rejected. It was also submitted by Learned Assistant Solicitor General that the investigation is at very crucial stage and various entries made in 4 pages and other entries available in pen drive data as also other incriminating evidence are yet to be verified and the same require further investigation to establish role of the present Applicants. Therefore, custodial interrogation of the Applicants is also required. With regard to transfer of the case from the jurisdiction of Raipur to Delhi, it was submitted by Learned Assistant Solicitor General that ECIR is transferred only on the ground of administrative reasons and for this there is no bar.

6. As regards the arguments advanced by Learned Counsel appearing for the Respondents, Learned Counsel appearing for the Applicants submitted as under:

(ii) With regard to the provision of Section 24 of PMLA, referring to the speech of the then Finance Minister, who had introduced the Prevention of Money-Laundering Bill, 2012 in Rajya Sabha on 17.12.2012 (at pages 435-436), it was submitted that burden of proof shall only be upon the accused when a charge is framed against him. Therefore, there is no substance in the argument advanced in this regard.

(iii) With regard to the provisions of Section 45 of PMLA, referring to the judgment in Nikesh Tarachand Shah v. Union of India , (2018) 11 SCC 1, it was submitted that Section 45 of PMLA does not apply to Section 438 Cr.P.C. proceedings.

Further, referring to the judgment passed by the Supreme Court in Sushila Aggarwal v. State (NCT of Delhi ), 2020 SCC OnLine SC 98, it was submitted that even in cases of economic offences grant of anticipatory bail is neither excluded nor it is required to be visited with any different approach.

Respondent/Directorate of Enforcement has utterly failed to state even one reason/ground with any cogent material as to why they require custodial interrogation of the Applicants. The investigation of predicate offence has already been completed 5 years back and charge- sheet has already been filed. In that case, no recovery was made from any of the Applicants. Statements of Girish Sharma and Jeetram Yadav have already been recorded. The Applicants have also given their statements before the Directorate of Enforcement. They have fully cooperated with the Respondents during investigation. Now, nothing is left in the matter requiring custodial interrogation of the Applicants. Both the Applicants are officers of the Indian Administrative Services and they are working with the Government of Chhattisgarh. There is no possibility of their absconding. There is also no allegation against them that they ever influenced any of the prosecution witnesses or tampered with any of the evidence. Therefore, the prayer for grant of anticipatory bail to the Applicants was reiterated.

(v) With regard to Nalini Chidambaram case (supra), referred to by Learned Assistant Solicitor General, it was submitted that validity of the summons issued to the accused under Section 50 of PMLA was challenged in that case and claimed that the case was not related to the provision of Section 438 Cr.P.C. Therefore, that case is not applicable to the present case.

7. I have heard Learned Counsel appearing for the parties and perused the entire material available minutely.

8. As regards the jurisdiction of this Court, there is no doubt that both High Court as well as Court of Session have concurrent jurisdiction for entertaining an application under Section 438 11 Cr.P.C. Referring to and relying on the judgment in Mubarik case (supra), this Court has already held vide order dated 2.7.2019 passed in M.Cr.C.(A) No.918 of 2019 ( Ratnesh Singh Chouhan v. State of Chhattisgarh ) that High Court as well as Sessions Court have concurrent jurisdiction to entertain an application filed under Section 438 Cr.P.C. and no person can be restrained to move an application under Section 438 Cr.P.C. directly before the High Court and an application filed by the Applicant under Section 438 Cr.P.C. directly before the High Court is maintainable.

