Judge MG Deshpande of a special PMLA court while granting bail to Shiv Sena MP Sanjay Raut and his associate Pravin Raut noted in the order that their arrest was illegal and part of the “pick-and-choose strategy” of the Enforcement Directorate.
The court noted that the object of the Prevention of Money Laundering Act (PMLA) is confiscation and not the illegal arrest or the detention of the arrestee for an uncertain period. The judge said that high-level government and MHADA officials were involved. However, none of them was accused or arrested. Further, the conduct of the MHADA officials was suspicious since 2007 but none of them was arrested. The court noted that: “Skipping all officials of MHADA and Government i.e., T. Chandrashekhar etc, referred by Mr. Chandan Kelekar, Wadhawans and Ms. Swapna Patkar, is nothing but conveying a message to the then Union Agriculture Minister and then Chief Minister creating fear psyche in their mind that, they are the next in this queue. Certainly, this is not an object and true purport of the PML Act.”
Further, the court in its order stated that ED has not arrested Rakesh (accused no. 1) and Sarang (accused no. 2) even after they committed crimes of Rs 1,039 crore and have been arrested before for different crimes. The court stated: “On the other hand, ED arrested Pravin Raut (A3) purely for a civil dispute which is not any Scheduled Offence and Sanjay Raut(A5) for no reasons. All this prima-facie indicates that the extreme and exceptional powers of arrest, ED Investigating Officers have used very casually in utter disregard to Sec.19 of the PML Act, which is very very serious in the background of repeated guidelines of the Hon’ble Supreme Court in respect of arrest.”
The court in its order noted that the ED took one and a half months to file a reply to bail applications and simple applications made by the accused. Further, terming the arrest of Sanjay Raut illegal, the court said that the ED did not let him move inside his house while conducting a raid and arrested him at 12.35 am in contravention of the Arnesh Kumar guidelines of the Supreme Court. The court also noted that the ED kept Sanjay Raut behind four walls without ventilation despite knowing that the accuser had gone through two angioplasties and had six stents.
While questioning the conduct of the agency the judge said, ED arrests people at an extraordinary pace and conducts trials not even at snail’s speed. The court said: “It appears that ED knows only Ss.19 and 45 of the PML Act, but forgets that there is a provision for trial of an offence under PML Act as per Sec.44 thereof.”
While explaining the court’s duty, the judge said: “Time has come to make ED aware of Sec.44 of the PML Act and this Court is duty bound to do so in view of the oath it has taken to work without fear and without favour.”
The court concluded the following:
1. Extreme and exceptional power of effecting arrest which ought to have been used very very sparingly, has been used by the ED Investigating Officers under Sec.19 of the PML Act, is ab-initio illegal.
2. Simply labelling pure civil disputes with “money-laundering” or “an Economic Offence” itself cannot automatically acquire such status and ultimately drag an innocent person in a miserable situation in the guise of arrest under Sec.19 and stringent twin conditions of Sec.45(1)(i) (ii) of the PML Act.
3. It is clear how Pravin Raut (A3) is arrested for a pure civil litigation, whereas Sanjay Raut (A5) for no reason. This truth is glaring. The Court is under legal obligation and duty to find out truth even at the stage of bail. The Hon’ble Supreme Court time and again laid down, “Truth is the guiding star. Criminal trial is voyage of discovery of truth. The truth alone triumphs and every endeavour has to be made by the Court to discover the truth and make justice.”
4. The conduct of MHADA right from the beginning till date is suspicious and even ED admitted the same in their complaints, yet ED has not made any MHADA staff accused.
5. Rakesh and Sarang (A1 and A2) for their misdeeds and being the main accused persons admitted the same by affidavit of Sarang Wadhawan, were not arrested by the ED but they have been left scot-free. But at the same time Pravin Raut(A3) was arrested for civil dispute, whereas Sanjay Raut(A5) for no reason. All this clearly indicates disparity, pick and choose attitude of the ED and the Court cannot put premium on the same but legally bound to make parity.
6. If the Court still accepts contention of ED and MHADA and further rejects the bail applications of Pravin Raut (A3) and Sanjay Raut(A5) that will amount to putting premium on such pick and choose strategies of the Agency. Certainly, in that event any common man, innocent and honest people, will lose faith and confidence which they have reposed in the judicial system as a temple of justice. Judicial principles which guide the Court cannot be ignored.
7. Like the laudable object of the PML Act casting duty on the Court to safeguard it, equally the court is protector of rights of accused and innocent persons who are illegally arrested. The Court cannot become predator of such valuable rights of the accused, but is duty bound to be a protector thereof as laid down by the Hon’ble Supreme Court. If the Court ignores this aspect, where will the people go for justice?
8. This Court being the Court of First Instance has great responsibility of not committing a slightest mistake which will turn into miscarriage of justice. Therefore, this Court has taken a thorough survey of the available records/materials within four corners of the limits required to resolve this question relating to the twin conditions and only thereafter, arrived at such a conclusion by not transgressing the boundaries and not committing any mini-trial.
9. In PMLA bail matters, orders become long and run into at least around 40-50 pages, does not mean that the Court has done a mini trial as argued by the Ld. A.S.G. Mr. Anil Singh. On the contrary the stringent twin conditions under Sec.45(1)(i) (ii) of the PML Act prescribe prima-facie thorough examination. Even the recent order of the Hon’ble High Court in the case of Anil Vasantrao Deshmukh (supra) runs into 53 pages. The present order is a common order for two bail applications relating to voluminous record, hence bound to run in a number of pages.
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