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TMI Blog2015 (5) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... dv., Mr. Saurabh Kirpal, Adv. with Ms. Deeksha Rao, Adv. For the Respondent : Mr. Sanjay Jain, ASG with Mr.Ajay Digpal, Mr. Akshay Makhija, GHS, Ms. Prabhsahey Kaur, GP, Ms. Shreya Sinha, Mr. Akash Nagar, Ms. Pallavi Shali, Adv. ORDER MANMOHAN SINGH, J. 1. By way of this order, I propose to decide the two applications; one filed by Gaurav Gupta and another one by Gagandeep Singh and Paramdeep Singh (both brothers). All the three petitioners are in custody since 25th September, 2014, who have filed the abovementioned applications under Section 439 read with Section 482 Cr.P.C. for grant of bail under Section 3 of Prevention of Money- Laundering Act, 2002 (hereinafter referred to as the Act ) punishable under Section 4 of the Act. 2. Brief facts as per the case of the respondent are that : i) The Australian Federal Police (hereinafter referred to as AFP) had conducted an investigation code named 'Operation Zanella' relating to the activities of global money laundering networks who found that certain persons namely Gulshan Kumar, Mandeep Singh, Sanjeev Kumar Sahni and Ravender Pal Singh based in Australia, were providing their services to Australian O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to another country for the OCG and thus acquired huge money. It was also revealed that they had purchased movable and immovable properties worth crores of rupees. The Directorate identified one such property i.e. House No. 414, Basant Avenue, Amritsar, worth 1.65 Crore of Gagandeep and Paramdeep Singh which had been purchased out of the funds generated through criminal activity and being proceeds of crime the same was been provisionally attached vide Provisional Attachment Order No.1/2014 dated 18th November, 2014 under Section 5(1) of the Act. The Adjudicating Authority by order dated 25th March, 2015 had confirmed the above said Provisional Attachment Order under Section 5(3) of the Act. The identification of other such properties generated through proceeds of crime is in process. In the meantime Enforcement Directorate had received few documents from Australia in the form of Bank statements and other documents which established the involvement of above accused persons. Based on the investigation conducted and the documents received by Enforcement Directorate, a Criminal Complaint had been filed in the Special Court for money laundering and the court had already taken the cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indulge or knowingly assist or is a part or actually involved in process of activities connected with the proceeds of crime. iv) As per the allegations schedule offence has been committed by the petitioners in Amritsar and as per Section 44 of the Act the court at New Delhi has no jurisdiction to try the offence and only the court at Amritsar have jurisdiction to try the offence under the Act where the schedule offence has been committed. The authorities have failed to comply with the rules and documents have not been attested under the Diplomatic and Consular Officers (Oath Fees) Act 1948 (41 of 1948) for the purpose of sub Section 2 of Section 22 of the Act. v) There is no evidence which suggests that the petitioners are generating money from drug trafficking dealing with the proceeds of crime or any nexus that the petitioners are involved in any laundering of money or facilitating the other accused persons in laundering of money. 4. The allegations against Gaurav Gupta in Bail Application No.484/2015 are : a) That he was involved in an international syndicate of laundering the money generated out of drug trafficking in Australia and other countries. It is also a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Gagandeep Singh and Paramdeep Singh. As far as his client is concerned, his client is not involved in the scheduled offence under Part A of the Schedule, thus he is entitled for bail. 7. Mr. Saurabh Kirpal who is appearing on behalf of petitioners in bail application No.571/2015 submits that every action of putting money in a bank or otherwise introducing it into the white economy is not laundering. It is only when 'dirty money' is laundered that an offence comes into play. The onus, therefore is to establish that the laundered money comes from an illegal source. The scheme of the Act which also requires that the scheduled offence (i.e. the underlying criminal activity) and the offence of money laundering have to be tried together. The impugned order where the trial court has rejected the bail application records that the connections between transactions being done by the accused persons and it being 'proceeds of crime' may be nebulous, but this in itself cannot be a ground for ignoring the huge amounts of transactions that have been taking place through the accounts of the accused persons. 8. Mr. Kirpal argues that in the present complaint, there is no re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jaganmohan Reddy vs. CBI, (2013) 7 SCC 439. Furthermore, Section 45 of the Act introduces an additional limitation upon this Court while exercising its discretion to grant or deny bail. Section 45(1) of the Act provides that no person accused of an offence punishable for a term of more than three years under Part A of the schedule shall be released on bail unless the two following conditions are necessarily satisfied : i) where the Public Prosecutor has been given an opportunity to oppose the bail application; and ii) bail shall not be granted unless the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. b) The next submissions of Mr. Jain, learned ASG is that there are sufficient material on record, which can prove the allegations against the petitioners as the offence of Money Laundering generally comprises of 3 stages i.e. Placement, Layering and Integration, in consonance with the definition of money laundering. The main object of the Act is to punish the person who deals with proceeds of crime as defined under Section 2(1)(u) of the Act. Mr. Jain, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough proceeds of crime is in the process. A chart showing involvement of the petitioner and the others in the money laundering crime is filed as Annexure A1. In the meantime Enforcement Directorate received few documents from Australia in the form of bank statements and other