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TMI Blog2024 (7) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... l on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial'. Thus, at the stage of consideration of bail of a person who is accused of commission of offence of money laundering under PMLA, the Court is not required to conduct a mini trial for the purpose of returning a finding of guilt, rather the material on record is to be examined to reach a conclusion as to whether there are reasonable grounds to believe that the accused is guilty of offence under PMLA. It is clear that the present applicant was part of preparation of the old excise policy and thereafter, the new excise policy was made to suit the co-accused(s) who were to pay kickbacks to the present applicant and co-accused(s) and the party concerned, from the profit so generated due to excise policy drafted to suit the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded by a Magistrate as per law of a person who has now turned approver, was earlier an accomplice or accused, cannot be disregarded at this stage on the ground that his statement is unworthy of credence or there are reasons or motives to falsely implicate the present applicant - This Court, therefore, notes that the sanctity attached to a statement recorded under Section 164 of Cr.P.C., now termed as a statement of the approver, cannot be thrown at the threshold or disregarded for the purpose of consideration as to whether there is material on record, which within the parameters of PMLA, will disentitle the accused to grant of bail when tested on the anvil of Section 45 of PMLA to pass the test of twin conditions for grant of bail. The law regarding such admissibility and the stage when such admissibility can be examined and adjudicated has not been carved out by this Court, but by the enactment of the provisions of Code of Criminal Procedure and Indian Evidence Act and catena of judgments of the Hon‟ble Apex Court in this regard. The court is bound by law and cannot be influenced by the position of any petitioner - HELD THAT:- In the eyes of the law, it is of paramount imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NA KANTA SHARMA, J. 1. By way of present application under Section 439 of the Code of Criminal Procedure, 1973 ( Cr.P.C. ) read with Sections 45 and 65 of the Prevention of Money Laundering Act, 2002 ( PMLA ), the applicant Sh. Sanjay Singh seeks grant of regular bail in case arising out of ECIR No. ECIR/HIU-II/14/2022, registered under Sections 3 and 4 of PMLA. BACKGROUND OF THE CASE 2. The present case has been registered by the Directorate of Enforcement in relation to the predicate offence case registered by the Central Bureau of Investigation ( CBI ). On 17.08.2022, an FIR i.e. RC0032022A0053 had been registered by the CBI for offences punishable under Section 120B read with Section 447A of the Indian Penal Code, 1860 ( IPC ) and Section 7 of Prevention of Corruption Act, 1988, ( PC Act ) on the basis of a complaint dated 20.07.2022 made by the Lieutenant Governor, GNCTD and the directions of competent authority conveyed by Director, Ministry of Home Affairs ( MHA ), Government of India, through letter dated 22.07.2022 and also based on some sourced information, in relation to the irregularities committed in framing and implementation of excise policy of GNCTD for the year 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Court. 4. However, the present applicant was arrested in relation to the present case on 04.10.2023 and was been produced before the learned Trial Court on 05.10.2023, whereby, he was remanded to custody of Directorate of Enforcement for a period of five days and three days vide orders dated 05.10.2023 and 10.10.2023. Thereafter, the present applicant was sent to judicial custody and is presently confined in Central Jail, Tihar, Delhi. Directorate of Enforcement has filed supplementary complaints qua the present applicant and other co- accused persons, 02.12.2023 and 19.12.2023 before the learned Trial Court. 5. The application for grant of regular bail preferred by the applicant herein, was dismissed by the learned Sessions Court vide order dated 22.12.2023, which has been impugned before this Court. SUBMISSIONS ON BEHALF OF THE APPLICANT 6. Sh. Mohit Mathur, learned Senior Counsel appearing on behalf of the applicant argues that the applicant herein has been in judicial custody since 04.10.2023. It is argued that as per Section 19 of PMLA, the concerned officer must have material in possession‟ and that the said expression must be confined, circumscribed and limited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or were part of the amounts paid by them to or collected by the approver Dinesh Arora through some other persons. It is argued that even the exact quantum of alleged proceeds of crime was neither identified nor recovered from the applicant. In these circumstances, custodial interrogation was sought to establish a money trail which clearly establishes that before the arrest there was no material in possession‟ with the investigating agency to record reasons to believe‟ that the applicant is guilty‟ of an offence under PMLA. It is further argued by learned Senior Counsel that upon cumulative reading of the facts, events and allegations in the prosecution‟s case it is evident that the applicant has been arrested based on presumption, assumption, notion or belief based on mere statements of Dinesh Arora who is none other than