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Money Laundering - Case Laws
Showing 341 to 360 of 2042 Records
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2024 (5) TMI 1543
Time limitation - application for substitution of the deceased Appellant with legal heirs contested by the Respondent on the ground of delay - HELD THAT:- The Tribunal is not bound by the procedure given under CPC but that does not mean that provision of CPC cannot be applied to guide itself to take an appropriate measure to the requirements. Article 120 of the Limitation Act provides three months period for filing application and we find it appropriate to apply the said period of limitation as otherwise this Tribunal is clothed with power to regulate its own procedure. Reason for the application of Article 120 of Limitation Act is to keep the proceedings alive in the hands of one who can pursue otherwise it would be in the hands of a dead person who cannot pursue the litigation and therefore substitution of the deceased is to be made within reasonable time. It is not that application cannot be filed for substitution of deceased after reasonable period of three months but is to be supported by an application for Condonation of delay after explaining the reasons. In the instant case, no application for Condonation of Delay has been filed.
The issue raised before the Apex Court in the case of Shri Puran Singh V/s. State of Punjab [1996 (1) TMI 436 - SUPREME COURT] was similar to the issue before this Tribunal. It is as to whether order 22 of CPC can be made applicable when the Tribunal is not bound by the procedure given under CPC. It is also whether Article 120 Limitation Act can be applied. The Apex Court has decided the issue in reference to a Writ jurisdiction holding that death cannot be ignored even in those proceedings. It is necessary to substitute the deceased by the legal heirs within reasonable time and for which Article 120 of the Limitation Act was referred too. It is necessary to clarify that in the Writ Jurisdiction also, the Court is not bound by the provision of CPC but general principles of law are required to be applied by the Courts and the Tribunal.
The Counsel made oral submission to explain the cause of delay. It is reference to non-functioning of the Tribunal till August, 2022. This is not a correct statement. The Tribunal was functioning till the year 2019 and thereafter with the appointment of a Member, it was functional for some time. The oral excuse of delay is not tenable, thus we are unable to allow the application having been filed after the reasonable period given by the Apex Court.
Conclusion - i) The applications for substitution are dismissed due to excessive delay and lack of a condonation application. ii) The appeals are abated and dismissed as a result of the failure to substitute the deceased appellants within the reasonable time allowed.
The applications are accordingly dismissed and with that the Appeals are abated and dismissed.
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2024 (5) TMI 1534
Money Laundering - grant of anticipatory bail under Section 438 of the Criminal Procedure Code (Cr.P.C.) - It was held by High Court that the petitioner's request for anticipatory bail was not maintainable - HELD THAT:- Issue notice returnable on 26th July, 2024.
In the meanwhile, the petitioner shall not be arrested in connection with Complaint Case (PMLA) No. 11 of 2022 arising out of ECIR No. ECIR/BBZO/01/2019 dated 22.01.2019 at Bhubaneswar Sub Zonal office of Enforcement Directorate pending before the District and Sessions Judge-cum-Special Judge (PMLA), Bhubaneswar, Odisha subject to condition that the petitioner shall regularly and punctually attend the court in which the complaint is pending.
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2024 (5) TMI 1464
Money laundering - proceeds of crime - First bail application filed under section 438 of Cr.P.C - rejection of Remdesivir Injections at a higher price - offence under section 420, 488, 304, 308, 467, 468, 471, of IPC and 3/7 of Essential Commodities Act and section 3 of Epidemic Diseases Act - it was held by High Court that 'Considering the money trail produced by the prosecution, which clearly proves involvement of the applicant in the present case, in which proceeds of crime is Rs.2,89,00,000/-, this court is of the view that in view of the rigor of section 45 of the Act, 2002, the applicant is not entitled for anticipatory bail.'
HELD THAT:- Issue notice, returnable on 29th July, 2024.
In the meanwhile, the petitioner shall not be arrested in connection with Special Case pending before the Court of learned Special Judge, PML Act and 14th Additional Sessions Judge, Indore, Madhya Pradesh, subject to condition that he shall regularly appear before the Special Court.
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2024 (5) TMI 1414
Second bail application filed for grant of regular bail - Money Laundering - scheduled offences - proceeds of crime - conspiracy with certain other persons started obtaining an illegal levy of Rs. 25 per ton of coal for issuance of delivery order for coal transportation - insufficient reason in remand order - reasons to believe - fulfillment of twin conditions of Section 45 of the PMLA, 2002.
Whether disclosure of insufficient reason in remand order, alleged illegal custody entitled the applicant to be released on bail under the PMLA, 2002? - HELD THAT:- From bare perusal of the Section 19 of the PMLA, 2002, it is quite vivid that for arresting any person, any officer authorized has on the basis of material on his possession and through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002, then only, he is at liberty to arrest. This Section further provides that the said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any non-compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself. Under sub-section (2), the Authorised Officer shall immediately, after the arrest, forward a copy of the order as mandated under sub-section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub-section (2) is also a solemn function of the arresting authority which brooks no exception.
From bare perusal of the order dated 13.10.2022 passed by the learned Special Judge granting remand of the applicant along with other accused has given reason wherein it has specifically stated that the present applicant has purchased coal washeries from M/s KJSL Coas & Power Ltd. to M/s Maa Madwarani Coal Benefaction Pvt. Ltd. at the cost of Rs. 35 crores and other two coal washeries have been purchased and the investigation within 24 hours is not possible, therefore, the custodial remand was ordered.
Whereas in the present case, the learned Special Judge has categorically recorded its reason and satisfaction while granting the remand of the applicant to the Enforcement Directorate. Thus, there is compliance of Section 19 of the PMLA, 2002 and the order dated 13.10.2022 passed by the learned Special Judge is inconformity with the law laid down by Hon’ble the Supreme Court in case of PANKAJ BANSAL VERSUS UNION OF INDIA & ORS. [2023 (10) TMI 175 - SUPREME COURT]. Therefore, the contention raised by learned Senior counsel for the applicant that there is non-compliance of Section 19 of the PMLA, 2002 vitiating the entire proceedings, applicant is entitled to be released on bail, deserves to be rejected.
