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TMI Blog2019 (11) TMI 794X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused is in possession, acquisition of the ill gotten wealth since the projection is not one time offence and continues till such time person is in possession of ill gotten wealth. Thus the time of its generation is of no consequence but the possession, acquisition and its projection as untainted is as long as the projection as untainted continues, the offence will continue and cannot be said to have been applied retrospectively - The investigation under PMLA after the year 2009 would not be treated as applying the Act retrospectively for the reason of ill gotten wealth being generated prior to the amendment coming into force because accused at the time of investigation under PMLA was in possession, acquisition and projecting such proceeds of crime as untainted. Prima facie, allegations are serious in nature and the petitioner has played active and key role in the present case. It cannot be disputed that entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book, as such offences affects the very fabric of democratic governance and probity in public life. No doubt, bail is right and Jail is exception, but, if bail is grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able under Section 4 of PMLA. The said ECIR is production of the subject FIR and the Petitioner is neither named as an accused nor as a suspect therein. On 23.07.2018, apprehending his arrest by the Respondent ED, the Petitioner was constrained to prefer a petition (being BAIL APPLN. No. 1713/2018) before this Court under Section 438 Cr.P.C. seeking grant of anticipatory bail. Vide order dated 25.07.2018, this Court was pleased to issue notice and directed that no coercive steps shall be taken against the Petitioner till the next date of hearing and the said interim order continued for a period of over 15 months. During the pendency of the abovementioned anticipatory bail application, the Respondent ED summoned the Petitioner on 4 (Four) occasions viz. 19.12.2018, 07.01.2019, 21.01.2019 and 08.02.2019 and the Petitioner duly appeared on each such date and answered all questions to the best of his ability, knowledge and recollection. Pertinently, the Petitioner was not summoned thereafter. However, on 20.08.2019, this Court dismissed the Petitioner s abovementioned anticipatory bail Application. On 21.08.2019, the Petitioner approached the Hon ble Supreme Court vide SLP (Crl.) No. 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner for production on 14.10.2019 at 3 PM. Accordingly, on 14.10.2019, the Petitioner was produced before the Trial Court from judicial custody and the Respondent ED filed two applications - first, seeking permission of the Trial Court to formally arrest the Petitioner in the captioned ECIR; and second, seeking remand of the Petitioner to the custody of the Respondent ED for a period of 14 days. At this stage, an Application was preferred on behalf of the Petitioner seeking recall/ cancellation of the production warrants issued vide Order dated 11.10.2019. After hearing arguments on 14.10.2019, the Trial Court on 15.10.2019 was pleased to treat the Application dated 14.10.2019 seeking permission to arrest as an Application for interrogation of the Petitioner and allowed the same with liberty to arrest the Petitioner if the grounds specified in Section 19 PMLA are made out. Further, the Trial Court was pleased not to consider the Application dated 14.10.2019 filed by the Respondent ED seeking remand of the Petitioner to the custody of the Respondent ED as being premature. The Trial Court dismissed the Petitioner s Application dated 14.10.2019 vide Order dated 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al procedure, several officers in FIPB unit processed the file and thereafter, put it up to the FIPB For consideration and in turn, the FIPB submitted its recommendations to the Ministry of Finance. The case was once again examined by the Under Secretary, OSD, Director, Joint Secretary and Additional Secretary of the Department of Economic Affairs, Ministry of Finance and was put up to the Secretary, Department of Economic Affairs. Hence, the question of any irregularity or illegality in the approval granted to the proposal of M/s. IN Media is a far-fetched and absurd allegation and does not arise at all. 6. Learned senior counsels further submitted that the 4 (Four) alleged invoices that were raised on INX Media have been referred in the attachment proceedings as well and in the complaint (being O.C. No.1045/2018) preferred by the Respondent ED under Section 5(5) of the PMLA before the Adjudicating Authority, New Delhi and it has been stated by the Respondent ED itself that: 9.6 [...] However, the company has clarified from their records that the payments have not been made against these invoices. 7. Learned counsels argued that in the subject FIR an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECIR had been registered on 18.05.2019 (i.e. almost 2 years ago) and while the Respondent ED had been vehemently opposing the grant of anticipatory bail to the Petitioner on the ground that it required the Petitioner s custodial interrogation, when the Petitioner sought to surrender himself, the Respondent ED opposed such request. The respondent ED before the Hon ble Supreme Court in SLP(Crl.) No. 7523/2019 vehemently opposed the grant of anticipatory bail in its Counter Affidavit dated 25.08.2019 by stating that the custodial interrogation of the Petitioner was required and that the ED had formed its reasons to believe to arrest the Petitioner under Section 19 of the PMLA. Despite the above, when the Petitioner sought to surrender on 05.09.2019, the ED not only objected to the surrender, but also did not seek to arrest the Petitioner till 11.10.2019. The Trial Court, while passing the Order dated 13.09.2019 and dismissing the Petitioner s Application dated 05.09.2019 praying for surrender in the captioned ECIR, has erred in law and proceeded on the erroneous basis that the Petitioner s Application was for directing the Respondent ED to arrest the Petitioner and not for surrenderin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has or will tamper with evidence or influence witnesses. 