2024 (10) TMI 154 - HC - Money Laundering

Money Laundering - seeking grant of Regular Bail - Predicate Offence - paying illegal gratification to BSF personnel deputed on the Border - Applicant was a party to cattle-smuggling in so much as he facilitated the same for money considerations - HELD THAT - In the recent decision of Manish Sisodia vs. Central Bureau of Investigation, 2023 (11) TMI 63 - SUPREME COURT , the Hon ble Supreme Court observed 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 through special laws. It was held that prolonged incarceration before being pronounced guilty of an offence, should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that bail is the rule and refusal is an exception . In the present case, the allegations are that the Applicant was a party to cattle-smuggling in so much as he facilitated the same for money considerations. The investigations qua the Petitioner are already complete as the Complaint has been filed in the Court. Pertinently, the Applicant was named only in First Supplementary Charge Sheet. He is not a flight risk, considering his position of being a Commandant in the BSF and that he has deep roots in the Society. The evidence being essentially documentary, is not likely to be tampered or the witnesses influenced. The Applicant is admitted to bail subject to fulfilment of conditions imposed - bail application allowed.

2023 (11) TMI 63 - SC

Issues Involved:
1. Bail Application under Section 439 of Cr.P.C. and Section 45 of PMLA.
2. Allegations of cattle smuggling and corruption.
3. Role and involvement of the Applicant.
4. Proceeds of Crime (PoC) and their connection to the Applicant.
5. Twin conditions for bail under Section 45 of PMLA.
6. Right to personal liberty under Article 21 of the Constitution.
7. Conditions for granting bail.

Detailed Analysis:

1. Bail Application under Section 439 of Cr.P.C. and Section 45 of PMLA:
The Applicant filed a Bail Application under Section 439 of the Criminal Procedure Code, 1973, read with Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA), seeking regular bail in Complaint Case No. 13/2022. The Applicant has been in custody since 22.04.2022.

2. Allegations of Cattle Smuggling and Corruption:
The CBI registered a Preliminary Enquiry (PE) against several individuals, including the Applicant, revealing cattle smuggling from India to Bangladesh by paying illegal gratification to BSF and Customs officials. Following the PE, the CBI registered a Regular Case (RC) for offences under Section 120B IPC and Sections 7, 11, and 12 of the Prevention of Corruption Act, 1988, leading to the filing of a chargesheet against the Applicant and others.

3. Role and Involvement of the Applicant:
The Applicant, serving as a Commandant in the BSF, was responsible for stopping trans-border crimes. It is alleged that the Applicant had a nexus with the main accused, Md. Enamul Haque, and facilitated cattle smuggling by accepting bribes. The Applicant contends that his role ended after the preparation of seizure memos and handing over the custody of seized cattle to the Customs Department, asserting that the allegations are false and without prima facie evidence.

4. Proceeds of Crime (PoC) and Their Connection to the Applicant:
The allegations include the receipt of bribes into joint accounts of the Applicant's wife and father-in-law. The Applicant denies any knowledge or relation to the alleged PoC, asserting that the amount deposited was declared under the Income Declaration Scheme, 2016. The Respondent argues that the cash deposits were made by an employee of Md. Enamul Haque, linking the Applicant to the proceeds of crime.

5. Twin Conditions for Bail under Section 45 of PMLA:
The court referenced the special nature of the offence of money laundering, emphasizing the twin conditions under Section 45 of PMLA:
(a) The public prosecutor must be given an opportunity to oppose the bail application.
(b) 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 offence while on bail.

6. Right to Personal Liberty under Article 21 of the Constitution:
The court reiterated the principle that "bail is the rule and jail is exception," emphasizing the presumption of innocence until proven guilty. The right to liberty under Article 21 of the Constitution is sacrosanct and should not be arbitrarily subjugated to statutory restrictions.

7. Conditions for Granting Bail:
The court considered the Applicant's prolonged incarceration, the completion of investigations, and the documentary nature of the evidence. The Applicant was admitted to bail on the following conditions:
a) Furnish a personal bond of Rs. 10,00,000/- and one surety of the like amount.
b) Not leave Delhi/NCR without prior permission of the court.
c) Appear before the court as required.
d) Provide a working mobile number to the Investigating Officer (IO).
e) Inform the IO and Jail Superintendent of the address in Delhi.
f) Not leave the country without prior permission and surrender the passport.
g) Not contact, threaten, or influence any witnesses.
h) Not indulge in any criminal activity or communicate with witnesses.

Conclusion:
The court, balancing the right to personal liberty with the nature of the allegations, granted bail to the Applicant with specific conditions to ensure compliance and prevent tampering with evidence or influencing witnesses. The application was disposed of accordingly.

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