The submission of the learned counsel for the applicant that his summon for 12.10.2022 and he remained in custody upto 5.30 a.m. cannot be considered as it is a matter of evidence which can be very well taken during the trial. Even the trial Court while granting remand has recorded its finding that within 24 hours of arrest, the applicant has been produced before the Court and there is no material to rebut the said finding recorded by the learned trial Court, as such the contention that the accused was remained in illegal custody from 12 a.m. to 5.30 a.m. deserves to be rejected and accordingly, it is rejected - the question answered against the applicant.
Whether the applicant fulfills twin conditions of Section 45 of the PMLA, 2002 for grant of bail? - HELD THAT:- From bare perusal of ECIR with regard to the allegations leveled against the present applicant, it is quite vivid that the the present applicant has played specific role and he is kingpin of the offence and is promoter of M/s Indermani Group having a close relationship with Suryakant Tiwari. Investigation revealed that the applicant had helped Surykant Tiwari in acquiring coal washeries from M/s Indus Udyog & Infrastructure Pvt. Ltd. and M/s Satya Power and Ispat Ltd. These coal washeries were acquired for an amount of Rs. 96 crore, out of which Rs. 34 crore was the registered value and was paid through banking channel and rest of the amount was to be paid in cash. Thus, large amount of illegally acquired cash was layered in these transactions. After the Income Tax raids, he made sham paper transactions to show that he was the owner of these two washeries - He has only blocked his capital in these assets and the remaining entire cash transactions were still done by Suryakant Tiwari only. The record would further reflect that several properties in the names of companies of the applicant herein viz., M/s Indermani Minerals Pvt. Ltd. & M/s KJSL Coal & Power Pvt. Ltd. which were acquired using proceeds of crime have been attached under Section 5(1) of the PMLA, 2002 on 09.12.2022 and 29.01.2023 and the same were subsequently confirmed by the learned Adjudicating Authority (PMLA), vide orders dated 01.06.2023 & 17.07.2023. Thus, the applicant is unable to fulfill the twin condition of Section 45 of the PMLA, 2002.
Considering the factual legal matrix, it is quite vivid that the applicant is unable to fulfill twin conditions for grant of bail as per Section 45 of the PMLA, 2002 and also considering the submission that the applicant has not prima facie reversed the burden of proof and dislodged the prosecution case which is mandatory requirement to get bail - considering the judgment of Hon’ble the Supreme Court in case of SAUMYA CHAURASIA VERSUS DIRECTORATE OF ENFORCEMENT [2023 (12) TMI 685 - SUPREME COURT] & SATYENDAR KUMAR JAIN VERSUS DIRECTORATE OF ENFORCEMENT, ANKUSH JAIN VERSUS DIRECTORATE OF ENFORCEMENT AND VAIBHAV JAIN VERSUS DIRECTORATE OF ENFORCEMENT [2024 (3) TMI 862 - SUPREME COURT], it is quite vivid that the applicant is unable to fulfill the twin conditions for grant of bail as provided under Section 45 of the PMLA, 2002. Thus, question is answered against the applicant.
The role played by the applicant, prima facie, the remand and arrest order are in accordance with the provisions of the PMLA, 2002 and also considering the gravity of offence, it is not inclined to enlarge the applicant on bail - the second bail application filed under Section 439 of the Cr.P.C. is also liable to be and is hereby rejected.
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2024 (5) TMI 1411
Money Laundering - proceeds of crime - illegal kidney transplantation - respondent herein along with the co-accused hatched a well-planned conspiracy by taking 'Century Gangotri Charitable Hospital' on rent and by pressurizing or alluring/inducing innocent and poor people into illegal kidney transplantation - HELD THAT:- As the present petition seeks cancellation of Bail granted to the accused, it is to be kept in view that the Bail granted to the accused can primarily be challenged and be cancelled on the ground that either the Court granting Bail has failed to consider the relevant facts and law applicable to the grant of Bail, or has taken into account irrelevant facts and considerations, or where while granting Bail to the accused or due to supervening circumstances, the Bail granted to the accused deserves to be quashed.
The Supreme Court in DEEPAK YADAV VERSUS STATE OF U.P. & ANR. [2022 (10) TMI 574 - SUPREME COURT] reiterated the principles governing the cancellation of bail and held 'The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations.'
The general directions given in the judgment of SATENDER KUMAR ANTIL VERSUS CENTRAL BUREAU OF INVESTIGATION & ANR. [2021 (10) TMI 1296 - SUPREME COURT] in relation to the process to be followed on production of the accused, who has not been arrested during the period of investigation, on filing of the Charge-Sheet/Complaint post the completion of investigation, remain the same and is also applicable to Special Acts, including PMLA, and, therefore, to the facts of the present case.
Recently, the Supreme Court in TARSEM LAL VERSUS DIRECTORATE OF ENFORCEMENT JALANDHAR ZONAL OFFICE [2024 (5) TMI 837 - SUPREME COURT], has reiterated that a complaint under Section 44 (1) (b) of the PMLA will be governed by Sections 200 to 204 of the Cr. P.C. Therefore, while the Court has the discretion to issue either a warrant or summons, as held in INDER MOHAN GOSWAMI & ANR VERSUS STATE OF UTTARANCHAL & ORS [2007 (10) TMI 550 - SUPREME COURT], as a general rule, the Court should direct issuance of summons and not warrants on the complaint to the accused who was not arrested till the filing of the complaint. It was further held that Section 437 of the Cr. P.C. will not apply when an accused appears before the Special Court after a summon is issued on a complaint under Section 44 (1) (b) of the PMLA.
Considering Section 88 of the Cr. P.C., the Supreme Court held that the same shall apply after filing of the complaint under Section 44 (1) (b) of the PMLA. It confers a discretionary power on the Special Court to call upon the accused to furnish bonds for his appearance before the Court. The object of Section 88 of the Cr. P.C. is to ensure that the accused regularly appears before the Court. When an accused appears before the Special Court on summons issued on the complaint, and offers to submit bonds in terms of Section 88 of the Cr. P.C., therefore, there is no reason for the Special Court to refuse or decline to accept the bonds - The Supreme Court denounced the practice of some of the Special Courts under the PMLA of taking the accused into custody after they appear pursuant to the summons issued on the complaint. The Court held that where, before the filing of the complaint, the accused is not arrested, after the filing of the complaint and after he appears in compliance with the summons, he cannot be taken into custody or forced to apply for Bail.
