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TMI Blog2023 (4) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... on, I am inclined to accept the argument tendered by the learned ASGI that a portion of the bribe being converted into foreign currency and taken to diplomatic channel to the foreign country, emanated from the predicate offence as pointed out by the learned ASGI, and the said aspect is a matter within the ambit of PML Act for which detailed investigation shall go on. Whether the petitioner is liable to be released on bail by resorting to proviso to Section 45(1) of PML Act? - HELD THAT:- It is interesting to note that the Act doesn't define the term either `sick' or `infirm'. The term `sick' as per the Oxford English dictionary means, affected by illness; unwell, ailing . Similarly, the term `infirm' means not physically strong or healthy; weak; feeble, especially through old age . Therefore, the `sick' or `infirm' condition of a person has to be inferred from the materials available in each individual case. However, it is pertinent to note that the statute provides release of an accused on bail, who are covered by the proviso reading the same disjunctively and the statute used the word `may'. Thus it has to be held that release of a person co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rala. In this matter, the investigation is at the initial stage. Many accused are yet to be arrested including Smt.Swapna Prabha Suresh. Why the prosecution is delaying the arrest of Swapna Prabha Suresh is also a matter of serious concern, though she had an active role in the present crime - Bail application dismissed. - Bail Appl. No. 2166 of 2023 - - - Dated:- 13-4-2023 - Honourable Mr. Justice A. Badharudeen For the Petitioner : Advs. Manu Srinath, George Varghese(Perumpallikuttiyil), Nimesh Thomas, Senior Advocate Sri Jayadeep Gupta For the Respondents : Adv Jaishankar V.Nair ORDER This application for regular bail has been filed under Section 439(1) of the Code of Criminal Procedure read with Section 45 of the Prevention of Money Laundering Act, 2002 (`PML Act' for short hereinafter) and the petitioner is the 9th accused in Crime No.ECIR/KCZO/09/2021 registered by the Enforcement Directorate on 22.02.2021, within the jurisdiction of Special Court for PMLA Cases (SPE/CBI-III), Kaloor, Ernakulam. 2. Heard the learned Senior Counsel Sri Jaideep Gupta, appearing for the petitioner and Sri R.Sankara Narayanan, the learned Assistant Solicitor Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Federal Bank and an amount of Rs.2.25 crore to the Axis Bank were transferred from the Red Crescent Organization on 01.08.2019 and part of the said amount (Rs.3,80,00,000/-) (in foreign money) was subsequently withdrawn by Santhosh Eapen and handed over as an upfront commission for allocating the content to him. The petitioner is also alleged to be evasive and non-cooperative during the interrogation. To summarise, the prosecution allegation herein is; reception of bribe in foreign currency and rooting of the same through the diplomatic channel. 5. While pursuing the relief of regular bail to the petitioner, it is submitted by the learned counsel for the petitioner, that the petitioner is totally innocent of the allegations levelled against him. The action of arrest is a political stunt and is aimed at targeting the earlier existed professional privity the petitioner had with the Chief Minister of Kerala and the entire case is built up as a political hit by the Enforcement Directorate to falsely implicate the petitioner and by extension, the executive head of the State and his family members. The petitioner is a reputed retired IAS officer with an unblemished record of 30 years. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly held in Annexure 9 judgment, that the petitioner would get the benefit of the proviso to Section 45 of PML Act, as he is a sick person and the proceeds of the crime in the case, in relation to the applicant goes, is less than 1 crore in value and therefore he was entitled to bail. It was also recorded that the petitioner was unlikely to commit further crimes on bail and also nothing on record to suggest that he is at flight risk or that he may tamper with evidence or influence witnesses. It is submitted that Annexure 9 bail order was challenged by Enforcement Directorate before the Hon'ble Supreme Court in SLP(Crl)No.1403/2021 which was heard by the Hon'ble Supreme Court and refused to interfere and the matter has been pending, without any orders. Accordingly, it is submitted that in order to defeat Annexure 9 order, indirectly, the petitioner was arrested in the instant crime, germane from the allegations in Annexure 11 crime. 