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TMI Blog2024 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point.' From a conspectus of the judgements in Satyendar Kumar Jain [ 2024 (3) TMI 862 - SUPREME COURT ] and Vijay Madanlal [ 2022 (7) TMI 1316 - SUPREME COURT ], it is clear that the present bail application will have to be considered on the touchstone and anvil of the twin conditions under Section 45 of PMLA and Court will have to arrive at a prima facie satisfaction that the applicant crosses the threshold. Based on the evidence disclosed in the predicate offence, present ECIR was registered against the applicant. Conscious of the settled legal position that at the stage of considering a bail application this Court is not to enter into a meticulous examination of the statements of the witnesses or hold a mini-trial, the case set up by the ED and the defence set up by the applicant examined only to satisfy whether there are reasonable gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ripudaman Sharma, Mr. Abhishek Batra, Mr. Vashisht Rao and Mr. Syamantak Modgill, Advocates. JUDGEMENT JYOTI SINGH, J. 1. Present bail application has been preferred on behalf of Mohd. Enamul Haque S/o late Haji Abdul Hussain under Section 439 Cr.P.C. through his brother and pairokar Abdul Hannan, seeking regular bail in CC No. 13/2022 arising out of ECIR/KLZO/41/2020 registered by Directorate of Enforcement ( ED ) under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA ). 2. Status report has been filed on behalf of ED. Case of the prosecution is that Central Bureau of Investigation ( CBI ), Kolkata registered an FIR No. RC0102020A0019 dated 21.09.2020 against Satish Kumar, the then Commandant, 36 Battalion, BSF and Md. Enamul Haque (applicant herein), Md. Anarul SK, Md. Golam Mustafa and other unknown officials of the Border Security Forces (hereinafter referred to as BSF ) and Indian Customs Department and some unknown private persons, for commission of offences under Section 120B IPC and Sections 7, 11 and 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act ) at PS: ACB, Kolkata. FIR disclosed commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions led to recovery of a diary of Manoj Sana in which there were entries pertaining to cash entrusted to him by the applicant, which were PoC obtained from cattle smuggling by the applicant. Analysis of entries reflected that Rs. 3.45 Crores were deposited in cash in the joint bank account of Badal Krishna Sanyal and Tania Sanyal maintained with Axis Bank, mainly through Manoj Sana. Cash deposit slips collected from the Bank, diary of Manoj Sana, statements of his brother Babla Sana, Neeraj Kumar Aggarwal and Sanjay Jaiswal revealed that Manoj Sana was a cash handler of the applicant and his three nephews, who were promoters of JHM Group of Companies and Manoj Sana was working on their directions. 6. It is stated that applicant and promoters of JHM Group of Companies initially worked together and were engaged in the trade of import and export of rice, stone chips, agro-commodities etc. and the business was carried on in the same building i.e. MK Point, 27-Bentinek Street, Kolkata. Applicant and his nephew Jehangir Alam were involved in cattle auction by the customs. As per statement of Sanjay Jaiswal, Biswajit Malakar, Accountant and Director of JHM Group used to seek accommodatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribe given by the applicant and promoters of JHM Group to Satish Kumar for providing protection in cattle smuggling in the area under his command at Malda and Murshidabad in West Bengal. Huge amount of Rs. 12.8 Crores was thus generated and laundered. 9. It is stated that several other entries in the diary of Manoj Sana revealed that Vinay Mishra and his brother had received PoC of Rs. 6.1 Crores between December, 2016 and March, 2017 from Manoj Sana on different dates. M/s. Hoque Mercantile Pvt. Ltd. ( HMPL ), one of the group companies, controlled and managed by the applicant, incorporated on 07.10.2015, with an initial capital of Rs.1 lac showed exponential growth in turnover from Nil in Financial Year 2015-16 to Rs. 18.58 Crores in Financial Year 2016-17 and Rs. 173.75 Crores in Financial Year 2017-18, which was only possible with huge cash generation from cattle smuggling. The company attempted to show the source and growth in its turnover on account of export of agri-products but statements of Sanjay Jaiswal and Shreeprakash Jaiswal revealed that they provided bogus bills for purchase of export products like rice. During further investigation, it came to light that during Fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore purchase of the CR Park Property. Further, cash deposit of Rs.1.32 Crores was made in Bank of Baroda from 23.04.2018 to 23.10.2018. Investigation showed that cash deposits were transferred to the