9911796707
TMI Blog2024 (6) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... y or attempting to claim the same to be an untainted property shall come within the sweep of section 3. The expression possession has a definite meaning and connotation and illegal possession of a person over an immovable property is protected in law to a certain extent. The word property within the meaning under clause (v) to section 2(1) of the PMLA includes any property or assets of every description and it can be tangible or intangible. There is a crime registered for forging the revenue records, falsification of the official records and other scheduled offences. This is the case pleaded by the ED that by its timely action the intended acts of forgery and manipulation in the revenue records of the subject property were foiled. The subject property must be considered the proceeds of crime which is in forceful possession of the petitioner and there is prima facie evidence of an attempt to commit the scheduled offences for legalizing the subject property. To constitute the offence of money-laundering under section 3 of the PMLA, this is not necessary to establish that first a crime was committed which included the scheduled offence. It may so happen, as has happened in this case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial custody. At this stage, this is not possible to hold that the ED has proceeded against the petitioner for no reasons. The admissibility or otherwise of the materials collected by the ED can be examined by the Special Court if a prosecution report is filed against the petitioner. The learned ASG rightly contended that the scheme under the PMLA does not contemplate a mini-trial at this stage. The maxim sublato fundamento cadit opus which means when the foundation goes the superstructure falls shall not be applied in case of subsequent remand(s). Every remand order is a separate order and without laying a challenge to the subsequent remand order(s), the accused must fail in his attempt to seek a declaration that his custody is bad in law. The challenge to the remand order dated 2nd February 2024 is of no consequence and it is not demonstrated that the arrest of the petitioner was illegal. Petition dismissed. - Hon'ble The Acting Chief Justice And Hon'ble Mr. Justice Navneet Kumar For the Petitioner : Mr. Kapil Sibal, Sr. Advocate (through V.C), Mr. Rajiv Ranjan, Sr. Advocate, Mr. Piyush Chitresh, Advocate For the Respondents : Mr. S. V. Raju, (A.S.G) (through V.C), Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hold and declare that the action of the respondents in issuing summons to the petitioner in ECIR/RNZO/25/2023 although relatable to and in relation to predicate offence being Sadar P.S. Case 272/23 in District Ranchi although the petitioner is not an accused in the above case nor are the questions and summons being served upon the petitioner is relatable to any Proceeds of Crime connecting the petitioner to the predicate offence and apparently the respondents are indulging in witch hunting in colorable exercise of power. e. Issue a writ of mandamus or any other appropriate writ(s), order(s) or direction(s) in the nature of mandamus restraining the Respondents, their officers, employees, servants etc.to forbear from acting and from giving any or further effect to the summons dated 7.8.23, 18.8.2023, 31.8.2023, 11.09.2023, 25.09.2023, 10.12.2023, 29.12.2023, 16.1.12024, 22.1.2024, 25.1.2024 in relation to ECIR/RNZO/25/2023 by issuing further summons to the Petitioner in the nature of the summons impugned herein; f. Issue an order directing the respondents not to issue any further summons to the petitioner in connection with ECIR/RNZO/ 25/2023 and stay the operation and execution of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber 2023, 29th December 2023, 16th January 2024 and 25th January 2024 for the same purpose of the recording of his statement regarding the properties. On 20th January 2024, his statement was recorded between 1:30 PM and 6:30 PM. On that day, only 17-18 questions were put to him out of which 3-4 questions related to a plot of land at Bargai which the ED alleged to be owned and possessed by him and the other questions were about inaccuracies in the affidavit filed with the Election Commission. 3. The petitioner further pleaded that an inquiry was made from him regarding cash deposit of about Rupees One Crore between 2018 and 2022 in the Bank accounts of Sohrai Bhawan and Sohrai Events that are independently managed by his wife. He endeavored to explain that the money so deposited over the years was received in installments from letting out of the marriage hall and by providing event management services and all such receipts had been the subject matter of the assessment for Income Tax and Service Tax. He has raised a grievance also against the Central Bureau of Investigation which conducted an inquiry and submitted reports dated 6th January 2021, 1st July 2021 and 29th June 2022 wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r and Circle Amins were also present with