2016 (3) TMI 881 - HC - Money Laundering

Prevention of Money Laundering - Special Court after forming a prima facie opinion that an offence under Section 3 punishable under Section 4 of the 2002 Act was made out, has summoned the petitioner through warrants of arrest - summoning of an accused in the case of a non-bailable offence through ordinary process - Held that - We are satisfied that the petitioner does not deserve to any protection against his arrest or subjection to the judicial custody for more than one reasons. Firstly, all the grounds now taken by him were very much available in the petition for the grant of pre-arrest bail which was dismissed by this Court on 10.9.2015. Secondly, there is no change in the circumstances thereafter which could possibly justify the petitioner s second attempt to evade judicial custody. The summoning of an accused in the case of a non-bailable offence through ordinary process and/or coercive means is discretion of the Court though to be exercised judiciously and by striking balance between the right to liberty vis-a-vis the legislative intendment in declaring the gravity of an offence. The only caveat is that the mode of securing presence cannot be resorted to mechanically. There ought to be due application of mind so that the reasons for invoking coercive means of securing presence are well elicited. The petitioner (Bally Singh Kandola) is statedly a U.S. Citizen. One kilogram heroin is alleged to have been recovered from him and his mother. He has different bank accounts in US and UK. He has been studying abroad though he is said to have admitted in his statement before the Directorate that his parents did not file their income tax returns . Having regard to the gravity attached by the Legislature to the nature of offences defined under the 2002 Act especially the mandatory nature of Section 45 of the 2002 Act, it cannot be said that the summoning of the petitioner through warrants of arrest is a mechanical exercise or lacks the desired application of mind. The principles laid down by the Supreme Court in Inder Mohan Goswami s case are in the context of a private criminal complaint which originated out of a property dispute and the genesis of which lied in an agreement to sell between the accused and the complainant. These principles are distinguishable in a statutory complaint filed under the 2002 Act. The petitioner or his mother have failed to make out a case that the Designated Court ought to have summoned them through ordinary process. No case to interfere with the impugned order dated 21.7.2015 is made out.

Summary

Issues:
Quashing of order under Prevention of Money Laundering Act, 2002; Summoning through warrants of arrest; Allegations of drug trafficking and money laundering; Non-cooperation with Enforcement Directorate; Legal validity of summoning through warrants of arrest.

Analysis:
The judgment involves the quashing of an order passed under the Prevention of Money Laundering Act, 2002, where the Special Court summoned the petitioner through warrants of arrest based on allegations of drug trafficking and money laundering. The petitioner sought relief against the summoning through warrants of arrest, arguing that the Designated Court should not have resorted to such coercive means without exhausting ordinary summoning processes. The Enforcement Directorate alleged that the petitioner and his family members accumulated assets through proceeds of crime without known sources of income, including immoveable properties, luxury vehicles, and large bank transactions. The petitioner's non-cooperation with the Directorate was highlighted as a reason for the summoning through warrants of arrest.

The Court considered the arguments presented by both parties and emphasized the discretion of the Court in summoning an accused for a non-bailable offence through coercive means. It noted that the legislative intent behind the 2002 Act and the seriousness of the allegations must be considered while deciding on the mode of securing an accused's presence. The judgment highlighted the need for a judicious exercise of discretion, ensuring a balance between the right to liberty and the gravity of the offence. The Court found that the petitioner's grounds for relief were previously considered in a pre-arrest bail petition, which was dismissed, and there were no significant changes in circumstances to justify a second attempt to evade judicial custody.

Furthermore, the Court observed that the petitioner and his mother had been non-cooperative with the Enforcement Directorate, hindering the investigation process. Despite the petitioners' argument that they were not obligated to disclose their defense, the Court stressed the importance of satisfying the Court's conscience while invoking discretionary jurisdiction. The judgment highlighted the serious nature of the allegations, the mandatory provisions of the 2002 Act, and the petitioner's non-cooperation as factors supporting the summoning through warrants of arrest.

In conclusion, the Court dismissed the petition, stating that the Designated Court's decision to summon the petitioner through warrants of arrest was justified based on the circumstances and legal provisions. The Court directed the petitioner to surrender and apply for regular bail if desired, emphasizing that the Designated Court should consider such an application in accordance with the law and without influence from the observations made in the judgment.