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2022 (12) TMI 14 - HC - Money LaunderingMoney Laundering - seeking pre-arrest bail - predicate offence - illegally raising iron/manganese ores of a higher value than what has been declared from the Ulliburu Mining Lease area - illegally raising mineral from areas adjacent minor mining lease areas and selling such minerals to his own concern thereby causing huge loss of revenue to the State exchequer - provisions contained in Section 45 of the PMLA Act, 2002 complied with or not - HELD THAT - On a conspectus of the background facts of the case as well as upon a close scrutiny of the materials placed before this Court for consideration by either side and futher taking into consideration the affidavits filed by the learned counsel for the Opp. Party as well the written note of submissions, this Court, at the outset, would like to observe that it is the settled position of law that except where there are specific provisions in the PMLA that provides an alternative procedure, the provisions and procedure of CrPC shall apply to the cases registered and tried under the PMLA. Given the mandate of Articles 21 and 22 of the Constitution of India, the powers under the PMLA in relation to the offences under the PMLA, have to be governed by the CrPC, if not expressly provided for alternatively in the PMLA. This is expressly recognized and acknowledged by Section 65 PMLA. Therefore, there exists absolutely no doubt with regard to the applicability of the procedural law in the case of the present nature. The Petitioner in the case at hand has been charged under Sections 4 of the PML Act which provides for a maximum punishment of seven years. Section 13 (1) (c) (d) of the Prevention of Corruption Act which provides for the maximum punishment of seven years and under Sections 120 B, 379,409, 411 and 420 of the IPC. A perusal of Section 2(y) of the PML Act provides for the scheduled offences thereunder and Paragraph 1 relates to offences under the IPC which are scheduled offences within the meaning of the PML Act. Section 409 of the IPC does not figure as a scheduled offence under the schedule to the act. Therefore, all the other offences including the offences under the IPC have a maximum punishment of up to 7 years imprisonment. The Petitioner in the present enforcement case has never been formally arrested by the Enforcement Directorate but has been remanded to their custody for the purposes of investigation. In the said context, the argument advanced before this court by Mr. Agarwal, learned counsel for the E.D. has substance in it. Therefore, it appears to this court that most likely the Enforcement Directorate officials have chosen to not exercise their discretionary power to formally arrest the Petitioner, probably because they did not feel the need to do so. Furthermore, since lodging of the ECIR to till date, the E.D. officials never bothered to formally arrest the petitioner and while the petitioner was in custody in connection with the vigilance case, he was taken on remand for interrogation by E.D. officials. After investigation was concluded, probably the necessity of arrest was never felt by E.D. The Petitioner had cooperated with investigation and had recorded his statement before the Enforcement Directorate which had led the Enforcement Directorate to state that they no longer require the custody of the Petitioner for the purposes of investigation On considering the surrounding facts and circumstances of the present case as well as the fact that the petitioner was in custody for almost 6 years in connection with the vigilance case which forms part of scheduled offence for the present case under PML Act and the fact that the custodial interrogation of the petitioner is over and the E.D. s statement before court that custody of the petitioner is no more required and above all the fact that the petitioner was not formally arrested by the E.D. in the present case since the institution of the case by registering the ECIR further considering the factual background of this case - Furthermore, the mining operation as well as the mining laws, in the meanwhile, has undergone a drastic change, therefore, prima facie there exists no possibilities of such offences being repeated in the future. This Court, considers this the present case to be a deserving case for exercising it s discretion under Section 438 CrPC and to grant anticipatory bail to the present Petitioner and accordingly it is directed that the petitioner be released on bail in the event of his arrest by the E.D. officials in connection with Complaint Case (PMLA) No. 40 of 2018 pending before the Ld. Special Judge, Special Court, Bhubaneswar, Khurdha subject to such terms and conditions as the arresting officer would deem fit and proper in the facts and circumstances of the present case. Anticipatory bail application allowed.
Issues Involved:
1. Validity of the Prevention of Money Laundering Act (PMLA), 2002. 2. Legality of the petitioner's custody and remand process. 3. Applicability of Section 167 of the Criminal Procedure Code (CrPC) regarding default bail. 4. Consideration of anticipatory bail under Section 438 CrPC. 5. Grounds for granting or denying anticipatory bail. 6. Compliance with Article 21 and Article 22 of the Constitution of India. Detailed Analysis: 1. Validity of the Prevention of Money Laundering Act (PMLA), 2002: The court referenced the constitutionality of the PMLA Act, 2002, which was upheld by the Supreme Court in the case of Bijay Madanlal Choudhury v. Union of India. The judgment emphasized that the procedures followed by the Enforcement Directorate (ED) under the PMLA are not violative of constitutional mandates. 2. Legality of the Petitioner's Custody and Remand Process: The petitioner was initially taken into custody in connection with a vigilance case involving illegal mining. The ED filed a petition for the petitioner's remand for interrogation under Section 267 CrPC, not Section 167 CrPC, indicating that the petitioner was never formally arrested by the ED in the PMLA case. The court noted that the orders for remand were in line with Section 267 CrPC and not Section 167 CrPC, which deals with default bail. 3. Applicability of Section 167 CrPC Regarding Default Bail: The petitioner argued for default bail under Section 167(2) CrPC, claiming that the ED did not file a complaint within 60 days. The court found this argument inapplicable as the petitioner was never formally arrested by the ED in the PMLA case, and the remand was under Section 267 CrPC. 4. Consideration of Anticipatory Bail Under Section 438 CrPC: The court discussed the concept of anticipatory bail, emphasizing that it is meant to protect individuals who apprehend arrest for non-bailable offenses. The court cited various judgments, including Gurbaksh Singh Sibbia v. State of Punjab, to highlight the principles guiding the grant of anticipatory bail, such as the nature and gravity of the accusation, the applicant's antecedents, and the possibility of fleeing from justice. 5. Grounds for Granting or Denying Anticipatory Bail: The court examined the grounds presented by the petitioner for anticipatory bail, including: - The petitioner's previous custodial interrogation by the ED. - The completion of the investigation and the lack of new facts requiring further custodial interrogation. - The petitioner's cooperation with the investigation and the surrender of his passport. - The fact that the petitioner had already spent a significant amount of time in custody in connection with the vigilance case. The court also considered the ED's opposition, which emphasized the seriousness of the economic offense and the need for custodial interrogation. However, the court found that the ED had not formally arrested the petitioner and had not demonstrated any new incriminating evidence necessitating further custody. 6. Compliance with Article 21 and Article 22 of the Constitution of India: The court highlighted the importance of personal liberty and the right to a fair and speedy trial as guaranteed under Article 21 of the Constitution. It noted that the petitioner had already spent a considerable amount of time in custody and that the trial was unlikely to conclude soon. The court emphasized that the legal process should not infringe upon the petitioner's fundamental rights. Conclusion: The court granted anticipatory bail to the petitioner, subject to specific conditions, including: - Appearance before the trial court on all dates. - No tampering with evidence or influencing witnesses. - Cooperation with the investigation. - Surrender of travel documents and informing the ED of his whereabouts. The court's decision was guided by the principles of personal liberty, the completion of the investigation, and the lack of new evidence requiring further custodial interrogation. The observations made were prima facie for the purpose of the anticipatory bail application, and the trial court was directed to decide the case on its own merits.
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