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2024 (1) TMI 732 - HC - Money LaunderingSeeking grant of bail - Money Laundering - scheduled offence - proceeds of crime - remitting of funds abroad by using forged and fabricated documents and by making wrong declaration regarding the purpose of remittance - Section 45 of PMLA - HELD THAT - A Coordinate Bench of this Court in Vijay Agrawal 2023 (5) TMI 1198 - DELHI HIGH COURT observed that as per Vijay Madanlal Choudhary 2022 (7) TMI 1316 - SUPREME COURT , though the twin conditions provided under Section 45 of PMLA restrict the right of accused to grant of bail but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. It is a settled proposition that the discretion vested in the Court has to be exercised in accordance with the law and has to be guided by the principles of law. In the present case main allegation of the respondent/ED against the petitioner is that he was instrumental in outward remittance of huge amount in the account of foreign entities on the basis of forged Form 15CB Certificates. However, in the present case, there is no property which is derived or obtained directly or indirectly as a result of criminal activity concerning the scheduled offence which can be regarded as proceeds of crime . There is legal force in the arguments advanced by the counsel for the petitioner that the unauthorized outward remittance by forged Form 15CB Certificates does not amount to proceeds of crime being generated from the scheduled offence i.e. fabrication of Form 15CB Certificates. After considering all facts, including incriminating material against the petitioner which are the statements made by co-accused/witness under section 50 of PMLA and the fact that their evidentiary value can be tested at the stage of trial, no generation of proceeds of crime from criminal activity and the petitioner being a sick and infirm person, the present anticipatory bail application is allowed. The petitioner, in case of arrest, shall be released on bail on furnishing personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount to the satisfaction of the concerned Investigating Officer or any other authorized person subject to conditions imposed. Bail application allowed.
Issues Involved:
1. Whether the petitioner is entitled to anticipatory bail under section 438 of the Code of Criminal Procedure, 1973. 2. Whether the petitioner was involved in the commission of offences under the Prevention of Money Laundering Act, 2002 (PMLA). 3. Whether the petitioner's health condition impacts the decision to grant bail. 4. Whether the statements of co-accused can be considered substantial evidence at the stage of bail. Issue 1: Entitlement to Anticipatory Bail The petitioner filed a bail application under section 438 of the Code of Criminal Procedure, 1973, seeking anticipatory bail in connection with the ECIR registered under sections 3 and 4 of the PMLA. The court noted that the petitioner was previously denied bail by the Additional Sessions Judge, North-West District, Rohini Courts, Delhi, due to the significant role attributed to him and his non-cooperation in the investigation. The court emphasized that anticipatory bail is generally granted in exceptional cases where the accused is falsely implicated to harass and humiliate him. Issue 2: Involvement in Offences under PMLA The investigation revealed that the petitioner, operating under the pseudonym 'Ravi Mehra,' was instrumental in the illegal remittance of forex using forged documents. Statements from co-accused and evidence collected indicated the petitioner's active involvement in the fraudulent activities. However, the court observed that the primary incriminating evidence against the petitioner were statements of co-accused recorded under section 50 of PMLA, which are admissible but their evidentiary value has to be tested at trial. Issue 3: Health Condition of the Petitioner The petitioner argued that he suffers from severe health issues, including renal problems requiring constant medical supervision, and has undergone multiple kidney surgeries. The court considered these health conditions significant, noting that the petitioner is a sick and infirm person, which impacts the decision to grant bail. Issue 4: Statements of Co-Accused as Evidence The court discussed the admissibility and evidentiary value of statements recorded under section 50 of PMLA. While these statements are admissible, their exact value must be tested at the trial stage. The court referenced the Supreme Court's observations in Vijay Madanlal Choudhary v. Union of India, emphasizing that the evidentiary value of such statements should be assessed during the trial and not at the bail stage. Conclusion: The court granted anticipatory bail to the petitioner, considering his health condition, the nature of the evidence against him, and the principle that bail is the rule and jail is the exception. The petitioner was directed to furnish a personal bond and comply with specific conditions, including surrendering his passport, marking his presence before the Investigating Officer, and not making any inducement to witnesses. The court clarified that the observations made in the judgment should not be taken as an opinion on the merits of the case.
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