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TMI Blog2024 (3) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... ted would be a standalone process. This court has reason to believe that prima-facie the involvement of the present petitioner is fully substantiated by the tangible and credible evidences which is indicative of involvement of the present petitioner in activity connected with the proceeds of crime. The conditions enumerated in Section 45 of P.M.L.A. will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. The offence of money-laundering means 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 including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering and the process or activity connected with proceeds of crime is a continuing activit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the allegation of purchase of the land in question has been alleged and further allegation against him is that he is involved in the activities connected with the acquisition, possession, concealment and use of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property. The twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner - Even on the ground of parity as per the discussion made hereinabove, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Bishnu Kumar Agarwala, is quite different. Having regard to the facts and circumstances, as have been analyzed hereinabove as also taking into consideration the statements made in the counter affidavit, the applicant is failed to make out a prima-facie case for exercise of power to grant bail, hence, this Court does not find any exceptional ground to exercise its discretionary jurisdiction under Section 439 of the Code of Criminal Procedure to grant bail - this Court is of the view that the bail application is liable to be reject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ai illegally and fraudulently made a Power of Attorney in the name of Imtiaz Ahmad and Bharat Prasad on the strength of the said Power of Attorney they prepared a forged sale deed and sold the above-mentioned parcel of land admeasuring 1 acre to Punit Bhargav for an amount of Rs. 1,78,55,800/-. (ii) Puneet Bhargav further sold the said land to Bishnu Kumar Agarwal through two Sale Deeds for a total amount of Rs. 1,80,00,000/- (Two Sale deeds dated 01.04.2021 for an amount Rs. 1,02,60,000/- and Rs. 77,40,000/-). 5. The investigation further revealed that though the consideration amount in the deed between Imtiaz Ahmed, Bharat Prasad and Puneet Bhargav is shown as Rs. 1,78,55,800/-, only an amount of Rs. 25,00,000 was paid from the account of Shiva Fabcons one proprietorship firm of Punit Bhargava into the account of Rajesh Rai on 12.02.2021. Investigation further reveals that out of the said 25 lakhs an amount of Rs. 18,00,000/- was immediately transferred to the Bank account of Green Traders, a partnership firm under the control of Md. Saddam Hussain. 6. Further during the investigation, Surveys were conducted on 09.02.2023 and 15.02.2023 At the Circle Office, Bargain, Ranchi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 10.05.2023 under Section 120B, 465, 467, 468 & 471 while, the ECIR is dated 07.03.2023, in which, the allegation of commission of fabrication of document pertaining to the land in question pertains to FIR being Sadar P.S. Case No. 399 of 2022 which is dated 08.09.2022 and in the said criminal case, there is no allegation of commission of any forgery in the document, as the subject matter of the ECIR, rather, the issue of forgery in the registered deed is the subject matter of the F.I.R .being Hare Street P.S. Case No. 137 of 2023 which was instituted on 10.05.2023, as such, the subject matter of the ECIR cannot be said to be based upon the material collected by instituting a criminal case subsequent to institution of the ECIR, hence, the entire prosecution version itself is false. (iv) It has been contended that even accepting the material collected in course of inquiry based upon which the ECIR has submitted before the competent court of criminal jurisdiction which pertains to forgery in making the document for the purpose of illegal transfer of the land which is Khasmahal Land and in that view of the matter, if once the land registered under the provision of Transfer of Prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECIR will be taken into consideration, there is no mens rea and in that view of the matter, it is a fit case for grant of bail. (x) The reliance has also been placed upon the judgment rendered in the case of Manish Sisodia Vrs. Central Bureau of Investigation, reported in 2023 SCC OnLine SC 1393 by referring the paragraphs-27 and 29, wherein, it has been held by the Hon'ble Apex Court that as per the provision of Section 436-A, it should not be construed as a mandate that an accused should not be granted bail under P.M.L. Act till he has suffered incarceration for the specified period. (xi) It has been submitted that the petitioner in the present case is in custody since 11.08.2023 and as such, taking into consideration the involvement of the petitioner even it will be considered from the ECIR, there is no ingredient of commission of any predicate offence of the schedule offence and as such, the petitioner may be granted the privilege of bail. Argument on behalf of the learned counsel for the respondent/Directorate of Enforcement 10. Per contra, Mr. Anil Kumar, learned Addl. S.G.I. has vehemently opposed the prayer for bail by taking the ground that it is incorrect on the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction is also to be looked into, which is also the factual aspect to be looked into at the time of trial, as has been held by the Hon'ble Apex Court in the case of Rana Ayyub Vrs. Directorate of Enforcement Through its Assistant Director, reported in (2023) 4 SCC 357, upon which, the reliance has been placed by the learned Addl. S.G.I. 17. So far as the ground of parity is concerned, it has been submitted that the parity is to be tested on the basis of the factual aspect and involvement of one or the other accused person. 