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2024 (4) TMI 1177 - HC - Money LaunderingApplication has been filed under Section 439 and 440 of the Code of Criminal Procedure, 1973 for grant of bail - Money laundering - proceeds of crime - illegal mining, trade and transportation of stone chips - HELD THAT - The reason for giving explanation under Section 2(1)(u) is by way of clarification to the effect that whether as per the substantive provision of Section 2(1)(u), the property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country but by way of explanation the proceeds of crime has been given broader implication by including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence - 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. The Hon ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement 2023 (11) TMI 904 - SUPREME COURT by taking into consideration the law laid down by the Larger Bench of the Hon ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. 2022 (7) TMI 1316 - SUPREME COURT , has laid down that since the conditions specified under Section 45 are mandatory, they need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It was revealed in the investigation that the illegal mining activities are unaccounted and undeclared and the proceeds out of it are generally dealt in cash which are laundered through the Associates of the accused persons. On 08.07.2022, searches were conducted on the premises of Pankaj Mishra and his associates and cash worth Rs 5 was seized. Further bank balances of Pankaj Mishra and his associates were frozen having balances worth 13 crores approx. out of which Rs. 28,50,000/- was seized from the premises of the present petitioner. In nut shell, it is evident from supplementary prosecution complaint that the petitioner was directly involved in illegal mining. The mining lease, originally granted for a total area of 13.13 acres in block Patna, was found to have exceeded its limits. He has also knowingly assisted Pankaj Mishra in laundering proceeds of crime amounting to Rs. 4.87 crores in his HDFC bank account no. 50200062737102 during the period 29.10.2021 to 19.05.2022 by way of projecting purported trading of stone chips. 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 and 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. Section 45(2) provides to consider the limitation for grant of bail which is in addition the limitation under the Code of Criminal Procedure, 1973, i.e., limitation which is to be considered while granting the benefit either in exercise of jurisdiction conferred to this Court under Section 438 or 439 of Cr.P.C. is to be taken into consideration - taking into consideration the provision of Sections 19(1), 45(1) and 45(2) of PML Act that the conditions provided therein are required to be considered while granting the benefit of regular bail in exercise of power conferred under Section 439 of Cr.P.C., apart from the twin conditions which has been provided under Section 45(1) of the Act, 2002. The summons proceedings and recording of statements under PMLA are given the status of judicial proceedings under Section 50(4) of PMLA. When such is the sweep of Section 50 of PMLA, the statements that have been recorded and which has been relied upon in the complaint must be taken to be an important material implicating the petitioner. The statements that were recorded during the investigation has been dealt with in prosecution complaint and many of the statements clearly implicate the petitioner. Therefore, the statements that have been recorded and which has been relied upon, is also a strong material that prima facie establishes the offence of money laundering against the petitioner. This Court while considering the prayer for regular bail has taken into consideration that though the Court is not sitting in appeal on the order passed by learned court since this Court is exercising the power of Section 439 Cr.P.C but only for the purpose of considering the view which has been taken by learned court while rejecting the prayer for bail, this Court is also in agreement with the said view based upon the material surfaced in course of investigation. Grounds of parity - HELD THAT - The Hon ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement 2023 (11) TMI 904 - SUPREME COURT , 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. This court is adverting into facts of instant to decide the issue of parity in the backdrop of aforesaid settled legal ratio and further taken in to consideration the aforesaid settled position of law, thinks fit to refer herein distinguishable facts in the case of present petitioner to that the case of Krishna Kumar Saha KRISHNA KUMAR SAHA VERSUS UNION OF INDIA THROUGH DIRECTORATE OF ENFORCEMENT, RANCHI. 2023 (12) TMI 1347 - JHARKHAND HIGH COURT . Further this Court also thinks fit to consider the allegation as alleged against the Pankaj Mishra and Prem Prakash also whose prayer of bails were rejected by the Court, to reach out the logical conclusion to the issue of parity. Thus, the main allegation against the Krishna Kumar Saha is of involvement in illegal activities of stone mining and knowingly assisted Pankaj Mishra by way of providing him monetary benefits and Co-ordinate Bench of this Court while also taking into consideration the illness of the said petitioner has enlarged him on bail. This Court, having discussed the individual involvement of the petitioner and other accused persons, is of the view that the petitioner since has been found to be closely associated with the affairs of Pankaj Mishra since the phone number of the present petitioner has been found in the account open in the name of Pankaj Mishra as also money was deposited - this Court is of the view as per the judgment rendered by the Hon'ble Apex Court rendered in Tarun Kumar 2023 (11) TMI 904 - SUPREME COURT that the benefit of parity is to be given if the facts/involvement of the petitioner, is identical to the persons with whom parity is being claimed. This Court is of the opinion that the appellant has miserably failed to satisfy this Court that there are reasonable grounds for believing that he is not guilty of the alleged offences - since the petitioner has failed to make out a special case to exercise the power to grant bail and considering the facts and parameters, necessary to be considered for adjudication of bail, this Court does not find any exceptional ground to exercise its discretionary jurisdiction to grant bail. This Court is of the view that it is not a case where the prayer for bail is to be granted, as such, the instant application stands dismissed.
