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2021 (8) TMI 264 - HC - Money LaunderingSeeking grant of Bail - criminal conspiracy - cheating and fraud - fraudulent import of fertilizers and other materials for fertilizer production at inflated prices and claimed higher subsidy from Government of India causing loss of several crores of rupees - siphoning off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies - Flight risk - HELD THAT - Even if the allegation was one of grave economic offence, it was not a rule that bail should be denied in every case. Flight risk - HELD THAT - It is the admitted case of the department that over the period of last 10 years the petitioner has gone abroad atleast 90 times for various purposes - The petitioner was even allowed to travel abroad by this Court twice subject to conditions despite the opening of LOC against him and the registration of the FIR by the CBI. Therefore, when such is the conduct of the petitioner, he cannot be said to be a flight risk. Moreover, nothing has been placed on record that the petitioner/accused is a flight risk nor much emphasis was laid on this during the argument. Medical condition of petitioner - HELD THAT - Petitioner is suffering from cancer since 2002 which is not denied by the department. The petitioner is under the treatment of one doctor namely Morton Coleman of U.S. and he visits the doctor for his follow up from time to time. It is on record that the petitioner was granted special permission to travel to America by the American Embassy aided by the Ministry of External Affairs and his sister was also allowed to travel with him due to his medical condition. Looking into the medical condition of the petitioner, this Court permitted the petitioner to travel to USA for his medical treatment subject to conditions, despite the registration of the FIR - No doubt, as argued by the Ld. ASG, the condition of the petitioner is not serious and do not require immediate attention and his present condition is manageable, but one also cannot lose sight of the fact that the petitioner is a known case of cancer and is suffering from various diseases for which he is taking medicines as submitted by Ld. Sr. counsel for the petitioner. The petitioner is entitled to be released on bail on merits as well as on medical grounds - petitioner shall be released on bail on the terms and conditions imposed. Application allowed.
Issues Involved:
1. Bail application under Section 45 of the Prevention of Money Laundering Act (PMLA), 2002 read with Section 439 Cr.P.C. 2. Allegations of criminal conspiracy, cheating, and defrauding IFFCO and Indian Potash Limited (IPL). 3. Siphoning off commission through fraudulent transactions. 4. Allegations against the petitioner for channelizing ill-gotten money. 5. Petitioner's arrest and compliance with procedural requirements. 6. Health conditions of the petitioner. 7. Applicability of twin conditions under Section 45 of PMLA for bail. 8. Risk of flight, tampering evidence, and influencing witnesses. Detailed Analysis: 1. Bail Application under Section 45 of PMLA and Section 439 Cr.P.C.: The petitioner filed for regular bail under Section 45 of PMLA read with Section 439 Cr.P.C. in ECIR No. DLZO-I/43/2021. The petitioner's counsel argued that the twin conditions under Section 45 PMLA were declared unconstitutional in the Nikesh Tarachand Shah case and thus should not apply. 2. Allegations of Criminal Conspiracy, Cheating, and Defrauding IFFCO and IPL: The petitioner, a Senior Vice President of M/s Jyoti Trading Corporation, was accused of conspiring with others to defraud IFFCO and IPL by importing fertilizers at inflated prices and claiming higher subsidies, causing significant financial loss to the Government of India. 3. Siphoning off Commission through Fraudulent Transactions: It was alleged that the petitioner and other accused siphoned off commissions through fake commercial transactions via multiple companies registered outside India. These transactions were camouflaged to hide the fraudulent activities. 4. Allegations Against the Petitioner for Channelizing Ill-Gotten Money: The petitioner was accused of acting as an intermediary to channelize approximately ?685 Crores through different firms and companies. The money was allegedly used for real estate investments abroad. 5. Petitioner's Arrest and Compliance with Procedural Requirements: The petitioner was arrested on 02.06.2021 and remanded to police custody. The petitioner's counsel argued that the arrest violated procedural requirements under Section 50 Cr.P.C. and Section 19 PMLA, as the grounds for arrest were not furnished. The counsel cited various Supreme Court judgments to support the argument. 6. Health Conditions of the Petitioner: The petitioner, aged around 61, suffers from multiple health issues, including Hodgkin’s disease, hyperthyroidism, diabetes, and hypertension. The petitioner’s counsel argued for bail on medical grounds, citing the petitioner’s deteriorating health condition and previous permissions granted for medical treatment abroad. 7. Applicability of Twin Conditions under Section 45 of PMLA for Bail: The court examined whether the twin conditions under Section 45 PMLA, which were declared unconstitutional, were revived by subsequent amendments. The court referred to several judgments, including the Bombay High Court's decision in Sameer M. Bhujbal vs. Assistant Director Directorate of Enforcement, which held that the twin conditions were not revived by the amendments. 8. Risk of Flight, Tampering Evidence, and Influencing Witnesses: The court considered the petitioner's risk of flight, potential to tamper with evidence, and influence witnesses. The court noted that the petitioner had traveled abroad multiple times but always returned and cooperated with investigations. The court found no substantial evidence that the petitioner posed a flight risk or had tampered with evidence or influenced witnesses. Conclusion: The court granted bail to the petitioner on merits and medical grounds, subject to conditions including furnishing a personal bond of ?10,00,000, not leaving the country without court permission, making himself available for investigation, and not influencing prosecution witnesses. The bail application was disposed of accordingly, and the court clarified that the observations made were not expressions of opinion on the case's merits.
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