an accomplice. Moreover, reliance on the statements of Dinesh Arora is fraught with peril and under no circumstances can be the sole basis to conclude the guilt of the applicant under Section 19 of PMLA. 9. Learned Senior Counsel further argues that the applicant can only be enlarged on bail pursuant to the fulfilment of the mandatory twi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of accused persons including Dinesh Arora and Amit Arora. The applicant has also gained illegal money/kickbacks which are proceeds of crime generated from the Excise Policy 2021-22 scam. It is further argued by Sh. S. V. Raju that the evidence collected by the investigating agency against the applicant links him with proceeds of crime to the extent of Rs. 2 crores, and thus, the twin conditions of Section 45 of the PMLA are not satisfied. 13. It is further argued that the applicant has received proceeds of crime to the extent of Rs. 2 crore, which amount had been delivered to the applicant in two instalments of Rs 1 crore each by one Raman Chawla, and it has been duly stated by Ramam Chawla is his statement recorded under Section 50 of PMLA. As per the said statement and other material available on record, the above amounts were delivered to co-accused Sarvesh Mishra, charge-sheeted along with the applicant through the fifth supplementary prosecution complaint, and Sarvesh Mishra had earlier worked as personal assistant of the applicant in the year 2022 and is a close associate of the applicant. The amount to the tune of Rs. 1 crore was delivered to the applicant on two different o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that the above MoU was recovered during the investigation and though it could not be executed due to certain reasons, but there is sufficient oral evidence in the form of statements made by some of the witnesses and accused, including the approver, on different aspects surrounding the preparation of said MoU to show that the applicant was actively involved in formulation of the above excise policy and deciding the terms thereof to suit the requirements of stakeholders thereof against payment of some bribe or kickbacks in the form of getting or giving stake in the above firm. 15. Learned ASG further argues that the statements made under Section 50 of PMLA by the witnesses against the applicant are admissible in evidence and the same cannot be discarded at this stage and has to be considered by this Court as the present application is for the grant of bail. It is submitted that the statements made under Section 50 of PMLA stand on a higher footing than the statement made to the police officials under Section 161 of Cr.P.C. and the credibility of the statements cannot be looked into at this stage, which is a matter of trial. It is further argued that irrespective of the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Government by a general or special order made in this behalf by that Government. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in sub- section (1) is in addition to the limitations under the Code of Criminal Procedure, 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 Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of conditions under section 19 and subject to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation, including to prosecute the person involved, has been enacted, grouping the offenders involved in the process or activity connected with the proceeds of crime as a separate class from ordinary criminals. The offence of money-laundering has been regarded as an aggravated form of crime world over . It is, therefore, a separate class of offence requiring effective and stringent measures to combat the menace of money-laundering. * * * 400. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act. * * * 401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, the statement of Sh. Dinesh Arora was recorded under Section 50 of PMLA on 14.08.2023, wherein he has disclosed that he had given Rs. 2 crores, Rs. 1 crore each time, to Sarvesh Mishra, at the residence of the present applicant Sh. Sanjay Singh in North Avenue, New Delhi, through his employee Raman Chawla. This Court notes that it has been specifically revealed that Rs.1 crore each were given, one in August, 2021 and other between March-April, 2022. He further stated that this amount of Rs. 2 crores was part of bribe received from Sameer Mahendrau and Abhishek Boinpally, i.e. Rs. 1 crore from each of them. Thus, he clarifies that Rs. 2 crores in cash were delivered for the present applicant Sh. Sanjay Singh, to Sarvesh Mishra, close associate of Sh. Sanjay Singh who stays with him at his official residence. He further clarifies that this money was given to him on the instructions of Vijay Nair. The statement further clarifies that, since this money was given at the asking of Vijay Nair, he had received a phone call from Vijay Nair and had met Sh. Sanjay Singh to confirm the same from him. Through his conversation, he had come to know that Sh. Sanjay Singh knew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... August, 2021. He had disclosed that on reaching the residence of Sh. Sanjay Singh, he had contacted Sarvesh Mishra and Sarvesh had sent someone to collect the money from the front gate. He had further disclosed that again in March-April 2022, Dinesh Arora had called him and instructed him to deliver another sum of Rs. 1 crore to Sarvesh Mishra at the residence of present applicant Sh. Sanjay Singh. Statements of