aforesaid ICICI Bank account of HIPL, which were used for acquiring CR Park Property. SUBMISSIONS ON BEHALF OF THE APPLICANT 12. Applicant is innocent and has been falsely implicated in the present case. In order to constitute an offence under Section 3 of PMLA, two steps are required to be proved by the prosecution. Firstly, there must be generation of PoC and secondly, there must be an effort to conceal PoC as untainted money. PoC as defined under Section 2(u) of the PMLA means money/property, which is directly/indirectly generated from the commission of a scheduled offence. A bare perusal of the complaint makes it apparent that PoC are not identified against the applicant by the ED and further, ED has failed to disclose how the money belonging to the applicant is generated from the scheduled offence. 13. Prosecution complaint as a whole is based on a mere presumption under Section 23 of PMLA that money of the applicant is PoC/tainted money, without first establishing that the money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pite registration of ECIR in September, 2020, applicant was never asked to join investigation nor was any application filed for custodial interrogation. 16. Applicant purchased 6,680 cattle during the years 2015-2016 through an open auction organized by Customs Department, Jangipur, Murshidabad and cattle were thereafter sold by the applicant at Mallick Haat, Hiyatnagar, Birbhum. These sales were legal and made in the ordinary course of applicant s legitimate business and the purchases and sales were duly reflected in the income tax returns filed for the Assessment Year 2016-17. Likewise, in the Financial Year 2016-17, applicant purchased 9,735 cattle in open auctions and the sales/purchases were reflected in the income tax returns filed for the Assessment Year 2017-18. Balance-sheets placed on record and the IT returns seized by the CBI during search and seizure operation, substantiate the aforesaid stance of the applicant. 17. As per the case of ED, applicant along with JHM Group arranged to deposit Rs. 12.8 Crores in cash, in the joint bank account of Badal Krishna Sanyal and Tania Sanyal through his employee Manoj Sana. This money was allegedly given as bribe to Satish Kumar fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secution has failed to show any nexus between the predicate offence of cattle smuggling and the alleged PoC attributed to the applicant in the present ECIR and mere possession of unaccounted wealth in the hands of a person does not constitute PoC or justify prosecution under PMLA. Prosecution has also failed to carry out any independent investigation to trace the funds to the scheduled offence, which is essential for the determination of these funds to be proceeds of crime warranting prosecution under PMLA. The only basis for ED to link the turnover of HMPL to the predicate offence is the huge turnover of the company in the same period as the period of alleged offence and there is no independent material to indicate that the turnover/profits of HMPL had any connection, direct or indirect with the alleged cattle smuggling and the stand of the applicant is vindicated by CBI s own forensic audit where no suspicious transactions are shown in these accounts. The Kerala High Court directed de-freezing of all 26 bank accounts of the applicant. Statements of Sanjay Jaiswal and Shreeprakash Jaiswal recorded under Section 50 of PMLA relied upon by the prosecution in this regard, cannot be lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... awback claims by HMPL revealing that Rs. 6.1 Crores were received as remittances for export of fabrics, whereas the value of export declared at Dubai Customs was less than 2% of value of export declared with Indian customs and this was the PoC generated from cattle smuggling. This presumption is entirely misconceived. No material has been produced to substantiate a link between the revenue of Rs. 6.1 Crores and alleged cattle smuggling. Commissioner of Customs, Chennai had passed an order imposing penalties on HMPL for claiming duty drawback on bogus export of fabrics to Dubai but the allegation did not even remotely suggest that export revenue was generated from alleged cattle smuggling. 20. Bhuvan Bhaskar, son of Satish Kumar, was employed at HIPL from May, 2017 but applicant was unaware that he was the son of Satish Kumar. Moreover, the period of employment commenced from May, 2017 whereas the period of alleged offence ended in April, 2017. Statement of Bhuvan Bhaskar in this context is relevant that he had applied for a job in the company basis an open advertisement and his selection was on merit after successfully clearing the interview. 