18. Herein, although the order passed by the coordinate bench in Bishnu Kumar Agarwala granting him bail, has already been challenged before the Hon'ble Apex Court but even, in response to the said submission, the fact herein is that Bishnu Kumar Agarwala was granted bail merely on the ground that he was purchaser of the property but herein the allegation against the petitioner is that he has monitored everything right from managing the higher authority, since, it has come in the inquiry that the land in question was having any vigilance issue since the land was the Khasmahal Land. 19. Further, it has also come in the inquiry that the fabricated document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -laundering Bill, 1998 was introduced in the Parliament. The Bill was referred to the Standing Committee on Finance, which presented its report on 4th March, 1999 to the Lok Sabha. The Central Government broadly accepted the recommendation of the Standing Committee and incorporated them in the said Bill along with some other desired changes." STATEMENT OF OBJECTS AND REASONS "It is being realised, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threat are outlined below:-- (a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected activities and confiscation of proceeds derived from such offence. (b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money-laundering. (c) the Financial Action Task Force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;]" 26. It is evident from the aforesaid provision by which the "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 or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad. 27. In the explanation, it has been referred that for the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. 28. The aforesaid explanation has been inserted in the statute book by way of Act 23 of 2019. 29. It is, thus, evident that the reason for giving explanation under Section 2(1)(u) is by way of clarification to the effect that whether as per the subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:-- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.]" 34. It is evident from the aforesaid provision that "offence of money-laundering" means 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 including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. 35. It is further evident that the process or activity connected wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the [Joint Director]." 38. The various provisions of the Act, 2002 along with interpretation of the definition of "proceeds of crime" has been dealt with by the Hon'ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., reported in (2022) SCC OnLine SC 929 wherein the Bench comprising of three Hon'ble Judges of the Hon'ble Supreme Court have decided the issue by taking into consideration the object and intent of the Act, 2002. The definition of "proceeds of crime" as under paragraph-251. 39. The interpretation of the condition which is to be fulfilled while arresting the person involved in the predicate offence has been made as would appear from paragraph-265. For ready reference, relevant paragraphs are being referred as under: "265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression "including", which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disclose true and correct facts known to his personal knowledge in connection with the subject matter of investigation. The person is also obliged to sign the statement so given with the threat of being punished for the falsity or incorrectness thereof in terms of Section 63 of the 2002 Act. Before we proceed to analyse the matter further, it is apposite to reproduce Section 50 of the 2002 Act, as amended. -----: 424. By this provision, the Director has been empowered to exercise the same powers as are vested in a civil Court under the 1908 Code while trying a suit in respect of matters specified in sub-section (1). This is in reference to Section 13 of the 2002 Act dealing with powers of Director to impose fine in respect of acts of commission and omission by the banking companies, financial institutions and intermediaries. From the setting in which Section 50 has been placed and the expanse of empowering the Director with same powers as are vested in a civil Court for the purposes of imposing fine under Section 13, is obviously very specific and not otherwise. 425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Directo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross-examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i.e., as referring to a person who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code of Criminal Procedure, 1973, no person accused of an offence under this Act 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. Sub-section (2) thereof puts limitation on granting bail specific in sub-section (1) in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. The explanation is also there as under sub-section (2) thereof which is for the purpose of removal of doubts, a clarification has been inserted that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, and accordingly the officers authorised under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation on granting of bail specified in [***] sub-section (1) is in addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. [Explanation.--For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Criminal Procedure Code, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.]" 