documents which established the involvement of above accused persons in the crime. Based on the investigation conducted by Enforcement Directorate and the documents received by Enforcement Directorate, a criminal complaint was filed in the Special Court for money laundering and the court has already taken cognizance of the offence of money laundering and the case has been listed for framing of charges on 18th May, 2015. Charge sheet also disclosed that on investigation, it has been noticed by the investigating agency that Ms. Amandeep Kaur, sister of Gagandeep Singh and Paramdeep Singh, has NRI/NRO accounts, operated by Paramdeep Singh. In these NRO/NRI accounts an amount of more than ₹ 3 crore had been deposited which has been frozen under Section 17(1A) of the Act and thereafter, the Adjudicating Authority after hearing the representatives of the petitioner, Gagandeep Singh and Paramdeep Singh, und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. It is argued by him that as investigation of the case is complete and the trial is going to take considerable period of time before the entire evidence is concluded, therefore continuing incarceration of the petitioner is not going to serve any purpose except to deny the benefit of bail to petitioner by way of punishment. 16. During the hearing, an affidavit of Maan Singh Yadav, Assitant Director, Enforcement Directorate has been filed in the Court in which it was deposed that 6th May, 2015, the officers of the Enforcement Directorate visited the premises of the accused being House No.414, Basant Avenue, Race Course Road, Amritsar under the provision of Section 8(4) of the Act to take possession of the same and during the proceedings, the officers noticed suspicious activity of the wives and mother of the accused and they insisted to be given one more day for vacating the premises. A search warrant was prepared under Section 17 of the Act for search of the premises and the Enforcement Directorate officers carried out a search of the premises and had recovered 10 kgs of gold from the premises i.e. 10 bars of 1 kilo gold were dug up from the garden of the premises. 17. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected 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. b) The meaning of proceeds of crime is under clause (u) of Section 2 of the Act, which reads as under : - (u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. c) Section 24 of the Act stipulates about the burden of proof relating to proceeds of crime of the Act, the same reads as under: - 24. In any proceeding relating to proceeds of crime under this Act, - (a) In the case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and (b) In the case of any other person the Authority or Court, may presume that such proceeds of crime are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence of cross border implications has been defined under Section 2 (ra) of the Act which reads as under : 2 (ra) offence of cross border implications, means- (i) any conduct by a persons at a place outside India which constitutes an offence at the place and which would have constituted an offence specified in Part A, Part B or Part C of the schedule, had it been committed in India and if such person transfers in any manner the proceeds of such conduct or part thereof to, India; or (ii) any offence specified in Part A, Part B or Part C of the schedule which has been committed in India and the proceeds of crime or part thereof have been transferred to a place outside India or any attempt has been made to transfer the proceeds of crime, or part thereof, from India to a place outside India. g) Section 4 defines punishment for money laundering which reads as under : Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Provided that where the proceeds of crime involved in money-laundering relates to any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation No. 571/2015 are already on bail in the FIR No. 29/2011 lodged at Amritsar under Section 21/25/29 of NDPS Act and 420/467/471 read with 120B of IPC and petitioner No. 2 is also already on bail in FIR No.526/2005 lodged at I.P. Estate Police Station, New Delhi. 23. The statements of the petitioner under Section 50 of the Act was recorded after the arrest of the petitioner and the same are inadmissible in evidence being hit by Article 20(3) of the Constitution of India. The petitioners have retracted from the statements recorded during the remand at the first available opportunity. 24. It is the case of the petitioners that they have not committed any offence under Part A of the Schedule nor has been booked in any case or pending trial against the petitioner in India or anywhere. 25. In view of above referred facts and as per material available as of today, prima facie, it cannot be established or presumed that the petitioners are involved for any offences involving in money laundering relating to the Paragraph 2 of Part A of the Schedule. Even while rejecting the bail of the petitioners, the trial court has observed that the connections between transactions being don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the police submits a final report, alleging that no scheduled offence has been committed, but the Magistrate does not accept the same and issues process, even then the directorate can initiate investigation into money-laundering allegations. In that view the investigation done by the directorate under the interim orders passed herein, even before a charge-sheet by the police regarding any scheduled offence having been committed, was premature. 29. After further investigation if evidence would reveal that the petitioners are also involved in the scheduled offence of Part A, then their bail applications have to be examined within the parameter of Section 45 of the Act. Therefore, at this stage, I am not inclined to enlarge them on bail unless the investigation is completed as suggested by learned ASG. It would be appropriate to wait for final report, otherwise the applications would be decided on the basis of existence of material on record without any further delay. 30. Having considered the facts and circumstances of the case in hand, I am of the view that the further investigation in the matter is still on and as per respondent, it may take one and half month to complete. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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