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TMI Blog2022 (2) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... xure P-3) against other co-accused as the same had to be filed to avoid the expiry of period of 90 days from arrest of co-accused and consequently, the time afforded to the investigating agency to verify all the assertions against the petitioner was short, the omission to array the petitioner as an accused in complaint dated 22.12.2017 cannot be said to be any illegality. The contention of the petitioner that the attachment of property of the petitioner has been set aside by this Court vide order dated 6.3.2020 (Annexure P-4) and that the same would help the petitioner or reflect on her innocence cannot be accepted inasmuch as attachment proceedings initiated under Section 5 of PMLA 2002 are in the nature of civil consequences which follow upon commission of a criminal offence and are independent proceedings. Given the nature of proceedings, which are independent civil consequences, setting aside of such proceedings would not ipso-facto affect continuation of criminal proceedings. In the present case, the order dated 6.3.2020 (Annexure P-4) vide which the attachment had been set aside does not express anything as regards the veracity of the allegations against the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l of India with Mr. Arvind Moudgil Senior Counsel, Govt. of India and Ms. Jyotika Panesar, Advocate and Devinder Pal, Advocate for respondent E.D. (proceedings conducted through video conferencing) * * * * * GURVINDER SINGH GILL, J . 1. The petitioner seeks grant of anticipatory bail in a complaint i.e. COMA/15/2017 dated 22.12.2017 (Annexure P-3) instituted by Enforcement Directorate, wherein a supplementary compaint (Annexure P-6) has been filed against the petitioner and others for offence under Section 3 punishable under section 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to, in short, as PMLA 2002 ). 2. The allegations, in nutshell, are to the effect that M/s Jaldhara Exports, Ludhiana had shown export of ready-made garments to the tune of ₹ 33.36 crores to Bangladesh during the financial year 2012-13 and on the said basis had claimed a VAT refund of approximately ₹ 1.56 crores from Government but upon inquiry by custom authorities, it was found that all the bills produced by the firm regarding export of garments etc. were forged and fabricated. In other words, the VAT refund of approximately ₹ 1.56 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations of laundering of the proceeds of crime i.e. ₹ 1.56 crore approximately, which Raman Kumar Garg had transferred from the account of the firm to the accounts of Smt. Sangeeta Garg, Umesh Kumar Garg @ Arjun, Smt. Seema Garg, Smt. Saiyrah @ Deepika Garg and Vinod Kumar Garg. 16.7.2015 Vinod Kumar Garg was arrested in the matter arising out of FIR. Bail granted to Vinod Kumar Garg in FIR case vide order dated 18.8.2015. 23.10.2017 Raman Kumar Garg was arrested in Complaint under Sections 3 and 4 of PMLA 2002 on 23.10.2017. He was ordered to be released on bail by this Court vide order dated 7.5.2018. 23.11.2017 During the course of investigation by the Enforcement Directorate, statement of petitioner Seema Garg was recorded. 22.12.2017 Upon conclusion of investigation by the Enforcement Directorate pursuant to registration of ECIR, a complaint was instituted against Raman Kumar Garg, Vinod Kumar Garg and Umesh Kumar Garg @ Arjun under provisions of Sections 3 and 4 of the Prevention of Money Laund ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by a Division Bench reported as (2020) 2 RCR (Cri) 701 Seema Garg Versus Deputy Director, Directorate of Enforcement (Annexure P-4) and which would clearly show that even this High Court had not found favour with the case of the complainant as regards the allegations against the petitioner. That the aforesaid order dated 6.3.2020 (Annexure P-4) was also upheld by the Hon ble Supreme Court inasmuch as the SLP filed by the Deputy Director, Director of Enforcement was dismissed vide order dated 30.4.2021 (Annexure P-5); (v) that no complaint whatsoever had been filed against the petitioner till the date when the attachment was set aside by this Court on 6.3.2020 but shortly thereafter i.e. in March, 2021, the Enforcement Directorate filed a supplementary complaint so as to keep the pressure mounted on the petitioner and her family, despite setting aside of attachment proceedings; (vi) that the amount in question had been transferred into the account of the firm of the petitioner by none else but her own son and that it is