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2022 (7) TMI 196 - HC - Money LaunderingSeeking grant of regular bail - Money Laundering - illegal mining - Sections 379, 420, 465,467, 468, 471 of the IPC and Sections 21(1) 4(1) of the Mines Minerals (Regulation of Development) Act, 1957 - triple test laid down under Section 45 of the PMLA passed or not - HELD THAT - The three conditions laid down under Section 45 are that the public prosecutor should be given an opportunity of hearing, which has been given in the present case; secondly, if the public prosecutor opposes the application, a reasoned order be passed that the person is not guilty of offence and not likely to commit offence while on bail and thirdly that in addition to provisions of PMLA, the provisions of Cr.P.C., regarding grant of bail, shall apply. Section 45 (1) (ii) is akin to Section 37 of the NDPS Act, wherein the Court, while granting bail, has to form an opinion. In a case under the NDPS Act, it is easy for an accused, who has been released on bail to repeat such offence, however, in a case under the PMLA like the present case, it is not easy for an accused to commit the offence again as he will always be in radar of E.D. It is the admitted case of ED that after registration of the aforesaid FIR in 2018, a complaint has been filed by ED in 2022 i.e. after a period of about 04 years and in the intervening period, there was no further complaint or FIR regarding illegal mining to suggest that the petitioner is a habitual offender and is involved in any other case even prior to registration of the aforesaid FIR, especially when he is not named either in FIR No. 26 or report submitted under Section 173(2) Cr.P.C. - As per own investigation of ED, the petitioner was helping Kudratdeep Singh @ Lovie, who was allotted the lease license, in his mining work and there is no direct allegation against him that he was looking into the finance of the Kudratdeep Singh @ Lovie, therefore, the Court is convinced that the petitioner qualify the triple test laid down under Section 45 of PMLA as the Court has nothing to presume adverse to the conduct of the petitioner and since all the documents are already in the custody of the investigating agency, therefore, there is no possibility for the petitioner to tamper with the same. It is well settled principles of law that when the investigation is complete and charge sheet is filed in the Court, conclusion of trial is likely to take a long time, a person/accused like the present petitioner, who is aged about 36 years old, can be released on bail, subject to his furnishing bail/surety bonds and with a condition that his passport shall remain deposited with the Court/Prosecuting Agency and he will not leave the country without seeking prior permission of the Court - As per record of the Medical Officer, Central Jail, Kapurthala, the petitioner is under treatment for his heart ailments and he needs further treatment from specialized doctors, which itself is a ground for releasing the petitioner on bail. Even otherwise, the petitioner is in custody since 03.02.2022 and in judicial custody w.e.f. 11.02.2022, as per custody certificate filed in Court, and a period of about 05 months has lapsed, therefore, the petitioner cannot be kept in judicial custody for unlimited period. Accordingly, it is held that the petitioner qualifies the triple test under Section 45 of the Act and, therefore, the present application is allowed - The petitioner is ordered to be released on regular bail, subject to conditions imposed - petition allowed.
Issues Involved
1. Grant of regular bail under Section 439 Cr.P.C. 2. Allegations under the Prevention of Money Laundering Act (PMLA). 3. Connection to illegal mining activities. 4. Compliance with Section 45 of PMLA. 5. Health condition of the petitioner. Issue-Wise Detailed Analysis 1. Grant of regular bail under Section 439 Cr.P.C. The petitioner sought regular bail in connection with FIR ECIR No. ECIR/JLZO/21/2021 dated 30.11.2021 under Section 3, punishable under Section 4 of the PMLA. The petitioner had been in custody since 03.02.2022 and the investigation was complete with a formal complaint filed before the competent court. The court found merit in the petition, noting that the petitioner had been in custody for about five months and the trial was likely to take a long time. 2. Allegations under the Prevention of Money Laundering Act (PMLA) The Directorate of Enforcement (ED) alleged that the petitioner was involved in money laundering activities related to illegal mining. The ED recovered approximately Rs. 8 crores from the petitioner and Rs. 1,99,17,200/- from another individual. The ED claimed this money was proceeds of crime from illegal mining activities. However, the petitioner argued that the money was earned through legitimate means, such as leasing machinery for mining work. 3. Connection to illegal mining activities The petitioner was accused of assisting Kudratdeep Singh in illegal mining activities. The ED alleged that the petitioner helped in supervising mining operations and handling disputes among partners. The petitioner contended that he was not directly involved in the mining operations and that the ED's calculations of his earnings from illegal mining were exaggerated and based on imaginary figures. 4. Compliance with Section 45 of PMLA The court examined the triple test under Section 45 of PMLA, which includes giving the public prosecutor an opportunity to oppose the bail, ensuring that the accused is not guilty of the offense, and that the accused is not likely to commit any offense while on bail. The court found that the petitioner met these conditions, noting that there was no direct allegation of the petitioner handling the finances of the mining operations and that all relevant documents were already in the custody of the investigating agency. 5. Health condition of the petitioner The petitioner argued that he was suffering from heart problems and required urgent medical treatment, which was supported by medical records from the Central Jail, Kapurthala. The court considered this a valid ground for granting bail. Conclusion The court granted regular bail to the petitioner, subject to the following conditions: 1. The petitioner will furnish bail and two sureties to the satisfaction of the trial court, with one surety being local. 2. The petitioner's passport will remain in the custody of the prosecuting agency or the trial court, and he will not leave India without prior permission. 3. The petitioner will furnish an undertaking to appear before the investigating agency and the trial court as required, with the prosecution having the right to apply for cancellation of bail in case of default. The court concluded that the petitioner qualified the triple test under Section 45 of PMLA and that keeping him in judicial custody for an unlimited period was not justified.
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