21. The Supreme Court in Vijay Madanlal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not released on bail till conclusion of the trial, grave injustice and hardship shall be caused and incarceration will be contrary to the judgment of the Supreme Court in State of Kerala v. Raneef, (2011) 1 SCC 784 . Whatever be the nature of the offence, general principles of bail cannot be overshadowed, especially that bail is the rule and jail is an exception. Applicant has deep roots in the society and his family permanently resides in India. Applicant has businesses in Kolkata for the last several years and there is no possibility of his escaping the rigours of law or not being available for trial. [ Ref. Ashok Sagar v. State (NCT of Delhi), 2018 SCC OnLine Del 9548.] 23. It is imperative that applicant is released on bail so that he is able to properly and effectively prepare his defence, which is a step towards fair trial. While in custody, applicant will not be able to effectively instruct his counsel and judicial custody will prejudice his defence in the trial. [ Ref. Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, (1980) 2 SCC 565]. 24. Applicant is suffering from various medical ailments such as diabetes, hemorrhoids, lower back ache, painful defecation, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Directorate of Enforcement, 2023 SCC OnLine Del 4173. 26. There is ample evidence on record to link the applicant to the commission of offence of money laundering and his release on bail will hamper the on-going investigation to unearth the deep-rooted multi-layered conspiracy. Emphasizing on the role played by the applicant in money laundering, it was brought forth that: - (a) Applicant alongwith his nephews Md. Jehangir Alam, Md. Humayun Kabir and Md. Mehedi Hassan deposited around Rs. 12.8 Crores in cash into the joint bank account of Badal Krishna Sanyal and Mrs. Tania Sanyal through his staff mainly Manoj Sana as a bribe to Satish Kumar, the then Commandant, 36 Battalion, BSF for providing protection and patronage in the predicate offence of cattle smuggling. The primary evidence in the case are the cash deposit slips signed by Manoj Sana and the diary entries are corroborated by the cash deposit slips, which reflect deposit of a sum of Rs. 3.45 Crores, in the name of Satish Kumar by Manoj Sana in the joint bank account of Badal Krishna Sanyal and Tania Sanyal. Furthermore, in view of Section 23 of PMLA it can be presumed that all deposits are inter-connected and the amounts s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2017-18. This huge jump matches with the cash generation from cattle smuggling under the patronage of Satish Kumar. Company attempted to show the source of the growth in turnover from the export of agri-products, however, statements of Sanjay Jaiswal and Shreeprakash Jaiswal revealed that they had provided bogus bills for purchase of export products such as rice. (d) Applicant purchased CR Park Property in the name of one of his companies HIPL, which is beneficially owned by him and his family members. The fund for acquiring this property was routed in the bank accounts of HIPL from various other bank accounts of HIPL and HMPL (another group company of the applicant and his close family members). It was revealed that these funds were PoC generated from illegal cattle smuggling, which have been routed back in the guise of fake remittance received from Dubai on account of export of fabrics. Investigation further revealed that the PoC travelled to New Delhi, which was used to purchase the CR Park Property. The entire payment of Rs.5.19 Crores for purchase of the CR Park Property in the name of HIPL has been made from ICICI Bank A/c No. 000605031638. On perusal of the bank statement of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prices of the cattle involved in the smuggling by the applicant. On realising the need of having documents pertaining to the cattle procured by him through auction by Customs Department, applicant approached one Aftabuddin Mallick, Haat owner for arranging fake bills, showing sale of cattle on various dates at the Haat by the applicant from 2016 onwards. Plea of the applicant that the sales and the proceeds were reflected in the income tax returns does not aid him inasmuch as the Income Tax Authorities are not concerned with the source of income and are only to ascertain whether or not tax has been paid on the income generated. In essence, in the tax regime, legality of transactions generating profit or loss is inconsequential and this view is reiterated by the Supreme Court in Puneet Sabharwal v. CBI, 2024 SCC OnLine SC 324; Vishwanath Chaturvedi v. Union of India and Others, AIR 2007 SC (Supp) 163; and State of Karnataka v. J. Jayalalitha and Others, (2017) 6 SCC 263. In any case, declaration in the IT returns does not extricate the applicant from absence of legitimacy of the source of said funds. 