In the present case, the learned Trial Court has taken cognizance of the fact though the ECIR was registered in the year 2017; the petitioner took more than four and a half years to investigate the case; and, the petitioner consciously did not arrest the respondent during the investigation. Applying the principles of Satender Kumar Antil, the learned Trial Court, therefore, held that the rigours of Section 45 of the Act do not apply. In fact, after the judgment of the Supreme Court in Tarsem Lal, no fault can be found in the above view of the learned Trial Court.
As far as Section 436A and Section 428 of the Cr. P.C. are concerned, though again the learned counsel for the petitioner is right in his submission that these provisions were not applicable to the facts of the present case and, at the present stage, however, the learned Trial Court has merely used these provisions, their object, and the principles governing them, to supplement force to its decision to release the respondent on bond. The Impugned Order cannot be faulted on this account as well.
There are no merits in the challenge of the petitioner to the Impugned Order - petition dismissed.
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2024 (5) TMI 1406
Money Laundering - proceeds of crime - petitioners are aggrieved of their booking by the Directorate of Enforcement (ED) for alleged commission of offences u/s 3 read with Section 70 and punishable u/s 4 of the Act of 2002 - invocation of inherent jurisdiction of this Court vested in terms of Section 482 of the Code of Criminal Procedure, 1973 - HELD THAT:- In the backdrop of an over view of the complaint so derived hereinabove, the petitioners came forward complaining that when in none of the aforesaid FIRs and the chargesheets borne out of them they were and/or are related with alleged commission of any alleged offences to figure as accused persons investigated and chargesheeted by the CBI, Chandigarh, then the jurisdiction exercised by the Directorate of Enforcement (ED) to implicate the petitioners in the case is nothing but usurpation of the jurisdiction of booking the petitioners without any statutory basis leaving the petitioners clueless as to by reference to which culpable statement of facts they have been booked in the company of nineteen (19) other accused persons with whom they have no privity of transaction.
With reference to recovery of movable properties during search and seizure conducted under Section 17 of the Act of 2002, the reference with respect to the petitioner No. 2 is in para 9.2 wherein gold jewellery weighing 1765 gms is said to be recovered from the residential house of the petitioner No. 2 and seven (07) arms licences in original were found and seized during search thereby relating it to the petitioner No. 2.
The petitioner No. 2 is alleged to have directly indulged in criminal activities related to scheduled offences under Section 2(1) (x) & 2(1) (y) of the Act of 2002 and committed the offence of money laundering under Section 3 of the Act of 2002 punishable under Section 4 of the Act of 2002.
Prima facie case made out particularly in the manner the court of Special Judge Anti-Corruption (CBI Cases) Jammu has, in a very cryptic order of one and half page, has come to take cognizance of the complaint against the petitioners figuring in the array of twenty one (21) accused persons/concerns without undertaking any examination of the complaint as to in which manner and on what basis the petitioners are being subjected to prosecution at the instance of the complaint-Enforcement Directorate (ED).
Issue notice to the respondent - the proceedings in the complaint against the petitioners shall remain stayed till next date of hearing.
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2024 (5) TMI 1346
Seeking grant of Regular bail - Money Laundering - scheduled offences/predicate offences - illegal extortion of coal transportation - HELD THAT:- As on date there is no predicate offence under Section 384 of IPC or any other provision of IPC against the petitoiner - The chargesheet has been filed only under Sections 204 and 353 of IPC, and both are not scheduled offences under PMLA - As regard to the observations made by the Karnataka Police in the chargesheet, reproduced above, Mr. Raju, learned ASG, fairly states that so far, the Chhattisgarh Police have not registered any offence under Section 384 of IPC, nor has any investigation conducted by them, has been brought to the notice of the Enforcement Directorate.
Six weeks’ time granted to the Enforcement Directorate to find out the status of that investigation and place on record the additional affidavit along with the relevant material - he petitioner has already undergone incarceration for about one year and seven months - the petitioner has made out a prima facie strong case for his enlargement on interim bail.
The petitioner is directed to be released on interim bail subject to his furnishing bail bonds to the satisfaction of the Special Court, Raipur, Chhattisgarh - Post the matter for further hearing on 07.08.2024.
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2024 (5) TMI 1345
Public Interest Litigation - allegations of money laundering and consequential loss to the public exchequer, by way of evasion of taxes - undervalued share transfer - HELD THAT:- The Petitioner is seeking directions for investigation into the valuation of the sale of the shareholding held by Respondent No. 7 issued by Respondent No. 8 and subsequently transferred to Respondent No. 9. However, in view of the fact that the said transaction has been examined by the IT Department during the block assessment of Respondent No. 7 shows that the matter is within the knowledge of the authorities and considering the fact that no adverse proceedings have been initiated by the IT Department, it is opined that no further directions are required in this petition.
Further, in view of the fact that an earlier petition in SH ANKUR GUPTA VERSUS THE UNION OF INDIA AND ORS [2022 (3) TMI 1599 - DELHI HIGH COURT] and SLP ANKUR GUPTA VERSUS UNION OF INDIA & ORS [2022 (8) TMI 1514 - SC ORDER] filed by the same Petitioner against common Respondent No. 16 has been dismissed on the finding that the same is motivated, it is opined that entertaining the present PIL at the behest of the Petitioner does not advance the cause of justice and the objective behind entertaining a PIL.
Petition dismissed.
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2024 (5) TMI 1344
Seeking grant of Regular Bail - Money Laundering - predicate offence - delay of trial - policy worked to the benefit of select individuals and large businesses or not.
Whether the applicant is entitled to bail on sole ground of deay in trial? - HELD THAT:- The Hon’ble Supreme Court in MANISH SISODIA VERSUS CENTRAL BUREAU OF INVESTIGATION [2023 (11) TMI 63 - SUPREME COURT] has also clearly mentioned that the Courts hearing application for bail will not be influenced by the observations made in the previous orders of rejection of bail of Sh. Manish Sisodia.
