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TMI Blog2024 (5) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... s (A/C no. 120001761042) opened current account in their names on 31.08.2022. The aforesaid two firms submitted their KYC documents alongwith the account opening forms. Transactions were made on 12.09.2022 by M/s. T.M. Traders and on 03.09.2022 by M/s. K.K. Traders in their account. During the initial stage there were no huge transactions noticed by OTM Cell, Bangalore, (which is the controlling office of the bank, engaged in vigilance over abnormal transactions in newly opened accounts). On 17.09.2022 after observing huge debit transaction in the account of the aforesaid two firms Regional Office-III was informed for confirming regarding the genuineness of the account and for KYC compliance. As there were huge debit credit entries within a span of less than a month, the credibility of the transactions were suspected, thus to cross-check the authenticity of the residential permanent address appearing in Aadhar and PAN Card address the bank officials visited the addresses so furnished when it was detected that the parties were hailing from Jamshedppur, Jharkhand. No parties were carrying out business at the address which were furnished in the account opening form and also no such pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c devices, gold jewellery and cash amounting to Rs. 2,20,50,000/- were recovered. The police authorities prayed for issuance of warrant of arrest against the present petitioner namely Shailesh Kumar Pandey. As the IPC offences referred to in the FIR are Scheduled Offences under Prevention of Money Laundering Act, 2002 (hereinafter referred to as "PMLA") the ECIR was recorded. 7. The investigating authority in course of their investigation filed complaint against the petitioner informing the Court in respect of further investigation being carried on. The allegations levelled against the petitioner in the complaint were as follows: "15.2 Sh. Shailesh Kumar Pandey (A-2): The investigation conducted by this Directorate under PMLA reveals A-2 was assisting A-1 for opening of bank accounts of dummy firms as well as maintaining the accountancy of balance credited in dummy firms, filing of necessary compliances with income tax department, GST department, etc. A-2 has assisted A-1 and Tushar Patel & their family members like Ankit Patel, Heena Patel, Manisha Patel, Manjulaben Patel, in preparation of Balance Sheet and Profit & Loss account, filing of ITRs etc. A-2 has made all necessary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Money Laundering Act. Bail in respect of cases involving economic offences and also relied upon judgements of the various High Courts wherein under similar circumstances, according to the petitioner bail has been granted. 10. In order to substantiate his argument that even if the twin conditions are satisfied under Section 45 of the PMLA Act, bail can be granted in appropriate case. Reference was made to P. Chidambaram -vs.- Enforcement Directorate reported in (2020) 13 SCC 791. Emphasis was made in paragraphs 23 and 29 of the said Judgement which are set out as follows : "23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation reported in (2023) SCC OnLine SCC 1393 to emphasize on the issue of Article 21 of the Constitution of India vis-à-vis the provisions of Section 45 of the PMLA and to that effect relied upon paragraphs 27 and 29 of the said Judgement which are set out as follows:- "27. However, we are also concerned about the prolonged period of incarceration suffered by the appellant - Manish Sisodia. In P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791, the appellant therein was granted bail after being kept in custody for around 49 days, relying on the Constitution Bench in Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565, and Sanjay Chandra v. Central Bureau of Investigation (2012) 1 SCC 40, that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years." 12. On similar issue of long incarceration and the right to bail of the accused in cases under the provisions of PMLA, petitioner has relied upon Avtar Singh Kocchar -vs.- Enforcement Directorate reported in 2023 SCC OnLine DEL 7518. Reference was made on paragraphs 17 and 18 of the said judgement which are as follows:- "17. While discussing about making a balance between statutory emargo and period of incarceration, the Hon'ble Supreme Court in Union of India v. K.A. Najeeb in Criminal Appeal No. 98 of 2021 inter alia held as under: 18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA per-se does not oust the ability of Constitutional Courts to grant bail on grounds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Sibbia v. State of Punjab, and Sanjay Chandra v. Central Bureau of Investigation, that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation, this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab and Kashmira Singh v. State of Punjab, to emphasise that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of Punjab, (1994) 3 SCC 569: 1994 SCC (Cri) 899], on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21." (emphasis supplied) 12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156] , Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial." 14. In respect of the same point petitioner also relied upon Zahir Hak vs. State of Rajasthan reported in 2022 SCC OnLine SC 441. Reference was made to paragraphs 12 to 15 of the said judgement which has referred to as follows: "12. We bear in mind the judgment of this Court reported in Union of India v. K.A. Najeeb (2021) 3 SCC 713. Therein, the following observations cannot be overlooked: "12. Even in the case of special legislations like th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the submission of the State that the role attributed to the said accused is different. 