2024 (9) TMI 183 - HC - Money Laundering

Application for regular bail filed by applicant Gurupada Maji S/o Late Sh. Narayan Maji, through his pairokar under Sections 45 and 46 of Prevention of Money Laundering Act, 2002(PMLA) read with Section 439 Cr.P.C. - illegal excavation and theft of coal from leasehold area of Eastern Coalfield Limited (ECL) - Section 45 of PMLA - HELD THAT - The Supreme Court in its landmark judgment in Vijay Madanlal Choudhary 2022 (7) TMI 1316 - SUPREME COURT , upheld the Constitutional validity of Section 45 of PMLA, at the same time recognizing that though the provision restricts the right of the accused to grant of bail but the conditions do not impose an absolute restraint on the grant of bail and the discretion vests in the Court, which has to be exercised judiciously and not arbitrarily. The twin conditions in Section 45 of PMLA have been subject matter of extensive judicial scrutiny. PMLA is an enactment aimed at combating the menace of money laundering which has far reaching implications on the economic stability of the country. Gravity of economic offences and need for a differential approach in matters of bail was highlighted by the Supreme Court in Y.S. Jagan Mohan Reddy 2013 (5) TMI 896 - SUPREME COURT , where the Supreme Court observed that economic offences constitute a class apart and need to be approached with a different perspective even while considering a bail application. The Supreme Court in Masroor v. State of Uttar Pradesh and Another, 2009 (4) TMI 1031 - SUPREME COURT , observed that while deciding the bail application, Courts must strike a balance between the valuable right of liberty of an individual and the larger interest of the society. Article 21 of the Constitution of India has been interpreted expansively by the Supreme Court to encompass a panoply of rights including the right of an accused to speedy trial. Despite the stringent requirements under Section 45 of PMLA for grant of bail, the twin conditions therein do not create an absolute restraint or embargo or an insurmountable barrier in the way of the Court to grant bail on grounds of delay in completion of trial and long incarceration, which in this case is for a period of 27 months and 03 days. Maintaining a delicate balance between the twin conditions under Section 45 of PMLA and the need to combat economic offences and seeing with the prism of Article 21 of the Constitution of India, in my view, the applicant has made out a case for grant of bail keeping in view the incarceration of nearly 28 months and there being no possibility of the trial concluding in the near future. On the aspect of the applicant being a flight risk albeit there was no serious opposition, yet this apprehension of the prosecution can be allayed by imposing stringent bail conditions. It is to be noted that on being granted bail by the Special Court in the predicate offence, applicant complied with all the bail conditions and joined the investigation as and when called for. It is also a matter of record that the investigation in the present matter qua the applicant is complete. Case of the ED is primarily based on documentary evidence and the relevant records/documents have been seized and are in custody of investigating agencies and thus cannot be tampered. ED has not argued that there is any possibility of intimidating the witnesses. The application is allowed and it is directed that the applicant be released on regular bail, subject to his furnishing a personal bond in the sum of Rs.5,00,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court and further subject to the fulfilment of conditions imposed - bail application allowed.

Issues Involved:
1. Application for regular bail under Sections 45 and 46 of the Prevention of Money Laundering Act (PMLA) read with Section 439 Cr.P.C.
2. Allegations against the applicant regarding illegal coal mining and money laundering.
3. Compliance with twin conditions under Section 45 of PMLA.
4. Incarceration duration and right to speedy trial under Article 21 of the Constitution of India.
5. Admissibility and reliability of evidence.
6. Flight risk and potential tampering with evidence.

Issue-Wise Detailed Analysis:

1. Application for Regular Bail:
The applicant sought regular bail under Sections 45 and 46 of PMLA read with Section 439 Cr.P.C. He argued that he had been wrongly implicated and had cooperated with the investigation, joining it on multiple occasions and providing statements.

2. Allegations Against the Applicant:
The Enforcement Directorate (ED) alleged that the applicant was involved in illegal coal mining and laundering of proceeds of crime (POC). The applicant was one of the four partners in the illegal coal mining business, holding a 25% stake. The ED claimed that the applicant received POC amounting to Rs. 89.04 crores through complex and multi-layered transactions involving sham companies.

3. Compliance with Twin Conditions under Section 45 of PMLA:
Section 45 of PMLA stipulates twin conditions for bail: the Public Prosecutor must be given an opportunity to oppose the bail application, and the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offense while on bail. The court noted that these conditions do not impose an absolute restraint on the grant of bail and must be exercised judiciously.

4. Incarceration Duration and Right to Speedy Trial:
The applicant had been in judicial custody since 02.06.2022, and the trial had not commenced. The court emphasized the right to speedy trial under Article 21 of the Constitution of India, noting that prolonged incarceration without trial amounts to a violation of the right to personal liberty. The court referenced several Supreme Court judgments, including Manish Sisodia v. Directorate of Enforcement, highlighting that bail should be the rule and jail an exception, especially in cases of long incarceration and delayed trials.

5. Admissibility and Reliability of Evidence:
The ED relied on loose diaries, registers, and handwritten notes seized from Niraj Singh and the premises of Anup Majee. The applicant argued that these documents were inadmissible under Section 34 of the Indian Evidence Act, 1872, and could not be used to charge him. The court refrained from expressing an opinion on the merits of the evidence, noting that these issues would be best addressed during the trial.

6. Flight Risk and Potential Tampering with Evidence:
The court addressed the prosecution's concerns about the applicant being a flight risk and potential tampering with evidence by imposing stringent bail conditions. The applicant was required to surrender his passport, provide his permanent residential address, keep his mobile number active, appear before the trial court as required, refrain from criminal activity, and contact the Investigating Officer (IO) regularly.

Conclusion:
The court granted the applicant bail, considering his long incarceration and the unlikelihood of the trial concluding soon. The bail was granted subject to stringent conditions to mitigate any risk of flight or tampering with evidence. The court emphasized that the observations made in the judgment would not influence the merits of the case during the trial.

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