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TMI Blog2022 (12) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... e adopted in reference to specific provisions of 2002 Act or the Rules framed thereunder; and in which event, what are the options available to such person before the Authority or the Special Court, as the case may be. Such document may come handy and disseminate information to all concerned. Looking into Section 3 of Prevention of Money Laundering Act, it is crystal clear that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money laundering. Admittedly, this petitioner has handed over the sum of Rs.50 Lakhs to Mr. Rajeev Kumar. Section 7A of the Prevention of Corruption Act speaks that giver and taker of bribe, both are liable to be prosecuted, which comes under scheduled offence in light of Section 2(1)(u) of the Prevention of Money Laundering Act - In the case in hand, serious allegation is there against this petitioner, who tried to malign the image of judiciary and high officials of the Government and ED. Thus, that case is not helping the petitioner. Thus, the argumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aily cause-list. At 10:30 a.m., Mr. Arvind K. Nigam, learned senior counsel appearing for the petitioner has mentioned this matter and on his mentioning, this matter has been taken up as a first case, out of turn. 2. From the record, it appears that this matter was filed on 19.10.2022. On 20.10.2022, Mr. Pandey Neeraj Rai, learned Advocate had mentioned this case before the Bench, which was allowed and it was directed to be posted on the next date i.e. 21.10.2022 and the matter was listed on that day at 02:15 p.m. under Fresh Filing as Fresh Filing matters were being listed at 02:15 p.m. at that time. On 21.10.2022, Mr. Kishroe Dutta, learned senior Advocate from Kolkata along with Mr. Pandey Neeraj Rai had appeared before this Court at 10:30 a.m. and requested to take up the matter. As the matters listed at 02:15 p.m. were not being allowed to be argued at 10:30 a.m., even the mention prayer was not accepted and there after from 22.10.2022, there were Deepawali vacation and as per the practice, left over matters are being listed on the same day in the next week and therefore the matter was listed on 04.11.2022. On that day, Mr. Raju Ramchandran, learned senior counsel has argue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and submits that scheduled offence is disclosed therein with regard to Section 120B, 384 of the Indian Penal Code and Section 7A of the Prevention of Corruption Act and by way of referring column of accused, he submits that this petitioner is not shown as accused. According to him, it is the source of information of the Directorate of Enforcement and this petitioner is a whistle blower, who has been made accused by the Directorate of Enforcement without jurisdiction. He also draws attention of the Court to the contents of the said ECIR case and submits that this petitioner, namely, Amit Kumar Agarwal was complainant of Hare Street P.S. Case No.222 of 2022. He further submits that when predicate offence is not against the petitioner, the registration of the said ECIR case against the petitioner is without jurisdiction. He further elaborates his argument by way of submitting and inviting attention of the Court to the judgment passed by the Hon'ble Supreme Court in Vijay Madanlal Choudhary and others v. Union of India and others; [2022 SCC OnLine SC 929] and he refers paragraphs 69, 281, 282, 283, 467 (v)(d) of the said judgment, which are quoted herein below: 69. Mr. M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut which commencement of the Special Court has no existence. It is also stated the discretion to choose which issue or scheduled offence to try before the Special Court lies only with the authority authorised to file a complaint under the PMLA, which is a discretionary and unfettered arbitrary power. 281. The next question is : whether the offence under Section 3 is a standalone offence? Indeed, it is dependent on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence. Nevertheless, it is concerning the process or activity connected with such property, which constitutes offence of money-laundering. The property must qualify the definition of proceeds of crime under Section 2(1)(u) of the 2002 Act. As observed earlier, all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of proceeds of crime under Section 2(1)(u) will necessarily be crime properties. Indeed, in the event of acquittal of the person concerned or being absolved from allegation of criminal activity relating to scheduled offence, and if it is established in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crime, as aforesaid, the authorities under the 2002 Act cannot step in or initiate any prosecution. 