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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 ..... f 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 commission of scheduled offence and generation of Proceeds of Crime ('PoC') and thus, present ECIR was registered by Kolkata Zonal Office of ED on 25.09.2020 to trace the PoC and investigate possible money laundering by the applicant and others under provisions of PMLA. ECIR was later transferred to the Headquarter Investigation Unit ('HIU') of ED with the approval of Director, ED on 09.12.2020. Subsequently, prosecution complaint was filed in the Court of Special Judge, PMLA, Rouse Avenue Courts, against the applicant and others under Sections 44 and 45 of PMLA. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 accommodation entries on behalf of both JHM Group and Hoque Group. Documents seized during FEMA raid established that both the Groups and the applicant were involved in hawala transactions and were part of the same parcel though showing themselves to be different. Cash deposit slips collected from Axis Bank, A/c. No. 916010061149024, pertaining to joint account of Badal Krishna Sanyal and Tania Sanyal with regard to Income Tax Declaration Scheme, 2016 made by Badal Krishna Sanyal regarding his undisclosed income, further revealed that cash deposits were made by Mano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Financial Year 2016-17, HMPL and JHM Group exported fabrics to Dubai, which was investigated into by Customs Department on account of claim of bogus duty drawback by the said companies. Analysis of the documents collected from HMPL and Commissioner of Customs, revealed that HMPL had received Rs. 6.1 Crores as remittances for export of fabrics to Dubai, however, the documents showed that value of export declared at Dubai Customs was less than 2% of the total value of exports declared at Indian Customs and Rs. 6.1 Crores was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stly, 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 constitutes PoC and/or showcasing how the applicant has committed the scheduled offence. ED has skipped the essential first stage of establishing PoC under Section 3 of PMLA and simply jumped to the second stage to investigate in what manner PoC is untainted money. Investigating Agency cannot give up its statutory obligation to investigate by taking recourse to Section 24 of PMLA as held in by the Supreme Court in State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200; Anand Kumar v. State of M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 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 for providing protection and patronage in the predicate offence of cattle smuggling. It is also alleged that applicant through his staff gave Rs. 6.1 Crores to Vinay Mishra and Vikas Mishra as bribe for providing ease in cattle smuggling as Vinay Mishra was allegedly closely associated with the political regime of West Bengal. It is also alleged that applicant along with his nephews and other hawala operators laundered illegal PoC amounting to Rs. 6.1 Crores generated through cattle smuggling by way of receiving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 looked into at this stage while considering an application for grant of bail and can only be tested during trial. To support, heavy reliance was placed on the judgment of the Supreme Court in Vijay Madanlal Choudhary and Others v. Union of India and Others, 2022 SCC OnLine SC 929, more particularly, the following paragraph:- "31. The "proceeds of crime" being the core of the ingredients constituting the offence of money-laundering, that expression needs to be construed strictly. In that, all properties rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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 (supra) has laid down that primary consideration at the stage of bail under PMLA is whether there is any material to indicate that the accused possessed the requisite mens rea and the Court need not meticulously examine evidence but only record a finding on the basis of broad probabilities. Section 19 of PMLA provides higher threshold in comparison to Section 41A Cr.P.C. for curtailing the liberty of an accused inasmuch as Section 41A Cr.P.C. enables the investigating agencies to arrest an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, and hyperlipidemia, which is fortified by the Jail Medical Report dated 05.07.2023 and is thus entitled to the benefit of Proviso to Section 45 of PMLA, which carves out an exception to the applicability of the twin conditions for a person who is sick, infirm or a woman. Reliance is placed on the judgments of this Court in Devki Nandan Garg v. Directorate of Enforcement, 2022 SCC OnLine Del 3086; P. Sarath Chandra Reddy v. Directorate of Enforcement, 2023 SCC OnLine Del 2635; and Kewal Krisha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 so deposited totalling to Rs. 12.8 Crores are PoC. (b) Investigation revealed that during May 2017, Vinay Mishra along with Vikas Mishra and other family members purchased residential premises at 1-Dharamdas Row, Kolkata by acquiring the shareholding of M/s Anant Tradecom Pvt. Ltd. through laundering of 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 Agarwal. Cash to the tune of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 HIPL, it was further revealed that Rs.5.7 Crores were received from another account of HIPL (Bank of Baroda, A/c No. 00260200001751) between the period from 18.09.2018 to 15.10.2018 and this account was opened on 23.04.2018, few months before purchase of the above-mentioned property. Further cash