2023 (3) TMI 385 - HC - Money Laundering

Seeking grant of Regular Bail - Money Laundering - predicate offence - huge bungling, fraud and forgery - twin conditions of Section 45 of the PMLA satisfied or not - HELD THAT - In the present case, this is an admitted case of the prosecution that after lodging the ECIR on 14.04.2012, the E.D. has not tried to arrest the present applicant under Section 19 of the PMLA. Even after release of the present applicant from jail in the predicate offence in the year 2015, the present applicant was called twice by the E.D. under Section 50 of the PMLA to record his statement on 23.12.2016 and 10.06.2019 where the applicant appeared and recorded his statement but the E.D. has not arrested the applicant under Section 19 of the PMLA. Therefore, it is clear that considering the proper cooperation of the present applicant in the investigation and evidences, material and allegations against the applicant, the Investigating Officer did not find it proper to arrest the applicant under Section 19 of the PMLA. Notably, the statutory rights of the present applicant defined under Section 204 (3) 208 Cr.P.C. have been violated by the Investigating Agency inasmuch as he has not been provided copy of complaint, copy of statements and other relevant documents. The Apex Court in re; Aman Preet Singh 2021 (10) TMI 1 - SUPREME COURT and Satender Kumar Antil 2022 (8) TMI 152 - SUPREME COURT has categorically observed that arrest of any person is not mandatory in each and every case but before curtailing the liberty of an accused person, the relevant facts and circumstances should be visualized. In the present case, prima facie, there was no requirement to take the applicant into custody when he appeared before the learned trial court pursuant to the summons being issued inasmuch as he has never flouted the process of law, he cooperated in the investigation throughout, the Investigating Agency has never thought to arrest him under Section 19 of the PMLA despite he appeared before the E.D. to record his statement twice pursuant to the summons being issued under Section 50 of the PMLA and there was no request of the E.D. before the learned trial court to the effect that arrest of the present applicant is warranted - thus, it appears that the learned trial court has taken the custody of the present applicant without following the settled proposition of law of the Apex Court in Aman Preet Singh and Satender Kumar Antil. The applicant- Govind Prakash Pandey directed to be released on bail in the aforesaid crime case on his furnishing a personal bond and two sureties of Rs.1,00,000/- each before the Trial Court concerned with the conditions imposed - bail application is allowed.

Summary

Issues Involved:
1. Applicant's arrest and judicial custody.
2. Compliance with Section 204(3) and 208 Cr.P.C.
3. Applicability of Section 45 of PMLA.
4. Applicant's cooperation in the investigation.
5. Comparison with precedents and judicial guidelines for bail.

Issue-wise Detailed Analysis:

1. Applicant's Arrest and Judicial Custody:
The applicant was taken into custody on 10.01.2023 in connection with the Sessions Case No.2791 of 2022 under the Prevention of Money Laundering Act, 2002 (PMLA). The applicant had been cooperating with the investigation and had not been arrested by the Enforcement Directorate (E.D.) during the investigation phase. Despite this cooperation, the applicant was taken into custody when he appeared before the trial court, and his bail application was subsequently rejected on 24.01.2023.

2. Compliance with Section 204(3) and 208 Cr.P.C.:
The summons issued to the applicant did not include a copy of the prosecution complaint or relevant documents, violating Sections 204(3) and 208 Cr.P.C. These sections mandate that every summons must be accompanied by a copy of the complaint and relevant documents must be furnished to the accused without delay. The court noted that this non-compliance was admitted by the E.D. in their counter affidavit.

3. Applicability of Section 45 of PMLA:
The trial court denied bail to the applicant based on the twin conditions of Section 45 of PMLA, which require that the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offense and that he is not likely to commit any offense while on bail. However, the court observed that since the applicant had not been arrested during the investigation and had cooperated fully, the stringent conditions of Section 45 should not apply in this case.

4. Applicant's Cooperation in the Investigation:
The applicant had been cooperating with the E.D. throughout the investigation, appearing when summoned and providing statements under Section 50 of PMLA. The E.D. did not find it necessary to arrest the applicant during the investigation, indicating that his cooperation was satisfactory.

5. Comparison with Precedents and Judicial Guidelines for Bail:
The court referred to several precedents, including the Supreme Court judgments in Aman Preet Singh vs. C.B.I. and Satender Kumar Antil vs. Central Bureau of Investigation, which emphasize that arrest is not mandatory if the accused has cooperated during the investigation. The court also cited the Delhi High Court's judgment in Rana Kapoor vs. Directorate of Enforcement, which granted bail under similar circumstances. The court concluded that the applicant's case fell within the guidelines for granting bail without arrest, as outlined in these precedents.

Conclusion:
The court allowed the bail application, noting that the applicant had cooperated with the investigation, had not been arrested during the investigation, and that the mandatory provisions of Sections 204(3) and 208 Cr.P.C. had been violated. The court imposed conditions on the applicant's bail to ensure his presence during the trial and prevent any misuse of the liberty granted. The court emphasized that the observations made were solely for the purpose of deciding the bail application and should not influence the trial's merits.