2024 (5) TMI 525 - HC - Money Laundering

Grant of bail - Money Laundering - proceeds of crime - scheduled offences - illegal mining - principles of parity - Section 45 of PML Act - HELD THAT - It is evident 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 - It is 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. The present petitioner directly looks transportation of over the illegal stone chips through inland vessels. These inland vessels are indirectly operated by Pankaj Mishra through his accomplices Rajesh Yadav Rahul Yadav Bachhu Yadav and present petitioner. Several trucks laden with stone chips/aggregates are crossed through these inland vessels without mining challans - Thus the investigation has revealed that there is connivance of the petitioner with Pankaj Mishra and Rajesh Yadav Dahu Yadav in the illegal activities connected with the proceeds of crime derived out of illegal mining activities and the said petitioner is facilitating the accused person Pankaj Mishra to run the business of extortion illegal mining and transportation activities in Sahebganj. Besides this heavy levy is extorted forcefully from transport vehicles operating in these mining areas for allowing them to transport the mined stones and other items. The offence of money laundering as contemplated in Section 3 of the PMLA has been elaborately dealt with by the three Judge Bench in Vijay Madanlal Choudhary (supra) in which it has been observed that Section 3 has a wider reach. The offence as defined captures every process and activity in dealing with the proceeds of crime directly or indirectly and is not limited to the happening of the final act of integration of tainted property in the formal economy to constitute an act of money laundering - The property must qualify the definition of Proceeds of Crime under Section 2(1)(u) of the Act. As observed in all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime but all properties qualifying the definition of Proceeds of Crime under Section 2(1)(u) will necessarily be the crime properties. It is pertinent to mention here that the process envisaged under Section 50 of PMLA is in the nature of an inquiry against the proceeds of crime and it is not an investigation and the authorities who are recording the statements are not police officers and therefore these statements can be relied upon as admissible piece of evidence before the Court. 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. 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. Principles of parity - HELD THAT - The law is 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 wherein at paragraph-18 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. T he main allegation against the Pashupati Yadav @ Pashupat Yadav with whom parity is claimed was hand in glove and working as a close associate with the other co-accused persons who were running and trading of mining of stone chips illegally without paying any royalty amount. The crime proceeds to tune of Rs.1.23 Crores was deposited in the account of the said Singhvahani Transport Pvt. Ltd. from 22.04.2021 to 16.03.2022 on different dates - Applying the principle of parity this Court is of the view as per the judgment rendered by the Hon ble Apex Court rendered in Tarun Kumar 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. Having regard to the entirety of the facts and circumstances of the case this Court is of the opinion that the petitioner has miserably failed to satisfy this Court that there are reasonable grounds for believing that he is not guilty of the alleged offences. On the contrary there is sufficient material collected by the respondent-ED to show that he is prima facie 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.

Summary

Issues Involved:
1. Legality of the petitioner's involvement in money laundering under Section 3 of the PML Act, 2002.
2. Examination of the petitioner's plea for bail under Sections 439 and 440 of the Code of Criminal Procedure, 1973.
3. Consideration of the principle of parity in granting bail.

Summary:

1. Legality of the Petitioner's Involvement in Money Laundering:
The petitioner was alleged to be involved in illegal mining and transportation of stone chips in Sahebganj District. The investigation revealed that the petitioner, along with his associates, controlled the illegal mining operations and collected levies from trucks carrying stone chips. The petitioner was found to have acquired proceeds of crime amounting to Rs. 4,28,81,865/- and used them to procure a tender for ferry services. The investigation also revealed that the petitioner deposited significant amounts of cash in bank accounts, which were proceeds of crime. The court held that the petitioner's involvement in the alleged crime could not be lightly brushed aside and that the offence of money laundering under Section 3 of the PML Act was independent of the scheduled offence.

2. Examination of the Petitioner's Plea for Bail:
The court examined the petitioner's plea for bail and the arguments presented by both parties. The petitioner's counsel argued that the petitioner was not an accused in the scheduled offence, and the offence under Section 3 of the PML Act would not be attracted. The counsel also argued that there was a delay in registering the ECIR and that the petitioner's involvement in illegal mining did not constitute a scheduled offence under the PML Act. The respondent-ED opposed the bail, arguing that the petitioner was closely associated with the prime accused and deeply involved in illegal activities. The court referred to various provisions of the PML Act and judicial pronouncements, including the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., and held that the conditions specified under Section 45 of the PML Act were mandatory and needed to be complied with. The court concluded that the petitioner had failed to satisfy the twin conditions of Section 45 of the PML Act and that there were reasonable grounds to believe that the petitioner was guilty of the alleged offences.

3. Consideration of the Principle of Parity in Granting Bail:
The petitioner's counsel argued for bail on the ground of parity, citing the case of co-accused Pashupati Yadav, who had been granted bail. The court examined the principle of parity and held that it could only be applied if the facts of the case were identical. The court found that the case of the petitioner was distinguishable from that of Pashupati Yadav, as the petitioner was directly involved in the illegal activities and had a significant role in the acquisition, possession, and use of proceeds of crime. The court also noted that the bail applications of other co-accused, Pankaj Mishra and Prem Prakash, had been rejected. The court concluded that the principle of parity did not apply in the petitioner's case.

Conclusion:
The court dismissed the petitioner's application for bail, holding that the petitioner had failed to make out a special case for the exercise of discretionary jurisdiction to grant bail. The court emphasized the gravity of the alleged offences and the sufficient material collected by the respondent-ED to show the petitioner's prima facie guilt. The views expressed in the order were stated to be prima facie for consideration of the matter of bail only.