Jharkhand High Court
Panna Lal Mahto @ Ganjhu Aged About 39 … vs U.O.I. Through Directorate Of … on 6 December, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.9384 of 2022
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Panna Lal Mahto @ Ganjhu aged about 39 years, S/o Late
Choyata Mahto, Resident at Ganaloya, P.O. & P.S.-Murhu,
District-Khunti. … … Petitioner
Versus
U.O.I. through Directorate of Enforcement, Govt. of India,
Plot No.1502/B, Airport Road, Hinoo, Ranchi, P.O. + P.S.-
Doranda, Dist.-Ranchi, Jharkhand 834002
… … Opp. Party
——-
CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD
——-
For the Petitioner : Mr. Sourabh Kumar Das, Advocate
For the Opp. Party : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
——
th
Order No. 15/Dated 6 December, 2024
1. The jurisdiction of this Court has been invoked by
filing application under Section 439 and 440 of the Code of
Criminal Procedure, reason being that the application was
filed on 20.08.2022. Subsequent thereto, i.e., with effect
from 01.07.2024, the Code of Criminal Procedure has been
superseded by new enactment, i.e., B.N.S.S. (Bhartiya
Nagarik Suraksha Sanhita), 2023 and the pari materia
provisions to that of Sections 439 and 440 of the Cr.P.C are
483 and 484 of the B.N.S.S respectively.
2. Since the matter is being heard as on the date when
the new Act is in vogue, hence, in view of the power as
conferred under Sections 439 and 440 of the Cr.P.C read
with Section 483 of the BNSS, 2023, this Court is now
adverting to the factual aspect of the instant case in order
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to find out that whether the prima facie case to enlarge the
petitioner on bail is made out or not.
3. This application has been filed for a direction to
release the present petitioner from judicial custody by
granting him regular bail in connection with ECIR Case
No.04/2021 (ECIR/RNSZO/12/2020) for the offence under
Section 3 read with Section 4 of the PML Act.
4. The facts leading to filing of the present case reads
as under:-
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
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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
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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
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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
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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 of9
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.
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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
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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
Ganjhu12
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
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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
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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.
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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.
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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).
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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
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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
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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 be21
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
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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
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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/
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