372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub-section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. For ready reference, paragraph-17 of the said judgment reads as under: "17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. 50. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the petitioner. For ready reference, paragraph-30 of the said judgment reads as under: "30. The conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court." 52. The Hon'ble Apex Court recently in the case of Gurwinder Singh Vs. State of Punjab and Anr., reported in (2024) SCC OnLine SC 109, has observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the 'exercise' of the general power to grant bail u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the petitioner, rather, the land has been transferred by another person in favour of the person, namely, Puneet Bhargav who had paid the consideration amount and said Puneet Bhargav subsequently transferred it to Bishnu Kumar Agarwala but without taking into consideration the aforesaid fact, the petitioner has been implicated in the instant case. 56. In the context of aforesaid argument, it is pertinent to mention here that at this juncture this court thinks fit to discuss the word "reason to believe" as provided under Section 19(1) or the twin condition as available under Section 45 of the Act is concerned, in order to come to the conclusion as to whether the condition stipulated in these sections have been followed or not, is required to consider the various paragraphs of the prosecution complaint dated 01.09.2023 as submitted by the Enforcement Directorate. For ready reference, the relevant paragraph of the same is being reproduced as under: "Brief facts of the offence/ Allegation/ Charge/Amount Involved under PMLA 3.1 An FIR bearing no. 399 of 2022, dated 08.09.2022 (RUD No. 3) was registered by Sadar Police Station, Ranchi, Jharkhand under section sections 406, 420 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e masterminds behind the activities of falsification of government records and planting fake deeds in the records of Registrar of Assurances, Kolkata. He was arrested on 14.04.2023 after searches were conducted at his residential premises on 13.04.2023. At present, he is in Judicial custody. In his statement dated 17.04.2023, (RUD No 33) he stated that he was aware of the fact that the one acre of land situated at Plot no. 28, Khata no. 37, Village Gari, Cheshire Home Road, Ranchi was part of ten acres of land which was acquired by Birlas and later sold to Kanodias. Out of these ten acres, the above said one acre of land was unsold. Further, out of the ten acres of land, a plot of 3.51 acres was initially sold to one Gangadhar Rai, and as such, he made a fake deed wherein the said one acre of land was sold by Gangadhar Rai to Jagdish Rai, father of Rajesh Rai. He also made one more claimant of this land i.e., to Lakhan Singh by showing that the Kanodias had sold this one acre of land to Kaliram Singh, father of Lakhan Singh, Later, he made Rajesh Rai a seller and Lakhan a confirming party in the deed by which the property was sold to Punit Bhargava, on behalf of Prem Prakash. Afsha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g party over the said piece of land. Moreover, he has stated that they were paid Rs. 25 lacs directly into the bank accounts and they were assured to be paid the remaining amount of Rs. 25 lacs in cash. Rest of the amount of Rs. 1 crore was adjusted for unblocking the aforementioned blocked piece of plot in land measuring 3.81 acres. Further in his statement, he has stated that while the transactions were being finalized with Prem Prakash, he had further fixed the deal of this land with Bishnu Kumar Agarwal. Bishnu Kumar Agarwal had knowledge about the disputes involved in this land for which he first asked Prem Prakash to fence the abovesaid one acres of land with boundary walls. For this, first the land was fenced with aluminium sheets and later, wick walls were constructed inside. 8.16 Punit Bhargava- The statement of Punit Bhargava was recorded in ECIR: RNZO/18/2022 on 09.12.2022 (RUD No 45). In his statement, he stated that he knows Bishnu Agarwal since march 2021 when on the directions of Prem Prakash, he sold one acre of land to Bishnu Kumar Agarwal. He further stated that he had bought this piece of land under the supervision of Prem Prakash. He further stated that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2023. (RUD No. 76) Further, several calls have also been identified to have taken place during the scrutiny of the CDR which have also been mentioned below in the relevant para. Brief summary of result of investigation under PMLA 9.1 The investigations under the provisions of PMLA, 2002 in FIR no. 399/2022 dated 08.09.2022 revealed that there is organized group of persons who are habitually involved in making fake deeds and falsifying original land records at Circle Offices and Registrar of Assurances, Kolkata and with the help of said fake deeds, acquire and dispose properties in fraudulent manner. 9.2 Investigation reveals that such forgery is widespread and certain government officials are part of the said conspiracy. Various influential persons like Bishnu Kumar Agarwal, Prem Prakash and others in connivance with senior government officials like Chhavi Ranjan are involved in acquisition of landed properties in Ranchi. 9.3 Investigation has revealed that Bishnu Kumar Agarwal has been assisted by Prem Prakash, Chhavi Ranjan and others in acquiring proceeds of crime in the form of landed properties the details of which are given below- 9.4 The FIR alleged that Rajesh Rai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt no. 52580200000085) one of the proprietorship firms of Punit Bhargava into the SBI Account no. 31180122501 of Rajesh Rai on 12.02.2021. Further Investigation reveals that out of the said amount of Rs. 25 lacs, an amount of Rs. 18 lacs were immediately transferred to the bank account of Green Traders, a partnership firm under the control of Md. Saddam Hussain (one of the accused arrested by this office on 14.04.2023 and presently languishing in Judicial Custody). 