deposits worth Rs.1.32 Crores were made in Bank of Baroda from 23.04.2018 to 23.10.2018. It was also revealed that the said cash deposits were transferred to the ICICI bank account of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 pertaining to deposit of Rs. 12.8 Crores and Rs. 6.1 Crores in respect of Mishra family rest on the alleged handwritten diary entries of Manoj Sana, which are not corroborated by any independent evidence, which is wholly incorrect. Out of Rs. 12.8 Crores, a sum of Rs. 12 Crores was deposited by Manoj Sana in the joint bank account of Badal Krishna Sanyal and Tania Sanyal and deposit of Rs. 3.45 Crores out of the said amount is substantiated by the diary entries which clearly map with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 check the work of loading and unloading in fuel tanks in Reliance Industries and suddenly without any experience, he was appointed as Director within one month of his employment with the applicant. There is evidence to show a close link between the applicant, Satish Kumar and Tania Sanyal and therefore, it cannot be said that it is a mere chance that Bhuvan Bhaskar got an employment and the stand that this was through an open advertisement is wholly fallacious. Further, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan [(1987) 2 SCC 684 : 1987 SCC (Cri) 415] are quite apposite : (SCC p. 691, para 6) "6. ... Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iderations. 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 the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal." 37. In Nimmagadda Prasad v. Central Bureau of Investigation, (2013) 7 SCC 466, it was inter alia held as under:- "25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep-rooted conspiracies and involving huge lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 anything contained in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have ove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der 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 money-laundering unless the twin conditions are fulfilled. The twin conditions are that there are reasonable grounds for believing that the accused is not guilty of offence of money-laundering and that he is not likely to commit any offence while on bail. Considering the purposes and objects of the legislation in the form of 2002 Act and the background in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 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 detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking 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 under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 original provision, which has been further clarified by insertion of Explanation vide Finance (No. 2) Act, 2019. Section 3, as amended, reads thus: "3. Offence of money-laundering.-Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Authority v. Union of India. 266. In the Core Recommendations of the FATF referred to above, the same clearly mention that the word "and" in section 3 of the 2002 Act would not be fully in line with the Vienna and Palermo Conventions. This doubt ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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, applicant was granted bail by the Supreme Court and was released on 28.01.2022. Notice was served on the applicant under Section 50 of PMLA to appear before the investigating authorities. While the applicant urges that h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 allegations, the first relates to the allegation that applicant along with his nephews Md. Jehangir Alam, Md. Humayun Kabir and Md. Mehdi Hasan deposited around Rs. 12.8 Crores in cash into the joint bank account of Bada ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 but had not done any work in these companies and merely received Rs.10,000/- as remuneration each month. It is further alleged that Mishra family utilised these funds to procure 12,500 shares of M/s. Anant Tradecom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 any other services. 53. ED has also relied on the statement of Babla Sana recorded under Section 50 of PMLA on 08.02.2022, who is a brother of Manoj Sana and allegedly a close aide of the applicant. Babla Sana state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at 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 Aftabbudin Mallick for creation of fake bills, who had not only written the contents but had also appended their signatures. Knowingly, they affixed their own thumb impressions in such bills as impressions of seller ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 OnLine Del 4459, rejected the application for regular bail inter alia relying on statements under Section 50 of PMLA and observing that prior to the commencement of the trial and during the stage where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant 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 given case, the detention can be continued by the Court even longer than one-half of the period, for which, reasons are to be recorded by it in writing and also by imposing such terms and cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 consideration. The investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is till going on. 16. As observed hereinabove, the High Court h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 Mansukhlal Shah, 2009 SCC OnLine Bom 2095, held that the nature of the sickness needs to be seen as to whether the accused can be treated in the government hospitals and custo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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