the officials of the ED and it became clear during the survey that the subject property was in illegal possession of the petitioner. Santosh Munda who was found residing with his family in a temporary settlement inside the subject property stated before the ED that the subject property is in the occupation, use and possession of the petitioner. In the affidavit-in-opposition, the survey conducted on 20th April 2023 has been narrated in the following manner: 41. Conclusion of the Survey conducted on 20.04.2023 under section 16 of PMLA, 2002 and Statements which indicate that the property admeasuring 8.5 acres (approx.) is illegally possessed and used by Petitioner: On reaching the premise, it was seen that it was a very big land bounded by stone walls. There was one temporary settlement in which a family consisting of five person (including 2 kids) were residing. On enquiry about the ownership of the land, one lady (name withheld) residing and available there stated that the land owner of the said land is Shri Hemant Soren. It was further enquired about any male person who was residing there and can come for the enquiry at the spot. Accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Moti Sahu 20 Kattha (322/88-89/ 23.01.89) Neel Ratan Rai 10 Decimals (537R27/ 78-79/21.08.78) 86/V 87/V 183/I Inside the boundary 227 993 0.41 acres Bakaast Bhuinhari Jamabandi not available Inside the boundary 234 996 0.32 acres Bakaast Bhuinhari Uma Shankar Jaiswal 17 Katta (202R27/86-87/ 06.08.86) 119/IV Inside the boundary 210 980 42 decimals Bakaast Bhuinhari Vanivrat Rai s/o Yamini Mohan Rai, Shri Narayan Chaudhary s/o- Vashaam Chaudhary 220R 27/ 87-88 14/V Inside the boundary 6. According to the ED, the Register-II containing details of several plots were not available and Online records available in the Circle Office were found to contain contradictory details. The ED seized the WhatsApp chats of Binod Singh who is being investigated in ECIR/ RNZO/07/2023 and then it was revealed that there was a proposal to construct a Banquet Hall over the subject property, and the proposed plan/map of the Banquet Hall was shared by Binod Singh to the petitioner on 6th April 2021. The ED has criticized the conduct of the petitioner in not cooperating during the inquiry and recording of his statement. On 20th January 2024, while recording his statement under section 50 of the PMLA the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust 2023, 31st August 2023, 11th September 2023, 25th September 2023, 10th December 2023, 29th December 2023, 16th January 2024, 22nd January 2024 and 25th January 2024 had lapsed by the time this writ petition came to be filed and therefore no relief can be granted to the petitioner and the present proceeding must terminate; and, the writ petition should meet with the same fate as W.P.(Cr.) No.787 of 2023. 8. On a previous occasion, W.P (Cr.) No. 787 of 2023 was filed by the petitioner with the following prayers: a. Declare Section 50 and Section 63 of the Prevention of Money Laundering Act, 2002 as ultra vires to the Constitution of India; and b. Issue a writ of mandamus and/or other appropriate writ(s), order(s) or direction(s) in the nature of mandamus to declare the summons bearing Nos. PMLA/SUMMON/RNZO/2023/450 dated 07.08.2023, PMLA/ SUMMON/ RNZO/ 2023/ 458 dated 18.08.2023, PMLA/ SUMMON/ RNZO/ 2023/ 506/1957 dated 31.08.2023 and PMLA/SUMMON/RNZO/ 2023/545 dated 11.09.2023 issued by the Respondent No.2 illegal and null and void and accordingly quash the impugned summons and all steps taken and proceedings emanating therefrom; c. Issue a writ of mandamus or any other appropri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry (supra) and, therefore, this Court does not have any jurisdiction to entertain the writ petition on that ground. 6) Learned Senior Advocate Cum Additional Solicitor General Mr. S.V. Raju would submit that the Writ Petition (Criminal) challenging the summons has become infructuous by efflux of time as the date of appearance of the petitioner has already elapsed and, therefore, at present this Court should not interfere in the matter, because no substantial relief can be granted to the petitioner. Only an academic discussion is not to be resonated to in by the Court so that valuable time of the Court is not wasted. 7) In view of aforesaid submissions and the settled position of law that the Hon ble Supreme Court in Vijay Madanlal Choudhary s case (supra) has already ruled that the two provisions, referred to above, are not ultra vires of the Constitution and that the summons, which have been issued to the petitioner, have become infructuous because of efflux of time, we are of the opinion that the writ application is not maintainable. Hence, we do not entertain the writ application and consider that it is not a fit case to rule nisi the respondents. Hence, the writ petition is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the competent appellate or revisional forum. The orders of remand passed by the Judicial Magistrate and the Special Court, Gurugram had dealt with merits of