Harinder Singh Narula and Earla Chandan Reddy 26. Regarding Dinesh Arora‟s claims of receiving a bribe amount of Rs. 4 crores from Abhishek Boinpally, it's noteworthy that statements from other witnesses corroborate Dinesh Arora's version provided to the investigating agency. Harinder Singh Narula, in his statement recorded on 07.08.2023, disclosed that in March-April 2022, Dinesh Arora had instructed him to visit Abhishek Boinpally‟s office in Defence Colony, Delhi, to collect Rs. 2 crores from a person named Chandan Reddy. He further disclosed that as per Dinesh Arora‟s instructions, he had collected the sum from Abhishek Boinpally‟s office and had delivered it to Dinesh Arora's office in Hauz Khas, Delhi. Similarly, another witness, Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Singh, Amit Arora had explained his business plan of liquor and a clause he wanted to change in the excise policy that suited him and his business. It was there that Sh. Sanjay Singh on the condition that Vivek Tyagi, who was close to him, who later became his parliamentary assistant, be made a partner in the liquor business with Amit Arora. Dinesh Arora also categorically states that Sh. Sanjay Singh had called him and Amit Arora at Sh. Manish Sisodia‟s house and as per the assurance given by Sh. Sanjay Singh, Sh. Sisodia had agreed to change the clause in the Excise Policy of 2020-2021. A MoU in this regard was prepared, Vivek Tyagi was also made a business partner with Amit Arora and Dinesh Arora. He admits that this was done to ensure that Amit Arora would honour his word after change in excise policy was brought about and since Dinesh Arora did not trust Amit Arora. Due to some reason, this policy did not work out and the new policy 2021-2022 came into existence. 31. The above facts are also corroborated by the statements of co- accused Amit Arora and witness Ankit Gupta, recorded under Section 50 of PMLA. 32. Thus, prima facie, it is clear that the present applicant was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, except the proceeds of crime derived or obtained as a result of that crime; and that the ambit of Section 5(1) of PMLA is not limited to the accused named in the criminal activity relating to a scheduled offence. The relevant observations are as under: 269. From the bare language of Section 3 of the 2002 Act, it is amply clear that the offence of money-laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence. The process or activity can be in any form be it one of concealment, possession, 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. * * * 295. As aforesaid, in this backdrop the amendment Act 2 of 2013 came into being. Considering the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. The relevant observations are extracted hereunder: 17. Coming back to Section 3 of the PMLA, on its plain reading, an offence under Section 3 can be committed after a scheduled offence is committed. For example, let us take the case of a person who is unconnected with the scheduled offence, knowingly assists the concealment of the proceeds of crime or knowingly assists the use of proceeds of crime. In that case, he can be held guilty of committing an offence under Section 3 of the PMLA. To give a concrete example, the offences under Sections 384 to 389 of the IPC relating to extortion are scheduled offences included in Paragraph 1 of the Schedule to the PMLA. An accused may commit a crime of extortion covered by Sections 384 to 389 of IPC and extort money. Subsequently, a person unconnected with the offence of extortion may assist the said accused in the concealment of the proceeds of extortion. In such a case, the person who assists the accused in the scheduled offence for concealing the proceeds of the crime of extortion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Court finds no merit in the argument that applicant herein has not been made an accused in the scheduled offence. III. ADMISSIBILITY AND AN EVIDENTIARY VALUE OF STATEMENTS RECORDED UNDER SECTION 50 OF PMLA 40. The statements referred above by this Court, of the approver Dinesh Arora, witnesses namely Raman Chawla, Harinder Singh Narula and E. Chandan Reddy, as well as co-accused Amit Arora and witness Ankit Gupta, are statements recorded under Section 50 of PMLA. 41. As regards the admissibility of statements recorded under Section 50 of PMLA, it is relevant to note that in the case of Rohit Tandon v. Directorate of Enforcement, (2018) 11 SCC 46, three- judge bench of the Hon‟ble Apex Court has held that such statements are admissible in nature and can make out a formidable case about involvement of accused in the offence of money laundering. The relevant observations of the Hon‟ble Apex Court are as under: 31. The prosecution is relying on statements of 26 witnesses/accused already recorded, out of which 7 were considered by the Delhi High Court. These statements are admissible in evidence, in view of Section 50 of the Act of 2002. The same makes out a formidable c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the said issue. Section 133 coupled with Illustration (b) to Section 114, precisely, covers the law on point. These are reproduced hereunder: Section 133. Accomplice - An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (b) to Section 114 (b) The Court may presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars. 47. Privy Council in the case of Bhuboni Sahu v. King, reported as 1949 SCC OnLine PC 12, had observed as under: The law in India relating to the evidence of accomplices stands thus: Even before the passing of the Indian Evidence Act, 1872, it had been held by a Full Bench of the High Court of Calcutta in R. v. Elahee Buksh (1866) 5 W.R. (Cr) 80, that the law relating to accomplice evidence was the same in India as in England. Then came the Indian Evidence Act which by S. 133 enacts that: An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice. Illustration (B) to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d he has been falsely implicated in this case. Thus, the stress is on the argument that the statement of the approver cannot be relied upon even at this stage as it cannot be termed as incriminating against the accused to connect him with the alleged offence. 