This observation of the Hon’ble Apex Court leads to only one conclusion that the learned Trial Court or this Court in event of the applicant moving fresh bail application can, independently apply its mind to the facts of the case and decide the bail application on merit - In the considered opinion of this Court, the directions of the Hon’ble Supreme Court entitle the applicant Sh. Manish Sisodia to file a fresh bail application in case he feels that the trial has not expeditiously proceeded in this case. The adjudication of the bail application, therefore has to be on the basis of the merits of the case, with an additional consideration of delay in trial or the right of speedy trial.
Whether the applicant or other accused persons can be held responsible for delay in initiation of trial due to their act of filing different applications before the learned Trial Court? - HELD THAT:- There is no dispute about the fact that the trial in this case is yet to commence, since the proceedings, which are to be mandatorily carried out under the law as per code of Criminal Procedure, are still underway as the accused persons have moved multiple individual applications related and unrelated to Sections 207/208 of Cr. P.C. i.e. for supply of relevant documents, which is continuing till today - In the case of P. GOPALKRISHNAN VERSUS STATE OF KERALA AND ORS. [2019 (11) TMI 1827 - SUPREME COURT], the provision of Section 207 of Cr. P.C. was held to be a part of right to fair trial.
This Court cannot ignore the valuable right of an accused to access justice, and avail legal remedies available to him within the framework of the law especially when he is in judicial custody or even otherwise when he is facing criminal trial.
Thus, prima facie, the accused persons including the applicant herein have delayed the pre-charge proceedings under Section 207 of Cr. P.C. by taking three months time from 19.10.2023 to 19.01.2024 for inspection of un-relied documents despite repeated directions from learned Trial Court to conclude the same expeditiously.
Applications unrelated to Section 207/208 of Cr. P.C. - HELD THAT:- In this Court’s opinion, the mere act of filing an application seeking any relief cannot automatically be construed as a delay tactic since an accused, who is in judicial custody, cannot be stopped from moving applications for fulfilment and enforcement of their personal, legal and fundamental rights and their applications cannot be simply termed as frivolous.
The duration of pre-trial proceedings, which includes the mandatory procedures and steps provided under Cr. P.C in criminal cases, necessarily adds to the overall pace and duration of trial of a case.
Observations Regarding All Accused Persons Acting in ‘Concert’ With Each Other To Delay Trial - Whether Reasonable and Justifiable? - HELD THAT:- In the opinion of this Court, while the accused persons may be perceived as acting collectively, it is essential to acknowledge their distinct roles and rights as individuals before the Court. In legal proceedings involving multiple accused persons, it is not uncommon for their legal strategies to align or for similar applications to be filed by their respective legal counsels. However, the mere similarity in legal approach adopted by different counsels for the accused persons may not be a concerted effort as each accused is entitled to pursue his defence independently.
Delay in commencement of trial cannot be attributed to the ED or CBI or Ld. Trial Court - HELD THAT:- The prosecution did not take time or delay commencement of trial by not providing them copies or not complying with the orders of the Court. Further, most of the applications were decided on the same day by the learned Trial Court - This Court further holds that there has been no delay on the part of the learned Trial Court and that arguments on charge in the case filed by CBI have already been part-heard and further arguments were not addressed as co-accused namely Sh. Abhishek Boinpally, Sh. Arun R. Pillai, Sh. Sameer Mahendru, Sh. Amandeep Singh Dhall, Sh. Arjun Pandey, Sh. Rajesh Joshi and Sh. Chanpreet Singh Rai have filed an application and argued before the learned Trial Court that till the entire investigation is completed, the arguments on charge should not be heard.
Have the proceedings before the learned Trial Court proceeded at Snail’s pace? - HELD THAT:- No fault can be found with the Directorate of Enforcement or Central Bureau of Investigation that there was a voluminous record of investigation. It is also not the fault attributable to the prosecution or the learned Trial Court that some of the accused persons in the CBI case do not want to address arguments on charge till investigation is finally concluded. It is also not the fault of prosecution that multiple individual accused persons have multiple individual defence counsels who will argue individually before the learned Trial Court, both during the course of pre-trial proceedings and later during trial, which will take time - The practical realities of trial and pre-trial stages in the complex case as the present one involving extensive investigation may, at times, compromise with speed of the pre-trial duration.
At times, justice hurried may lead to justice being buried either to the accused or to the prosecution which is not the intent of criminal jurisprudence of this country.
Principles governing grant of regular bail u/s 439 of CRPC and in cases involving economic offences - HELD THAT:- In the case of Y.S. JAGAN MOHAN REDDY VERSUS CENTRAL BUREAU OF INVESTIGATION [2013 (5) TMI 896 - SUPREME COURT] the Hon’ble Supreme Court observed that economic offences constitute a class apart, and thus, gravity of such offences has to be kept in mind while considering a plea for grant of bail.
The focus is on prima-facie assessing the evidence available at this stage, to decide if it justifies either the continuation of custody or the grant of bail, without delving into a detailed examination of the merits of the case or making definitive findings of fact.
The case of CBI and the ED - role of applicant Shri Manish Sisodia - HELD THAT:- The Directorate of Enforcement alleges that Sh. Manish Sisodia was not only the head of the Group of Ministers (GoM) which was tasked by the Cabinet to examine all aspects of the erstwhile excise system, report of the expert committee and comments received from the stakeholders, but he was also the Excise Minister and had played a key role in modifying the terms of the Excise policy in a manner which would benefit the co-accused persons. It is alleged that Sh. Manish Sisodia had got the policy formulated and implemented in a way so as to allow illegal gains to certain persons/entities, against advance kickbacks of about Rs. 100 crores received from them, which were later utilised by the Aam Aadmi Party in the Goa Assembly Elections - Thus, it is alleged that Sh. Manish Sisodia was one of the key conspirators in formulating, conceptualizing and implementing the various processes and activities in dealing with the proceeds of crime including creating an entire ecosystem for generating, concealing, projecting as untainted, possessing and using the proceeds of crime.