the matter and whether continued detention of the accused was justified or not. After going into the relevant issues on merits, the accused were remanded to further police custody. These orders were not put in challenge before the High Court. It was, therefore, not open to the High Court to entertain challenge with regard to correctness of those orders. The High Court, however, considered the matter from the standpoint whether the initial order of arrest itself was valid or not and found that such legality could not be sanctified by subsequent order of remand. Principally, the issue which was raised before the High Court was whether the arrest could be effected after period of investigation, as stipulated in the said order dated 20-6-2018 had come to an end. The supplementary issue was the effect of extension of time as granted on 14-12-2018. It is true that the arrest was effected when the period had expired but by the time the High Court entertained the petition, there was an order of extension passed by the Central G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided in a judicial order. While in the former case a writ of habeas corpus may be entertained, in the latter the only remedy available is to seek a relief statutorily given. In other words, a challenge to an order of remand on merit has to be made in tune with the statute, while non-compliance of a provision may entitle a party to invoke the extraordinary jurisdiction. In an arrest under Section 19 of the PMLA, 2002 a writ would lie only when a person is not produced before the court as mandated under sub-section (3), since it becomes a judicial custody thereafter and the court concerned would be in a better position to consider due compliance. 30. Suffice it is to state that when reasons are found, a remedy over an order of remand lies elsewhere. Similarly, no such writ would be maintainable when there is no express challenge to a remand order passed in exercise of a judicial function by a Magistrate. State of Maharashtra v. Tasneem Rizwan Siddiquee: (SCC p. 751, para 10) 10. The question as to whether a writ of habeas corpus could be maintained in respect of a person who is in police custody pursuant to a remand order passed by the jurisdictional Magistrate in connection with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) compelling a person to give a statement unless it has reasons to believe that any assets was acquired with the proceeds of crime generated from a predicate offence. The learned senior counsel further submitted that the summons issued to the petitioner were quite cryptic and did not provide any information as regards the commission of scheduled offence leading to the proceeds of crime, and it was for the first time that in the summons dated 29th December 2023 the ED disclosed about the ongoing investigation in connection with the tampering/falsification of the Government records by Bhanu Pratap Prasad and others. The nature of the subject land at Bargai is bhuinhari land which cannot be transferred or sold to any person in any manner and the allegation against the petitioner regarding the said property is wrong and misconceived. It is submitted that a complaint made 14 years after the alleged forceful acquisition of the subject property and that too without any documentary evidence as to transfer of the subject property in favor of the petitioner shall not provide any valid ground to the ED to issue summons to him in connection therewith and start a motivated inquiry to clip his w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afide reasons, is not based on any legal and factual foundation. The law enjoins every person to speak the truth. This is not something alien to the criminal jurisprudence that a person is bound to answer a question if the fact is within his exclusive knowledge. Just to indicate, section 132 of the Indian Evidence Act provides that a witness cannot take an excuse not to answer any question upon the ground that the answer to such question will criminate, or may tend directly or indirectly to criminate him, or that it will expose or tend directly or indirectly to expose him to a penalty or forfeiture of any kind. A person is not excused from answering any question as to any matter relevant to the matter in issue in any civil or criminal proceeding. The right to remain silent is a Constitutional guarantee against self-incrimination but the exercise of this right does not provide immunity from prosecution of the person in a criminal case. The use of confessions in law had started with the Tudors and Stuarts. At least since middle of 17th century confessions were used as evidence without scruple [Wigmore in Wigmore on Evidence (2nd Ed.), Vol. 2, p. 131] . The Latin phrase habemus optimu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent compliance of mandate of Article 22(1) of the Constitution. Moreover, the arrested person before being produced before the Special Court within twenty-four hours or for that purposes of remand on each occasion, the Court is free to look into the relevant records made available by the Authority about the involvement of the arrested person in the offence of money-laundering. In any case, upon filing of the complaint before the statutory period provided in 1973 Code, after arrest, the person would get all relevant materials forming part of the complaint filed by the Authority under Section 44(1)(b) of the 2002 Act before the Special Court. 