12. In State of Maharashtra vs. Animal Punjaji Shah: (1969) 3 SCC 904 , it has been held that in matters of allegations of tampering with evidence or absconding, there must be absolute certainty an accused can be incarcerated on that ground. It is submitted that mere ipsi-dixit of the Investigating Agency cannot be permitted to prejudice the liberty of a citizen of this country. The Petitioner has made no attempt to suborn witnesses, tamper with documentary evidence, or in any other manner pollute or obstruct the judicial process and further, the Petitioner undertakes that he shall not, tamper with evidence or influence witnesses, nor is there any reasonable or justifiable apprehension thereof. 13. Moreover, Karti P. Chidambaram was granted regular bail by this court vide order dated 23.03.2018 and the same was confirmed in SLP(Crl.) 5449/2018 vide order dated 03.08.2018. The interim protection so raised by this court vide order dated 09.03.2018 has been extended by the Hon ble Supreme Court from time to times and continued till date. Mr.S.Bhaskararaman, co-accused was granted anticipatory ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA ] to arrest the petitioner and also his custodial investigation will be discussed interalia, the complaint in the present case is yet to be filed and, therefore, as an investigating agency, it is neither proper, possible nor desirable to place the evidence regarding serious offences of money laundering, which has clearly emerged so far, in public domain by way of the present affidavit and / or to share the same with the accused. Keeping in view the aforesaid limitations in mind, the respondent is placing the following facts to satisfy this Court that the petitioner requires to be arrested and interrogated thereafter is based upon cogent evidence, both documentary and oral and a serious miscarriage of justice will be caused if investigated agency is not permitted to unearth a well crafted scheme of money laundering devised by the petitioner/accused along with his close confidants and co-conspirators. 17. Further submitted, the fact of the person/s incorporating shell companies in India and abroad being close to the petitioner-accused and being in touch with the petitioner-accused is also not based on surmises and conjectures, however, the Investigating Agency has eviden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n identified on the basis of intelligence inputs which are received by the investigators working abroad under the PMLA and the investigation is still continuing which can be completed only after the arrest and interrogation of the petitioner and others. Having received such material and having found of the accused to be completely evasive and non cooperative during the dates on which he came for being questioned viz. on 19.12,2018, 07.01.2019 and 21.01.2019, the Investigating Agency has formed an opinion that the arrest and custodial interrogation of the petitioner-accused was absolutely essential as the Investigating Agencies has strong reasons based upon cogent evidence in its possession, to believe that the accused has directly as well as indirectly indulged in and / or knowingly assisted and became a party in the process / activity connected with the proceeds of crime and is guilty of a very serious offence of money laundering. 19. Also submitted, as a part of its international obligation, India also has a robust statutory mechanism for detection, investigation, prosecution and prevention of money laundering and connected offences. Such mechanism also provides creation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l: (2013) 7 SCC 439, State of Gujarat Vs. Mohanlal Jitamalji Porwal: (1987) 2 SCC 364, State of Bihar Anr. Vs Amit Kumar alias Bacccha Rai: (2017) 13 SCC 751, Gautam Kundu Vs. Directorate of Enforcement: (2015) 16 SCC 1. 22. He submits that in view of the fact and circumstances stated above, more particularly considering the evidence available on record with the investigating agency on the apprehension relating to influencing of witnesses / co-accused which is manifested by records during the investigation of the case, it is prayed that this court may be pleased to dismiss the bail petition of the petitioner, in the interest of justice. 23. On tampering of evidence, destruction of material evidence, influencing of witness by the petitioner and his co-conspirators, learned Solicitor General of India submits that the said material is completely distinct, different and independent from the material which was collected by the CBI in the predicate offence. Even the witnesses which have been approached and influenced in the PMLA investigation are different from the investigations conducted by CBI. 24. During the course of search on scrutiny of the digital d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d transfer of equity of Vasan to Advantage. The said mails and the statement of the generator of the mail forms part of the investigation papers of the present case are placed before this Court in a sealed cover to demonstrate and satisfy the conscience of this Court that petitioner and his co-conspirators have been creating false evidence to layer and camouflage the proceeds of crime so as to project it as untainted money. 27. Regarding influencing of witnesses, it is argued that inasmuch as three (3) witnesses have stated in their statements under section 50, recorded by the investigating agency, that the petitioner and his family members have pressurised them and have asked them not to appear before the Enforcement Directorate. As advised the respondent / Enforcement Directorate is not disclosing the names of the said witnesses in the present affidavit, however their statements are available in the case file of the present case which has been placed in sealed cover. 