28. Much has been argued on behalf of the applicant that the allegations pertaini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA stated that M/s. M Singh, M/s. Santwana Syndicate and M/s. Mannat Traders are bogus firms, which were constituted for the purpose of providing bogus bills. Apart from providing bogus bills to JHM Group and Hoque Group of Companies, he never rendered any other services to them. These statements under Section 50 of PMLA can be considered by the Court at this stage of bail in view of the law laid down by the Supreme Court in Rohit Tandon v. Directorate of Enforcement, (2018) 11 SCC 46; Vijay Madanlal (supra); and recently reaffirmed in Satyendar Kumar Jain v. Directorate of Enforcement, 2024 SCC OnLine SC 317. 31. Significantly, Bhuvan Bhaskar who is the son of Satish Kumar was employed by the applicant and was subsequently appointed as a Director of HIPL, without any experience and was paid between Rs. 30,000/- to Rs.40,000/- per month, as an indirect method to bribe Satish Kumar. A feeble attempt is made by the applicant to distance himself from Satish Kumar but unsuccessfully. There is overwhelming evidence to establish the nexus and proximity between the applicant, co-accused Satish Kumar and his family members. Prior to his employment with the applicant, Bhuvan Bhaskar used to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. [See State of U.P. v. Amarmani Tripathi [(2005) 8 SCC 21 : 2005 SCC (Cri) 1960 (2)] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT of Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688].] 34. It would be apposite to refer to the judgment of the Supreme Court in Masroor v. State of Uttar Pradesh and Another, 2009 SCC OnLine SC 903, where the Supreme Court observed that while deciding the question of bail, Courts must strike a balance between the valuable right of liberty of an individual and the larger interest of the society. Relevant passage is as follows:- 15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 36. Taking note of all these facts and the huge magnitude of the case and also the request of CBI asking for further time for completion of the investigation in filing the charge-sheet(s), without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct CBI to complete the investigation and file the charge-sheet(s) within a period of 4 months from today. Thereafter, as observed in the earlier order dated 5-10-2012 [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 450. For text of the order see also para 17, below.], the appellant is free to renew his prayer for bail before the trial court and if any such petition is filed, the trial court is free to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest 23. With the advancement of technology and Artificial Intelligence, the economic offences like money laundering have become a real threat to the functioning of the financial system of the country and have become a great challenge for the investigating agencies to detect and comprehend the intricate nature of transactions, as also the role of the persons involved therein. Lot of minute exercise is expected to be undertaken by the Investigating Agency to see that no innocent person is wrongly booked and that no culprit escapes from the clutches of the law. When the detention of the accused is continued by the Court, the courts are also expected to conclude the trials within a reasonable time, further ensuring the right of speedy trial guaranteed by Article 21 of the Constitution. 39. Before adverting to the facts, it would be important to refer to Section 45 of PMLA, the provision which requires examination for deciding the present application and the same is as follows:- 45. Offences to be cognizable and non-bailable. (1) Notwithstanding anythi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he object of PMLA, enacted to prevent money laundering and to provide for confiscation of property derived from or involved in money laundering and for matters connected therewith and incidental thereto. Plain reading of Section 45 (1) of PMLA shows that the accused is required to cross the threshold of the twin conditions mentioned therein: (a) public prosecutor shall be given an opportunity to oppose the application for release of the accused; and (b) the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail at the time of seeking bail. It is no longer res integra that the twin conditions are mandatory and the limitations imposed are in addition to those under Section 439 Cr.P.C. In Gautam Kundu (supra), the Supreme Court highlighted that the conditions postulated under Section 45 of PMLA are mandatory and need to be complied with and that provisions of the Section 45 will have an overriding effect on the general provisions of the Criminal Procedure Code in case of conflict between them. For ready reference, relevant passages are as follows:- 30. The conditions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubt that the conditions laid down under Section 