459. Viewed thus, supply of ECIR in every case to person concerned is not mandatory. From the submissions made across the Bar, it is noticed that in some cases ED has furnished copy of ECIR to the person before filing of the complaint. That does not mean that in every case same procedure must be followed. It is enough, if ED at the time of arrest, contemporaneously discloses the grounds of such arrest to such person. Suffice it to observe that ECIR cannot be equated with an FIR which is mandatorily required to be recorded and supplied to the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the petitioner who is not an accused in Sadar PS Case No. 272 of 2023 with the aid of section 120-B of the Indian Penal Code, the ED must show that there was a criminal conspiracy among the accused persons to commit one or the other offences included in Parts A, B and C of the Schedule. It is contended that the petitioner not being accused of committing a scheduled offence and not connected with any proceeds of crime cannot be prosecuted. We do not find any substance in this submission. In a series of pronouncements, the Hon ble Supreme Court held that it is not necessary that the person accused of the offence of money-laundering was made an accused in the First Information Report lodged for the commission of a predicate offence. A decision on the point is found in Y. Balaji [Y. Balaji v. Karthik Desari: 2023 SCC OnLine SC 645] where the issue contested was whether mere registration of a First Information Report for a predicate offence which may be a scheduled offence is sufficient for the ED to register an ECIR and summon a person under section 50 of the PMLA. On behalf of the accused, it was contended that unless the commission of the scheduled offence generated proceeds of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 023 of the ED to the Chief Secretary reads as under: F.No. ECIR/RNZO/18/2022/904 Dated: 04.05.2023 To, The Chief Secretary, Project Bhawan, Dhurwa Government of Jharkhand Ranchi, Jharkhand. Subject: Investigation under the provisions of the Prevention of Money Laundering Act, 2002-reg. Sir, This office is investigating a case pertaining to illegal acquisition/disposal of land by a few private persons in conspiracy with brokers and certain officials of land revenue department. During the course of investigation, searches have been conducted on 13.04.2023 and 26.04.2023 at several premises linked to the above persons and several incriminating evidences have been seized. During investigation, seven persons have been arrested in this case including Bhanu Pratap Prasad, Revenue Sub-Inspector, Baragai, Ranchi. A report in this matter has also been forwarded to your good office. 2. During searches on 13.04.2023, the following 17 original registers were seized from the premises under use and occupation of Bhanu Pratap Prasad and 11 trunks of records/documents related to landed properties including several deeds: 3. Investigation conducted by this office has revealed that several entries/pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Afsar All and his above-named accomplices for obtaining illegal benefits and causing corresponding gain to other persons. 8. The act of the above-mentioned accused persons prima facie appears to be offences under section(s) 465, 467, 468, 469, 471, 472, 473, 475, 476 and 120(B) of IPC, 1860, Offences under the Information Technology Act, 2000 as well as the offences under section 7 and section 13 of the Prevention of Corruption Act, 1988. Hence, it is proper to share the information under section 66(2) of PMLA. The provisions of section 66(2) of PMLA are as under: ..If the Director or other authority specified under sub-section (1) is of the opinion, on the basis of information or material in his possession, that the provisions of any other law for the time being in force are contravened, then the Director or such other authority shall share the information with the concerned agency for necessary action.. The legal sanctity of the said provision is further explained by Hon'ble Supreme Court of India in para 282 and para 290 in case of Vijay Madanlal Chaudhary others (2022 SCC Online SC 929) 9. The Hon'ble Supreme Court of India in its order dated 12.11.2013 in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ails of the subject property, and he admitted that the subject property belonged to the petitioner. The ED claimed that the value of this property is about 30 crores as per the existing government rate and the prevailing fair market value of this property is much higher. In the circumstances of the case, Pavana Dibbur [Pavana Dibbur v. The Directorate of Enforcement : Criminal Appeal No.2779 of 2023] does not come in aid to the petitioner. 