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TMI Blog2023 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... the purposes and objects sought to be achieved by the PMLA to combat the menace of money laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the country. While granting bail of an accused person, twin conditions of Section 45 of the PMLA will have to be adhered to. Considering the facts and circumstances of the issue in question, the bail application of the present applicant does not qualify the twin conditions of Section 45 of the PMLA inasmuch as at this stage it cannot be observed that the present applicant has not committed the offence for which the complaint has been filed against him. The proceed of crime is also in crores. The applicant is based at Abu Dhabi. The factum of guilt can be proved or disproved before the learned trial court. Learned counsel for the E.D. has informed that the trial in the present case is going on with good pace and the same may likely be concluded very soon, therefore, bail cannot be granted to the present applicant, rather direction issued to the learned trial court to conclude the trial with expedition. The bail application is rejected. - Criminal Misc. Bail Application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oney-laundering, that expression needs to be construed strictly. In that, all properties recovered or attached by the investigating agency in connection with the criminal activity relating to a scheduled offence under the general law cannot be regarded as proceeds of crime. There may be cases where the property involved in the commission of scheduled offence attached by the investigating agency dealing with that offence, cannot be wholly or partly regarded as proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act so long as the whole or some portion of the property has been derived or obtained by any person as a result of criminal activity relating to the stated scheduled offence. To be proceeds of crime, therefore, the property must be derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence. To put it differently, the vehicle used in commission of scheduled offence may be attached as property in the concerned case (crime), it may still not be proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act. Similarly, possession of unaccounted property acquired by legal means may be actionable for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed against five accused persons, namely, K.A. Rauf Sherif, Atikur Rehman, Masud Ahmed, Sidique Kappan and Mohd. Alam. However, pursuant to the supplementary complaint four individuals/ entities have been made accused by the E.D. i.e Abdul Razak Peediyakkal (present accused-applicant), Ashraf Khadir alias Ashraf MK, Munnar Villa Vista Pvt. Ltd., Tamar India Spices Pvt. Ltd. Learned counsel for the applicant has fairly indicated the allegations against the present applicant in para-12 of the bail application, which reads as under:- 12. The following principal allegations and the case set up against the Applicant/Accused in the Supplementary Complaint is as under: I. The purported 1st and 2nd Predicate Offence (s) are the very basis on which the Applicant/Accused is being investigated in the present Complaint and Supplementary Complaint i.e. the same set of offences which the Ernakulum Judgement finds no substance in order to enlarge the main conspirator on bail; II. Admittedly, the Applicant/Accused is a long-time member of an organization known as Popular Front of India [PFI] and purportedly 12 cases have been registered against the PFI, in which admittedly the Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has further submitted that the main conspirator in terms of para-10 of the complaint, namely, K.A. Rauf Sherif was enlarged on bail by the Special Court for PMLA Cases under the PMLA, at Ernakulam, Kerala on 12.02.2021. He has also submitted that the E.D. vide e-mail dated 20.12.2021 asked the accused applicant to appear before it at New Delhi on 27.12.2021 with the requisite documents. In response thereto, the accused-applicant vide email dated 20.12.2021 requested from the E.D. to summon him in his Cochin office. Thereafter, the accused-applicant received further summons dated 14.02.2022 to appear in New Delhi on 19.02.2022 and the accused-applicant promptly appeared before the authorities at New Delhi. However, the E.D. has arrested the present applicant on 10.03.2022 from Calicut Airport without having any cogent reasons. Thereafter, he was sent to the judicial custody on 16.03.2022. 11. Learned counsel for the applicant has referred various judgments of the Apex Court to submit that it is a trite law that there exist three main factors while granting bail to any accused person i.e. (a) the accused shall not tamper with the evidence; (b) the accused shall not influence t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ala or other underground channels, therefore, he has not properly cooperated in the investigation, rather has stated time and again that the explanation so sought by the E.D. would be replied by his Chartered Accountant. As per admission of the present applicant before the E.D., he has stated that he became the member of PFI in 2014-15 and is still a member. He was made Divisional President in June, 2021, later he resigned from such post in December, 2021. He used to contribute to PFI in the form of monthly subscription. On being asked from him whether he had given any money in any other organization, he stated that he had donated money to Rehab India Foundation (hereinafter referred to as RIF ) as Zakath and has not remembered the exact amount but the same could be obtained from his Bank statement accounts. 15. As per Sri Srivatastava, learned counsel for the E.D., the applicant has admitted that though he was based in Abu Dhabi, he was still made the Director of Thejus in 2010. It has been noticed by the Investigating Agency that the accused-applicant has transferred a huge sum of Rs.33,72,043.00 over the period 11.07.2012 to 22.07.2020 to RIF. He explained that he had dona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) inasmuch as the law has been settled that even if any person is not named in the predicate offence(s), even then if his complicity comes into notice during investigation relating to the offence of E.D., he may very well be implicated. 18. Heard learned counsel for the parties and perused the material available on record. 19. At the very outset, it would be appropriate to indicate Sections 2 (u), 3 4 of the PMLA, which reads as under:- 2 (u) . proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. 3. Offence of money-laundering . 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. 4. Punishment for money-laundering. Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in para No. 17 are in context of the facts of the said case and pertaining to the offences under the provisions of IPC and P.C. Act and therefore, the same cannot be applied to the case in hand which arises out of a special statute namely PMLA enacted by the Legislature with an avowed object. 33. Hypothetically, an accused in a Predicate/Scheduled Offence is highly influential either monetarily or by muscle power and by use of his influence gets the base offence, compromised or compounded to avoid further investigation by ED i.e. money laundering or the trail of proceeds of crime by him, either in the Predicate/Scheduled Offence or any of the activities revealed therefrom. And, if the aforestated contention of the learned counsel for the Applicants is accepted, it will put to an end to the independent investigation of ED i.e. certainly not the intention of Legislature in enacting the PMLA. Therefore, if the contention of the learned counsel for the Applicants is accepted, in that event, it would be easiest mode for the accused in a case under PMLA to scuttle and/or put an end to the investigation under the PMLA. Therefore, the said contention needs to be rejected. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 that a person who is under the age of sixteen years or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees], may be released on bail, if the special court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specific ..... X X X X Extracts X X X X X X X X Extracts X X X X
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