45-A of PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure. 41. In Vijay Madanlal (supra), a three Judge Bench of the Supreme Court upheld the validity of Section 45 of PMLA and observed as under:- 387. Having said thus, we must now address the challenge to the twin conditions as applicable post amendment of 2018. That challenge will have to be tested on its own merits and not in reference to the reasons weighed with this Court in declaring the provision, (as it existed at the relevant time), applicable only to offences punishable for a term of imprisonment of more than three years under Part A of the Schedule to the 2002 Act. Now, the provision (Section 45) including twin conditions would apply to the offence(s) under the 2002 Act itself. The provision post 2018 amendment, is in the nature of no bail in relation to the offence of mone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an offence under the Act . If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21 (4) of the MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial . Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved in any process or activity connected with the proceeds of crime. The fact that the proceeds of crime have been generated as a result of criminal activity relating to a scheduled offence, which incidentally happens to be a non-cognizable offence, would make no difference. The person is not prosecuted for the scheduled offence by invoking provisions of the 2002 Act, but only when he has derived or obtained property as a result of criminal activity relating to or in relation to a scheduled offence and then indulges in process or activity connected with such proceeds of crime. Suffice it to observe that the argument under consideration is completely misplaced and needs to be rejected. 42. In this context, it would be useful to allude to the following observations of the Supreme Court in Tarun Kumar (supra):- 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 und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. Definitions. ( 1) In this Act, unless the context otherwise requires, xxx xxx xxx (u) 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]; 46. The scope and ambit of Section 3 of PMLA came up for consideration before the Supreme Court in Vijay Madanlal (supra) and the Supreme Court held as under:- 263. Coming to section 3 of the 2002 Act, the same defines the offence of money-laundering. The expression money-laundering , ordinarily, means the process or activity of placement, layering and finally integrating the tainted property in the formal economy of the country. However, section 3 has a wider reach. The offence, as defined, captures every process and activity in dealing with the proceeds of crime, directly or indirectly, and not limited to the happening of the final act of integration of tainted property in the formal economy to constitute an act of money-laundering. This is amply clear from the orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tap Singh v. State of Jharkhand, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the courts having regard to the fact that India is a party to the said treaties. This court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created. In Apparel Export Promotion Council v. A. K. Chopra, the court observed that domestic courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. This view has been restated in Ms. Githa Hariharan (supra), as also in People's Union for Civil Liberties (supra) and National Legal Services Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us of the aforesaid judgements, it is clear that the present bail application will have to be considered on the touchstone and anvil of the twin conditions under Section 45 of PMLA and Court will have to arrive at a prima facie satisfaction that the applicant crosses the threshold. With this in the backdrop, I may advert briefly to the chronology of events relating to registration of present ECIR against the applicant under Section 3 of PMLA, punishable under Section 4 of PMLA. On 31.01.2018, CBI, Cochin registered an RC under Sections 7, 13 (2) read with 13 (1) (a) and (d) of PC Act against one J.D. Mathew. Applicant was arrested on 04.03.2018 in the said case. On 06.04.2018, Preliminary Inquiry was initiated against Satish Kumar. On 07.05.2018, Special Court at Thiruvananthapuram granted statutory bail to the applicant. On 21.09.2020, CBI Kolkata registered another RC under Sections 120B and 420 IPC read with Sections 7, 11 and 12 of PC Act. Based on this, on 25.09.2020, ED, Kolkata Zone registered the present ECIR against the applicant under Section 3 of PMLA. On 11.12.2020, applicant surrendered before the Special Judge, Asansol and was sent to judicial custody. On 24.01.2022, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification so that there was no hindrance by local administration or police authorities during transportation. Cross-border movement was facilitated by Satish Kumar and most cattle crossed between 11.00 PM to 3.00 AM in night. Applicant and Abdul Latif were in direct contact with one Sehegal Hossain, a Constable in the West Bengal Police, who was working as personal security guard to one of the political leaders since 2011. He facilitated the cattle smuggling business by providing protection and patronage to the applicant and his associates. 