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2021 (12) TMI 78 - HC - Money LaunderingSeeking grant of bail - smuggling of drugs - MDMA pills - possession of the contraband exceeding the permissible limit - generation of proceeds of crime by collecting money from their customers in exchange for supply of illegal Narcotic Drugs, Psychotropic Substances, Controlled Substances and Conveyances - HELD THAT - There is huge difference of cash deposits and declaration of income by the petitioner in his income tax returns. There is suppression of fact regarding the amount transferred in favour of accused No. 1. The conduct of the petitioner in getting the loan by paying interest from the banks by mortgaging the property and transferring the said amount to accused No. 1 is also suspicious - information that are collected from accused No. 1, the petitioner and other witnesses disclose that there is regular and huge transfer of amount from the petitioner to the bank account of accused No. 1. However, there are stray instance of payment of amount in cash. The explanation given by accused Nos. 1 4 regarding transfer of these amounts as financial assistance to run the Restaurant or to withstand the loss in the business or for undergoing surgery etc., appears to be not probable and the transfer of the amount even though appears to be unusual as the same are not said to have disclosed while filing income tax returns, the same cannot be the sole basis for recording the finding the guilt of the petitioner at this stage. Even though the statements given by the petitioner under Section 50(3) of PMLA is admissible in evidence, the veracity of such statements will have to be judged at the time of trial and a conclusion cannot be drawn at this stage that the money transferred between accused Nos. 1 4 are the proceeds of crime as contended by the prosecution. Section 19 of PMLA deals with the power to arrest the accused by the Director or other officer authorized in this behalf. Such power to arrest could be exercised only on the basis of the material with a reason to believe that such person is guilty of an offence punishable under PMLA - Section 439 of Cr.P.C., deals with special power of High Court or the Court of Sessions regarding bail. Even though, this section is general provision under Cr.P.C., Section 65 of PMLA enables the provisions of Cr.P.C., to apply to the offences under the Act insofar as they are not inconsistent with the provisions of the Act with regard to arrest, search seizure, attachment, confiscation, investigation, prosecution and all other proceedings under PMLA. Admittedly, there are no other provisions under PMLA which is inconsistent with Section 439 of Cr.P.C. Therefore, filing of the petition by the petitioner under Section 439 of Cr.P.C. cannot be find fault with. The petitioner is not required to be detained in custody for any other purpose except to ensure his presence before the Trial Court and to see that he will not commit such offence while on bail. Under such circumstances, his further detention in custody would amount to infringement of his valuable right to life and personal liberty. Therefore, the petitioner is entitled to be enlarged on bail - Petition allowed.
Issues Involved:
1. Whether the petitioner is entitled to be enlarged on bail under Section 439 of Cr.P.C. read with Section 65 of the Prevention of Money-Laundering Act, 2002 (PMLA). Detailed Analysis: 1. Background and Allegations: The petitioner, accused No. 4, sought bail under Section 439 of Cr.P.C. r/w Section 65 of PMLA. The case originated from credible information received by the Narcotic Control Bureau (NCB) leading to the seizure of drugs and cash from accused Nos. 1 and 2. Accused No. 1 implicated the petitioner as his boss and financier in the drug trade. The petitioner was alleged to have invested significant sums in the drug business, leading to charges under Sections 3 and 4 of PMLA for money laundering. 2. Prosecution's Contentions: The prosecution argued that the petitioner financed the drug business of accused No. 1 and laundered the proceeds of crime. They presented statements from accused Nos. 1 and 2, and other witnesses, suggesting the petitioner's involvement in financing and benefiting from the drug trade. The prosecution emphasized the presence of a debit card in the name of accused No. 1 found at the petitioner's residence and significant unexplained financial transactions. 3. Petitioner's Defense: The petitioner contended that he is a businessman with no criminal antecedents and that the financial transactions were legitimate business loans. He argued that the prosecution lacked concrete evidence linking him to the proceeds of crime or drug business. The petitioner highlighted that he was not named as an accused under the NDPS Act and that the transactions were primarily through bank transfers, not indicative of illegal activities. 4. Legal Precedents and Considerations: The petitioner relied on several Supreme Court decisions, including Nikesh Tarachand Shah vs. Union of India, which struck down the twin conditions under Section 45(1) of PMLA. He argued that the prosecution failed to establish his guilt or likelihood of committing an offense while on bail. The prosecution, however, maintained that the amended Section 45(1) of PMLA, though under challenge, was still in force and required satisfaction of the twin conditions for bail. 5. Court's Analysis: The court examined the materials on record, including the statements and financial documents. It noted that while there were suspicious transactions, the prosecution did not present concrete evidence to conclusively link the petitioner to the proceeds of crime. The court emphasized that mere suspicion was insufficient to deny bail and that the petitioner's continued detention would infringe on his right to life and personal liberty. 6. Application of Section 45 of PMLA: The court acknowledged the amendment to Section 45(1) of PMLA and the pending challenge to its constitutionality. It concluded that the petitioner satisfied the twin conditions under Section 45(1) of PMLA, as there were reasonable grounds to believe he was not guilty and unlikely to commit an offense while on bail. 7. Final Decision: The court granted bail to the petitioner, subject to conditions including a bond of ?5,00,000, non-commission of similar offenses, non-tampering with witnesses, appearance before the investigating officer and court as required, and not leaving India without court permission. The court allowed the trial court to verify the sureties' authenticity before releasing the petitioner on bail. Order: The petition is allowed, and the petitioner is enlarged on bail with specified conditions to ensure compliance and prevent any potential misuse of bail.
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