9. It is pointed out that except the statements given by the two co-accused, no other evidence is presented by the Department to show the petitioner's complicity in the crime. The sum and substance of the allegation, as supported by the evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivasankar, who directed Sri P.Venugopal, his C.A, to assist Swapna Suresh to open a joint locker in the name of Venugopal and Swapna Suresh, wherein part of the proceeds of the crime generated out of commission from bribe was kept. It is argued further that for registration of a crime under the PML Act, the only necessity is registration of a predicate/schedule offence prior to it. It is also submitted that the investigation done by the Enforcement Directorate under the PML Act is independent of the investigation conducted by any predicate agency and Sivasankar would not have been arrested in the scheduled offence if there would be any immunity from proceeding with the investigation under the PML Act. It is specifically argued that the present case is different from ECIR/KCZO/31/2020 registered by Enforcement Directorate for gold smuggling through diplomatic channel and the allegation in the present case is conversion of a portion of bribe money into foreign currency and taking the same through the diplomatic channel to a foreign country. 13. It is argued further that the petitioner herein could not claim exemption granted under Section 45 of PML Act on the ground of illness or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not co-operate with the investigation during the custody period and was evasive in his answers and he has not divulged the name of the other persons involved with him in the instant case. Thus, the accused is not entitled to get bail. This position is reiterated by the Hon'ble Apex Court's judgment in the case of Gautam Kundu Vs. Manoj Kumar Assistant Director in CA. No. 1706 of 2015, dated 16.12.2015 , the Hon'ble Supreme Court of India had held as follows: 32. We have heard the learned counsel for the parties. At this stage we refrained ourselves from deciding the questions tried to be raised at this stage since it is nothing but a bail application. We cannot forget that this case is relating to Money Laundering which we feel is a serious threat to the national economy and national interest. We cannot brush aside the fact that the schemes have been prepared in a calculative manner with a deliberative design and motive of personal gain, regardless of the consequence to the members of the society. 16. It is respectfully submitted that similar observations were made by the Hon'ble Apex Court in the case of Rohit Tandon Vs. The Enforcement Directorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. It is submitted that, in [2022/KER/21224], Thomas Daniel vs. Directorate of Enforcement this Court held as under: 21. After considering the totality of the situation emerging in the case, I am not convinced that the petitioner is justified in seeking bail. The learned Additional Solicitor General and the learned Central Government Counsel have seriously opposed the application for bail. Having regard to the nature of the allegations against the petitioner, the stake involved, the gravity of offences, the fact that the petitioner has business Interests in Dubai, Australia etc., it cannot be said that there is no flight risk in the case. It has also been pointed out that the entire proceeds of the crime are not yet traced. There are prima facie materials to believe that he is guilty of the offence alleged against him. Moreover, some of the important witnesses are his own employees. In the circumstances, this is not a fit case to grant him bail, 18. In [(2009) 14 SCC 286], Masroor v. State of Uttar Pradesh and Another , it was noted that while deciding the question of bail, Courts must strike a balance between the interest of the society in general and the righ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. The Hon'ble Supreme Court of India has laid down certain conditions for granting bail in its order in Cr. MA No. 728 of 2023 in the case of Shri.Nammagadda Prasad Vs. Central Bureau of Investigation which also related to financial Crimes. The Hon'ble Court has inter alia observed as follows in the said order dated 09.05.2013: While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words reasonable gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail. Contrary to the submission by the learned Counsel on behalf of the petitioner, the offence of money laundering is an independent offence and it is not necessary that the accused charged with the offence of money laundering are the same who are made accused in predicate offence as per the ratio decided in Vijay Madan Lal Choudhary (supra) (Para 269 and 270). The law enforcement agencies are now confronted with a new species of crime in the form of money laundering, which necessitated the special Act. The law is evolving with different amendments and Judicial pronouncements. These are not like conventional crime and the modus operandi involves three stages: (a) Placement: which is to move the funds from direct association of the crime. (b) Layering: which is disguising the trail to foll pursuit. (c) Integration: which is making the money available to the criminal from what seem to be legitimate sources. 