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TMI Blog2016 (2) TMI 1062X X X X Extracts X X X X X X X X Extracts X X X X ..... notice issued by this Court, on 17.11.2015, learned Central Government Standing Counsel Ms. Trusha Patel appeared before the Court on behalf of respondent No.2 and has filed affidavit dated 18.12.2015 by Mr. Amarendra Kumar, Assistant Director of Directorate of Enforcement, Ahmedabad and opposed grant of regular bail to the applicant. Along with the affidavit, certain statements of co-accused which have been recorded by the Investigating Agency under the PMLA Act have been annexed. 3. The brief facts arose from the record are as under :- 3.1 That on 25.3.2015, one Haresh B. Vohra, Police Inspector, Special Operation Group, Vadodara City, lodged an FIR being I C.R. No.85 of 2015 with Kishanvadi Police Station, Dist. Vadodara against four accused, namely, Girish @ Tomi Purshottam Patel, Kiran Jayantilal Mala, Chirag Parikh and Dharmendrasinh Vishwanath Chauhan @ Dharmin Chauhan for the offences punishable under Sections 418, 419, 420, 465, 467, 468, 471 and 120-B of Indian Penal Code alleging that the Enforcement department had raided a farm house on 19.3.2015 wherein it was found that 16 persons were indulging in Hawala racket and of cricket betting. An FIR was also lodged against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 439 of the Code read with Section 435 of the PMLA to release him on bail during the pendency of the trial being Criminal Misc. Application No.2005 of 2015. The learned Designated Special Judge by his judgment and order dated 2.12.2015 rejected the said application. Hence this application. 4. Dr. S. K. Gupta, learned Senior Counsel assisted by Mr. Soeb R. Bhoharia and Valimohammed Pathan, learned advocates appearing for the applicant has vehemently submitted that the complaint has been lodged for the so-called offence under Section 3 of PMLA which is punishable under Section 4 of the PMLA. However, the case of the applicant does not fall under the definition of offence of money laundering. He would submit that Section 3 of the PMLA provides that a person can be held guilty of offence of money laundering who is 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 also projecting or claiming it as untainted property. 4.1 He would submit that the word "proceeds of crime" is defined under Section 2 (u) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice Station wherein the applicant has not been made an accused. He would submit that since the applicant is not the accused in the said offence which are scheduled offence as per PMLA, he cannot be charged under Section 3 of the PMLA. Since provisions of Section 45 of the PMLA is not applicable, his case can be considered under Section 45 (2) of the PMLA and he can be released by imposing appropriate conditions. He would submit that the applicant is a permanent resident of Mumbai and shall cooperate with the Investigating Agency and Court till the trial is over and shall abide by all the conditions which may be imposed by this Court and, therefore, he may be released on bail. He has also relied on the three orders passed by this Court in the case of co-accused who were released on bail vide order dated 20.10.2015 passed in Criminal Misc. Application No.16555 of 2015 and order dated 20.10.2015 passed in Criminal Misc. Application No.14446 of 2015 and order dated 8.12.2015 passed in Criminal Misc. Application No.18711 of 2015 and submitted that the said orders have become final and no appeals have been preferred before the Hon'ble Supreme Court. He has also relied on the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crime. She has produced the said provisional attachment order at the time of hearing before this Court. 5.2 She would submit that under Section 24 of PMLA, the burden of proof is upon the accused person to prove that the money received by him is untainted one. She would submit that the applicant - accused has miserably failed in establishing that the money involved in the present complaint are untainted property. She, therefore, would submit that provisions of Section 45 of PMLA would be applicable and, therefore, unless the Court concludes that the applicant is innocent, he may not be released on bail. In support of her contention, she has relied upon the Division Bench decision of this Court dated 16.1.2015 rendered in Special Criminal Application (Direction) No.4496 of 2014 with Special Criminal Application No.4672 of 2014. She has also relied upon the decision of the coordinate Bench of this Court dated 31.7.2013 rendered in Special Civil Application No.4171 of 2012 with Special Civil Application No.1059 of 2012 wherein while dealing with the provisions of PMLA, this Court has held that certain presumptions are to be drawn as per Section 23 of PMLA. She has also relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and projecting or claiming it as untainted property. The definition of "proceeds of crime: provided in Section 2 (u) reads as under :- "2 (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;" 9. The "scheduled offence" defined under Section 2 (y) of the PMLA reads as under :- "2 (y) "scheduled offence" means - (i) the offences specified under Part A of the Schedule; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is thirty lakh rupees or more; or] (iii) the offences specified under Part C of the Schedule;" 10. In view of the above, if the Schedules to the Act are perused, the applicant is not charged with any of the offences punishable under PMLA referred in the Schedule. It is pertinent to note that the applicant is facing charge only for the offences punishable under PMLA and is not the accused wherein the allegations of cheating, forgery etc. have been made against other accused which are scheduled offence. Therefore, there might be some illegal activities committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 45 (1) of the PMLA would not be prima facie applicable and, therefore, it is not required that the applicant is to be declared as not guilty of such offence at the time of dealing with an application for bail. 14. Under Section 45 (2) of PMLA, the other provisions of the Code would be applicable and, therefore, the case is to be dealt with accordingly. Therefore, I am dealing with the same. As far as the allegations levelled against the present applicant are concerned, I have gone through the statement of the applicant himself. It appears that he was assisting his brother who was dealing with the cricket betting though he might be deciding or circulating the bhav (rate). The investigation is almost over and on completion of investigation, the present complaint has been filed by the authority. I have also considered the fact that the maximum punishment is of 7 years and, therefore, the case of the applicant can be considered by imposing certain conditions. In my view, the judgments relied upon by Ms. Patel would not be applicable to the facts of the present case. 15. As far as the submissions made by Ms. Trusha Patel with regard to the continuation of offence of 2013 regi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registered at the instance of the respondent No.2, on executing a bond of Rs. 1,00,000/- (Rupees One Lac only) with two local sureties of Rs. 50,000/- each to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injuries to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave State of Gujarat and State of Maharashtra without prior permission of the concerned Sessions Judge; [e] mark presence with the respondent No.2 on every Monday of each English Calendar month for a period of three months and thereafter on any day of the first week of each English Calendar month for a period of one year; [f] furnish the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; 19. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free ..... X X X X Extracts X X X X X X X X Extracts X X X X
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