51. This Court, in this regard, notes that this Court is not examining the constitutional validity of the provision regarding statement of the approver or its evidentiary value but the misuse of it in the present case. In this regard, this Court holds that the approver in the present case was not examined by the officials of Directorate of Enforcement alone under Section 50 of PMLA, which otherwise is admissible in law, but there are statements recorded under Section 164(5) of Cr.P.C. which are recorded before a Magistrate who is legally bound to adopt procedure laid down by law to record such statements. To mention the same, the approver‟s statement is recorded in the following manner: Statement of X u/s 164(5) Cr.PC Without oath The accused/witness has been informed that he is not bound to make the statement and he has been duly cautioned that if he chooses to make the statement, the same can be used against him. The a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... will be adjudged on the touchstone of the cross-examination itself. Therefore, a statement recorded by a Magistrate as per law of a person who has now turned approver, was earlier an accomplice or accused, cannot be disregarded at this stage on the ground that his statement is unworthy of credence or there are reasons or motives to falsely implicate the present applicant. 56. This Court, therefore, notes that the sanctity attached to a statement recorded under Section 164 of Cr.P.C., now termed as a statement of the approver, cannot be thrown at the threshold or disregarded for the purpose of consideration as to whether there is material on record, which within the parameters of PMLA, will disentitle the accused to grant of bail when tested on the anvil of Section 45 of PMLA to pass the test of twin conditions for grant of bail. 57. No doubt the Courts have been cautioned to treat the evidence of the co-accused with circumspection and consider any incentive that the co-accused would have in implicating the accused or as to whether the co-accused has a motive to frame him. However, it is only at the relevant stage of trial that a consideration in this regard is to be made by the lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lace. V. THE COURT IS BOUND BY LAW, AND CANNOT BE INFLUENCED BY THE POSITION OF ANY PETITIONER 64. It is mentioned in ground R‟ of the petition that the applicant is victim of witch-hunt and Standard Modus Operandi adopted by Enforcement Directorate to implicate it‟s given targets wherein the Enforcement Directorate uses illegal measures for recording the statements as per the wish and fancies of the Enforcement Directorate to implicate a targeted person. 65. In this regard, this Court holds that the courts function within the framework of law, and its decisions are guided solely by legal principles and evidence presented, independent of the petitioner's or respondent‟s position or influence. The judiciary is committed to upholding the rule of law and ensuring impartiality in the administration of justice. Regardless of the status or standing of the petitioner or the respondent, the Court remains steadfast in its duty to interpret and apply the law fairly and without bias. 66. In the eyes of the law, it is of paramount importance to maintain impartiality and treat all individuals equally, regardless of their status as public figures or private citizens. While ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licy and the alleged conspiracy to receive illegal gratification in exchange for introducing favorable clauses in the policy to benefit certain businessmen and the meetings which took place at his residence and at the residence of co-accused with assurance of change of clause of Excise Policy of 2020-21. Subsequently, since that excise policy could not materialize another excise policy to suit the liquor lobby was formulated and notified wherein the present applicant received cash amount of Rs. 2 crores at his official residence through Sarvesh Mishra, who was staying with him in his official residence. 69. As far as recovery of the trail of money is concerned, the allegations are to be proved, not at the stage of grant of bail but only when the trial will begin and the testimonies of the witnesses who have made statements regarding payment of money and mode thereof will become clear. In the present case, as per the statement of the approver, the money was paid in the year 2021 and 2022, whereas the statement was recorded and disclosure regarding the same was made in the year 2023, and the reasons for non-disclosure of the same earlier has been given by the approver. There are alle ..... X X X X Extracts X X X X X X X X Extracts X X X X
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