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TMI Blog2022 (1) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of money laundering pursuant to the offences under Sections 3/4/5 of Official Secrets Act would be a matter to be dealt by the learned Trial Court at the stage of charge. It may be noted that the charge sheet filed by the Special Cell does not note the offence punishable under Section 411 IPC. Even in the complaint filed by the respondent before the learned Trial Court, Section 411 IPC being the predicate offence has not been mentioned. Considering that the predicate offence, if any, against the petitioner is under Section 120B IPC and Section 411 IPC only and the proceeds of the crime which are alleged to be laundered are a sum of ₹48,20,788.50 paisa and that the petitioner has been in custody now for nearly six months, this Court deems it fit to grant bail to the petitioner. It is directed that the petitioner be released on bail on fulfilment of the conditions imposed - application allowed. - BAIL APPLN. 3156/2021 - - - Dated:- 7-1-2022 - HON'BLE MS. JUSTICE MUKTA GUPTA Petitioner Represented by: Mr. Mohit Mathur, Sr. Advocate with Mr. Avi Singh, Mr. Aditya Singh, Mr. Shubham Singh, Mr. Anubhav Singh, Mr. Karan Dhalla, Mr. Vinayak Chitale and Mr. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent, the proceeds of the crime attributable to the petitioner amount to ₹48,20,788.50 paisa and in terms of Proviso to Section 45 of the PMLA dehors the decision of the Hon ble Supreme Court in (2018) 11 SCC 1 titled as Nikesh Tarachand Shah Vs. Union of India, the twin conditions as applicable in Sub-Section (1), clauses (i) and (ii) will not be applicable as the proceeds of the crime even as per the respondent is less than ₹1 Crore. Further, even for arriving at the proceeds of the crime for a sum of ₹48,20,788.50 paise, an entry of ₹14 lakhs has been repeated. Reliance is also placed on the decision reported as 2021 SCC Online Kerala 395 titled M.Sivasankar Vs. Union of India . to contend that since the amount involved is less than ₹1 Crore, the Proviso to Section 45 of the PMLA would be applicable. 4. Thus, as held by the Gujarat High Court in the decision reported as R/Criminal Misc. Application No. 2774 of 2021 decided on 6th May 2021 titled as Pasumarthi Venkata Satyanarayana Sarma Vs.The Assistant Director, Enforcement Directorate , for grant of bail only three factors are required to be satisfied i.e. flight risk, tamper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gets a right for being considered for grant of bail. Reliance is placed on the decision of (1999) 4 SCC 621 State of Kerala vs. Babu Ors. Petitioner is involved in a serious offence of espionage and was secretly giving the locations of the Indian Army to the enemy. It is contended that the petitioner gathered the information which could be either by theft or by criminal breach of trust and in either case, the same would invoke offence punishable under Section 411 IPC and the same being a Scheduled Offence, the petitioner can be proceeded with it on a complaint under PMLA. The petitioner is supported by Chinese nationals and thus, there is every likelihood that he will flee from the country. Since the petitioner was passing information qua the Indian Army, the same is a far more serious offence than an economic offence. Considering the allegations against the petitioner in the charge sheet filed under the provisions of Sections 3/4/5 of Official Secrets Act and Section 120B IPC, the charges are very serious and far worse than an economic offences. 7. Rebutting the arguments of the learned Additional Solicitor General, learned Senior Counsel for the petitioner contends that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... George Michael and Xou who were Chinese Intelligence Officers and obtained good remuneration for the same. 9. From the search carried out at the house of the petitioner, one magazine New India Samachar, one magazine Geojet Insights, folder containing policies, acknowledgment photocopy of Aadhar card and PAN card, bank statements, ITR form, appointment letter from media Watch Communications SDN BHD, some confidential documents and one Laptop Dell were recovered and seized. During interrogation, according to the petitioner, his handler George used to send the money to him through India based shell companies namely MZ Mall and MZ Pharmacy situated at Mahipalpur being run by Chinese nationals namely Zhang Sheng @ Suraj and Zhang Lixia @ Usha and Qing Shi. Presently, these companies were being run by Qing Shi as Zhang Sheng @ Suraj and Zhang Lixia @ Usha left for China and could not return due to Covid 19. Further, Qing Shi used to deliver the money to petitioner through Raj Bohara who worked at MZ Pharmacy/MZ Mall. It is further revealed that besides the money being received from the company MZ Mall Pvt. Ltd., the petitioner and his wife Pratima Vyas also went for foreign trips whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The company MZ Mall was run by two Chinese nationals, Cheng Zhang @ Suraj and Zhang Lixia @ Usha. Her salary of ₹1 lakh per month was being credited to her bank account maintained in a bank in China and all her expenses including her rent in India were paid in cash by MZ Mall Pvt. Ltd. She used to receive cash which was then given to Sher Singh @ Raj Bohara for further investment. It is stated that MZ Mall was doing the business of money exchange and used to give Indian currency to the Chinese tourists coming to India in lieu of money transferred by them from the Chinese bank accounts. 12. Conversations in the chat using telegrams app have been recovered between Rajeev Sharma and George as extracted from the mobile phone of the petitioner which were meant to cover up the transactions from his end in the guise of the business carried out by MZ Mall Pvt. Ltd. i.e. the medical tourism. The allegations against the petitioner are also that his foreign visits to Bhutan, China, Laos, Dubai, Singapore, Nepal, Malaysia and Indonesia on various occasions were financed by his Chinese handlers/Intelligence agencies. However, the petitioner has given a breakup of his foreign visits wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad jurisdiction to investigate into offence of money laundering pursuant to the offences under Sections 3/4/5 of Official Secrets Act would be a matter to be dealt by the learned Trial Court at the stage of charge. It may be noted that the charge sheet filed by the Special Cell does not note the offence punishable under Section 411 IPC. Even in the complaint filed by the respondent before the learned Trial Court, Section 411 IPC being the predicate offence has not been mentioned. This plea has been taken by the learned Additional Solicitor General during the course of arguments. Further, even taking the allegations on their face value, the proceeds of crime are less than ₹ 1 Crore. 14. Section 45 of the PMLA reads as under:- 45. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless: (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curity. However, by this petition the petitioner does not seek bail for offences punishable under Sections 3/4/5 of the Official Secrets Act but for offences punishable under Section 3/4 PMLA. Considering that the predicate offence, if any, against the petitioner is under Section 120B IPC and Section 411 IPC only and the proceeds of the crime which are alleged to be laundered are a sum of ₹48,20,788.50 paisa and that the petitioner has been in custody now for nearly six months, this Court deems it fit to grant bail to the petitioner. 17. It is therefore directed that the petitioner be released on bail on the following conditions:- (i) The petitioner will furnish a personal bond in the sum of ₹5 lakhs with two surety bonds of the like amount, subject to the satisfaction of the learned Trial Court, out of which, one surety would be a family member of the petitioner; (ii) The petitioner will surrender his passport to the learned Trial Court; (iii) The petitioner will not leave the country without the prior permission of the Court concerned; (iv) In case of change of residential address and/or mobile number, the same will be intimated to the Court conc ..... 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