23. The main plank of the petitioner is that mere forceful possession of the subject property cannot be the proceeds of crime covered under section 2(1)(u) of the PMLA. Mr. Kapil Sibal, the learned senior counsel contended that the whole basis of the proceedings against the petitioner is the statement of a few persons recorded under section 50 of the PMLA and the ED had no other material before it based on which the arresting officer could have reason to believe that the petitioner is guilty of the offence under the PMLA. The learned senior counsel endeavored to show how the ED started sending summons to the petitioner for recording his statement under section 50 and in hot haste the statement of witnesses was recorded within two days. In simple ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt was pleased to remand the accused person into the custody of the Directorate of Enforcement for five days vide order dated 02.02.2024, subsequently, remand was extended for another five days and then for three days vide order dated 07.02.2024 and 12.02.2024 respectively, after perusing the records and materials relating to the case and the arrest of the accused. 52. That, during the custody, the Petitioner was confronted with the materials available with this office. The accused has been showing acute non- cooperation and is reluctant to divulge true facts regarding the properties acquired by him and other persons connected to him. 53. That, the accused was also confronted with his chats over WhatsApp with his close associate Binod Singh which are highly incriminating and contain details of several properties, However, the accused person refused to oven sign and acknowledge the printout of the WhatsApp chats, although, he has admitted that there are conversations between them. 54. That, the above stated WhatsApp chat not only include the exchange of confidential information regarding several properties but other incriminating information relating to transfer posting, sharing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Thus, involvement in any one of such process or activity connected with the proceeds of crime would constitute offence of money-laundering. This offence otherwise has nothing to do with the criminal activity relating to a scheduled offence except the proceeds of crime derived or obtained as a result of that crime. 270. Needless to mention that such process or activity can be indulged in only after the property is derived or obtained as a result of criminal activity (a scheduled offence). It would be an offence of moneylaundering to indulge in or to assist or being party to the process or activity connected with the proceeds of crime; and such process or activity in a given fact situation may be a continuing offence, irrespective of the date and time of commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... follow that the interpretation put forth by the respondent will further the purposes and objectives behind the 2002 Act and also adequately address the recommendations and doubts of the international body whilst keeping in mind the constitutional limits. It would, therefore, be just to sustain the argument that the amendment by way of the Explanation has been brought about only to clarify the already present words, any and including which manifests the true meaning of the definition and clarifies the mist around its true nature. 25. In Vijay Madanlal Choudhary (supra) the Hon ble Supreme Court held that the continued possession or concealment of the proceeds of crime whether fully or in part shall attract the offence of money-laundering under the PMLA. In paragraph no. 270 of the reported judgment, the Hon ble Supreme Court held that it would be an offence of money-laundering to indulge in or to assist or be a party to the process or activity connected with the proceeds of crime; and such process and activity in a given factsituation may be a continuing offence irrespective of the date and time of the commission of the scheduled offence. By way of an example, it has been clarified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rist and a Judge of the Supreme Court of the United States once said: a word is not a crystal, transparent and unchanged, it is the skin of the living thought and may vary greatly in color and content according to the circumstances and time in which it is used . In Maganlal Chhaganlal (P) Ltd. [Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay : (1974) 2 SCC 402] the Hon ble Supreme Court advancing a pragmatic approach made the following significant observations; 22 As in life so in law things are not static. Fresh vistas and horizons may reveal themselves as a result of the impact of new ideas and developments in different fields of life. Law, if it has to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognized that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on possession has a definite meaning and connotation and illegal possession of a person over an immovable property is protected in law to a certain