467(v)(d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money-laundering. The Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him. 7. By way of referring this judgment, Mr. Nigam, learned senior counsel appearing for the petitioner submits that registration of the said ECIR case is condition precedent and commission o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs; [(2011) 6 SCC 535 . By way of referring these judgments, Mr. Nigam, learned senior counsel appearing for the petitioner submits that registering of the said ECIR case will amount to abuse of judicial order of the constitutional Court, which is in complete violation of rule of law. He further submits that once the entire investigation is void and without jurisdiction and on the basis of which the petitioner has been taken into custody and continue in detention, is illegal. In that view of the matter, the petitioner is required to be released on interim bail under Article 226 of the Constitution of India and for that separate I.A. being I.A. No.10240 of 2022 has been filed. These are the submissions of the learned senior counsel appearing for the petitioner on the point of prayer nos.(i) and (ii) of the petition. 9. So far as prayer no.(iii) is concerned, Mr. Nigam, learned senior counsel appearing for the petitioner submits that it is upon the conscience of the Court and if the Court comes to the conclusion that it is required to be handed over to the Special Investigation Team headed by retired Judge of Hon'ble Supreme Court or the High Court, the Court may pass that ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at while working as treasurer, JMM, one day he was present in the office of the Chief Minister, when the CM directed Pankaj Mishra to directly hand over the funds coming from Santhal Parganas from stone mining and sand mining business to Prem Prakash. It was also discussed that Prem Prakash will hand over the funds to Amit Kumar Agarwal. He also stated that Prem Prakash is very close to Hemant Soren and Amit Kumar Agarwal. He also stated that Smt. Pooja Singhal was given the additional charge of Mining Secretary, Jharkhand due to her proximity with Amit Kumar Agarwal. He further stated that Prem Prakash is very close to Hemant Soren and Pintu, and has developed good relation with them in last couple of years. Earlier he used to supply eggs in Mid-Day meal program but in last couple of years, he has become a power broker in Jharkhand and a fund manager for bureaucrats and politicians. He further submits that this petitioner was produced before the learned court and he was remanded to judicial custody on 08.10.2022 and on that day, judicial order has been passed by the learned court in which the petitioner has not complained anything. Moreover, the said order of remand is not under c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure that the remaining accused persons are quickly served with the process of the court and/or produced before the court for an early disposal of the matter. The Magistrate appears to have taken the process in a cavalier fashion that betrays his insensitivity towards denial of personal liberty of a citizen who is languishing in jail because the police have taken no action for the apprehension and production of the other accused persons. This kind of apathy is regrettable to say the least. We also find it difficult to accept the contention that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to have been committed is also not so serious as to probabilise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously. 13. Mr. Das, learned counsel for the respondent-Directorate of Enforcement further submits that once the order is not under challenge, the prayer to release on interim bail is misc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... about it. By way of referring para 6.4 of the complaint, Mr. Das submits that it has come there that how this petitioner has trapped Rajeev Kumar using Sonu Agarwal, who is an independent businessman at Ranchi. The statement of Sonu Agarwl has come in para 6.5 of the complaint in which he has disclosed that how this petitioner-Amit Kumar Agarwal has allured him to call Rajeev Kumar for managing the PIL as he was apprehending problem in that PIL. In para 6.8 of the complaint, it has come that Shri Shiv Shankar Sharma, who is the petitioner in PIL has stated that prior to arrest of Mr. Rajeev Kumar, this petitioner tried to offer him bribe money to settle the PIL matter, however he was not ready for negotiation and settlement. He further submits that in para 7.7 of the complaint, the Whatsapp chat of Sonu Agarwal has come in which he has stated in so many words that Rajeev Kumar has been wrongly trapped by keeping him in dark by this petitioner. He further submits that the complaint was made on 31.07.2022 before the Officer In-Charge in which it has been disclosed that FIR was registered, however same was not verified. He further submits that FIR was registered as Hare Street P.S. Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the amount is actually handed over, the person concerned would certainly be involved in the process or activity connected with proceeds of crime including inter alia, the aspects of possession or acquisition thereof. By handing over money with the intent of giving bribe, such person will be assisting or will knowingly be a party to an activity connected with the proceeds of crime. Without such active participation on part of the person concerned, the money would not assume the character of being proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person. 