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2017 (4) TMI 475 - HC - Money LaunderingOffence under money laundering - Offences to be cognizable and non-bailable - person accused of the commission of the offence - Held that - We cannot agree with the submission of the petitioner that for the purpose of Sections 3 and 4 of the PMLA, the person accused of the commission of the offence under the PMLA should have committed the scheduled offence and acquired the proceeds of crime. The proceeds of crime may be acquired by another person who commits one of the scheduled offences, and the person charged with money laundering may have only, directly or indirectly, assisted or knowingly become a party, or may be actually involved in the process or activity of, inter alia, concealing, possessing, acquiring or using and projecting or claiming the said proceeds of crime as untainted property. The purpose of scheduling the offences under the PMLA appears to be to enlist the various crimes through which the proceeds of crime may be generated. Thus, the submission of the petitioner that he cannot be charged under the PMLA, does not appear to have any merit. The learned Special Judge has opined that it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the scheduled offence. This prima-facie finding of the learned Special Judge on a reading of the allegations made against the petitioner herein in the FIR/ RC registered by the CBI, as well as on a perusal of the complaint preferred under the PMLA, appears to be justified and there is no reason to take a different view of the matter at this stage.
Issues Involved:
1. Regular bail application under Section 439 Cr.P.C read with Section 45 of PMLA. 2. Allegations of money laundering and disproportionate assets. 3. Validity of arrest and detention under PMLA. 4. Applicability of Section 45 of PMLA to the petitioner. 5. Premature arrest and violation of Article 21 of the Constitution. 6. Comparison with other judicial precedents. Issue-wise Detailed Analysis: 1. Regular Bail Application under Section 439 Cr.P.C read with Section 45 of PMLA: The petitioner sought regular bail under Section 439 of the Code of Criminal Procedure (Cr.P.C) read with Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA). The court examined whether the conditions for granting bail under Section 45 of PMLA, which imposes stringent conditions for release, were met. 2. Allegations of Money Laundering and Disproportionate Assets: The prosecution alleged that the petitioner, an LIC agent, facilitated the laundering of unaccounted money for a public servant by investing in LIC policies. The petitioner was implicated in a scheme involving the sale of apples from an orchard, which was claimed to be a sham transaction used to justify large cash deposits. 3. Validity of Arrest and Detention under PMLA: The petitioner was arrested under Section 19 of PMLA after being summoned multiple times for recording statements. The court noted that the arrest was made based on substantial material suggesting the petitioner’s involvement in money laundering. 4. Applicability of Section 45 of PMLA to the Petitioner: The petitioner argued that Section 45 of PMLA, which applies to offences punishable by more than three years, should not apply to him as he was charged under Section 109 IPC, which is not a standalone offence. The court rejected this argument, stating that the petitioner’s involvement in laundering proceeds of crime linked to a scheduled offence under PMLA justified the application of Section 45. 5. Premature Arrest and Violation of Article 21 of the Constitution: The petitioner contended that his arrest was premature and violated Article 21 of the Constitution since the primary accused had not been arrested, and the charge sheet was yet to be filed. The court dismissed this claim, noting that the main accused’s protection had been vacated, and a charge sheet had been filed, making the petitioner’s arrest valid. 6. Comparison with Other Judicial Precedents: The petitioner cited the Division Bench judgment in Gurucharan Singh vs. Union of India to argue for bail. However, the court found this precedent inapplicable as it dealt with writ proceedings, whereas the present case involved a bail application under Section 439 Cr.P.C. The court emphasized the mandatory nature of Section 45 of PMLA, as upheld by the Supreme Court in Gautam Kundu vs. Directorate of Enforcement. Conclusion: The court concluded that the petitioner’s involvement in the alleged money laundering was substantial, and the stringent conditions of Section 45 of PMLA applied. The bail application was dismissed, with the court noting that its observations should not prejudice the trial court’s consideration of the case’s merits.
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