9.9 During investigation, surveys were conducted on 09.02.2023 (RUD No. 06) at the Circle office, Bargai, Ranchi and on 15.02.2023 (RUD No. 07) at the office of Registrar of Assurances (Records), Kolkata under section 16 of PMLA, 2002 and the original register II/volumes, containing the above entry were inspected and falsification of the original records were identified in the above documents. The custody of the original registers was taken from the Circle Office as well as from the Registrar of Assurances, Kolkata after the permission of Hon'ble PMIA Court Ranchi under section 91 of Cr.PC. After obtaining due permission, the said original register was sent for by an expert to Directorate of Forensic Science, Handw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Imtiyaz Ahmed (one of the accused arrested on 14.04.2023 in case No ECIR/RNZO/18/2022 in matter of forgery in making fake deeds of property in possession of the defence) and Bharat Prasad. Later, the above-stated persons namely Rajesh Rai, Bharat Prasad, Imtiaz Ahmed in connivance with other accomplices namely Afshar Ali, Lakhan Singh, Md. Saddam Hussain and others made a forged sale deed and sold the above-mentioned parcel of land admeasuring 1 acres to one person namely Punit Bhargav. Punit Bhargava is one of the close associates of Prem Prakash (also languishing in Judicial Custody in connection with illegal stone mining case). 10.1.3 Rajesh Rai in connivance with Bharat Prasad, Md. Saddam Hussain, Afshar Ali, Imtiaz Ahmed and others created forged deed 184 of 1948 (RUD No. 07) and on the basis of that, executed power of attorney in favour of Imtiaz Ahmed and Bharat Prasad. Further, one of their accomplices namely Lakhan Singh became the confirming party in the deed and they executed sale deed dated 06.02.2021 in favour of Punit Bhargava for an amount of Rs. 1,78,55,800/- which was registered as document no. 2021/RAN/1016/BK1/906 in book no. BK1, Vol. no. 112 from page no. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is firm Shiva Fabcons. The amount was paid into Bank of Baroda account 52580200000085 out of which, an amount of Rs. 1,01,57,400/- was transferred to the bank account of Jamini Enterprises, a firm whose beneficial owner is Prem Prakash. Hence, the accused person Prem Prakash is involved in the activities connected with the acquisition, possession, concealment, of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property. Thus, the accused person Prem Prakash has committed the offence of money laundering as defined under section 3 of PMLA, 2002 and is accordingly liable to punished under section 4 of MLA, 2002,." 57. It is evident from the prosecution complaint that the Prem Prakash exerted his influence in order to assist his accomplice Bishnu Kumar Agarwal in acquisition of the land situated at Cheshire Home Road measuring one acre. Further, investigation has revealed that he has close proximities with the accused persons namely Chhavi Ranjan, Bishnu Kumar Agarwal, Punit Bhargava and others as would evident from the statements as recorded under section 50 of the P.M.L. Act, 2002. 58. Record transpires that the accused petitioner was a party ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further stated that six postdated cheques were given for the balance amount later but the said cheques were not encashed. He has also stated that the reason for purchasing this property in his name was done on the instructions of Prem Prakash. 63. Thus, prima facie it appears that the present petitioner Prem Prakash and Punit Bhargav knowingly acquired the proceeds of crime and their knowledge about the forgery committed with respect to acquiring the above said property is evident from the fact that they acquired the property at a throw away price and that too without paying the consideration amount which was mentioned in the deed. 64. Punit Bhargav assisted by Prem Prakash and acquired the property in his name on instructions of Prem Prakash. The accused Prem Prakash mediated directly with the accused persons namely Afsar Ali, Md. Saddam Hussain and others and acquired property in the name of Punit Bhargav, out of an amount of Rs. 1.78 crores only 25 lacs were paid. 65. Thus, it would be evident from the material collected that the Prem Prakash and his associate Punit Bhargav both the persons are party to the activities connected with the proceeds of crime in form of immoveabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process. 71. In the backdrop of the aforesaid discussion this court has "reason to believe" that prima-facie the involvement of the present petitioner is fully substantiated by the tangible and credible evidences which is indicative of involvement of the present petitioner in activity connected with the proceeds of crime. 72. So far as the issue of grant of bail under Section 45 of the Act, 2002 is concerned, as has been referred hereinabove, at paragraph-412 of the judgment rendered in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra), it has been held therein by making observation that whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or 439 for that matter, by invoking the jurisdiction of the Constitutional Court, the und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the discussion made hereinabove the contention of the learned counsel for the petitioner that even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002, is totally misplaced in the light of accusation as mention in prosecution complaint dated 01.09.2023. 