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2023 (7) TMI 1381 - HC - Money LaunderingSeeking grant of bail - Money Laundering - proceeds of crime - predicate offences - irregularities in framing and implementation of the excise policy of GNCTD of Delhi for the year 2021-22 - HELD THAT - It is settled proposition Section 45 PMLA do not impose an absolute restraint on the grant of bail and the court at this stage is to prima facie consider whether applying the standard of broad probabilities the material against the applicant would result in conviction. It is also a settled proposition that at this stage the Court is only required to examine the matter to find out whether the accused was possessed of the requisite mens rea. It is also no longer res integra that the court is not required to record a positive finding that the accused had not committed the offence under the Act. It is also a settled proposition that the court at this stage is not required to weigh the evidence meticulously. The court is only required to arrive at a finding on the basis of broad probabilities. It is also a settled proposition that the court is not required to hold a mini trial at this stage and is required to examine the case on the basis of broad probabilities. It is also to be kept in mind that while exercising the jurisdiction under Section 45 of PMLA, the court is required to take into consideration the limitations prescribed under Section 439 Cr.P.C. The bare reading of Section 3 of PMLA would make it clear if a person is involved in any process or activity connected with the proceeds of crime, including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty offence of money laundering. Therefore, it is not necessary to attribute section 3 of the PMLA that the alleged person must have acquired or in possession of the proceeds of the crime. If a person has actually been involved in any process or activity connected with the proceeds of crime, it would be sufficient to prosecute him under Section 3 of PMLA. The argument that the proceeds of crime have not been received or the proceeds of crime has not been recovered and therefore section 3 of the PMLA will not come into operation is totally fallacious and is liable to be rejected. The present case is very peculiar in nature and may not have any parallel factual matrix. In brief, the initial allegation in the predicate offence was that the conspiracy was hatched between the political head and certain persons which included an individual allegedly representing the government with the manufacturer, liquor wholesaler and retailer. The conspiracy allegedly was hatched to introduce a new excise policy to benefit certain individuals who had given advance kickbacks to the AAP. Presently, this court is considering the bail application of the abovesaid accused persons namely Mr.Manish Sisodia, who was arrested for the offence under Section 3 of the PMLA. The allegations against the petitioner Manish Sisodia is he being the Deputy Chief Minister and Excise Minister formulated the excise policy in such a manner that undue advantage goes to the manufacturer, wholesaler and retailer so as to recoup the advance kickbacks and to further gain undue advantage from the profit so earned by virtue of the provision in the new excise policy - The plea raised by the defence is the ED has no material other than an inconsistent and unreliable statement of either co-accused or the public servants. The defence has raised a plea that in absence of any independent corroboration or material on record to substantiate such statements under Section 50 PMLA, the court on the basis of probability should record a finding that accused persons are not guilty of such offence. In the present case allegedly the excise policy was framed as a special purpose vehicle to generate the proceeds of crime and with the same motive, M/s Indo spirit was also constituted for regular generation of proceeds of crime. There may not be any recovery of the proceeds of crime. However, if the excise policy has been framed for the purpose of generation of proceeds of crime or M/s Indo Spirits has been constituted in a manner to continuously generate the proceeds of crime then all the stakeholders who instrumental in framing, drafting and formulating of excise policy are covered under Section 3 of PMLA as their acts and conducts amount to involvement in any process of activity connected with the proceeds of crime. This court has also gone through the order of the learned Special Judge dated 28.04.2023 and do not find infirmity or illegality in the said order. Learned Special Judge has passed a reasoned order on the basis of material available on record - This court inter alia was of the view that in view of the high political positions held by the accused and his position in the party in power in Delhi possibility of influence the witnesses cannot be ruled. The twin conditions under Section 45 of PMLA are in addition to the triple test. This Court is of the considered view that the petitioner has not only been able to pass the twin conditions as provided under Section 45 of PMLA, but he has also not been able to cross the triple test. Petition dismissed.
Issues Involved:
1. Whether the petitioner was involved in the offence of money laundering under Section 3 of PMLA. 2. Whether the statements under Section 50 of PMLA can be relied upon without independent corroboration. 3. Whether the petitioner fulfilled the conditions for bail under Section 45 of PMLA and Section 439 Cr.P.C. 4. Whether the petitioner's alleged actions constituted a deep-rooted conspiracy involving significant public fund loss. Summary: 1. Involvement in Money Laundering: The court examined whether the petitioner, as Deputy Chief Minister and Excise Minister, formulated the excise policy to benefit certain individuals who had given advance kickbacks to the AAP. The court noted the allegations that the excise policy was framed to recoup the kickbacks and generate further undue advantage. It was alleged that the petitioner received illegal gratification for inserting an NOC clause benefiting Amit Arora and that M/s Indo-Spirit was created as a special purpose vehicle to generate proceeds of crime. The court found that the allegations and material on record indicated that the excise policy was framed to generate proceeds of crime, thus covering all stakeholders under Section 3 of PMLA. 2. Reliance on Statements under Section 50 PMLA: The court acknowledged that statements under Section 50 of PMLA are admissible in evidence but their evidentiary value must be weighed at trial. The defense argued that the ED's case was based solely on inconsistent and unreliable statements of co-accused and public servants, lacking independent corroboration. However, the court emphasized that at the bail stage, it could not meticulously examine the evidence and must consider the statements under Section 50 PMLA as judicial proceedings, which carry consequences for false statements. 3. Conditions for Bail under Section 45 PMLA and Section 439 Cr.P.C.: The court reiterated that Section 45 of PMLA imposes twin conditions for bail: the Public Prosecutor must be given an opportunity to oppose the application, and the court must be satisfied that there are reasonable grounds for believing the accused is not guilty and is unlikely to commit any offence while on bail. The court also considered the limitations under Section 439 Cr.P.C., emphasizing the nature of the accusation, severity of punishment, and prima facie satisfaction of the court. The court found that the petitioner had not met the twin conditions under Section 45 of PMLA or the triple test under Section 439 Cr.P.C. 4. Deep-rooted Conspiracy: The court noted the serious allegations of a conspiracy involving the petitioner and other individuals to frame the excise policy with malafide intentions, leading to a significant loss of public funds. The court highlighted the involvement of outsiders in the policy formulation, the increase of profit margins without proper deliberation, and the alleged use of proceeds of crime in the Goa elections. The court found that the allegations indicated a deep-rooted conspiracy, justifying a different approach to bail in this case. Conclusion: The court dismissed the bail application, finding that the petitioner had not met the conditions for bail under Section 45 of PMLA or Section 439 Cr.P.C. and that the allegations indicated a serious conspiracy involving significant public fund loss.
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