20. A normal business transaction between the different entities involved in the criminal conspiracy cannot be expected in such cases and therefore, the provision for reverse burden has also been made under Sections 23 and 24 of the PMLA. In the present case, the role of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to his reinstation to service on 06.01.2022, Shri M. Sivasankar resumed his duties and retired on superannuation on 31.01.2023. Moreover, as rightly noted by the Special Court (PMLA) in the order impugned, the Petitioner refused a second opinion on his illness while in custody. It is submitted that while in judicial custody, the petitioner was admitted in Hospital on 20th March 2023 and his Surgery was fixed on 21st March 2023. However, it would be pertinent to note that the Petitioner himself withdrew the consent and the Surgery was cancelled. Thus the contention of the Petitioner that he may be granted bail on the grounds of his sickness and the urgency of surgery has no legs to stand as he himself refused to undergo surgery. Hence it is evident that the Petitioner is misrepresenting facts before this Court. 23. It is further submitted that Shri M. Sivasankar had played a very pivotal role in the employment of Smt. Swapna. Prabha Suresh as Junior Consultant, in Space Park Project of KSITIL. 24. The Petitioner is a highly influential person closely associated with the Kerala Government and his involvement with other Government functionaries are under investigation. Hence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner is liable to be released on bail by resorting to proviso to Section 45(1) of PML Act. In this connection, I am inclined to extract Section 45 of PML Act, which runs 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 punishable for a term of imprisonment of more than three years under Part A of the Schedule 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 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 the other 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 cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... means, affected by illness; unwell, ailing . Similarly, the term `infirm' means not physically strong or healthy; weak; feeble, especially through old age . Therefore, the `sick' or `infirm' condition of a person has to be inferred from the materials available in each individual case. However, it is pertinent to note that the statute provides release of an accused on bail, who are covered by the proviso reading the same disjunctively and the statute used the word `may'. Thus it has to be held that release of a person covered by the proviso to Section 45(1) of PML Act is not mandatory and the same is the discretion of the court. 28. In this connection, I am inclined to refer 3 decisions of the Hon'ble Supreme Court, viz., [1984 (3) SCC 555], State v. Jaspal Singh Gill , [2020 SCC OnLine SC 843], State of U.P. v. Gayatri Prasad Prajapati and [1998 (2) SCC 105], Directorate of Enforcement v. Ashok Kumar Jain , referred in the judgment of the High Court of Delhi in Bail Application No.540/2022, Crl.M.A.2909/2022 and 3665/2022 dated 26.09.2022. 29. In Jaspal Singh Gill 's case ( supra ), the Apex Court dealt with a case alleging commission of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custodial internment. The court would interfere when such authorities fail to adopt necessary measures. But we are not in favour of stipulating in advance modalities to be followed by the authorities for that purpose. According to us such anticipatory stipulations are interferences with the efficient exercise of statutory functions when dealing with economic offences. Hence learned Single Judge ought not have imposed such conditions on the Directorate. 31. In [2021 SCC OnLine Del 228], Surjeet v. State (Govt. of NCT of Delhi), where the court while rejecting bail noted the following : 5. It is not in dispute that petitioner is on interim bail since 12.06.2020 on medical grounds and another extension of interim bail is sought on medical grounds only. As per status report dated 28.01.2021, necessary verification was done from the Head of the Department of Deen Dayal Hospital, New Delhi. Discharge summary sheet dated 25.01.2021 placed on record notes that petitioner was admitted on 13.01.2021 for anti coagulation therapy and optimization and after treatment was discharged on 25.01.2021 in stable condition. In the aforesaid discharge summary sheet, Dr. P.S. Sarang, Speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o him and not on the basis of physical examination of the patient. This certificate does not even indicate as to what medical record was shown to him. Therefore, much reliance cannot be placed upon it. 13. On careful consideration of the previous medical reports of the petitioner and the medical reports received from the Board of Doctors of G.B. Pant Hospital, it is apparent that since his detention in jail, the condition of the petitioner is stable and it is being properly managed by medication. Thus, I do not find it a fit case for grant of interim bail on medical grounds, particularly when the release of the petitioner for a period of 4- 6 weeks would not change his medical history or situation. 