Evidence In ED’s custody, No Scope For Accused To Tamper With Same: Calcutta HC Grants Bail To Former TMC Leader’s Close Aide Ayan Sil In 2014 TET Recruitment Case

The case against the petitioner emanated from the registration of complaint by the Central Bureau of Investigation (CBI) in the year 2022 under sections 120B/420/ 467/468/471/34 of the Indian Penal Code read with sections 7/7A/8 of The Prevention of Corruption Act. The ECIR was registered following the CBI complaint and both the cases pertain to illegal appointment of candidates in TET-2014.

The Single-Judge Bench of Justice Suvra Ghosh observed, “The Hon’ble Supreme Court has time and again held that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial and in such a case Article 21 applies irrespective of the seriousness of the crime. The right to life and personal liberty enshrined under Article 21 of the Constitution is overarching and sacrosanct.”

Advocate Misha Rohatgi Mohta represented the Petitioner while Advocate Phiroze Edulji represented the Enforcement Directorate.

The Petitioner sought his release on bail on the ground that he is in custody since March 20, 2023 and has not been named in the FIR or the charge sheet of the predicate offence and was named only in the third complaint filed by the Enforcement Directorate. It was submitted that no predicate offence was made out against the petitioner and there was no evidence to suggest that he was involved in concealment of any proceeds of crime or laundering of money.

It was contended that the E.D. appears to have been attempting to include unrelated allegations like TET-2012 and an alleged municipality scam within the purview of investigation of the present case which are beyond the scope of the predicate offence. As per the Petitioner, the E.D. made out a new case that the candidates were given a nine digit roll number in TET-2012 and a fourteen digit roll number in TET2014. The candidates who were unsuccessful in TET-2012 were allowed to reappear in TET-2014 with their earlier roll numbers of TET-2012. This argument not being a part of the complaints, affidavit-in-opposition or written submission made by the E.D., couldn’t be considered at the present stage.

On the contrary, it was the ED’s case that the modus operandi of the petitioner was to take huge money from the aspiring candidates in lieu of appointment which were never given. Five complaints were filed by the E.D. and the petitioner was named in the third supplementary complaint. Movable and immovable properties worth Rs. 11.96 crore belonging to the petitioner were attached. Interrogation of Kuntal Ghosh and Santanu Banerjee during E.D. custody revealed that the petitioner collected huge amount of money from candidates with the assurance of providing appointment to the post of teachers in TET-2012 and TET-2014 and made over the collected amount to Kuntal Ghosh and other agents for getting them appointed through Partha Chatterjee.

It was further submitted that the Petitioner invested the proceeds of crime worth rupees 18 crore in his real estate projects dealt with by his company and also purchased properties like petrol pump, flat, land and hotel in the names of his son, wife and other family members/associates. Evidence collected by the E.D. suggested a nexus between Kuntal Ghosh, the petitioner and others involved in the crime.

The Bench observed that the CBI owes an explanation as to why the petitioner was required in the earlier case after more than two years of registration of the case, when his bail petition was being considered by the High Court.

Considering the fact that the case essentially hinges on statements of the petitioner and the co accused and recovery made pursuant to the same, the Bench said, “The Hon’ble Court has held in a catena of judgments that statement of the co-accused cannot be considered against the petitioner and is not substantive piece of evidence. Its evidentiary value has to be tested at the time of trial and not at the stage of granting bail. The statement cannot be taken as gospel truth and only broad probabilities have to be seen. The Hon’ble Court has also held that prosecution cannot commence with the statement of a co-accused under section 50 of the PMLA.”

“The E.D. intends to rely upon voluminous evidence including 182 statements, 210 documents spanning over 20,000 pages and examine 167 witnesses to substantiate their case. The case is primarily based on documentary evidence which is in custody of the E.D. and there is no scope for the petitioner to tamper with the same. To address the apprehension of the petitioner influencing witnesses of the case, stringent conditions may be imposed upon him while releasing him on bail”, the Bench held.

The Court observed that a constitutional Court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused/under-trial under Article 21 of the Constitution has been infringed.

Further noticing that the Co-accused similarly circumstanced with the petitioner has been granted bail as well as the accused’s right to speedy trial under Article 21 of the Constitution as well as his prolonged incarceration, the Bench ordered, “The petitioner be released on bail upon furnishing bond of Rs. 10,00,000/- (Rupees Ten lakhs) with adequate sureties.”

Cause Title: Ayan Sil v. Enforcement Directorate Kolkata Zonal Office-II [Case No. CRM (SB) 17 of 2024]

Appearance:

Petitioner: Advocates Misha Rohatgi Mohta, Bharat Monga, Shahina Haque, Moumita Kumar

Enforcement Directorate: Advocates Phiroze Edulji, Anamika Pandey

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