2021 (5) TMI 1065 - HC - Money Laundering

Money Laundering - Seeking grant of bail - the case is that the E.D. has chased several Bank Accounts which have been used by the petitioner to divert property under PMLA 2002 - habitual offenders or not - HELD THAT - If the special provisions of the PMLA including Section 45 thereof are seen as having been diluted or struck down as being unconstitutional by the Supreme Court this Court must take recourse to Section 439 of the Cr. P.C. for the purposes of the present application. The contention of the Enforcement Directorate that the petitioner is a habitual offender or is likely to tamper with evidence or influence witnesses is not apparent from the records and can only be presumed if the petitioner had committed the same/similar offence after being released from custody or detention. The other relevant consideration is that despite today being the 56th day of the 60-day timeframe under Section 167 (2) of the Cr.P.C. the Enforcement Directorate has not filed any complaint against the petitioner since the time of his arrest on 9th March 2021. This court is of the view that the petitioner should not further be kept in custody. The petitioner shall accordingly be released on bail upon furnishing a bond of Rs.20, 000/- with two sureties of like amount each one of whom must be a local resident to the satisfaction of the learned Judge of the Special Court under the PMLA. Since an apprehension has been expressed by the E.D. that the petitioner may abscond upon release the petitioner will deposit his passport with the learned Judge of the Special Court. Since the petitioner lives in Hyderabad Telangana the petitioner shall deposit his passport within four days from the date of this order. The petitioner will be at liberty to apply for return of his passport from the appropriate forum in fit circumstances. Bail application disposed off.

Summary

Issues:
1. Bail application under Section 439 of The Code of Criminal Procedure, 1973.
2. Detention under COFEPOSA proceeding and subsequent release.
3. Enforcement Directorate's opposition based on PMLA violations.
4. Interpretation of Section 45 of the PMLA.
5. Consideration of habitual offender status and risk of absconding.
6. Necessity of custodial interrogation and grounds for detention.
7. Application of Section 167(2) of the Cr.P.C.
8. Conditions for granting bail and safeguard measures.

Detailed Analysis:
1. The petitioner filed a bail application under Section 439 of The Code of Criminal Procedure, 1973, stating previous arrests and releases. The petitioner was arrested on 9th March, 2021, after being detained under COFEPOSA proceedings and subsequently released on bail by the CJM, North 24 Parganas, on 20th August, 2018. The petitioner had been in custody for 55 days and was due to be released under Section 167(2) of the Cr.P.C. on 8th May, 2021.

2. The Enforcement Directorate opposed the bail application, citing the petitioner's use of multiple bank accounts for money laundering under the Prevention of Money Laundering Act, 2002 (PMLA). The investigating authority was uncovering incriminating evidence and claimed the petitioner might abscond if released. Emphasis was placed on the non-bailable nature of offenses under the PMLA.

3. The court considered the petitioner's previous arrest and release under COFEPOSA proceedings, noting the lack of necessity for further detention based on investigation progress. The Enforcement Directorate's reliance on Section 45 of the PMLA was challenged, citing a Supreme Court ruling that deemed the section arbitrary and violative of constitutional rights.

4. Given the potential unconstitutionality of Section 45 of the PMLA, the court had to resort to Section 439 of the Cr.P.C. for the bail application. The petitioner's status as a habitual offender or flight risk was not substantiated, and no new complaints had been filed since the recent arrest.

5. The court found no grounds for custodial interrogation and noted the absence of evidence of misuse of liberty after previous bail. Conditions for granting bail included a bond, surrender of passport, weekly meetings with the Investigating Officer, and non-interference with witnesses or evidence.

6. The court ordered the petitioner's release on bail, subject to specified conditions to prevent absconding and ensure cooperation with the investigation. Failure to comply could result in bail cancellation by the trial court. All parties were instructed to adhere to the court's order downloaded from the official website.

This detailed analysis covers the various issues addressed in the judgment, providing a comprehensive overview of the legal reasoning and decisions made by the Calcutta High Court in this case.