Issues Involved:
1. Application for bail under Section 439 and 440 of CrPC. 2. Allegations under the Prevention of Money Laundering Act (PMLA), 2002. 3. Arguments for and against the grant of bail. 4. Analysis of the provisions of PMLA. 5. Consideration of the twin conditions under Section 45 of PMLA. 6. Examination of the principle of parity in bail applications. 7. Evaluation of economic offences and their impact on bail decisions. Detailed Analysis: 1. Application for Bail: The petitioner filed an application under Sections 439 and 440 of the Code of Criminal Procedure, 1973, seeking bail in connection with Case No. ECIR-04/2022(S), arising out of ECIR/RNZO/03/2022 registered under Section 3 punishable under Section 4 of the PMLA, 2002. 2. Allegations Under PMLA: The prosecution alleged that the petitioner was involved in illegal mining activities and the laundering of proceeds of crime. The investigation revealed that the petitioner, along with others, was involved in the illegal collection of levies from trucks carrying stone chips and had control over mining operations in Sahebganj district. The petitioner was accused of possessing proceeds of crime and projecting them as untainted money. 3. Arguments for Bail: The petitioner's counsel argued that: - The petitioner was not shown as an accused in the scheduled offence. - The ECIR was instituted two years after the FIR, suggesting an afterthought. - The petitioner was not directly involved in the alleged offences. - Merely depositing money in a bank account does not attract Section 3 of PMLA. - Illegal mining is not a scheduled offence under PMLA. - Only a mobile phone and some loose papers were recovered from the petitioner. 4. Arguments Against Bail: The respondent-ED opposed the bail, arguing that: - The case involved multiple FIRs and illegal mining activities. - The petitioner was closely associated with Pankaj Mishra and involved in laundering proceeds of crime. - The petitioner's mobile number was linked to the bank accounts of Pankaj Mishra. - The twin conditions under Section 45(1) of PMLA must be satisfied for granting bail. 5. Analysis of PMLA Provisions: The court discussed the objectives and provisions of the PMLA, emphasizing the need to prevent money laundering and prosecute those involved in such activities. The definition of "proceeds of crime" under Section 2(1)(u) and the offence of money laundering under Section 3 were elaborated upon. 6. Twin Conditions Under Section 45 of PMLA: The court highlighted that Section 45 of PMLA imposes twin conditions for granting bail: - The Public Prosecutor must be given an opportunity to oppose the bail application. - The court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. 7. Principle of Parity: The petitioner argued for bail on the ground of parity, citing the bail granted to co-accused Krishna Kumar Saha. However, the court noted that the principle of parity applies only when the facts and involvement of the accused are identical. The court found that the petitioner's involvement was more direct and significant compared to Krishna Kumar Saha. 8. Economic Offences and Bail: The court emphasized that economic offences are grave and need to be approached differently in bail matters. The court cited precedents that economic offences involving huge public funds and deep-rooted conspiracies must be viewed seriously. Conclusion: The court concluded that the petitioner failed to satisfy the twin conditions under Section 45 of PMLA. The nature and gravity of the allegations, along with the material collected during the investigation, indicated the petitioner's significant involvement in the offence. The court dismissed the bail application, noting that the views expressed were prima facie for the consideration of bail only.
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