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2024 (3) TMI 188 - HC - Money LaunderingSeeking grant of bail - Money Laundering - proceeds of crime - scheduled offence - reasons to believe - twin condition as available under Section 45 of PMLA - Principles of parity - cessation from the directorship from the above companies - beneficial ownership directly or indirectly through company - HELD THAT - The offence of money-laundering means whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering - It is further evident that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. In the judgment rendered by the Hon ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. 2022 (7) TMI 1316 - SUPREME COURT as under paragraph- 284, it has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to believe, which is required to be recorded in writing that the person is in possession of proceeds of crime . Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process. It is alleged that cessation of Dilip Kumar Ghosh from the directorship from the above companies of the Agarwal group was thoughtful move driven by a deliberate and the conspiracy between Amit Kumar Agarwal and Dilip Kumar Ghosh to project Dilip Kumar Ghosh as a separate and detached entity from the Agarwal group of companies and acquire the property in possession of defence Indirectly through Jagatbandhu Tea Estates Pvt. Ltd. - it is evident that the email ids of Rajesh Auto Merchandise Pvt. Ltd. (a company which is owned by Rajesh Kumar Agarwal and Amar Kumar Agarwal, (brothers of Amit Kumar Agarwal) and SanayuktVanijyaPvt. Ltd has been used in the KYC of M/s Jagatbandhu Tea Estate Pvt. Ltd. which leads to the conclusion that M/s Jagatbandhu Tea Estate Pvt. Itd. is a company which is solely under the control of Amit Kumar Agarwal - It is, thus, evident on the basis of the aforesaid material collected that there is reason to believe of commission of offence said to be committed under the provisions of the Act, 2002. Principles of parity - HELD THAT - Law the well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied - It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. The Hon'ble Apex Court in Tarun Kumar Versus Assistant Director Directorate of Enforcement 2023 (11) TMI 904 - SUPREME COURT where it has been held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. In has further been held in the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co- accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. This Court on the basis of the different role committed by Dilip Kumar Ghosh, the accused person who has been granted bail and comparing his accountability with the act of the present petitioner, is of the view that it cannot be said that what has been done by Dilip Kumar Ghosh is identical to the case of the present petitioner as it would be evident from the discussion made in the preceding paragraphs as also by going through the counter affidavit that the said company, i.e., M/s Jagatbandhu Tea Estate Pvt. Ltd. is completely under the control of Amit Kumar Agarwal - It is, thus, evident that so far as the case of the present petitioner is concerned, the twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner. Even on the ground of parity, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Dilip Kumar Ghosh is quite different. This Court is of the view that the present application is fit to be dismissed - the instant application stands dismissed.
Issues Involved:
1. Compliance with Section 19(1) of the Prevention of Money Laundering Act, 2002. 2. Reason to believe under Section 19(1) of the Act. 3. Twin conditions under Section 45 of the Act. 4. Principle of parity in granting bail. Summary: Issue 1: Compliance with Section 19(1) of the Act The petitioner argued that the condition stipulated under Section 19(1) of the Act, 2002, which requires a written communication of the reason for arrest, was not complied with. However, the court noted that the petitioner did not raise this issue as there was no grievance about non-communication of the reason for arrest. The court referenced the Supreme Court's judgment in *Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.*, which clarified that the grounds for arrest should be communicated as soon as possible, and this should be sufficient compliance with Article 22(1) of the Constitution. Issue 2: Reason to believe under Section 19(1) of the Act The court examined the statements and evidence presented in the prosecution complaint, which indicated that the petitioner was involved in the process of laundering proceeds of crime. The statements of the petitioner and other accused revealed that the petitioner was the beneficial owner of M/s Jagatbandhu Tea Estate Pvt. Ltd. and was involved in transactions that projected the proceeds of crime as untainted property. The court found that there was sufficient reason to believe that the petitioner was involved in the commission of the offense under the Act. Issue 3: Twin conditions under Section 45 of the Act The petitioner argued that the conditions under Section 45 of the Act were not met. The court referenced the Supreme Court's judgments in *Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.* and *Tarun Kumar vs. Assistant Director Directorate of Enforcement*, which emphasized the mandatory nature of the twin conditions under Section 45. The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offense and is not likely to commit any offense while on bail. The court found that these conditions were not fulfilled in the petitioner's case. Issue 4: Principle of parity in granting bail The petitioner sought bail on the ground of parity, as a co-accused, Dilip Kumar Ghosh, had been granted bail. The court noted that the principle of parity is not absolute and must consider the role and involvement of the accused. The court distinguished the petitioner's case from that of Dilip Kumar Ghosh, noting that the petitioner was the beneficial owner of the company involved in the laundering activities, whereas Dilip Kumar Ghosh was merely a director acting under the petitioner's instructions. The court concluded that the petitioner's role was more significant and, therefore, the principle of parity did not apply. Conclusion: The court dismissed the bail application, stating that the twin conditions under Section 45 were not met, and the principle of parity did not apply due to the differing roles of the petitioner and the co-accused. The court emphasized that the views expressed were prima facie for the consideration of the bail matter only.
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