2023 (9) TMI 662 - HC - Money Laundering

Seeking grant of anticipatory bail - money laundering - proceeds of crime - illegal sale of coal - HELD THAT - Section 45 of the PMLA, which contains certain restrictions on the Courts power to grant bail, does not contain any provision saving the special powers to grant bail conferred upon the High Courts by Section 439 Cr.P.C., whereas Section 44 of the PMLA, which confers jurisdiction for trial of offences under the Act upon Special Courts and which does not contain any provision which may affect the powers of any Court regarding grant of bail, provides that nothing contained in Section 44 shall affect the High Court s special powers regarding bail under Section 439 Cr.P.C. - It appears that the provision contained in Section 44 (2) of PMLA saving special powers of the High Courts regarding grant of bail was meant to be incorporated in Section 45 of the Act, but it has erroneously been placed just above Section 45. The aforesaid Acts deal with heinous offences like hijacking of aero planes, unlawful acts against safety of civil aviation, maritime piracy, unlawful acts against safety of maritime navigation and fixed platforms on continental shelf, and offences relating to manufacture and sale of adulterated or spurious drugs, which would affect a very large number of population, and the offences carry punishment upto death. All the Acts contain restrictions of Courts power to grant bail to an accused person, which are similar to the restriction provided in Section 45 (1) and (2) of PMLA. All the acts provide that the aforesaid restrictions can be waved by the Special Courts in case of a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, like the provision contained in the proviso appended to Section 45 (1) of PMLA. The restriction contained in Section 45 of PMLA that bail cannot be granted to a person accused of an offence under the PMLA without recording a prima facie satisfaction of innocence of the applicant, is not applicable to the Constitutional Courts in view of the harmonious interpretation of Sections 44 and 45 of PMLA and, therefore, irrespective of the fate of the applications under Section 482 Cr.P.C., this Court need not record a prima facie satisfaction of innocence of the applicants. No proceeds of crime have been recovered from the applicant Ramji Singh and the only allegation against the applicant is that he was indirectly involved in the activity of abetment with regard to generation of proceeds of crime, and even as per the complaint, there is no allegation of his direct involvement in commission of any offence. Meanwhile the applicant Ramji Singh has attained the age of 72 years and obviously he has retired long ago and he does not appear to be in a position to influence the witnesses or tamper with the evidence. Having retired, there appears no reasonable apprehension of the applicant Ramji Singh indulging in commission of a similar offence after grant of anticipatory bail to him. All the orders granted interim anticipatory bail to the applicants deserve to be confirmed and the applications deserve to be allowed.

Summary

Issues Involved:

1. Allegations of illegal diversion and sale of coal.
2. Application of Section 45 of the Prevention of Money Laundering Act (PMLA) regarding bail.
3. The role of officials in certifying false reports.
4. Delay in lodging complaints and filing charge-sheets.
5. Consideration of anticipatory bail applications.

Summary:

1. Allegations of Illegal Diversion and Sale of Coal:
The applicants sought anticipatory bail in cases involving allegations that several companies received coal from Northern Coalfields Ltd. (NCL) for manufacturing Special Smokeless Fuel (SSF) but sold it in the black market instead, causing wrongful loss to the government and wrongful gain to the accused. FIRs were filed under Sections 120-B, 420 of IPC, and Section 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988.

2. Application of Section 45 of PMLA Regarding Bail:
The court discussed the restrictions under Section 45 of PMLA, which require the Public Prosecutor to oppose the bail and the court to be satisfied that the accused is not guilty and unlikely to commit an offense while on bail. However, the court concluded that these restrictions were meant for courts other than constitutional courts, due to a misplacement of provisions in the PMLA. The court harmonized Sections 44 and 45 to save the High Court's special powers under Section 439 Cr.P.C. for granting bail.

3. Role of Officials in Certifying False Reports:
Regarding Ramji Singh, it was alleged that he and another officer misused their positions by certifying false reports about the utilization of coal and the functioning of SSF units. The court noted that no proceeds of crime were recovered from Ramji Singh, and he was indirectly involved in abetment.

4. Delay in Lodging Complaints and Filing Charge-Sheets:
The court noted the significant delay in lodging complaints and filing charge-sheets. The joint surprise check occurred on 25.03.2011, FIRs were filed on 13.04.2011, and charge-sheets were submitted on 31.05.2012. Complaints by the Enforcement Directorate (ED) were filed between 2018 and 2019, leading to the registration of session cases in 2023.

5. Consideration of Anticipatory Bail Applications:
The court considered the merits of each applicant's case. It noted that the applicants had cooperated with the investigation, no proceeds of crime were recovered, and there was no reasonable apprehension that they would tamper with evidence or abscond. The court emphasized that the applicants had already submitted bail bonds and complied with interim bail conditions.

Conclusion:
The court confirmed the interim anticipatory bail granted to the applicants, allowing the applications and maintaining the conditions imposed in the interim orders.