2023 (11) TMI 749 - HC - Money Laundering

Seeking grant of anticipatory bail - Money Laundering - active member of extortion syndicate - transaction of cash money - non-arresting of the present applicant entitled him to get anticipatory bail in view of Section 19 of the PMLA, 2002 or not - twin conditions for grant of bail under Section 45 of the PMLA, 2002 are available or not. Whether non-arresting of the present applicant entitled him to get anticipatory bail in view of Section 19 of the PMLA, 2002? - HELD THAT - Considering the fact that as per Section 19 of the PMLA, 2002, it is for the authority who on the basis of material in their possession, and reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person. The authorities while conducting the investigation has not opted for this option which was available with them, but it does not mean that the right of arrest to a person who is involved in the commission of offence under the PMLA, 2002 has come to an end. This can be exercised by them as and when the reasons are available with them for arresting. Thus, the submission that arresting of the present applicant has not been done by the Enforcement Directorate, therefore, the present applicant is entitled to be released on anticipatory bail. Thus, the applicant cannot claim anticipatory bail on the strength that during investigation, he has joined the investigation, though the authorities have power to arrest but they have not arrested him. Whether the twin conditions for grant of bail under Section 45 of the PMLA, 2002 are available on record to release the applicant by granting anticipatory bail? - HELD THAT - In the present case, prima facie the Enforcement Directorate has collected certain material against the applicant, particularly the role played by him as he was an active member of the extortion syndicate and was focal point as all the extorted cash was deposited, stored and subsequently dispatched for utilization as per the instructions of Suryakant Tiwari. The material so collected by the investigation prima facie reflects that many hand written entries in the diaries were made by the present applicant only. Thus, he was knowingly and actively participated in the extortion racket and acted as the accountant who managed the illegal cash. It is also revealed during the investigation by Enforcement Directorate that the applicant is the brother and a close associate of Suryakant Tiwari who is the mastermind behind the present illegal coal levy scam at ground level, is having strong links with politicians and businessmen in the State of Chhattisgarh as Suryakant Tiwari being closely associated with Ms. Saumya Chaurasia, who is a highly influential individual in Chhattisgarh. The statement of present applicant recorded under Section 50 (2) of the PMLA, 2002, prima facie, involvement of the applicant is reflected. The material collected by the Enforcement Directorate has not been rebutted which also prima facie reflects about involvement of the applicant. The record of the case would further demonstrate that the applicant is unable to fulfill the twin conditions which are required for grant of bail under the PMLA, 2002, is equally applicable for grant of anticipatory bail, which has not been satisfied by the present applicant. Considering the above stated facts and law, gravity of offence, possibility of tempering of the witnesses and prima facie considering the fact that the applicant is unable to satisfy twin conditions of Section 45 of PMLA, 2002 for grant of anticipatory bail, the applicant is not released on anticipatory bail. Thus, the question is answered against the present applicant. The bail application filed under Section 438 of the Cr.P.C. is liable to be and is hereby rejected.

Summary

Issues Involved:
1. Whether non-arresting of the applicant entitles him to anticipatory bail under Section 19 of the PMLA, 2002.
2. Whether the twin conditions for granting bail under Section 45 of the PMLA, 2002 are satisfied for releasing the applicant on anticipatory bail.

Summary:

Point No. 1: Non-arresting of the Applicant

The applicant argued that since he was not arrested and has cooperated with the investigation, he should be granted anticipatory bail. He cited a case where the court granted anticipatory bail due to no apprehension of absconding or tampering with evidence. The respondent countered that due to the gravity of the offence and involvement of influential bureaucrats, the applicant might tamper with witnesses. The court noted that the authority has the discretion to arrest based on material evidence and reason to believe, and non-arrest does not automatically entitle the applicant to anticipatory bail. The Supreme Court's decision in Manish Sisodia v. CBI emphasized that prolonged incarceration should be considered on a case-to-case basis. The court concluded that non-arrest does not entitle the applicant to anticipatory bail and answered Point No. 1 against the applicant.

Point No. 2: Twin Conditions for Bail under Section 45 of the PMLA, 2002

The court examined Section 45 of the PMLA, 2002, which requires the Public Prosecutor to oppose the bail application and the court to be satisfied that the accused is not guilty and unlikely to commit an offence while on bail. The Supreme Court in M. Gopal Reddy v. Enforcement Directorate and Y. S. Jagan Mohan Reddy v. CBI emphasized that economic offences should be viewed seriously and anticipatory bail should be granted cautiously. The applicant's role as an active member of the extortion syndicate, managing illegal cash, and his close association with the mastermind behind the illegal coal levy scam were noted. The court found that the applicant did not satisfy the twin conditions required for bail under Section 45 of the PMLA, 2002. Therefore, Point No. 2 was answered against the applicant.

Conclusion:

The bail application under Section 438 of the Cr.P.C. was rejected. The court clarified that the observations made were only for the disposal of the bail application and would not influence the trial court on the merits of the case.