Association of the Applicant Sh. Manish Sisodia with co-accused Sh. Vijay Nair - HELD THAT:- A perusal of the statement of co-accused Sh. Arun R. Pillai also discloses that Sh. Vijay Nair had the support and sanction of Sh. Kejriwal and Sh. Manish Sisodia for all his activities related to the Excise Policy 2021-22. The statement of Sh. Butchi Babu also reveals that Sh. Vijay Nair was acting on behalf of Sh. Kejriwal and Sh. Manish Sisodia and was working on their behalf on the Excise policy. During the course of investigation, a few provisions of the liquor policy were also found in the WhatsApp chats of Butchi Babu, sent by Sh. Vijay Nair, before the policy was finalized by the Group of Ministers headed by Sh. Manish Sisodia - there is sufficient material on record, at this stage to prima facie show that Sh. Vijay Nair was acting on behalf of the applicant Sh. Manish Sisodia as well as Aam Aadmi Party in demanding and receiving the kickbacks from co-accused persons including members of South Group and ensuring that favourable clauses were inserted in the new Liquor Policy for their benefit.
Orchestration of Pre-Decided Emails by Sh. Manish Sisodia and Creation of Fake Public Opinion - HELD THAT:- In order to overcome the hurdle posed by the Expert Committee Report, Sh. Manish Sisodia had called for public opinion, parts of which were also manufactured by him only, in order to show to the general public that it was the general public and other stakeholders, who were giving suggestions contrary to the Expert Committee report, and not the Government of Delhi, which were taken into consideration while formulating the new Excise Policy.
Change of Draft Cabinet Note by Sh. Manish Sisodia to Hide Opinion of Legal Experts - HELD THAT:- The prosecution alleges that Sh. Manish Sisodia had deliberately altered a draft Cabinet note to exclude the opinions of three legal experts — including one former Attorney General of India and two former Judges of the Hon’ble Supreme Court, which was obtained by Delhi ALCOBEV Retailers Association and mailed to the email ID of Excise Department. These legal experts had recommended maintaining the existing excise policy, which would have hindered Sh. Manish Sisodia’s desire to introduce a new policy, allegedly in conspiracy with the South Group.
Role of Applicant in Ensuring Allotment of L-1 License to M/s Indo Spirits - HELD THAT:- The statement of Sh. C. Arvind also reveals that he was asked by Sh. Manish Sisodia to ensure that the issue regarding the file of M/s Indo Spirits is resolved. This is further corroborated by the statement of Sh. Narinder Singh, the then Assistant Commissioner (IMFL), who has disclosed that Sh. Arava Gopi Krishna had called him on 05.11.2021 and asked him to grant the license to M/s Indo Spirits on priority basis - As per prosecution, this allegation can also be materially corroborated with the way the file of M/s Indo Spirits was cleared on the same day and formal order of allocation of license was issued on 08.11.2021.
Creation of Uneven Level Playing Field - HELD THAT:- The provisions of the Policy imposed prohibitive costs and stringent eligibility criteria that effectively excluded smaller retailers from the competition. The high non-refundable participation fee of Rs. 10 lakhs and substantial earnest money deposit requirements of Rs. 30 crores (in case of bidding for one retail zone) and Rs. 60 crores (in case of bidding for more than one retail zone), favored larger entities with significant financial resources, allowing them to dominate the bidding process for retail zones - Consequently, the policy prima facie facilitated the concentration of retail licenses in the hands of a few large players, as also argued by learned Special counsel for E.D.
Destruction of Electronic Evidence by Sh. Manish Sisodia - HELD THAT:- This Court cannot rule out the potential of the applicant to destroy and tamper with the evidence, and influence witnesses in future, if released on bail, which is based on the reasonable apprehension of the prosecuting agency which is derived from the previous conduct of the accused available on record.
Whether case for grant of bail is made out, on merits - HELD THAT:- There is no dispute about the fact that Sh. Manish Sisodia was the Minister concerned of Excise Department, who was responsible for formulation as well as implementation of Delhi Excise Policy 2021-22, and due to the irregularities committed in its formulation, such as increasing the margin of wholesale distributors from 5% to 12% without any reasonable justification, the wholesale distributors were able to earn an additional profit of 7% amounting to Rs. 338 crores. There is material on record to prima facie show that the members of South Group were involved in formulation of the Delhi Excise Policy and had met with co-accused Sh. Vijay Nair on several occasions, who was the In-charge of Media and Communication wing of Aam Aadmi Party and used to function from the office of Delhi’s Chief Minister and at times, had represented himself as OSD to the Excise Department, whose Minister concerned was Sh. Manish Sisodia - It is again clarified and reiterated, at cost of repetition, that at the stage of grant of bail, this Court has to only prima facie go through the material and not conduct a mini-trial to reach a conclusion as to whether the accused is guilty beyond reasonable doubt or not. The stage of such assessment is the stage of trial and not hearing of a bail application.
Whether the applicant can be granted bail on sole ground of delay in trial, even though he is not entitled to grant of bail on merits? - HELD THAT:- In case of SATYENDAR KUMAR JAIN VERSUS DIRECTORATE OF ENFORCEMENT, ANKUSH JAIN VERSUS DIRECTORATE OF ENFORCEMENT AND VAIBHAV JAIN VERSUS DIRECTORATE OF ENFORCEMENT [2024 (3) TMI 862 - SUPREME COURT], the Hon’ble Apex Court has observed that the provision for grant of bail, on the basis of delay in trial, is already imbibed in Section 436A of Cr. P.C. which provides that an undertrial, who has remained in custody for a period of one-half of the maximum punishment which can be awarded to him upon conviction, shall be released on bail, and that Section 436A also applies with full force to PMLA - this Court is of the opinion that the applicant herein cannot be entitled to bail solely on the ground of delay in trial, especially when he has failed to pass the triple test and other parameters including gravity of offence, for grant of bail under Section 439 of Cr. P.C. as well as the twin conditions under Section 45 of PMLA.
The present applications seeking grant of regular bail are hereby dismissed.
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2024 (5) TMI 1104
Legility of arrest of petitioner - inherent difference between the provisions contained in Section 19 of the PMLA and Section 43A and 43B of the UAPA - HELD THAT:- There is no significant difference in the language employed in Section 19 (1) of the PMLA and Section 43B (1) of the UAPA which can persuade to take a view that the interpretation of the phrase ‘inform him of the grounds for such arrest’ made by this Court in the case of Pankaj Bansal [2023 (10) TMI 175 - SUPREME COURT] should not be applied to an accused arrested under the provisions of the UAPA.