49. Based on the evidence disclosed in the predicate offence, present ECIR was registered against the applicant. Conscious of the settled legal position that at the stage of considering a bail application this Court is not to enter into a meticulous examination of the statements of the witnesses or hold a mini-trial, I am examining the case set up by the ED and the defence set up by the applicant only to satisfy whether there are reasonable grounds for believing that the applicant is not guilty of the alleged offence under the PMLA and that he is not likely to commit any offence while on bail as required by Section 45 of PMLA. Coming to the alle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f M/s. Anant Tradecom Pvt. Ltd. by laundering these Rs. 6.1 Crores through various shell companies namely, M/s. Nu Ruchi Barter Pvt. Ltd. and M/s Manak Estates Pvt. Ltd. arranged by Prateek Diwan and Vikas Aggarwal. Thereafter, in the guise of unsecured loans, an amount of approximately Rs.3.5 Crores was transferred to various individual accounts of Mishra family. Both CBI and ED carried out investigation and found that these were shell companies with no actual business and used solely for booking of accommodation entries. Vikas Kumar Agarwal in his statement under Section 50 of PMLA on 08.04.2021 inter alia stated that both these companies were engaged in the business of accommodation entries in which he had contributed some amount through RTGS etc. The accommodation entries were provided to Vikas and Vinay Mishra, Neha and Lalita Mishra, on request of Prateek Diwan, the Chartered Accountant. Vikas Aggarwal furnished the details of the amounts involved as well as the period of the accommodation entries in a tabular form. To connect the dots, Vivek Kumar was also interrogated and he stated that he was made the Director in these companies and other companies of Vikas Agarwal in 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for export of fabrics to Dubai. The documents collected however revealed that the value of export declared at Dubai Customs was less than 2% of the total value of export declared with Indian Customs. Total value of export consideration i.e. Rs. 6.1 Crores declared with Indian Customs was received by HMPL, which was allegedly PoC generated from scheduled offence, laundered in the guise of export remittances by the Company, controlled and managed by the applicant. The evidence relied on by the ED in the aforesaid context is in the form of statements of Sanjay Jaiswal and Shreeprakash Jaiswal. Sanjay Jaiswal stated that he was asked by Biswajit Malakar, one of the Directors of JHM Group of Companies to provide bogus bills for fabrics and he accordingly requested Shreeprakash Jaiswal to provide them, which he did. He further stated that when he met Biswajit Malakar in 2016 and started working for promoter of JHM Group of companies and promoter of Hoque Group of Companies, they were working together and all the work orders related to the two came from Biswajit Malakar. Shreeprakash Jaiswal stated that apart from providing bogus bills to the two groups of companies, he never rendered an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above, more particularly, the role ascribed to the applicant, he has failed to meet and satisfy the test of twin conditions under Section 45 (1) of PMLA for this Court to come to a prima facie conclusion that there are reasonable grounds for believing that the applicant is not guilty of the alleged offence. 55. Learned Senior Counsel for the applicant emphatically argued that the applicant purchased cattle through legal auction channels facilitated by the Customs Department and then sold the cattle at Mallick Pashu Haat and that the applicant provided bills to the CBI in support of the legitimate transactions and that these transactions were reflected in the IT returns for Financial Years 2016-17 and 2017-18. The contention was rebutted by the ED. It is their case that upon realising the need for documents to show that the cattle were procured through auction to cover up the crime, applicant approached one Aftabbudin Mallick, haat owner of Mallick Pashu Haat for arranging fake bills showing sale of cattle on various dates from 2016 onwards. Accordingly, huge number of fake bills were prepared. ED has taken a categorical stand that they identified the bill writers used by Aftab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which 7 were considered by the Delhi High Court. These statements are admissible in evidence, in view of Section 50 of the 2002 Act. The same makes out a formidable case about the involvement of the appellant in commission of a serious offence of money laundering. It is, therefore, not possible for us to record satisfaction that there are reasonable grounds for believing that the appellant is not guilty of such offence .. 