extent. The word property within the meaning under clause (v) to section 2(1) of the PMLA includes any property or assets of every description and it can be tangible or intangible. There is a crime registered for forging the revenue records, falsification of the official records and other scheduled offences. This is the case pleaded by the ED that by its timely action the intended acts of forgery and manipulation in the revenue records of the subject property were foiled. The Register-II and other revenue records pertaining to the subject property were found missing in the Circle Office. Those documents were seized by the ED in the course of a search conducted at the premises/rented premises of Bhanu Pratap Prasad whose association with the petitioner has been brought on record. In our opinion, any attempt to commit a scheduled offence has to be read in section 2(1)(u) of the PMLA as the expression any criminal activity relating to a scheduled offence shall encompass an attempt to commit a scheduled offence. We are fortified in our view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence of forgery is the making of any written instrument for fraud or deceit. This is implicit in the alleged commission of the scheduled offence under sections 420, 467 and 471 of the Indian Penal Code which are included in Part-A to the Schedule that there were acts and omissions towards wrongful gains by forging valuable security. The term wrongful gain as defined under section 23 of the Indian Penal Code refers to any gain by unlawful means of the property to which the person gaining is not legally entitled. Similarly, the expression wrongful loss means the loss by unlawful means of property to which the person losing it is legally entitled. The words valuable security denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability or, has not a certain legal right. This is the prosecution case that the petitioner is in continuing possession, use, and concealment of the properties and there are strong reasons to believe that he knowingly indulged in such processes and activities to acquire several landed proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the proceeds of crime and the story concocted by the ED is false and based on surmises and conjectures. In reply thereto, the ED contended that the petitioner is a party to the activities connected with the concealment of the original records for projecting the subject property as an untainted acquisition. The petitioner in league with Bhanu Pratap Prasad who is accused of committing a predicate offence has been involved in concealment and falsification of the records. 32. The validity of section 19 of the PMLA was under challenge in Vijay Madanlal Choudhary (supra). The Hon ble Supreme Court held that this provision has reasonable nexus with the purposes and objects of prevention of money-laundering and confiscation of the proceeds of crime involved in money-laundering and prosecution of the persons involved in the processes or activities connected with the proceeds of crime under the PMLA Act; the Constitutional validity of section 19 was upheld. Section 167 of the Code of Criminal Procedure empowers the Judicial Magistrate to authorize the detention of an accused in the custody of the police and, until the accused is committed the Court of Sessions, the Magistrate is vested ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) The Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-section, to the Adjudicating Authority, in a sealed envelope, in the manner as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed. (3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a Special Court or Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction: Provided that the period of twenty-four hours shall exclude the time necessary for the journey from the place of arrest to the Special Court or Magistrate's Court. 34. The provisions under section 19 of the PMLA are clear and unambiguous. The power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, shared with Jharkhand Government under section 66(2) of PMLA, an FIR bearing no 272/23 dated 01/06/23 was registered by PS Sadar, Ranchi against one Bhanu Pratap Prasad, Revenue Sub Inspector under section 465/467/468/469/476/466/420/379/474 of IPC. Further, on the basis of the FIR no. 272/2023 registered by Sadar P. S, Ranchi, ECIR bearing no RNZO/25/2023 was recorded by Directorate of Enforcement, Ranchi Zonal office on 26.06.2023. The information shared under section 66(2) by ED is integral part of the FIR lodged by the Ranchi Police under section 465/467/468/469/471/466/420/379/474 of IPC out of which section 420, 467 and 471 are schedule offences. 3. The investigation into the above matter has revealed Bhanu Pratap Prasad (Revenue Sub-Inspector, Circle Office, Baragai, Ranchi) and others are a part of a very large syndicate, involved in corrupt practices of acquiring properties forcefully as well as on the basis of false deeds, falsification of government records, tampering with original revenue documents etc. 4. It is revealed that the said Bhanu Pratap Prasad was actively involved in hatching conspiracies with other persons to acquire and conceal various properties in il ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s he is still enjoying the said proceeds of crime by its possession, occupation and use by claiming it as an untainted property. 