The provision regarding the communication of the grounds of arrest to a person arrested contained in Section 43B (1) of the UAPA is verbatim the same as that in Section 19 (1) of the PMLA - As a matter of fact, both the provisions find their source in the constitutional safeguard provided under Article 22 (1) of the Constitution of India. Hence, applying the golden rules of interpretation, the provisions which lay down a very important constitutional safeguard to a person arrested on charges of committing an offence either under the PMLA or under the UAPA, have to be uniformly construed and applied.
There is no doubt in the mind of the Court that any person arrested for allegation of commission of offences under the provisions of UAPA or for that matter any other offence(s) has a fundamental and a statutory right to be informed about the grounds of arrest in writing and a copy of such written grounds of arrest have to be furnished to the arrested person as a matter of course and without exception at the earliest. The purpose of informing to the arrested person the grounds of arrest is salutary and sacrosanct inasmuch as, this information would be the only effective means for the arrested person to consult his Advocate; oppose the police custody remand and to seek bail. Any other interpretation would tantamount to diluting the sanctity of the fundamental right guaranteed under Article 22 (1) of the Constitution of India.
The remand order dated 4th October, 2023 records that the copy of the remand application had been sent to the learned Advocate engaged by the accused appellant through shri App. A bare perusal of the remand order is enough to satisfy us that these two lines were subsequently inserted in the order because the script in which these two lines were written is much finer as compared to the remaining part of the order and moreover, these two lines give a clear indication of subsequent insertion.
Once this Court has interpreted the provisions of the statute in context to the constitutional scheme and has laid down that the grounds of arrest have to be conveyed to the accused in writing expeditiously, the said ratio becomes the law of the land binding on all the Courts in the country by virtue of Article 141 of the Constitution of India.
There is no hesitation in the mind of the Court to reach to a conclusion that the copy of the remand application in the purported exercise of communication of the grounds of arrest in writing was not provided to the accused appellant or his counsel before passing of the order of remand dated 4th October, 2023 which vitiates the arrest and subsequent remand of the appellant - the appellant is entitled to a direction for release from custody by applying the ratio of the judgment rendered by this Court in the case of Pankaj Bansal.
The arrest of the appellant followed by remand order dated 4th October, 2023 and so also the impugned order passed by the High Court of Delhi dated 13th October, 2023 are hereby declared to be invalid in the eyes of law and are quashed and set aside.
Appeal allowed.
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2024 (5) TMI 997
Money Laundering - petitioner once again came back to section 2(u) of the PMLA Act to submit that forcible possession of landed property is not the proceeds of crime, no predicate offence and no definite conclusion is here - it was held by HIgh Court that 'The learned senior counsel for the petitioner concluded his arguments, and the judgment was reserved for further deliberation.' - HELD THAT:- The present special leave petition has become infructuous and is accordingly disposed of.
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2024 (5) TMI 980
Money Laundering - issuance of summons in the background of Articles 20(3) and 21 of the Constitution - cause of action - power conferred upon the authorities by virtue of Section 50 of PMLA - HELD THAT:- It is apparent from the reading of Section 50 of PMLA as well as decision in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] that the power conferred upon the authorities by virtue of Section 50 of PMLA empower them to summon 'any person' whose attendance may be crucial either to give some evidence or to produce any records during the course of investigation or proceedings under PMLA. The persons so summoned are also bound to attend in person or through authorised agent and are required to state truth upon any subject concerning which such person is being examined or is expected to make statement and produce documents as may be required in a case.
In the case of Commissioner of Customs, Calcutta v. M.M. Exports [2007 (3) TMI 265 - SUPREME COURT], the Hon'ble Apex Court, while dealing with a case of issuance of summons under Section 108 of Customs Act, had expressed that except in exceptional cases, High Courts should not interfere at the stage of issuance of summons.
In respect of the provisions of "PMLA", Section 50(2) of the Act unambiguously enumerates that the Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act - The "PMLA", being a Special Act, has provided certain mandatory provisions in order to ensure the effective investigation of the offence of money laundering. The officers empowered under PMLA are required to make investigation into the offences under the said law and having regard to the observations made by the Apex Court in Vijay Madanlal Choudhary they could not be equated with police officers. The law confers upon them requisite powers to carry out investigation and collect evidence.
No person is entitled in law to evade the summons issued under Section 50 PMLA on the ground that there is a possibility that he may be arrested in the future. The investigation in the present ECIR,S are still continuing and the petitioner has only been summoned to appear and submit certain documents which may be in his possession as he had been an employee of the Companies under scanner, thus the petitioner's prayer for quashing of ECIR'S itself is premature as at this stage even the status of the applicant before the ED is not known and the same is in the realm of future.
This Court is of the considered opinion that this petition has been filed by petitioner on mere apprehension. If the Investigating Authorities are having enough materials to proceed against a person in a manner known to law and by adhering strictly to the provisions of law, then they are duty bound to do so as the law so warrants and permits them to adopt such course of action. These are all the decisions to be taken only after completing an effective investigation or atleast preliminary investigation. The investigation process should not be hampered at this initial stage.
This Court is of a strong opinion that interference at this stage in respect of the facts and the circumstances of the present case on hand, is certainly unwarranted.
This Court finds no good ground to quash the summons issued under Section 50 of PMLA to the petitioner or the impugned ECIR's - Petition dismissed.
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2024 (5) TMI 940
Grant of bail - Money Laundering - bail sought on medical grounds under proviso to Section 45 of the Prevention of Money Laundering Act, 2002 - failure to repay the loans - HELD THAT:- A case for bail is made out, inasmuch as, under Proviso to Section 45 of the Prevention of Money Laundering Act, 2002, the medical condition of an accused who is in jail is a relevant factor for consideration by the Court before granting bail - the petitioner is of 68 years of age and has a dead pancreatic gland. An insulin pump has been connected to his body which regularly monitors and pumps required insulin from time to time. He is also suffering from ailments related to prostate and is taking constant medication for high blood pressure.
The petitioner is directed to be released from jail on the usual conditions imposed by the concerned Court, and in addition to that, the passport of the petitioner shall be seized if not already taken, and out of the two sureties, one will be of a close blood relative. This is subject to the condition that the petitioner cooperates fully in the ongoing investigation.
SLP disposed off.
