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TMI Blog2021 (10) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... victed by the Courts at Netherlands. It is well settled principles of law that when the investigation is complete and charge sheet is filed in the Court, conclusion of trial is likely to take a long time, a person/accused like the present petitioner, who is aged about 63 years old, can be released on bail, subject to his furnishing bail/surety bonds and with a condition that his passport shall remain deposited with the Court/Prosecuting Agency and he will not leave the country without seeking prior permission of the Court. It is held that the petitioner qualifies the test under Section 45 of the Act and therefore, the present petition is allowed. - CRM-M-35662-2021 (O&M) - - - Dated:- 27-10-2021 - HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN Mr. Vikram Chaudhary, Sr. Advocate with Mr. S. S. Gill, Advocate Mr. Keshavan Chaudhary, Advocate for the petitioner Mr. S. V. Raju, Additional Solicitor General of India with Mr. Zoheb Hossain, Special Counsel for ED, Mr. Vishal Gupta, Advocate Mr. Vivek Gurnami, Advocate for the respondent-ED Mr. Tanvir Joshi, AAG, Punjab. ORDER ARVIND SINGH SANGWAN, J. Prayer in this petition, filed under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal since 1982 and has come to India in February, 2021. It is also submitted that the petitioner has transferred certain assets for purchasing a property for the Cabbana Resorts in Punjab and in pursuance to a notice issued by the authorities under PMLA, the petitioner has appeared before them and has got recorded his statement. It is further submitted that in the month of February, 2021, search was also carried out at the premises of the petitioner and certain documents were taken in possession. Learned senior counsel has further submitted that since the authorities under PMLA can retain the documents for a period of 30 days, thereafter, an application was moved before the adjudicating authorities under Section 17(4) of the PMLA for extending the time and in the meantime, in pursuance to another notice, the petitioner appeared before the authorities. Learned senior counsel further submitted that in the meantime, on the same set of charges, vide judgment dated 22.09.2020, the petitioner was convicted by the competent Court in Netherlands for a period of 44 months and the petitioner preferred an appeal, which was admitted and, therefore, as per the criminal procedure applicable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was already pending in the Courts at Netherlands, wherein the petitioner was ultimately convicted for a period of 44 months, the prosecution of the petitioner in India amounts to double jeopardy. Learned senior counsel has next argued that the petitioner has not committed any scheduled offence in India and the allegations of cheating and forgery, leveled in the remand application, are afterthought. It is further argued that even prior to his arrest, the petitioner has appeared before the ED on two-three occasions in between 06.07.2021 to 09.07.2021 and 13 documents were called from the petitioner including his ITR/Salary etc. and since the same were in Netherlands, the petitioner sought time to supply the said documents and in the meantime, when the petitioner received summons from the authorities in Netherlands, he booked his return flight to attend the said proceedings and bring the documents, which were required by the ED and there was no intention on the part of the petitioner to flee from the process of law. It is further submitted that the petitioner was unaware about the issuance of LOC as the same was intentionally not brought to the notice of the writ Court by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 200,000 to Shivlal Pabbi even though no loan was actually extended by him to Shivlal Pabbi. Further, on behalf of SM Fashion BV, Sh. Mukesh Sharma also signed and executed a 'Deed of Sale of Assets and Liabilities' dated 31.12.2007 with Shivlal Pabbi and by virtue of his deed, purchased all the assets and liabilities of Shivlal Pabbi's business concern named Euromode. In reality, there was no money involved in the transactions shown in books on behalf of Sh. Mukesh Sharma and the transactions shown against payments to creditors and loan to Shivlal Pabbi from Mukesh Sharma was only a sham done for the purpose of book-keeping. 19.3 Shivlal Pabbi indulged in criminal offences having cross border implications as defined in Section 2 (1) (ra) (i) of the PMLA, 2002 read with Section 2 (1) (ia) and Part C of the PMLA, 2002. Criminal offences committed by him under corresponding laws in the Netherlands constitute offences under Sections 420 and 467 of the IPC which are specified in Part A of the Schedule of the PMLA and are thus covered under Part C of the PMLA, 2002. 19.4 The Hawala/underground banking operations in the Netherlands was run by Shivlal Pabbi under t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... explained above, investigation further revealed that Sh. Shivlal Paabi had committed large-scale criminal offences over a long period of several years, in this case involving banking without a permit (underground banking/hawala) and money laundering. Sh. Shivlal Pabbi had large sums of cash the proceeds of crime at his disposal. According to investigations, Pabbi appears to have played a central role in the management of money couriers, who, by order of Sh. Shivlal Pabbi, transported large sums of cash. Money generated i.e. proceeds of crime from his Hawala business was not reported to Netherlands government and the same was then transferred to the bank accounts of himself and his family members/friend, maintained in India through Hong Kong and Dubai. Proceeds of crime amounting to ₹ 3257.07 lakhs, in the form of foreign inward remittance from Hong Kong and Dubai were thus received in the bank accounts of the Shivlal Pabbi and his family members/friend. 19.8 The aforesaid proceeds of crime were used by Shivlal Pabbi with the help of Mukesh Sharma, Anil Chodha and Manoj Chodha for various purposes, the main purpose being investment M/s Mayfair Resorts - partnership ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may flee from country if granted the concession of regular bail as he is a Dutch National and may also try to tamper with the evidence as the allegations are of siphoning of the money through Hawala and since the offence under PMLA is an international offence as he has brought the money from Netherlands and has used it in India by investing in Cabbana Resorts in Punjab. It is also argued that co-accused of the petitioner, namely Mukesh Sharma, had filed anticipatory bail application in FIR No. 161 dated 17.06.2021, registered under Sections 467, 471, 120-B, 108-A of the IPC at Police Station City Phagwara, District Kapurthala on a complaint given by the Assistant Director, ED, wherein the allegations against the petitioner as well as said Mukesh Sharma were identical and were considered by this Court and the said application was dismissed by passing a detailed order, vide order dated 08.10.2021 passed in CRM-M-31053- 2021. It is further argued on behalf of the respondent-ED that the provisions of Section 45 of the PMLA were struck down by the Hon ble Supreme Court on 23.09.2017, however, again amendment was made on 19.04.2018 and the question of its constitutional validity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was called in 2017 and it is not the case of the ED that by way of any further correspondence, it was communicated to corresponding authorities in Netherlands that the petitioner, who is a Dutch National, is being prosecuted in India, for which he has already been convicted by the Courts at Netherlands. (d) A perusal of order dated 17.07.2021, passed by the Special Judge, CBI, Punjab as well as reply filed by the ED nowhere reveals that when the petitioner has filed the aforesaid civil writ petition, which remain pending for a considerable long time, at any stage, it was conveyed to the writ Court that LOC has been issued against the petitioner and, therefore, the arrest of the petitioner on the basis of such LOC without communicating the grounds of arrest, shows that the petitioner was not informed about the LOC as even subsequent to that, show cause notices were issued to him and he attended the office of the ED for three occasions between 06.07.2021 to 09.07.2021. (e) It is well settled principles of law that when the investigation is complete and charge sheet is filed in the Court, conclusion of trial is likely to take a long time, a person/accused like the present peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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