Dichotomy of approach, understanding in orders granted by same court in CBI, ED cases: Excise case accused in HC

Chaudhary submitted that his client was arrested on October 9, 2022 and on October 29, 2022 the ED moved an application for recording his statement, which was allowed, and argued whether this could have been permitted considering the provisions of the jail manual.

He submitted that on November 13,2022, ED served his client an “arrest order”, which is a typed form under the PMLA, and the next day they moved an application under various provisions of the Code of Criminal Procedure and PMLA for production warrant and remand. He said that he is challenging whether his client could have been arrested within the precincts of the jail.

Chaudhary said that it has to be seen whether the “jugglery of provisions” and the reliefs prayed for under various sections in the application could have been sought by the ED. On the trial court granting the same to the ED, Chaudhary said it needed to be seen if it was a “mechanical exercise” or “reflects judicial application of mind”.

He submitted that Boinpally was granted bail by the special court on November 14, 2022 in the CBI case. He further said that the first prosecution complaint filed by ED on November 26, 2022 was not with respect to him, adding he was arrayed as an accused in the second prosecution complaint filed on January 6. Boinpally was arrested by the ED on November 14, 2022, the same day he got bail in the CBI case.
On February 16, the special court rejected bail pleas moved by Boinpally, AAP’s communication’s incharge Vijay Nair, Indospirit owner Sameer Mahendru, Aurobindo Pharma director Sarath Reddy and Pernod Ricard General Manager Benoy Babu.

On the defence argument that there is no evidence on record to show any meeting of minds or conspiracy hatched between the accused persons to pay the kickbacks, the special court said this submission was “unacceptable in light of the oral and documentary evidence which has been brought on record by the ED against the accused persons. The court said there was “enough evidence in there to infer the existence of such a criminal conspiracy between the accused”.

Chaudhary argued that the same judge in the CBI case, while granting Boinpally bail, had said that the agency had relied on oral evidence in the form of statements the veracity of which would be tested during trial, adding it had not led to any other evidence or material.

Invoking the February 16 order rejecting bail in the ED’s case, Chaudhary said, “There is an obvious dichotomy of approach and understanding. I’m arrested and granted bail in the CBI case. I’m arrested in the ED case while I’m in custody in the CBI case. Case is based on a hunch. In such cases there is a higher threshold on state agencies.”