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TMI Blog2023 (9) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... e grounds for believing that petitioner is not guilty of offence and he is not likely to commit offence while on bail. The prayer of bail of petitioner is rejected herewith. - HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA Appearance : For the Petitioners : Mr. Ramakant Sharma, Senior Advocate Mr. Ravi Shankar, Advocate For the Union of India : Dr. Krishna Nandan Singh, A.S.G.I Mr. Manoj Kumar Singh, CGC Mr. Shivaditya Dhari Sinha, J.C. to A.S.G. For the State : Mr. Nawal Kishore Prasad, APP CAV ORDER Heard Mr. Ramakant Sharma, learned senior counsel for the petitioner and Dr. Krishna Nandan Singh, Assistant Solicitor General of India for Directorate of Enforcement, Patna, Bihar. 2. The petitioner seeks bail in connection with Special (Trial) PMLA Case No. 7 of 2022 arising out of ECIR No. PTZO/05/2014 in which cognizance has been taken for the offences punishable under Sections 3, 4, 44 and 45 of the Prevention of Money Laundering Act, 2002 (for short the Act ) 3. Brief facts of the prosecution case as it springs from the complaint filed under Sections 44 and 45 of the Act (as amended from time to time) that petitioner appears accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... One Crore One Lakh Eighty three Thousand Eight Hundred Sixty-nine only) as concerned with this petitioner have been attached but, the properties of Rs. 94,03,280/- (Rupees Ninety-four Lakhs Three Thousand Two Hundred Eighty only) is liable for confiscation. As far bank account is concerned, it is alleged that between 18.01.2011 to 23.03.2018 huge credits to the tune of Rs. 13,80,000/- (Rupees Thirteen Lakh Eighty Thousand only) have been observed to be deposited which allegedly appears out of proceeds of crimes as stated above. 4. It is submitted by Mr. Ramakant Sharma, learned senior counsel appearing on behalf of the petitioner that petitioner is an innocent and law abiding person and has committed no offence at all rather he has been falsely implicated in the present case out of ulterior motive. It is submitted that petitioner is on bail in all eight cases out of which, four cases i.e. FIR No. 95 of 2007 (registered under Sections 302 of IPC and 27 of the Arms Act), FIR No. 68 of 2012 (registered under Sections 307 of the IPC), FIR No. 127 of 2012 (registered under Sections 483, 471 of the IPC and FIR No. 64 of 2013 (registered under Sections 384, 420, 467, 468 and 471 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d while calculating his income. Petitioner is also carrying his farming business in Patna since 1991. It is submitted that the entire investigation as appears roaming around the fact that petitioner and his brother have been alleged to be land Mafia without having any such finding by a court of competent jurisdiction. As far as cash income is concerned, according to the prosecution, between 18.01.2011 to 23.03.2018, an amount to the tune of Rs. 13,80,000/- (Rupees Thirteen Lakh Eighty Thousand only) has been found deposited with bank which is not an astronomical figure as far deposit of seven long years are concerned. 7. Mr. Sharma, further submitted that the presumption as provided under Section 24 of the Act is not applicable at this stage as same be taken note during the course of trial. While arguing further, learned senior counsel relied upon the legal report of Hon ble Apex Court as reported in the matter of Sanjay Chandra vs. CBI as reported through (2012) 1 SCC 40, where it has been held that after completion of investigation, the presence of the accused in the custody is not required. A reliance has also been made upon the legal report as reported in the matter of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pathak, who is informant of FIR No. 95 of 2007 and FIR No. 64 of 2013 during his statement as recorded under Section 50 of the Act, inter alia, stated that he purchased a piece of land from Murlidhar Pandey of Suman Sahkari Grih Nirman Samiti in the name of his brother Sri Anil Kumar Pathk. He further submitted that on 07.02.2007, the petitioner had deceitfully collected the documents of said land by saying that the same will be mutated in their name. It is further submitted that on 13.02.2007, Sri Anil Kumar Pathak was brutally murdered by a gang consisting of the petitioner, Murlidhar Pandey, Shivji Prasad, Ranjeet Yadav and Horil Yadav. It is submitted that petitioner and others took signature of Sri Santosh Kumar Pathak on a blank paper and filed complaint against one Pappu Yadav, Sunil Kumar and Sanju regarding the murder of Anil Kumar Pathak. In the year, 2013, petitioner and Murlidhar Pandey burnt the house of Late Anil Kumar Pathak and thereafter, in the year, 2014, the petitioner sold the land of Sri Santosh Kumar Pathak and Late Anil Kumar Pathak by creating a false deed and in this regard, an FIR was lodged against Sri Murlidhar Pandey, petitioner and others by Sri Sant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn (for short ITR ) from the AY 2012-13 by reflecting an amount of Rs. 3,17,446/- as income from profits and gains from business or profession. Though, for the A.Y. 2013-14 to 2015-16, the same had shown as nil . Afterward, there is no such claim for profit and gains from profession and business. He further urged that although income from business or profession has been reflected, but, in reality, there was no such source of income. He further submitted that during the A.Y. 2012-13, the petitioner has shown Rs. 75,600/- as income from house property, which is suddenly increased to the tune of Rs. 4,47,720/- during A.Y. 2013-14 to the tune of Rs. 6,55,200/-. However, no documentary evidence was produced during the course of investigation in support of income from house property. He further submitted that in reality there was no such income from house property but to legitimize the illegally earned money, a false source of income i.e., income from house property has been reflected. He further submitted that in the same manner, the petitioner has shown his income from agriculture in the ITR, though, there is no such source of income, despite of ample opportunity given to him, he h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most of the plots were purchased by the petitioner in his own name and in the name of his family members in nominal rate in collusion with Murlidhar Pandey. He further submitted that the price shown against purchase was very low in comparison to the market value. Later, these properties were sold by the petitioner in very high prices. He further submitted that the statement of Mr. Lallu Prasad was also recorded under Section 50 (3) of the Act in which he inter alia stated that Murlidhar Pandey used to acquire land in society s name in collusion with the petitioner and others by illegal manner. In fact, the petitioner, Dablu Kumar and his other brothers as well as Sri Murlidhar Pandey and Shivji Prasad are involved in criminal activities for acquiring land illegally. They all have made a land Mafia Gang from which they used to threaten the innocent people by using their muscle power and acquired huge ill-gotten money. He further stated in his statement that petitioner and his brothers are involved in various crimes like, extortion etc and they performed crime in a systematic manner. They first sell land to someone and thereafter, by taking money from any third person and making fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to get registered the same disputed land in the name of their brothers and in this way, they cheat builders and other innocent person and acquired huge proceeds of crime. 16. Dr. Krishna Nandan Singh, Assistant Solicitor General has submitted that the statement of Mr. Shivji Prasad, who is relative of this petitioner was also recorded under Section 50(3) of the Act wherein he stated that one piece of land used to be sold to different people by the different family members of the petitioner and in this way, there are different land owners and documents available for a single piece of land. Out of these land owners, one who is more powerful will take possession of the properties. The petitioner and his family members used to purchase such piece of land from all such land owners and again re-sale such landed properties to some other persons against heavy price. He further stated that these types of landed properties for which no documents are available, such properties are used to be sold or purchased many times to different people by the petitioner and his family members and after possession, they used to sell the same properties to some other persons at costly rate. Mr. Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraphs 28-30. It will be useful to advert to paragraphs 28 to 30 of this decision which read thus:- 28. Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. Section 45 of PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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