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2024 (5) TMI 939
Money Laundering - issuance of summons in the background of Articles 20(3) and 21 of the Constitution - cause of action - power conferred upon the authorities by virtue of Section 50 of PMLA - it was held by High Court that 'This Court finds no good ground to quash the summons issued under Section 50 of PMLA to the petitioner or the impugned ECIR's' - HELD THAT:- There are no reason to interfere with the impugned judgment and hence, the special leave petition is dismissed.
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2024 (5) TMI 938
Money Laundering - petitioner once again came back to section 2(u) of the PMLA Act to submit that forcible possession of landed property is not the proceeds of crime, no predicate offence and no definite conclusion is here - HELD THAT:- The learned senior counsel for the petitioner concluded his arguments, and the judgment was reserved for further deliberation.
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2024 (5) TMI 837
Money Laundering - Denial of benefit of anticipatory bail - whether power to arrest vesting in the officers of the Directorate of Enforcement (ED) under Section 19 of the PMLA cannot be exercised after the Special Court takes cognizance of the offence punishable under Section 4 of the PMLA? - order of the Court accepting bonds under Section 88 - HELD THAT:- There is no provision therein which is in any manner inconsistent with Section 205 of the CrPC. Hence, it will apply to a complaint under the PMLA. A summons is issued on a complaint to ensure attendance of the accused before the Criminal Court. If an accused is in custody, no occasion arises for a Court to dispense with the personal attendance of the accused - If the accused who appears pursuant to the summons issued on a complaint were deemed to be in custody, the lawmakers would not have provided for Section 205.
After examining the provisions of the PMLA, it is apparent that Section 88 is in no manner inconsistent with the provisions of the PMLA. Therefore, Section 88 will apply after filing of a complaint under Section 44(1)(b) of the PMLA. If Section 88 is to apply even before a summons is issued or served upon a complaint, there is no reason why it should not apply after the service of summons. A discretionary power has been conferred by Section 88 on the Court to call upon the accused to furnish bonds for his appearance before the Court. It does not depend on the willingness of the accused - when an accused appears before the Special Court under a summons issued on the complaint, if he offers to submit bonds in terms of Section 88, there is no reason for the Special Court to refuse or decline to accept the bonds. Executing a bond will aid the Special Court in procuring the accused's presence during the trial.
If a warrant of arrest has been issued and proceedings under Section 82 and/or 83 of the CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88. Section 88 is indeed discretionary. But this proposition will not apply to a case where an accused in a case under the PMLA is not arrested by the ED till the filing of the complaint. The reason is that, in such cases, as a rule, a summons must be issued while taking cognizance of a complaint. In such a case, the Special Court may direct the accused to furnish bonds in accordance with Section 88 of the CrPC.
Whether an order of the Court accepting bonds under Section 88 amounts to grant of bail? - HELD THAT:- When an accused furnishes a bond in accordance with Section 88 of the CrPC for appearance before a Criminal Court, he agrees and undertakes to appear before the Criminal Court regularly and punctually and on his default, he agrees to pay the amount mentioned in the bond. Section 441 of the CrPC deals with a bond to be furnished by an accused when released on bail. Therefore, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail.
Contingency where after service of summons issued on a complaint under the PMLA, the accused does not appear - HELD THAT:- While cancelling the warrant, the Court can always take an undertaking from the accused to appear before the Court on every date unless appearance is specifically exempted. When the ED has not taken the custody of the accused during the investigation, usually, the Special Court will exercise the power of cancellation of the warrant without insisting on taking the accused in custody provided an undertaking is furnished by the accused to appear regularly before the Court. When the Special Court deals with an application for cancellation of a warrant, the Special Court is not dealing with an application for bail. Hence, Section 45(1) will have no application to such an application.
Once cognizance is taken of the offence punishable under Section 4 of the PMLA, the Special Court is seized of the matter - after cognizance of the complaint under 44(1)(b) of the PMLA is taken by the Court, the ED and other authorities named in Section 19 are powerless to arrest an accused named in the complaint. Hence, in such a case, an apprehension that the ED will arrest such an accused by exercising powers under Section 19 can never exist.
The impugned orders declining to grant anticipatory bail set aside - appeal allowed.
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2024 (5) TMI 788
Money Laundering - Grant of bail - presumption of innocence and its appreciation in respect of the offences under the Prevention of Money Laundering Act - provisions of Article 21 of the Constitution of India and its overriding effect over Section 45 of PMLA - HELD THAT:- In this Case amount transpired in course of investigation initially is recovering of the seized cash amount and the same was at the behest of a complaint lodged by a nationalised bank in respect of transactions/debit credit taking place in some of the accounts and the same being routed through another nationalised bank. The holder of the main five companies were found to have a single address which was rented for two months and so far as shell-companies are concerned which were from Jamshedpur, Jharkhand mainly in those case on scrutiny of the records which were furnished for opening the accounts the same were found to be fake or non-existent. Going by the allegations against the present petitioner in the complaint the petitioner was applying his mind, knowledge and conscience for routing out the money which was illegally acquired by Tushar Patil, Prasenjit Das, Viraj Suhas Patil. The role of the petitioner was for concealment and projecting proceeds of crime as untainted money.
Delay and long detention in custody have never been accepted by the constitutional courts and wherever there has been unreasonable delay the Courts have favoured the constitutional mandate of liberty. However, there are cases where the statute is built in such a manner that the complicity simpliciter is not a criteria but the detention is on the basis of guilt and the present case is one of such nature.
It is a fact that the petitioner is in custody for more than 14 months but the nature of the offence complained of requires time for investigation as the procedure adopted in concealment and its unearthing both are time consuming. It has been submitted by the Enforcement Directorate that not only investigation is continuing but immovable assets which have been the outcome of such proceeds of crime are being traced to countries or abroad and for which time is being consumed.
Having regard to the fact that although complaint has been filed in this case but yet further investigation is at a crucial stage, the petitioner cannot be released on bail only on the ground of delay having regard to the fact that he has not been able to overcome the twin conditions under Section 45 of the PMLA, 2002.
The prayer for bail of the petitioner is rejected.
