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TMI Blog2023 (1) TMI 596X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 26.12.2022, is made absolute and the petitioner is directed to be released on regular bail. Application disposed off. - CRM-M No.31762 of 2022 (O&M) - - - Dated:- 12-1-2023 - HON'BLE MR. JUSTICE ARVIND SINGH SANGWAN Present: For the petitioner : Mr. Nikhil Ghai, Advocate with Mr. Tushan Rawal, Advocate. For the respondent : Mr. Satya Pal Jain, Addl. Solicitor General of India with Mr. Shobit Phutela, Advocate. ARVIND SINGH SANGWAN J. (Oral) On oral request made by counsel for the petitioner, which is not opposed by counsel for the respondent, the main case is taken up today for hearing, for final disposal. Vide order dated 26.12.2022, the petitioner was released on interim bail. Counsel for the petitioner, at the very outset, has relied upon the order dated 01.07.2022 passed in CRM-M No.27871 of 2022, vide which the co-accused of the petitioner namely Bhupinder Singh @ Honey, has been granted the concession of regular bail. The operative part of the said order, reads as under:- Prayer in this petition, filed under Section 439 Cr.P.C., is for grant of regular bail to the petitioner in case/FIR ECIR No. ECIR/JLZO/21/2021 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e spot and several machines like tipper/trucks, proclaim machines, JCB machines etc. were seized by the department. As per the FIR, the sand mine was allotted to Kudratdeep Singh on a representation given by him that he is not conducting any mining, however, it was found that majority of the numbers allotted to him were on the other side of Satluj river in District Ludhiana and, therefore, the mining operations were suspended by the department itself. Later on, the police submitted the challan under Section 173(2) Cr.P.C. and Kudratdeep Singh was kept in Column No. 2, whereas the challan was presented against 56 persons. Learned senior counsel further submitted that thereafter, the Directorate of Enforcement (for short ED ) raided the premises of Kudratdeep Singh, petitioner Bhupinder Singh @ Honey and one Sandeep Kumar in January, 2022. From Kudratdeep Singh, no recovery of money was effected, however, a mobile phone was taken into possession. From petitioner Bhupinder Singh @ Honey, as per allegations, Rs. 8 crores (approx.) was recovered and from Sandeep Kumar, an amount of Rs. 1,99,17,200/- was recovered in cash. With regard to this money also, it is the case of the ED th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accused in said FIR. Learned senior counsel further submitted that since the petitioner is not an accused in the aforesaid FIR and no challan has been presented against him, the petitioner has been falsely implicated in the present case. Further it is submitted that till date, there is no verification by ED regarding three slips from the department whether the said slips are genuine and ED has wrongly drawn an inference that the same are fake slips. It is further argued that no offence under the Mines Minerals (Regulation of Development) Act, 1957 falls within the scheduled offence under the PMLA, therefore, the prosecution of the petitioner is illegal. Further it is submitted that it is wrongly investigated by ED that the petitioner, being partner of M/s Provider Overseas Consultant Pvt. Ltd., has diverted the proceeds of crime to this firm for earning more money and Kudratdeep Singh and Sandeep Kumar were also the Directors of the said company, although ED could not find any trail of money in said firm, therefore, ED changed the version of the petitioner by recording his statement that Rs. 6/7 crores were recovered by him during the past six months from Rakesh Chau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e last one and a half year, from which I earn around Rs. 2 lakh per day from these machines. These machines are used in mining site for the purpose of sand extraction and to load truck/tippers. I get around Rs.2000 for loading a truck. These machines use to load about 150 trucks and some trolleys in a day. The running cost of these machines is Rs. 1 lakh per day, This way I save Rs. 2,00,000/- in a day. Apart from these I also have a truck for 2 years which I bought from Gurjot Singh resident of Patiala in 2020. In addition to this truck I have 9-10 truck tippers and 4-5 tractors on lease which are used in transporting materials from Crushers and mining sites. I save Rs. 1.25 lakh a day from these trucks / tippers. I undertake that I will submit a copy of the agreements of machines, truck tippers and Tractors within 7 days to your office. Apart from these I will also submit copies of the weighment slips received during transportation. Iqbal Singh, resident of Salapur, District Ropar, looks after all the work of my tractor, tipper and trolly. In addition, I state that during search conducted on 18.01.2022, In the statement, in question number 6, the annual income was mistakenly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated work with concerned Govt. Department like Mining Department, Ropar, Nawanshahr and in taking