9. The provisions of Section 24 of the Prevention of Money-

Laundering Act, 2002 , after substitution by the Prevention of Money-Laundering (Amendment) Act, 2012 (Act 2 of 2013) (Brought into force on 15.2.2013), run thus:

Section 24 , before substitution, stood as under:

10. As submitted by Learned Assistant Solicitor General, even after amendment in the provision of Section 24 of PMLA, the burden of proof is on the present Applicants to prove their innocence. Contrary to this, Learned Counsel appearing for the Applicants submitted that burden of proof lies on the Applicants only after framing of a charge against them. In this regard, reliance was placed on the speech of the then Finance Minister, who had introduced the Prevention of Money-Laundering (Amendment) Bill, 2012 in the Rajya Sabha on 17.12.2012 (at pages 435-436), which is extracted below:

11. It is well settled law that the speech of the Minister introducing the Bill is a tool of interpreting the legislative intention behind the Bill. Considering the said speech of the Minster, it reveals that according to Section 24 of PMLA, the burden of proof will lie on the Applicants only after framing of a charge against them. Therefore, I find that there is much substance in the argument 13 advanced by Learned Counsel appearing for the Applicants in this regard.

12. Regarding the provisions of Section 45 of PMLA, in Nikesh Tarachand Shah case (supra), the Supreme Court has held thus:

13. Therefore, as held by the Supreme Court in Nikesh Tarachand Shah case (supra), the provisions of Section 45 of PMLA do not apply to Section 438 Cr.P.C. proceedings.

14. The Supreme Court, in Siddharam Satlingappa Mhetre v. State of Maharashtra , (2011) 1 SCC 694, has held that there is no straitjacket formula for anticipatory bail and it depends upon the facts and circumstances of each case.

15. In Sushila Aggarwal case (supra), the Supreme Court has held thus:

16. Having heard the arguments advanced on behalf of the parties, considering the facts and circumstances of the case, from the discussions made hereinabove and after going through the judgments referred to by Learned Counsel appearing for the parties, it is clear that there is concurrent jurisdiction of the High Court and the Court of Session for entertaining an application preferred under Section 438 Cr.P.C. and an application filed by the Applicant under Section 438 Cr.P.C. directly before the High Court is maintainable. As held by the Supreme Court in Nikesh Tarachand Shah case (supra), it is also clear that the provisions of Section 45 of PMLA do not apply to Section 438 Cr.P.C. proceedings. From the speech of the then Finance Minister, it is also clear that the provisions of Section 24 of PMLA only apply after framing of a charge against the accused. As held by the Supreme Court in Sushila Aggarwal case (supra), it is also clear that there is no bar for grant of anticipatory bail in a case relating to economic offence. In the instant matter, the predicate offence is of the year 2014-2015. In said case, charge-sheet has already been filed and no recovery was made from any of the Applicants. No departmental proceeding has been initiated against any of the Applicants nor has any show cause notice been issued against them. No case regarding acquisition of any disproportionate property has been registered against them. Out of 212, about 153 witnesses have already been examined. Despite the fact that the 18 Applicants are officers of Indian Administrative Services, there is no allegation levelled against them that they ever influenced any of the witnesses or tampered with any evidence. ECIR case was registered against them in the year 2019. Notice was issued to them for the first time in the ECIR case in the month of March, 2020. The delay in issuance of notice has not been explained. The ECIR case has been registered against them only on the basis of statements of Girish Sharma and Jeetram Yadav. The pen drive has also been seized from Girish Sharma. Statements of both the Applicants have also been recorded and the Directorate of Enforcement has already interrogated the Applicants for about 3 days. Why their custodial interrogation is required has also not been duly explained.

17. Thus, considering the totality of the case, the entire facts and circumstances and the discussions made hereinabove, I am inclined to extend benefit of anticipatory bail to the Applicants. Accordingly, both the applications for grant of anticipatory bail are allowed.

18. It is directed that in the event of arrest of the Applicants in connection with the aforesaid crime/ECIR case, they shall be released on anticipatory bail on each of them furnishing a personal bond in the sum of Rupees Ten Lakhs with two solvent sureties each for a sum of Rupees Five Lakhs to the satisfaction of the Arresting Officer/Presiding Officer of the concerned Trial Court. The Applicants shall fully cooperate with the investigation and shall also abide by all the following terms and conditions:

(Arvind Singh Chandel) JUDGE Gopal