quite natural and normal for a son to monetarily help his aged parents and mere transfer of amount cannot lead to an inference that the petitioner was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such person is named in the original complaint; (v) that Section 45 of PMLA 2002 imposes a bar against grant of bail unless the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence in question and that such accused is not likely to commit such offence again; (vi) that the conduct of the petitioner in evading service of summons for one long year before the same could be served upon her shows that there is a tendency on her part to flee from justice; and (vii) that initially the petitioner was not arrayed as an accused in the complaint filed against three other co-accused inasmuch as after recording of her statement on 23.11.2017, there was very little time with the investigating agency to verify the veracity of her statement inasmuch as the complaint against other co-accused was required to be filed urgently to avoid grant of default bail to said co-accused in terms of Section 167(2) Cr.P.C. as statutory period of 90 days for filing challan (complaint under Section 44 of PMLA 2002) was expiring shortly and infact compaint against co-accused was filed on 22.12.2018. 8. The learned State counsel has conclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... time afforded to the investigating agency to verify all the assertions against the petitioner was short, the omission to array the petitioner as an accused in complaint dated 22.12.2017 cannot be said to be any illegality. Though, the vires of Section 44 of PMLA 2002 may have been challanged in the Hon ble Supreme Court but till date the said Section has not been struck off and as such, it was well within the rights of the complainant to avail of the provisions of Section 44 of PMLA 2002 to file a supplementary complaint against any other person, who may have been associated with the proceeds of crime. The contention made to this effect by counsel for the petitioner, this, is found to be sans merits and cannot be accepted. 12. The contention of the petitioner that the attachment of property of the petitioner has been set aside by this Court vide order dated 6.3.2020 (Annexure P-4) and that the same would help the petitioner or reflect on her innocence cannot be accepted inasmuch as attachment proceedings initiated under Section 5 of PMLA 2002 are in the nature of civil consequences which follow upon commission of a criminal offence and are independent proceedings. A Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rg had attempted to flee from country, there is likelihood that the petitioner may also resort to such tactics, particularly when she had successfully evaded service of summons for one year. The learned counsel in order to hammer forth his aforesaid submission places reliance upon a recent judgement dated 4.01.2022 rendered by Hon'ble Supreme Court in Criminal Appeal No.21 of 2022 The Assistant Director Enforcement Directorate vs. Dr. V.C. Mohan. 16. In order to consider the aforesaid submission, Section 45 of PMLA 2002, needs to be borne in mind which reads as follows :- 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 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: Provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly been dealt with by Hon'ble Supreme Court in Dr. V.C. Mohan's case (supra) wherein it has been held as follows: Mr. Dama Seshadri Naidu, learned senior counsel appearing for the respondent invited our attention to the dictum in paragraph 42 of the judgment in Nikesh Tarachand Shah vs. Union of India Anr. reported in (2018) 11 SCC 1. The observations made therein have been misunderstood by the respondent. It is one thing to say that Section 45 of the PMLA Act to offences under the ordinary law would not get attracted but once the prayer for anticipatory bail is made in connection with offence under the PMLA Act, the underlying principles and rigors of Section 45 of the PMLA Act must get triggered - although the application is under Section 438 of Code of Criminal Procedure. As aforesaid, the High Court has not 3 touched upon this aspect at all. 18. The aforesaid judgment leaves no manner of doubt that provisions of Section 45 of PMLA 2002 apply with full force to a petition filed for grant of anticipatory bail as well and would be applicable even to petition filed in High Court. However at the same time, a proviso to Section 45 of PMLA 2002 itself carves out ..... X X X X Extracts X X X X X X X X Extracts X X X X
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