18. Mr. Das, learned counsel for the respondent-Directorate of Enforcement further submits that so far as third prayer is concerned, it is for the Court to decide as to whether that prayer is required to be entertained by this Court or not . 19. On these grounds, Mr. Das submits that the entire writ petition is misconceived one and this Court may dismiss the same. 20. By way of reply, Mr. Nigam, learned senior counsel appearing for the petitioner again draws attention of the Court to the prayer portion of the writ petition and submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 461 of Vijay Madanlal Choudhary (supra). Paragraph 461 of the said judgment is quoted herein below: 461. It is true that the ED Manual may be an internal document for departmental use and in the nature of set of administrative orders. It is equally true that the accused or for that matter common public may not be entitled to have access to such administrative instructions being highly confidential and dealing with complex issues concerning mode and manner of investigation, for internal guidance of officers of ED. It is also correct to say that there is no such requirement under the 2002 Act or for that matter, that there is nothing like investigation of a crime of money-laundering as per the scheme of 2002 Act. The investigation, however, is to track the property being proceeds of crime and to attach the same for being dealt with under the 2002 Act. Stricto sensu, it is in the nature of an inquiry in respect of civil action of attachment. Nevertheless, since the inquiry in due course ends in identifying the offender who is involved in the process or activity connected with the proceeds of crime and then to prosecute him, it is possible for the department to outline the si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o arrest of Rajeev Kumar, he was also contacted by Amit Kumar Agarwal for settlement, however he has not accepted. The only mens rea behind this was to check and hamper the ongoing PIL which has further come in the investigation. The screen shot of chat of Sonu Agarwal is also mentioned in the complaint. Sonu Agarwal has stated that he was keeping in dark about trap of Rajeev Kumar and he was not knowing about the said trap. In para 7.18 of the complaint, the link of this petitioner with other mining mafia has come. Thus, there are sufficient material, so far as this petitioner is concerned with regard to trapping of Mr. Rajeev Kumar. 23. Looking into Section 3 of Prevention of Money Laundering Act, it is crystal clear that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money laundering. Admittedly, this petitioner has handed over the sum of Rs.50 Lakhs to Mr. Rajeev Kumar. Section 7A of the Prevention of Corruption Act speaks that giver and taker of bribe, both are liable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. Now coming to the next argument of Mr. Nigam with regard to illegal detention of the petitioner. It can be safely said that if the Court comes to the conclusion that ECIR has not been considered without jurisdiction, it cannot be said that the detention or arrest of the petitioner is illegal moreso when Section 19 provides power of arrest. The petitioner was produced before the learned court and was remanded to judicial custody. The petitioner has not complained anything and remand order is not under challenge and this aspect of the matter has been considered by the Hon'ble Supreme Court in Tasneem Rizwan Siddiquee (supra) . It is well settled that when alternative remedy is there, petition for bail under Article 226 of the Constitution of India is not maintainable, as has been held by the Hon'ble Supreme Court in Saurabh Kumar through his father (supra) . The Court is conscious of the fact that liberty of any person cannot be taken away lightly and at least on two occasions, this Court has rise to rescue the petitioners of those cases finding about the liberty was at stake and granted interim bail under Article 226 of the Constitution of India in Hemant Goyal and an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned Additional Solicitor General made his submission on the facts of the case stating that there is ample evidence collected against the respondent which would justify the invocation of the provisions of the TADA. 26. Thus, the prayer of the petitioner with regard to release on interim bail under Article 226 of the Constitution of India is not made out and that prayer is rejected. 27. Now coming to the third prayer of the petitioner. Whether the accused would have any say in selecting the method of inquiry or the investigating agency. In Romila Thapar v. Union of India; [(2018) 10 SCC 753] , the Supreme Court taking a review of the earlier precedents reiterated the principle that the accused does not have a say in the matter of appointment of the investigating agency while referring to the decisions in Narmada Bai v. State of Gujarat and others; [(2011) 5 SCC 79], Sanjiv Rajendra Bhat v. Union of India; [(2016) 1 SCC 1] and Divine Retreat Centre v. State of Kerala; [(2008) 3 SCC 542] . 28. It is well settled that the High Court under Article 226 of the Constitution and the Hon'ble Supreme Court under Article 32 of the Constitution can direct the CBI to inve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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