10. Considering the facts and circumstances as stated above, and taking into consideration the activities and processes of money laundering in which Shri Hemant Soren is directly involved and is also a party with the said Bhanu Pratap Prasad and others, there are sufficient reasons to believe that Shri Hemant Soren is guilty of the offence of money laundering as per section 3 of PMLA. 11. Hence as discussed above, Shri Hemant Soren is actually and knowingly involved in the processes and activities connected with the acquisition, concealment, possession and use of proceeds of crime and projecting the said proceeds of crime as untainted property. As such, he is guilty of the offence of money laundering as defined under section 3 of PMLA and he is liable to be arrested under section 19 of PMLA, 2002. Accordingly, I Deovrat Jha, Assistant Director, on the reasons as stated above, have reasonable grounds to arrest Shri Hemant Soren and as such I am invoking the powers of arrest conferred upon me under section 19 of the PMLA, 2002 in the interest of ongoing inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchal Gramin Bank: (2008) 12 SCC 292] the Hon ble Supreme Court elucidated the law on the subject as under: 34. Thus, as a proposition of law, the burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under the legal obligation to place specific materials before the court to substantiate the said allegations. There has to be very strong and convincing evidence to establish the allegations of mala fides specifically and definitely alleged in the petition as the same cannot merely be presumed. The presumption under law is in favour of the bona fides of the order unless contradicted by acceptable material. 37. The discussions in the order dated 2nd February 2024 passed by the Spl. Judge under PMLA in ECIR- 6 of 2023, Ranchi read as under: In view of the rival argument forwarded by the parties and on perusal of the case record, it transpires that the official complaint vide Enforcement Case Information Report (ECIR) No. RNZO/25/2023 has been lodged and now it is alleged that the accused has illegally possessed 8.45 acres of immovable assets in his favour and that assets has been termed as proceeds of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, in the light of discussion made hereinabove, the petition filed on behalf of I.O. (ED) is hereby allowed. Let a copy of this order be given to Investigating Officer (ED) and Jail Superintendent, BMC, Jail Hotwar, Ranchi for information and needful. 38. The requirement in section 19 that the arresting officer must have reason to believe before he may arrest a person is not that of strict proof. The test which shall be employed to examine the materials pertaining to reason to believe must necessarily be the preponderance of probability. While examining the petitioner s stand that there is no material even remotely suggesting his involvement in the commission of the offence under section 3, this must be remembered that the only requirement in law is that the decision to arrest the accused should prima facie reflect the application of mind. The word prima facie is a Latin expression that means at first sight . The literal translation of the Latin prima facie would be at first phase or at first appearance . In legal parlance, the term prima facie is used to convey that there exists corroborative evidence to support a case. The role of Bhanu Pratap Prasad who was posted at Bargai Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of 2023. The recovery of huge cash from his Delhi residence is not denied by the petitioner and the excuse of the illness of his parents for keeping more than 36 lacs in cash prima facie looks untenable. In this state of affairs, by raising a technical plea the petitioner cannot wriggle out of the mess he created for himself. Like the last resort to a losing litigant, an anxious petitioner has raised the bogey of political vendetta. The case set up by the ED against the petitioner is not based only on the statements recorded under section 50 of the PMLA including of those who claimed themselves real owners of the properties in question, there is an abundance of documents that lay a foundation for the arrest and remand of the petitioner to police and judicial custody. At this stage, this is not possible to hold that the ED has proceeded against the petitioner for no reasons. The admissibility or otherwise of the materials collected by the ED can be examined by the Special Court if a prosecution report is filed against the petitioner. The learned ASG rightly contended that the scheme under the PMLA does not contemplate a mini-trial at this stage. 40. Lastly, there is no challenge b ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