33. Reading the ratio of the above decisions, if the jail authorities or the prosecution agency could arrange proper and adequate treatment, even a sick person need not be released on bail. 34. While canvassing dilution of the rigour under Section 45 of PML Act, the learned counsel for the petitioner given emphasize to 2 specific aspects: first one is that this Court while granting bail in Crime No. ECIR/KCZO/31/2020 as per order dated 25.01.2023 in B.A.No.7878/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. He gives a history of twisting injury right knee 10 days ago after which the back pain aggravated and pain right knee started. Clinical examination of the lower back and right knee revealed signs suggestive of inter vertebral disc prolapse and internal derangement of right knee. MRI of Lumbosacral spine and right knee was done. MRI revealed severe inter vertebral disc prolapse L1-2, L2-3, L4-5 and L5-S1 medical medial meniscal injury of right knee. The patient need urgent admission in hospital, bed rest, physiotherapy (IFT, UST, MFR myofascial release and electrical traction) and other supportive measures (intra venous steroids and analgesics and other neurotropic vitamins) and arthroscopy procedure of right knee. He is suggested to avoid lifting, bending sitting prolonged and long travel. 36. To be on the crux of the matter, no doubt, crime No.ECIR/KCZO/31/2020 arose out of predicate offence registered by the Vigilance and Anti-corruption Bureau and CBI and the present crime arose out of predicate offence in OR.No.7/2020, registered by the Customs (Preventive) Commissionerate of Cochin and Crime No.2/2020, registered by NIA and, therefore, as I have already pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk accounts and in turn entrusted the same to Swapna Prabha Suresh. Further, Venugopal given statement that Sri Sivasankar IAS had immense trust on him and it was stated that the amount is 35 lakh and `so it is to be done separately' , but Venugopal didn't know what was meant by that. Joint application filed by Venugopal and Swapna Prabha Suresh to operate joint locker in their names also is part of the records. That apart, U.V.Jose, the CEO, Life Mission Project also given statement regarding the implementation of the project and the role of Savasankar in this deal as the Principal Secretary of the Chief Minister of Kerala. 38. Although it is argued by the learned counsel for the petitioner that none of the witnesses had given statements showing involvement of the petitioner in the present crime in the matter of conversion of foreign currency to Indian currency, the pith and substance of the statements, as recorded as that of the witnesses, form part of the lengthy statements available before this Court, inclusive of the WhatsApp messages, would go to show that the petitioner has also involvement in this crime and the money deposited in the joint locker opened in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner was admitted in hospital on 20.03.2023 and his surgery was fixed on 21.03.2023, he refused to undergo surgery. According to the learned ASGI, the petitioner in fact is not a sick person within the meaning of the proviso of Section 45(1) and he wanted to be released on bail on medical ground. In fact, these aspects are having force. That apart, the argument advanced by the learned ASGI as stated in paragraphs 12 to 24 is having force. 42. In P.Chidambaram 's case ( supra ), the Honourable Apex Court considered 2 aspects while considering bail. Those are, flight risk and the propensity to tamper with evidence or influencing witnesses. 43. In the instant case, the petitioner could not be held as a person who would flee from trial. However, his propensity to tamper with the evidence and to influence witnesses could be foreseeable, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala. It is apposite to refer that even after his initial arrest and subsequent release on bail, the petitioner was reinstated in service w.e.f 6.1.2022 and he continued the same till his retirement holding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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