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2024 (5) TMI 778
Money Laundering - 'possession' of properties as envisaged under Section 8(4) of the Prevention of Money Laundering Act, 2002 - symbolic/constructive possession - HELD THAT:- Section 8(4) of the PMLA Act would envisage that the Director or any other officer authorised by him on confirmation of a provisional attachment can take possession of the property attached. It could also be seen that subsection (4) of Section 8 provides that the attachment or retention of the seized property shall continue during the pendency of the proceedings relating to any scheduled offence and would become final, if the guilt of a person is proved in trial. The learned Single Judge had interpreted the term 'possession' under Section 8(4) to be only constructive possession by holding that the rights of the person whose properties available under any other enactment would be affected, if they are physically dispossessed of the property. This is the main bone of the reasoning that had been assigned by the learned Single Judge in coming to such a conclusion.
When an Act by a non obstante clause makes it clear that the said provision of the Act will have effect notwithstanding anything inconsistent contained in any other law, then the said enactment would prevail over all the existing laws. Therefore, the reasoning assigned by the learned Single Judge that the term 'possession' if would mean taking actual physical possession would affect the existing right available under any other law would have to fall, in view of Section 71 of the PMLA Act.
Similarly under the Rule making power clauses (ee) to subsection (2) of Section 73, had been introduced and pursuant to the said Rule Making Power, the Central Government had also notified the Prevention of Money Laundering (taking possession of attachment or property confirmed by the Adjudicating Authority) Rules 2013, under Rule 5 of the said rules manner of taking possession of immovable property had also been enumerated - In view of the subsequent amendment, the PMLA Act empowers the authority under the said enactment can take physical possession of an immovable property, which had been attached under Section 8(3).
The order passed by the learned Single Judge in reading down the term “possession” under Section 8(4) of the PMLA Act would have to be interfered with by us and the direction issued by the learned Single Judge to put back the respective Writ Petitioners in actual possession of the property would have to be set aside - Appeal allowed.
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2024 (5) TMI 725
Money Laundering - territorial jurisdiction - Validity of seizures, freezing, orders and of the consequential actions - power to the High Courts to entertain a Writ Petition, wherein full or a part of cause of action arose, within its jurisdiction - HELD THAT:- Article 226 (2) of the Constitution of India confers the power to the High Courts to entertain a writ petition wherein full or a part cause of action arises within its jurisdiction - it is not in doubt that this Court has the power to maintain such a writ petition although the original case might have been generated in another State. Afterall, the fundamental rights of the petitioner/claimant were allegedly violated within the jurisdiction of this Court.
On merits, the investigating-in-question under the PML Act, 2002 revealed that huge sums of money were collected from the public by floating different online games at the Mahadeve Book App by the alleged offenders and such illegally gotten ‘proceeds of crime’ had been diverted/siphoned off through several associates which constitutes offence of money-laundering u/s 3 of the said Act. About 88 (Eighty eight) searches at 8 (Eight) different States of India including search, seizure and freezing in West Bengal. However, the entire investigation was conducted by the Enforcement Directorate at Raipur. Therefore, the search, seizure and freezing of property in Calcutta was a part of the entire investigation that was being carried out by the Enforcement Directorate, Raipur.
Under Section 17 (1) of the PML Act, it was primarily the Director who was required to have the reason to believe for the search and seizure and thereafter, he could authorise any subordinate officer to execute the Act. Hence, the format of Form II appended to the Rules of 2005 was providing for such option - In the instant case, the Director had authorised the Deputy Director and after having the reason to believe the Deputy Director duly authorised the Assistant Director, being subordinate to him, to execute the acts of search, seizure and freezing at the office premises. In fact, the Assistant Director so authorised issued the freezing order dated 10.09.2023 and the seizure Memo dated 10.09.2023 - Besides, the authority of the so authorised Assistant Director was derived from the statutory provision of Section 17 (1) and/or 17 (1A) of the said Act and even if there was any apparent inconsistency with the Rules, it is the Act that would prevail.
Apparently, the copies of recorded reason were provided to the petitioners by the adjudicating authority. The RUDs to the SCN were annexed to the writ petition. Thus, there is hardly any merit in the contention that the show cause notice dated 13.10.2023 issued by the adjudicating authority under Section 8(1) of the PML Act was bad in law - Therefore, it does not appear that the above referred sequence of steps taken by the Enforcement Directorate is at all inconsistent with the statutory provisions.
There are no merit in the application. Accordingly, the same is dismissed.
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2024 (5) TMI 724
Seeking grant of bail - Money Laundering - proceeds of crime - scheduled offence - partners of M/s Vikas Construction had encroached on public property by falsification of records - Whether the applicant had any direct or indirect involvement in M/s. Vikas Construction, which allegedly generated proceeds of crime - HELD THAT:- There is nothing to indicate that the applicant knowingly committed any offence as provided in Section 3 of the PMLA nor the applicant was in any way involved in the commissioning of the predicate offence and in case if the predicate offence is not made out against the applicant then proceeding under the PMLA will also fall.
In the instant case, from the perusal of the complaint which has been brought on record as annexure no.2 including the supplementary complaint which has been brought on record as annexure no.9, prima faice, it reflects the involvement of the present applicant. Even though this Court is conscious of the fact that at this stage a mini trial is not be held nor the court is required to enter into the merits or the depth of the evidence to return a finding of guilt but what is required is to prima facie, consider the material available on record for the Court to satisfy itself and to enable it to reasonably form an opinion, to believe, that the applicant is not guilty of the offence and that he is not likely to commit any offence on bail as enshrined in Section 45 of the PMLA.
Considering the material available on record including the flow charts which clearly demonstrates the origin of funds and it also explains how it finds its way into the accounts of the applicant and its use by the applicant, and there is material against the applicant to link him with the movement and trail of funds to and from the two firms M/s. Vikas Construction and M/s. Aaghaaz.
Considering the family antecedents of the applicant including the statement which is contained in the ECIR that the applicant initially was not co-operative rather evaded the summons and only when the lookout notice was issued and in furtherance thereof the applicant was apprehended and during custody he gave his statements but nevertheless many of the transactions could not be explained by him by taking a plea that he did not know from where the fund was coming rather whenever he wanted the funds he asked his mother and maternal uncle and grand father who would arrange the funds.
This Court is unable to persuade itself to form a, prima facie, satisfaction in terms of Section 45 of the PMLA, at this stage, that the applicant is not guilty or that he may not commit an offence on bail. Thus, for all the aforesaid reasons, the bail application is rejected.
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