2024 (9) TMI 705 - HC - Money Laundering

Seeking grant of Regular Bail u/s 439 of Criminal Procedure Code 1973 read with section 45 of the Prevention of Money Laundering Act, 2002 (by a woman) - Cattle smuggling was happening from India to Bangladesh by paying illegal gratification to BSF personnel deputed on the Border - HELD THAT - The allegations essentially against the Applicant are that Satish Kumar who was the then Commandant of 36th Battalion of BSF and is the second husband of Tania Sanyal, had received the bribes for the business of Cattle smuggling across the border. The Applicant s father, Anubrata Mondal had received the money from Satish Kumar and the Applicant had helped in laundering the money to the tune of Rs. 12,00,00,000/- through her Companies/Firm. Even though she projected herself as a primary School teacher, but there is enormous prima facie evidence to establish that she owns/ manages various Firms and Companies, in the accounts of which the proceeds of crime generated from the predicate offence of Cattle-Smuggling are laundered. Indisputably, the Applicant is not an accused in the predicate offence. It has been held in the recent decision of the Apex Court in Manish Sisodia vs. Central Bureau of Investigation 2023 (11) TMI 63 - SUPREME COURT , that right of liberty guaranteed under Article 21 of the Constitution of India is a sacrosanct right which needs to be accepted even in cases where stringent provisions are incorporated in the special enactments. Furthermore, Proviso to Section 45 (1) of PMLA, 2002 entitles a woman for special treatment, while her bail application is being considered. In the recent decision of the Apex Court in Kalvakuntla Kavitha vs. Directorate of Enforcement, 2024 (8) TMI 1411 - SUPREME COURT , a reference has been made to Proviso to Section 45 (1) of PMLA, 2002 to observe that this Proviso permits a certain category of accused including woman to be released on bail, without the twin requirement under Section 45 of the PMLA being satisfied. While the Proviso does not operate automatically in favour of the woman, but the facts and circumstances of the case are to be considered. However, while denying such benefit, the Court is required to give specific reasons as to why the benefit be denied. In the present case, the facts essentially are in pari materia, the Applicant is the daughter of Anubrata Mondal and the allegations essentially against her are that she had used her Company/Firm accounts to launder the money, proceeds of crime which was received by her father - As has been observed in the case of Saumya Chaurasia 2023 (12) TMI 685 - SUPREME COURT , the Applicant may be an educated woman having her business and commercial enterprise, but it cannot be overlooked that the allegations against her are essentially in the context of her father and that she in her commercial ventures, has laundered the money received by her father as a bribe. Looking at the number of pages in the Chargesheet which were voluminous, and some were in Bengali which were required to be translated, Sh. Anubrata Mondal was admitted to bail. In the present case, the Applicant is in judicial custody from 26.04.2023. As has been observed in the context of this case itself while deciding bail of Anubrata Mondal the documents involved are voluminous and the trial may take a long time to get concluded. Furthermore, the Applicant is a woman who is entitled to bail under Proviso to Section 45 of PMLA, 2002. The Applicant is admitted to regular bail upon her furnishing a personal bond in the sum of Rs. 10,00,000/- and one surety of the like amount to the satisfaction of the learned Trial Court, subject to fulfilment of conditions imposed - bail application allowed.

Issues Involved:
1. Application for Regular Bail under Section 439 of Cr.P.C. and Section 45 of PMLA.
2. Allegations of Cattle Smuggling and Money Laundering.
3. Applicant's Involvement and Role.
4. Medical Condition and Special Provisions for Women under PMLA.
5. Doctrine of Parity and Discriminatory Practices by ED.
6. Prolonged Pre-trial Incarceration and Right to Speedy Trial.

Issue-wise Detailed Analysis:

1. Application for Regular Bail under Section 439 of Cr.P.C. and Section 45 of PMLA:
The applicant, a 31-year-old woman, filed for regular bail under Section 439 of Cr.P.C. read with Section 45 of PMLA in Complaint Case No. 13/2022. The applicant argued that her arrest was irrational and unjustified, and her first bail application was dismissed without proper appreciation of facts and law.

2. Allegations of Cattle Smuggling and Money Laundering:
The CBI initiated a preliminary enquiry revealing cattle smuggling from India to Bangladesh, involving illegal payments to BSF and Customs officials. The ED registered an ECIR based on the CBI's case, alleging that the applicant laundered approximately Rs. 12 crore through various companies and firms. The applicant's father allegedly received bribes from the main accused, and the applicant helped launder the money.

3. Applicant's Involvement and Role:
The applicant claimed she was a primary school teacher, but investigations revealed her active involvement in managing the finances of family businesses and laundering proceeds of crime. The ED's investigation showed significant cash deposits in her and her family's accounts, which the applicant could not explain. Statements from various individuals indicated the applicant's role in operating accounts and managing funds.

4. Medical Condition and Special Provisions for Women under PMLA:
The applicant cited her medical condition, including gynecological and thyroid problems, and sought bail under the special provisions for women in the Proviso to Section 45 of PMLA. The court recognized the need for special treatment for women, as per recent Supreme Court judgments, and noted that the applicant's medical condition did not demonstrate any exigency requiring immediate intervention.

5. Doctrine of Parity and Discriminatory Practices by ED:
The applicant argued that the ED's selective arrest practices were discriminatory, citing the doctrine of parity. The court acknowledged that the applicant's case was similar to that of co-accused who had been granted bail and emphasized the need for uniform and consistent conduct by the ED.

6. Prolonged Pre-trial Incarceration and Right to Speedy Trial:
The applicant had been in judicial custody since 26.04.2023, and the court noted that prolonged pre-trial incarceration violated the presumption of innocence. The court referred to several Supreme Court judgments emphasizing the right to a speedy trial and the need to avoid indefinite pre-trial detention.

Conclusion:
The court granted the applicant regular bail, considering her status as a woman, her medical condition, and the prolonged pre-trial incarceration. The bail was granted upon furnishing a personal bond of Rs. 10,00,000/- and one surety of the like amount, subject to conditions including appearing before the court, providing a working mobile number, informing the IO of her address, not leaving the country without permission, not contacting witnesses, and not engaging in criminal activity. The Registry was directed to communicate the order to the trial court and the concerned jail superintendent.

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