some inputs from police officials as well as officials of the Mining Department regarding weighment slips. It is further stated in para 6.4 that as per statement dated 21.02.2022 of Harminder Singh @ Pinka, he used to communicate with the petitioner through Whatsapp/Email with regard to Malikpur mining site and in para 6.5, there is a reference to the statement dated 18.02.2022 of Subash Bath that the petitioner was looking after the mining affairs of Kudratdeep Singh @ Lovie. Further in para 6.6, there is a reference of recovery effected from the three residences of the petitioner and it is stated that the petitioner could not produce any legitimate source of the seized cash, which was much below the income shown in his income tax returns from 2017 to 2021. The net conclusion of the investigation is given in para 6.14 and 6.15, which are reproduced herein below: 6.14 Therefore, in view of the above, it has been clearly established that applicant used to assist Sh. Kudratdeep Singh @ Lovie in mining activities at Malikpur mine, used to handle works of Malikpur mining site on beh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. 24. In the above circumstance it would be clear that even after concluding the triple test in favour of the appellant the learned Judge of the High Court was certainly justified in adverting to the issue relating to the gravity of the offence. However, we disapprove the manner in which the conclusions are recorded in paragraphs 57 to 62 wherein the observations are reflected to be in the nature of finding relating to the alleged offence. The learned senior counsel for the appellant with specific reference to certain observations contained in the above noted paragraphs has pointed out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceeds of crime. In reply, learned senior counsel has submitted that as per custody certificate, the petitioner is a first offender and is in substantive judicial custody of about 05 months as he was arrested on 03.02.2022 and since a complaint has already been filed, no purpose will be served by keeping him in judicial custody anymore as the conclusion of trial is likely to take a long time. After hearing learned counsel for the parties, I find merit in the present petition for the following reasons: (a) The primary objection raised by learned counsel for the respondent-ED is that the petitioner does not qualify the triple test laid down under Section 45 of the PMLA. The said three conditions laid down under Section 45 are that the public prosecutor should be given an opportunity of hearing, which has been given in the present case; secondly, if the public prosecutor opposes the application, a reasoned order be passed that the person is not guilty of offence and not likely to commit offence while on bail and thirdly that in addition to provisions of PMLA, the provisions of Cr.P.C., regarding grant of bail, shall apply. Section 45 (1) (ii) is akin to Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no absolute bar in granting regular bail to an accused facing trial under the PMLA as the allegations are yet to be proved and the petitioner has raised a probable defence that he has already filed an appeal before the appropriate authority to explain and prove that the recovery effected from him is not the proceed of crime and the final adjudication is yet to be made by the appropriate authority. (g) 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 36 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. (h) As per record of the Medical Officer, Central Jail, Kapurthala, the petitioner is under treatment for his heart ailments and he needs further treatment from specialized doctors, which itself is a ground for releasing the petitioner on bail. (i) Even otherwise, the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion conducted by the Directorate of Mining Department of Industries and Commerce and was a successful bidder and was allotted a sand mine in Village Malikpur, District S.B.S. Nagar and started the mining on 05.10.2017. It is further stated that as per the statement of two persons namely Amandeep Singh @ Lucky and Gurwinderpal Singh @ Twinkle, the petitioner was managing the mining operation at Village Malikpur and even in the statement recorded under Section 50 of the PMLA Act, the petitioner has stated that the weighing weighment slips were given by the computer operator on his instructions. In reply the counsel for the petitioner has submitted that the petitioner is in long custody of about 06 months and was involved in another similar FIR No.73 dated 18.07.2022, in which the Additional Chief Judicial Magistrate, S.B.S. Ngar, already released him on bail vide order dated 01.08.2022. Lastly, it is submitted that the co-accused of the petitioner has also been released on regular bail vide order dated 01.07.2022 passed in CRM-M No.27871 of 2022 and since the time, the petitioner is on interim bail, he has not misused the concession and no recovery of amount was made from the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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