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2022 (11) TMI 755 - HC - Money LaunderingSeeking grant of Regular Bail - scheduled offences - proceeds of crime - illegal mining - using proceeds of the crime for procuring property/money - allegations against the accused named in the FIR are/were that they were found stealing sand from the river Swan Khad Una, which areas was otherwise not leased out to present bail petitioner - HELD THAT - In the case at hand, on the one hand Enforcement Directorate shared information with the police Under Section 66(2) of the prevention of Money Laundering Act, 2002, with the State Police but at the same time arrested bail petitioner on the basis of ECIR as detailed hereinafter. Now question which needs determination is, whether without there being any evidence of en-massing/procurement of 'proceeds of crime' if any by bail petitioner, Enforcement Agency could proceed to register the case under Section 3 and 4 of Prevention of Money Laundering Act, 2002 or not? No doubt, had some material emerged in the earlier FIR 252 of 2021 against the petitioner suggestive the fact that he after having indulged in criminal activity possessed/ acquired or procured wealth/property with the help and aid of the proceeds of crime, Enforcement Department would have been justified to proceed against bail petitioner under Section 3 and 4 of Prevention of Money Laundering Act, 2002. No doubt, the petitioner is accused of having committed serious offence under Sections 3 and 4 of Prevention of Money Laundering Act, 2002, but guilt if any of the bail petitioner is yet to be established on record by leading cogent and the convincing evidence and as such there appears to be no reason to curtail his freedom for an indefinite period during trial, especially when investigating agency has already taken into custody entire record from the accused and he is in judicial custody for over a month - apprehension expressed by the learned Deputy Solicitor General of India that in the event of petitioner being enlarged on bail, he may flee from justice and tamper with the prosecution evidence can be best met by putting him to stringent conditions. By now, it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.25 lac/- with two local sureties in the like amount each, to the satisfaction of the Investigating Officer, besides the other conditions imposed - application allowed.
Issues Involved:
1. Legality of the petitioner's arrest under the Prevention of Money Laundering Act (PMLA). 2. Examination of the evidence against the petitioner. 3. Petitioner's health condition and its impact on bail consideration. 4. Consideration of Section 45 of PMLA regarding bail. 5. Judicial precedents and their application to the case. 6. Conditions for granting bail. Detailed Analysis: 1. Legality of the Petitioner's Arrest under PMLA: The petitioner, Dr. Lakhwinder Singh, was arrested under Sections 3 and 4 of the PMLA. The Enforcement Directorate (ED) registered an Enforcement Case Information Report (ECIR) based on an FIR filed by the Himachal Pradesh Police under Sections 379, 406, 34 IPC, and Section 21 of the Mines and Minerals (Development and Regulation) Act, 1957. Although the petitioner was not named in the initial FIR, the ED found his involvement during their investigation. The court noted that the ED acted based on the police information and conducted raids, which led to the petitioner's arrest under Section 19 of the PMLA. 2. Examination of the Evidence Against the Petitioner: The court scrutinized the evidence presented by the ED, which included documents allegedly recovered from the petitioner's premises. The ED claimed that the petitioner earned approximately Rs. 35 crore through illegal mining and attempted to project this money as untainted. However, the court found the evidence to be presumptive and not sufficiently substantiated. The court emphasized that the ED must establish that the petitioner indulged in criminal activity and acquired proceeds of crime, as defined under Section 2(u) of the PMLA. 3. Petitioner's Health Condition and Its Impact on Bail Consideration: The petitioner's counsel argued that he suffers from severe health issues, including diabetes, obesity, liver cirrhosis, and a history of heart surgery. The court acknowledged the petitioner's deteriorating health condition and the need for constant medical attention. The court referred to a similar case where bail was granted based on the petitioner's health condition, emphasizing that the petitioner falls under the exception of being "sick" as per Section 45 of the PMLA. 4. Consideration of Section 45 of PMLA Regarding Bail: Section 45 of the PMLA imposes stringent conditions for granting bail. However, the court noted that bail could be granted if the petitioner is found to be falsely implicated or if there is no likelihood of the petitioner indulging in the crime again. The court also highlighted that the petitioner, being medically unfit, falls under the proviso of Section 45, which allows bail for sick or infirm individuals. 5. Judicial Precedents and Their Application to the Case: The court referred to several judicial precedents, including the Supreme Court's judgments in P. Chidambaram vs. Directorate of Enforcement and Vijay Mandal Chaudhary vs. Union of India. These cases emphasized that the ED cannot prosecute individuals based on assumptions and must establish a clear link between the alleged criminal activity and the proceeds of crime. The court also cited the Delhi High Court's judgment in Prakash Industries vs. Directorate of Enforcement, which reiterated that the charge of money laundering must be premised on the commission of a predicate offense. 6. Conditions for Granting Bail: The court concluded that the petitioner has made a case for bail, considering his health condition and the lack of substantial evidence against him. The petitioner was granted bail with stringent conditions, including furnishing bail bonds of Rs. 25 lakh with two local sureties, making himself available for interrogation, not tampering with evidence, not leaving India without court permission, and surrendering his passport. Conclusion: The court ordered the enlargement of the petitioner on bail, subject to stringent conditions, emphasizing that the observations made are confined to the disposal of the bail petition and should not reflect on the merits of the case. The petition was accordingly disposed of.
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