28. Further argued that from a bare perusal of the said statements, the conscience of this court would be satisfied that the petitioner and his coconspirators have tried to influence and pressurise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esults in acquittal of the accused, a person could still be prosecuted under Sections 3 4 of the PML Act. If the genesis of the proceedings relatable only to the scheduled offence as no action and has suffered the loss despite having taken all reasonable precautions and is not involved in the offence of money-laundering, could be initiated under the PML Act unless there was a report under Section 173 Cr.P.C. in relation to a Scheduled offence, therefore, on acquittal in respect of such offence, should ipso facto, result in the proceedings under the PML Act coming to a close. In other words, without the guilty of the accused in the scheduled offence being proved there could be no proceedings under Sections 3 and 4 of the PML Act. However, it is to be seen that proceeds of crime is property of all kinds as defined under clause (v) of Section 2(1 ). 32. I have heard learned counsel for the parties and perused the material available on record and the material in Sealed Cover as well. 33. The endeavour under the Amendment Act, 2013, vis-a-vis Sections 5 8 is to enable attachment proceedings against the persons who are accused of a scheduled offence; persons who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. 38. The expression scheduled offence has been defined in Section 2(l)(y) of the Act of 2002. 39. Undisputedly, the predicate offence is included in Part A in paragraph 1 of the Schedule in the Act of 2002 in particular Sections 420, 471 and 120B of IPC. Indeed, the expression criminal activity has not been defined. By its very nature the alleged activities of the accused referred to in the predicate offence are criminal activities. 40. The stated activity allegedly indulged into by the accused named in the commission of predicate offence is replete with mens rea. In that, the concealment, possession, acquisition or use of the property by projecting or claiming it as untainted property and converting the same by bank drafts, would certainly come within the sweep of criminal activity relating to a scheduled offence. That would come within the meaning of Section 3 and punishable under Section 4 of the Act. 41. Section 3 of the PMLA defines the offence of money laundering as, whosoever directly or indirectly attempts to indulge or knowingly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he present facts and circumstances. 45. The offence of money laundering is a continuing offence, inasmuch as, by its very definition, the offence continues as long as accused is in possession, acquisition of the ill gotten wealth since the projection is not one time offence and continues till such time person is in possession of ill gotten wealth. Thus the time of its generation is of no consequence but the possession, acquisition and its projection as untainted is as long as the projection as untainted continues, the offence will continue and cannot be said to have been applied retrospectively. The investigation under PMLA after the year 2009 would not be treated as applying the Act retrospectively for the reason of ill gotten wealth being generated prior to the amendment coming into force because accused at the time of investigation under PMLA was in possession, acquisition and projecting such proceeds of crime as untainted. 46. The above interpretation is also supported by the judgement delivered by the High Court of Jharkhand in the case of Hari Narayan Rai vs. The Union of India (UOI) through Directorate of Enforcement: 2010 SCC ONLINE (JHAR) 1066. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n been alleged by the respondent/ED in counter affidavit that the petitioner is a flight right. The investigation agencies including respondent/ED have already issued a Look Out Circular (LOC) against the petitioner. In view of the same, it is preposterous to even allege that the petitioner can evade the further process of law. 52. Regarding tampering with the evidence, neither it is argued nor any material available on record, moreover, there is no chance to tamper the material on record since the same is before the Investigating Agencies, Central Government or the Courts. 53. Regarding influencing of witnesses, it is argued that inasmuch as three witnesses have stated in their statements under Section 50 PMLA recorded by the Investigating Agency that the petitioner and his family members have pressurized them and have asked them not to appear before the Enforcement Directorate. On perusing the material produced in a sealed cover, it is revealed that one witness, when called for confrontation to the petitioner, he wrote a letter that the petitioner and his family is having strong holding in Tamil Nadu and he being native of the said State, does not want to be con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l difficult. The said companies are incorporated and located in different countries so that it become difficult for the law enforcing agencies to follow the trail of money laundering. 58. The investing agency has found out several such shell companies, 17 benami foreign bank accounts through which money is laundered and are invested in several properties out of which, 10 expensive properties situated outside India have been identified so far. Several other shell companies, many more bank accounts and properties abroad have been identified on the basis of intelligence inputs which are received by the investigators working abroad under the PMLA and the investigation is still continuing. 59. The Economic offences in itself are considered to be the gravest offence against the society at large and hence are required to be treated differently in the matter of bail. The courts have successively held that a murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profits regardless of the consequence to the community. A disregard for the interest of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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