2016 (4) TMI 1168 - HC - Money Laundering

Money laundering - application seeking bail during the pendency of this writ petition - Held that - We enlarge the petitioners on bail during the pendency of the petitions on the following conditions 1. Petitioners shall execute a bond of Rupees Five Lacs each with two solvent sureties, each for the like amount to the satisfaction of the Trial Court. 2. Petitioners shall not leave the territorial jurisdiction of the National Capital Region without prior permission of either this Hon ble Court or the Trial Court. Similarly, petitioners shall not leave the country without the prior permission of either this Hon ble Court or the Trial Court. 3. Petitioners shall appear before the Investigating Officer in the Office of Enforcement Directorate, Delhi initially on every alternative day from 11 00 AM to 1 00 PM for a period of fifteen days and thereafter, as and when called upon by the Investigating Agency. 4. Petitioners shall furnish a mobile phone number to the Investigating Officer prior to their release and shall ensure the same to be operational at least between 9 00 AM to 6 00 PM. 5. Petitioners also undertake that the information furnished to their counsel by the Investigating Officer regarding their appearance before the ED would be construed to be a deemed service on the petitioner. For this purpose, the Investigating Officer may inform the counsel for the petitioner Gurucharan Singh namely Sh. Raktim Gogoi, Advocate having Mobile No. 98716-39549 and Mr. Naveen Malhotra, Advocate having Mobile No. 98100-35082 (counsel for Petitioners Chandan Bhatia & Sanjay Aggarwal). 6. Petitioners shall not in any manner have any contact directly or indirectly with any person connected with the case either as a witness or as an accused or in any other capacity. 7. Subject to the interim/final orders passed in the Provisional Attachment Proceedings initiated by the ED relating to the Petitioner s movable/immovable property and/or his Bank Account, petitioner undertakes not to operate the Bank Account(s) without prior permission of either this Hon ble Court or the Trial Court. 8. Petitioners undertake to furnish all information and/or issue any written instructions and/or correspondence for and in relation to any specific purpose, as sought for by the ED for the purpose of facilitation of investigation, except any self incriminating disclosure. 9. Petitioners shall answer each and every query put to them either orally or in writing by the Investigating Agency without any delay and in case, some data or record is to be collected, for answering such query, the same shall be endeavoured to be done within 24 Hours. 10. Petitioners shall not in any way directly or indirectly have any link; interaction; dealing and/or connection of any nature whatsoever, with any foreign firms/companies/entities/banks/accounts etc. including those who/which are the subject matter of present investigations conducted and in progress by ED. 11. Petitioners undertake not to deal with and/or carry out any export/import activity and/or transactions relating thereto either directly or indirectly. 12. Petitioners hereby tender on record their undertaking that they would not rely upon any invoices/import orders or any other such document relating to the transactions as alleged in the Complaint filed by ED during the trial and would not claim the existence of any such document at any subsequent stage of the proceedings or trial. Admit. Leave granted to the respondents to filed counter affidavit post admission.

Summary

Issues:
Bail application during writ petition pending

Analysis:
The respondent, represented by Mr. Sanjay Jain, ASG, opposed the bail application during the pendency of the writ petition, citing concerns that granting bail could lead to the creation of a fresh paper trail justifying illegal transactions. The allegations against the petitioners were deemed serious, involving large sums of money. Mr. Jain relied on the case of Gautam Kundu Vs. Manoj Kumar to argue that Section 45 of the Prevention of Money Laundering Act (PMLA) imposes conditions for granting bail, emphasizing the need for the Public Prosecutor to oppose the bail application and for the Court to be satisfied that the accused is not guilty and unlikely to commit further offenses while on bail.

Analysis:
In response, Mr. Vikram Chaudhari, representing the petitioner Gurucharan Singh, contended that Section 45 of the PMLA should not apply as no FIRs were lodged against the petitioners, and they were not charged with any scheduled offense under Part-A of the PMLA. However, Mr. Jain argued that an FIR had been filed by the CBI against known and unknown persons, including the petitioners, making them subject to Section 45 of the PMLA. He also referenced the case of Union of India Vs. Hasan Ali to support his argument.

Analysis:
Mr. Jain further highlighted that under Section 24 of the PMLA, the burden of proving that proceeds of crime are untainted property lies with the accused, which, according to him, the petitioners had not discharged. He referred to the case of Y. S. Jagan Mohan Reddy to emphasize the seriousness of economic offenses and the need for a different approach to bail in such cases. The court, considering the arguments presented, granted bail to the petitioners under specific conditions to ensure compliance and prevent any interference with the investigation or potential tampering with evidence.

Analysis:
The conditions imposed on the petitioners included executing a bond, restrictions on leaving the jurisdiction, regular appearances before the Investigating Officer, providing contact information, refraining from contact with involved parties, and complying with specific instructions related to the investigation. The court also directed the petitioners not to deal with foreign entities, engage in import/export activities, or rely on certain documents during the trial. Additionally, the respondents were granted leave to file a counter affidavit post admission, and a pending letter of request for information was mentioned in the proceedings.