77. Further, it is pertinent to mention here that a person accused of the offence of money Laundering need not to be accused in predicate offence and this position has been cleared in the judgement in the case of Vijay Madanlal Choudhary (supra) and others as well as in the case of Pavna Dibbur Vs. Directorate of Enforcement in Criminal Appeal No. 2779/2023, wherein, it is categorically held that the person accused of PMLA offence need not be an accused in scheduled offence. 78. Now coming to the issue of jurisdiction as raised by the learned counsel for the petitioner by making submission to that effect that since the complaint of ECIR, is based upon the criminal case instituted at Kolkata, hence, the authorities sitting in the State of Jharkhand, will have no jurisdiction to initiate an inquiry by issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng is committed. 49. Therefore, we are of the view that the issue of territorial jurisdiction cannot be decided in a writ petition, especially when there is a serious factual dispute about the place/places of commission of the offence. Hence, this question should be raised by the petitioner before the Special Court, since an answer to the same would depend upon evidence as to the places where any one or more of the processes or activities mentioned in Section 3 were carried out. Therefore, giving liberty to the petitioner to raise the issue of territorial jurisdiction before the trial court, this writ petition is dismissed. There will be no order as to costs." Ground of Parity 82. Now coming to the ground of parity. Law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied. 83. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law." 84. The Hon'ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement (supra) wherein at paragraph-18, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the ingredient of Section 3 of the Act, 2002 is at par with the case of Prem Prakash, the petitioner herein. 88. This Court needs to refer herein the imputation of allegation against the Bishnu Agarwala, which reads as under:- 14.9 Bishnu Kumar Agarwal, S/o Chiranjee Lal Agarwal (Accused no. 9) - "The accused person was a knowingly a party with the accused persons namely Afshar Ali @ Afsu Khan, Punit Bhargava, Chhavi Ranjan Prem Prakash and others in acquisition crime in form of landed property admeasuring 1 of proceeds acre situated at Plot no. 28, Khata no. 37, Village Gari, Cheshire Home Road, Ranchi. The accused Bishnu Kumar Agarwal was also knowingly a party with the accused Chhavi Ranjan, Ex D.C, Ranchi in acquiring property of the defence, government of India situated at Mauja Siram, Plot no. 908, 851 and 910, Ranchi having total area 5.883 acres by paying only 3 crores although the total consideration amount in the registered deed was frivolously declared as Rs. 15 crores. The accused person Bishnu Kumar Agarwal also became a party with the accused Chhavi Ranjan and knowingly indulged in the process and activity connected with acquisition of another government prope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent petitioner, the allegation has been leveled as would appear from various paragraphs that after getting the fact that there is some dispute in the record of rights then the interested persons, had contacted the Prem Prakash on the ground that he was having the man of political clout. The present petitioner, Prem Prakash, thereafter, has come into contact with Mr. Chhavi Ranjan, the then Deputy Commissioner, Ranchi. 93. It has further surfaced in course of investigation that the Prem Prakash i.e. present petitioner exerted his influence in order to assist other accused persons in acquisition of the land situated at Cheshire Home Road measuring one acre. Further, investigation has revealed that he has close proximities with the accused persons namely Chhavi Ranjan, Punit Bhargava and others as would evident from the statements as recorded under section 50 of the PMLA 2002. 94. Further during the investigation, it has further come against the petitioner that accused persons Afsar Ali and Saddam Hussain connived with Prem Prakash for fraudulent acquisition/registration of this property in question and then Prem Prakash registered this property in the name of his very close accompl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view that the Bishnu Agarwala has also parted with the forgery and he has been granted bail by the coordinate Bench of this Court. 100. However, this Court is not making any comment upon the order passed by the coordinate bench but as has been held by the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra), wherein, at paragraph 19, the principle has been laid down that Article 14 since envisages the positive equality and not the negative equality and even accepting that the said Bishnu Agarwala has been granted bail, the same cannot be given any aid to the petitioner in view of the applicability of the principle that the Article 14 of the Constitution of India does not envisage the negative equality, rather, it envisages the positive equality. 101. Further, it is required to refer herein that the Money Laundering is an economic offence and economic offences come under the of grave offences hence needs to be visited with a different approach in the matter of bail as held by the Hon'ble Apex court in the case of Y. S Jagan Mohan Reddy Vs. C. B. I., reported in (2013) 7 SCC 439. For ready reference, the relevant paragraphs of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." 103. It is, thus, evident from the discussion made hereinabove that so far as the case of the present petitioner is concerned, the twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner. 104. Even on the ground of p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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