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2023 (2) TMI 43 - HC - Money LaunderingSeeking grant of bail - money laundering - proceeds of crime - allegation of amassing property and cash - HELD THAT - After reading the law laid down in Vijay Madanlal Choudhary 2022 (7) TMI 1316 - SUPREME COURT , this Court considers it expedient to reiterate that the Petitioner was acquitted of the criminal case in Barbil P.S. Case No. 58 of 2010 for offence U/Ss. 307/387 of IPC r/w Section 25 and 27 of the Arms Act which are considered to be the predicate offence leading to launching of prosecution under PML Act in the present complaint, but subsequently the property involved in such criminal case had been directed to be restored to the Petitioner in criminal appeal no. 11 of 2012 and whether such order is/was challenged in the higher forum has not been brought to the notice of this Court. No matter a complaint under PML Act has been filed and pending against the petitioner for commission of offence of Money Laundering, but the acquittal of the petitioner for commission of offence under IPC as scheduled offence under PML Act and direction of the Appellate Court for restoration of property to the petitioner relating to such offence of IPC, unless the same are varied or set aside reversing the findings therein, it appears to this Court that these circumstances of acquittal of petitioner and direction for restoration of the property to the petitioner are sufficient to consider about existence of reasonable grounds for believing the petitioner to have prima facie discharged the satisfaction of the rigors of Sec. 45(1) of PML Act, which appears to be logically justified and fortified. According to Sec. 3 of PML Act, whoever directly or indirectly attempts to indulge or knowingly assist or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering. In this case, of course, the Petitioner is facing a proceeding under PML Act for commission of offence of Money Laundering and, therefore, the rival claims of ED and the petitioner with respect to the offence and the property attached or seized by the ED are subject of adjudication and presumption under PML Act but keeping the Petitioner in custody for the purpose of trial or in anticipation of any other complaint or supplementary complaint which is not in existence at present, would be devoid of any sound logic, especially when the petitioner had already been acquitted for commission of scheduled/ predicate offences and the property seized in connection with that case had already been directed to be returned back to the Petitioner, no matter the criminal appeal against such order of acquittal is pending before this Court. The bail application of the petitioner stands allowed and the petitioner be released on bail by the Court in seisin of the case on such terms and conditions as deem fit and proper and subject to his furnishing a cash surety of Rs. 5,00,000/- which shall be kept in fixed deposit/STDR in any Nationalised Bank, in addition to furnishing of property surety of Rs. 20,00,000/- and bail bonds of Rs. 10 lakhs with two solvent sureties each.
Issues Involved:
1. Grant of bail under Section 439 of Cr.P.C. 2. Allegations of amassing property and cash as proceeds of crime. 3. Applicability of Section 45 of the Prevention of Money Laundering Act (PMLA). 4. Impact of acquittal in predicate offences on the PMLA case. 5. Consideration of personal liberty and judicial discretion in bail matters. 6. Conditions for granting bail. Detailed Analysis: 1. Grant of Bail under Section 439 of Cr.P.C.: The petitioner sought bail under Section 439 of Cr.P.C. in connection with a case involving offences under Section 3 of the PMLA, punishable under Section 4 of the PMLA. The court emphasized the fundamental right to personal liberty under Article 21 of the Constitution and the discretionary nature of bail provisions under Sections 436 to 439 of Cr.P.C. The court referred to the Supreme Court's observations in Satender Kumar Antil v. CBI, highlighting that "Liberty is one of the most essential requirements of the modern man." 2. Allegations of Amassing Property and Cash as Proceeds of Crime: The allegations against the petitioner included terrorizing local businessmen, demanding extortion money, and amassing property and cash through illegal activities such as smuggling iron ore and extortion. The police had seized cash and gold ornaments from the petitioner's house, which were alleged to be proceeds of crime. The Enforcement Directorate (ED) investigated these allegations under the PMLA. 3. Applicability of Section 45 of the PMLA: The court discussed the twin conditions under Section 45(1) of the PMLA for granting bail: (i) the public prosecutor must be given an opportunity to oppose the bail application, and (ii) the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail. The court referred to the Supreme Court's judgment in Vijay Madanlal Choudhary v. Union of India, which clarified that while Section 45 imposes conditions on granting bail, it does not impose an absolute restraint. 4. Impact of Acquittal in Predicate Offences on the PMLA Case: The petitioner had been acquitted of the predicate offences under IPC and Arms Act in a previous case. The court noted that the property seized in connection with the predicate offences had been directed to be returned to the petitioner. The court referred to the Supreme Court's observation in Vijay Madanlal Choudhary that if a person is acquitted of the scheduled offence, there can be no offence of money laundering against him. The court also noted that the ED could not provide evidence that the order directing the return of property had been challenged. 5. Consideration of Personal Liberty and Judicial Discretion in Bail Matters: The court emphasized that the object of bail is to protect individual liberty and prevent pre-trial punishment. It reiterated that the discretion to grant bail should not be arbitrary or whimsical. The court referred to the Supreme Court's judgment in P. Chidambaram v. Directorate of Enforcement, which stated that "the grant of bail is the rule and refusal is the exception." 6. Conditions for Granting Bail: The court granted bail to the petitioner, considering the acquittal in the predicate offences, the direction to return the seized property, and the pre-trial detention since 07.09.2022. The conditions for bail included furnishing a cash surety of Rs. 5,00,000, property surety of Rs. 20,00,000, and bail bonds of Rs. 10,00,000 with two solvent sureties. Additional conditions included appearing before the court on every date of posting, depositing the passport, not leaving the country without permission, and providing contact details and proof of residence. Conclusion: The court allowed the bail application, emphasizing that the observations made were purely for the purpose of adjudicating the bail application and should not influence the trial's merits. The court highlighted the importance of personal liberty and judicial discretion in bail matters, ensuring that the petitioner's detention was not arbitrary or unjustified. The judgment balanced the need to protect individual rights with the requirements of the legal process under the PMLA.
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