2024 (10) TMI 460 - HC - Money Laundering

Seeking grant of Regular Bail - cattle smuggling was happening from India to Bangladesh by paying illegal gratification to BSF personnel deputed on the Border - section 439 of Criminal Procedure Code 1973 (Cr.P.C.) read with section 45 of the Prevention of Money Laundering Act, 2002 - HELD THAT - The guarantee of Personal liberty of every individual envisioned by Article 21 of the Constitution of India, which cannot be curtailed except by due process of law. The fundamental principle of bail is the rule and jail is exception , has been time and again emphasized by the Apex Court and other Courts and has been recently reiterated in the case of Vijay Nair vs. Directorate of Enforcement, 2024 (9) TMI 321 - SC ORDER , as the foundational presumption of criminal law is that of innocence until proven guilty . In Masroor v. State of Uttar Pradesh and Another, 2009 (4) TMI 1031 - SUPREME COURT , the Hon ble Supreme Court observed that the courts must strike a balance between the valuable right of liberty of individual and the larger interest of society. The Hon ble Supreme Court has time and again reiterated that the economic offences constitute a class apart and must be approached differently in regards to the bail, as has also been observed by the Hon ble Supreme Court in the judgments State of Gujarat v. Mohanlal Jitamalji Porwal and Another, 1987 (3) TMI 111 - SUPREME COURT . The allegations against the Applicant are essentially are in the nature of facilitating the offence of illegal cattle smuggling by providing authoritative support and consequent clout that he exercised on account of his being in the Police and being connected with an influential Political leader, the co-accused Mr. Anubrata Mondal. He helped in procuring stray cattle from various markets, collecting cash on behalf of co-accused, Mr. Anubrata Mondal, and laundering the PoC. The Applicant is an accused in the predicate offence as well, though admitted to bail in the said offence by this Court - Though the investigations qua the Petitioner are complete and the Supplementary Complaint has been filed in the Court, but the trial has not been proceeding since last 2 years. Looking at his antecedents, he is not a flight risk, and he has deep roots in the Society, having been in the employment of the Govt. The evidence being essentially documentary, is not likely to be tampered or the witnesses influenced - Applicant has been in judicial custody from 09.06.2022, in the scheduled offence, and from 07.10.2022, in the present case, i.e. for over two years. The Applicant is admitted to bail subject to fulfilment of conditions imposed - bail application allowed.

Issues Involved:
1. Grant of bail under Section 439 of Cr.P.C. and Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA).
2. Allegations of involvement in cattle smuggling and money laundering.
3. Prolonged incarceration and its impact on personal liberty.
4. Compliance with the twin conditions under Section 45 of PMLA for bail.
5. Alleged disproportionate assets and financial transactions.
6. Influence and risk of tampering with evidence or witnesses.

Issue-wise Detailed Analysis:

1. Grant of Bail under Section 439 of Cr.P.C. and Section 45 of PMLA:
The applicant sought bail under Section 439 of the Cr.P.C. read with Section 45 of the PMLA. The court evaluated whether the applicant met the twin conditions under Section 45 of PMLA, which require the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail. The court acknowledged the applicant's prolonged incarceration and considered the principle that "bail is the rule and jail is exception," emphasizing the presumption of innocence until proven guilty.

2. Allegations of Involvement in Cattle Smuggling and Money Laundering:
The applicant was accused of facilitating illegal cattle smuggling by providing authoritative support due to his position as a police constable and his connections with a political leader. The Enforcement Directorate (ED) alleged that the applicant was involved in collecting illegal gratification and laundering proceeds of crime (PoC). The court noted that while the allegations were serious, the evidence was primarily documentary, reducing the risk of tampering.

3. Prolonged Incarceration and Impact on Personal Liberty:
The applicant had been in custody since June 2022, with the trial not yet commenced. The court highlighted the fundamental right to personal liberty under Article 21 of the Constitution and the need to balance this right against the interests of society. The court referred to several Supreme Court judgments emphasizing that prolonged pre-trial detention should not become a punishment without trial.

4. Compliance with Twin Conditions under Section 45 of PMLA for Bail:
The court examined whether the applicant could satisfy the twin conditions under Section 45 of PMLA. The court found that the applicant was not a flight risk, had deep roots in society, and the evidence was primarily documentary. The court also considered the applicant's cooperation with the investigation and the lack of substantial risk of influencing witnesses.

5. Alleged Disproportionate Assets and Financial Transactions:
The applicant was accused of amassing disproportionate assets through illegal activities. The court noted that the CBI chargesheet disclosed a significant gap between the applicant's known sources of income and his assets. However, the court considered the applicant's explanation and the ongoing appeal regarding the attached properties.

6. Influence and Risk of Tampering with Evidence or Witnesses:
The respondent argued that the applicant's non-cooperation and attempts to mislead the investigation posed a risk of tampering with evidence and influencing witnesses. The court, however, found that the risk was mitigated by the documentary nature of the evidence and the conditions imposed on the applicant as part of the bail order.

Conclusion:
The court granted bail to the applicant, considering the prolonged incarceration, the documentary nature of the evidence, and the applicant's lack of flight risk. The bail was granted with stringent conditions to ensure the applicant's compliance with the legal process and to mitigate any potential risks. The court directed the applicant to furnish a personal bond, appear before the court as required, and refrain from contacting witnesses or engaging in criminal activities. The order was communicated to the trial court and the concerned jail superintendent.

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