58. In Tarun Kumar (supra), the Supreme Court reiterated that statements under Section 50 of PMLA are admissible at the stage of bail. In a recent judgment in Satyendar Kumar Jain (supra), the Supreme Court examined the statements of the witnesses recorded and documents produced by them under Section 50 of PMLA as one of the evidence while testing the impugned common judgment passed by this Court rejecting the bail applications. Reference was made by the Supreme Court to the earlier decision in Rohit Tandon (supra) and Vijay Madanlal (supra) on the question of probative value of statements under Section 50 of PMLA at the stage of grant of bail. Following the aforesaid judgments, this Court in Kalvakuntla Kavitha v. Central Bureau of Investigation, 2024 SCC OnL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the said Act, the Court is not inclined to grant bail to the appellant. 21. The apprehension of the learned counsel for the appellant that the trial is likely to take long time and the appellant would be incarcerated for indefinite period, is also not well founded in view of the observations made by this Court in case of Vijay Madanlal (supra). On the application of Section 436A of the Criminal Procedure Code, 1973, it has been categorically held therein that: 419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the right of speedy trial guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Indeed, Section 436A of the 1973 Code also contemplates that the relief under this provision cannot be granted mechanically. It is still within the discretion of the Court, unlike the default bail under Section 167 of the 1973 Code. Under Section 436A of the 1973 Code, however, the Court is required to consider the relief on case-to-case basis. As the proviso therein itself recognises that, in a giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and/or grant of bail in the predicate offence, cannot be the ground to grant bail in the present case where the offence alleged is under PMLA and also because the investigation is on-going. The Supreme Court in Directorate of Enforcement v. Aditya Tripathi, 2023 SCC OnLine SC 619, observed as under:- 15. From the impugned judgment(s) and order(s) passed by the High Court, it appears that what is weighed with the High Court is that chargesheet has been filed against respective respondent No. 1 - accused and therefore, the investigation is completed. However, the High Court has failed to notice and appreciate that the investigation with respect to the scheduled offences under the PML Act, 2002 by the Enforcement Directorate is still going on. Merely because, for the predicated offences the chargesheet might have been filed it cannot be a ground to release the accused on bail in connection with the scheduled offences under the PML Act, 2002. Investigation for the predicated offences and the investigation by the Enforcement Directorate for the scheduled offences under the PML Act are different and distinct. Therefore, the High Court has taken into consideration the irrelevant conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from which PoC are generated and therefore, at this stage, it cannot be said that the applicant will not commit the alleged crime if released on bail. Moreover, the stand of the ED that the applicant is well connected politically in the State of West Bengal and has connects at all levels from Administrative Authorities to the Police personnel, Customs Officials, etc. cannot be overlooked and in this background, the chances of the applicant tampering with evidence and/or influencing and intimidating witnesses with his clout, who also happen to be in the State of West Bengal cannot be ruled out. Last but not the least, it was urged on behalf of the applicant that he suffers from multiple medical ailments and is entitled to bail under Proviso to Section 45 of PMLA. This Court is unable to discern from any medical document placed on record that the applicant suffers from such medical ailments, which would entitle him to the benefit of the proviso. Most of the medical issues raised by the applicant are such which can in the normal course be treated by the Doctors in the jail hospital and/or the referral hospitals. 63. The Bombay High Court in Mahendra Manilal Shah v. Rashmikant Mansukhl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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