14. The condition in Section 43D(5) of the Act of 1967 has been understood to be less stringent than the provisions contained in Narcotic Drugs and Psychotropic Substances Act, 1985, as already noticed by us. We would think that in the nature of the case against the appellant, the evidence which has already unfolded and above all, the long period of incarceration that the appellant has already undergone, time has arrived when the appellant be enlarged on bail. We bear in mind the fact that the prosecution seeks to examine as many as 109 witnesses of which only 6 witnesses have been fully examined so far. Accordingly, we allow the appeal, set aside the impugned order and direct that the appellant shall be released on bail subject to such conditions as shall be fixed by the trial Court. 15. Needless to say, the observations which have been made in this order are for the purpose of deciding the application for bail and the Court will, undoubtedly, decide upon the fate of the appellant in the trial on the basis of the evidence and in accordance with law." 15. Reiterating his submissions on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is released on bail there is every likelihood that he will influence the key witnesses of the case which might hamper the process of justice. 23 Therefore, mere delay in trial pertaining to grave offences as one involved in the instant case cannot be used as a ground to grant bail. Hence, the aforesaid argument on the behalf the appellant cannot be accepted." 38. Relying on this judgment, Mr. Nataraj, submits that bail is not a fundamental right. Secondly, to be entitled to be enlarged on bail, an accused charged with offences enumerated in Chapters IV and VI of the 1967 Act, must fulfil the conditions specified in Section 43D (5) thereof. We do not accept the first part of this submission. This Court has already accepted right of an accused under the said offences of the 1967 Act to be enlarged on bail founding such right on Article 21 of the Constitution of India. This was in the case of Najeeb (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave proceeded in this judgment accepting the restrictive provisions to be valid and applicable and then dealt with the individual allegations in terms of the proviso to Section 43D (5) of the 1967 Act. Thus, the prosecution's case, so far as the appellant is concerned, does not gain any premium from the reasoning forming the basis of the case of Mazhar Khan (supra)." 16. Advancing his arguments on the issue relating to presumption of innocence vis-à-vis prevention of Money Laundering Act, ld. advocate for the petitioner, has relied upon paragraphs 339 and 340 of the judgment in Vijay Madanlal Choudhary & Ors.-vs.- Union of India & Ors. reported in 2022 SCC OnLine SC 929 which are as follows: 339. Indeed, in a criminal trial, the principle of innocence of the accused/offender is regarded as a human right - as held by this Court in Narendra Singh v. State of M.P. (2004) 10 SCC 699. However, that presumption can be interdicted by a law made by the Parliament/Legislature. It is well-settled that statutory provisions regarding presumptions are nothing but rule of evidence. As observed by this Court in State of W.B. v. Mir Mohammad Omar (2000) 8 382, the pristine rule that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se both Sections 138 and 139 require that the court "shall presume" the liability of the drawer of the cheques for the amounts for which the cheques are drawn, as noted in State of Madras v. A. Vaidyanatha Iyer AIR 1958 SC 61 it is obligatory on the court to raise this presumption in every case where the factual basis for the raising of the presumption had been established. "It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused." (Ibid. at p. 65, para 14.) Such a presumption is a presumption of law, as distinguished from a presumption of fact which describes provisions by which the court "may presume" a certain state of affairs. Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact. 23. In other words, provided the facts require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on the power of the Court to grant bail should not be pushed too far. If the Court, having regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. If such an expansive meaning is given, even likelihood of commission of an offence under Section 279 of the Penal Code, 1860 may debar the Court from releasing the accused on bail. A statute, it is trite, should not be interpreted in such a manner as would lead to absurdity. What would further be necessary on the part of the Court is to see the culpability of the accused and his involvement in the commission of an organised crime either directly or indirectly. The Court at the time of considering the application for grant of bail shall consider the question from the angle as to whether he was possessed of the requisite mens rea. Every little omission or commission, negligence or dereliction may not lead to a possibility of his hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail." 25. This Court is conscious of the fact that Ranjit Singh Brahamjeet Singh Sharma was a judgment on Section 21 (4) MCOCA and that Mohd. Muslim @ Hussain was a judgment on Section 37 of NDPS Act but the proposition as laid down the Apex Court is squarely applicable on the facts of the present case. 26. It is an admitted case that the petitioner herein was a chartered accountant of Anubrata Mondal. The case of the ED is that present petitioner was instrumental in projecting the tainted money as untainted money. The apparent role of the petitioner is filing of the income tax return. It is a settled a proposition that at the stage of consideration of the bail even under PMLA the court has only to see the preponderance of probability. The court at this stage is not required to record the positive finding of acquittal. Such finding can be recorded only after recording and appreciation of the evidence by the learned trial court. The case of the petitioner that Anubrata Mondal is shifting his blame on the petitioner only to save himself has to be teste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... haturvedi -v.- Directorate of Enforcement & Anr.); [(2023) SCC OnLine P&H 6651 (Hartej Singh v. State of Haryana & Anr.); [(2023) SCC OnLine Del 5285 (Pooja Singh -v.- Directorate of Enforcement)]; [(2023) SCC OnLine Pat 2815 (Dhanik Lal Mandal -v.- Union of India)] and [(2023) SCC OnLine Ori 6518 (Archana Nag -v.- Directorate of Enforcement] to emphasise that the twin conditions in Section 45 of the PMLA do not deter the court from granting bail and bail should be granted in such cases by taking into account the broad probabilities and the overall attending circumstances. 20. According to the petitioner, under no circumstances, there is a settled law that once the petitioner is in custody being implicated in a case under the provisions of PMLA, the concept of bail is alien and is outside the scope of the general jurisprudence relating to release, pending trial of the case. 21. Learned advocate for the petitioner also submitted that on any stringent condition, the petitioner may be released on bail as there is no scope for the trial commencing in near future and as the investigation of the case is still in progress, further detention of the petitioner, as such, is unwarranted. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned advocate, the said companies are dummy firms created for routing out the amount which are proceeds of crime. Learned advocate in order to substantiate his contentions emphasised on the twin conditions of Section 45 of the PMLA and to that effect relied upon paragraph 20 of Tarun Kumar Vs. Assistant Director, Directorate of Enforcement reported in 2023 SCC OnLine SC 1486 which is as follows : "20. It is also difficult to countenance the submission of learned Counsel Mr. Luthra that the investigation qua the appellant is complete and the trial of the cases likely to take long time. According to him the appellant ought not to be incarcerated indefinitely merely because the investigation is kept open with regard to the other accused. In this regard, it may be noted that the appellant has not been able to overcome the threshold stipulations contemplated in Section 45 namely he has failed to prima facie prove that he is not guilty of the alleged offence and is not likely to commit any offence while on bail. It cannot be gainsaid that the burden of proof lies on the accused for the purpose of the condition set out in the Section 45 that he is not guilty of such offence. Of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paragraph 380 of the said judgement and submitted that in spite of repeated challenge on the issue relating to the constitutionality of the twin conditions it has been reiterated by the Hon'ble Supreme Court that the twin conditions so imposed are constitutionally valid and do not violate the fundamental right of a citizen. Paragraph 380 of Vijay Madanlal Choudhary (supra) is set out as follows : "380. By the amendment vide Act 13 of 2018, the defects noted by this Court in the aforementioned decision have been duly cured by deleting the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" in Section 45(1) of the 2002 Act and substituted by words "under this Act". The question is: whether it was open to the Parliament to undo the effect of the judgment of this Court declaring the twin conditions unconstitutional? On a fair reading of the judgment, we must observe that although the Court declared the twin conditions as unconstitutional, but it was in the context of the opening part of the sub-section (1) of Section 45, as it stood then, which resulted in discrimination and arbitrariness as noticed in the judgment. But that opening par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been reiterated that the petitioner's locus is distinguishable from the case of Manish Kothari (supra) which has been relied upon by the petitioner as in that case the chartered accountant was getting monthly remuneration while in this case, the petitioner happens to be in an agreement of receiving commission of 2% of the total proceeds which relate to a process or activity connected with the proceeds of crime and was also enjoying the proceeds of crime which is reflected from the amount of seizure which has been effected and the creation of several companies which was detected by OTM CELL of Canara Bank and National Payments Corporation of India. 31. The Enforcement Directorate has opposed the prayer for bail of the present petitioner as according to them, the petitioner has not overcome the twin conditions under Section 45 of the PMLA as also on the grounds that investigation of the case is still in progress for both recovery of immovable assets relating to one of the absconding accused who at the relevant point of time had relation with the present petitioner. 32. I have considered the submissions advanced by Mr. Bhattacharya, learned Advocate appearing for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yardstick of Section 436A of the Code of Criminal Procedure. To that effect also reliance can be made in the case of Manish Sisodia -Vs. - Central Bureau of Investigation, 2023 SCC OnLine SC 1393 and Satyendar Kumar Jain vs. Directorate of Enforcement, 2024 SCC Online SC 317 wherein the right to speedy trial and access to justice is a valuable right as enshrined in the Constitution of India and the provisions of Section 436A of the Code of Criminal Procedure have been held to be applicable in case of provisions of Prevention of Money Laundering Act, 2002 subject to the explanations provided therein. It is a fact that the petitioner is in custody for more than 14 months but the nature of the offence complained of requires time for investigation as the procedure adopted in concealment and its unearthing both are time consuming. It has been submitted by the Enforcement Directorate that not only investigation is continuing but immovable assets which have been the outcome of such proceeds of crime are being traced to countries or abroad and for which time is being consumed. 34. Having regard to the fact that although complaint has been filed in this case but yet further investigation i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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