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TMI Blog2024 (8) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... persons on the basis of complaint filed by Deputy Director of Income Tax, Foreign Assets Investigation Unit-I Bengaluru alleging that as part of conspiracy, during course of search by Income Tax department on 30.06.2022, Suryakant Tiwari had obstructed the officials from carrying their official duties and destroyed crucial incriminating documents and digital evidence about the alleged illegal extortion on Coal Transportation, payments collected by Suryakant Tiwari and his associates. 3. It is also case of the prosecution that on 13.09.2022, OM in F. No. 22-IT was forwarded by Central Board of Direct Taxes (for short "CBDT") to the Directorate of Enforcement containing the FIR No. 1292022 Police Station-Kadugodi along with a report on the investigation conducted by the Income Tax Department on M/s Jay Ambey Group of Raipur (Suryakant Tiwari Group). In the report, it has been mentioned that during search operations on 30.06.2023 by Income Tax Department on the premises of Suryakant Tiwari and his associates, evidence was gathered relating to a syndicate being operated and coordinated by Suryakant Tiwari whereby additional unauthorized cash to the tune of Rs. 25 per ton of coal was b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d personal & close official dealings with her and was carrying her instructions to the officers, made it possible for Suryakant Tiwari also to command senior District Level Officers. This illegal authority was essential for him to run his empire of illegal extortion from Coal & Iron Pallet transportation. Without his concurrence, no NOC was issued by the district machinery. All this was made possible by the fact that he was in the good books of the present applicant. He was employed by her to safeguard herself from consequences of unofficial dealings and actions conducted on her behalf. Investigation revealed that all illegal communication, recommendations etc. were routed to & from the present applicant by Mr. Suryakant Tiwari. She has enjoyed the proceeds of crime generated by the crime syndicate. She is in possession and is using the tainted assets which have been prepared by layering the ill-gotten cash from extortion. 5. The reflected power enjoyed by Suryakant Tiwari through Saumya Chaurasia, made it possible for him to control the district machinery and enabled him to extort illegal levy of Rs. 25 per tonne from coal transportation and Rs 100 per tonne from iron pellet tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash that moved from Suryakant Tiwari to the applicant via Manish Upadhayay has been layered with small cheque amounts and used to acquire immovable properties by the present applicant and her family members. The analysis of seized diaries, shows that the applicant had received amounts in excess of Rs. 30 crore from illegal extortion done by Suryakant Tiwari. Manish Upadhyay is living in the same guarded gated colony of Bhilai, namely Surya Residency, where present applicant is living. The residence of Manish Upadhyay i.e. A-1 Surya Residency is situated just opposite of A-21/22 of same housing society. A/21-22 is the property of the present applicant which is in the name of her husband namely Sourabh Modi and her mother Smt. Shanti Devi Chaurasia, where she lives along with her family members. The investigation further reveals that for convenience and better co-ordination with the applicant, the above house A-1 in Surya Residency was purchased for Manish Upadhyay by Suryakant Tiwari. Although Manish Upadhyay in his statement dated 12.10.2022 has stated that he has bought this property out of the unsecured loan of Rs. 40 lakhs received from M/s Ganga Construction (firm owned by Sury ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivered for the benefit of the applicant. During the course of investigation, an agreement has been found which has been signed by two of the 5 persons and Manish Upadhyay. Nikhil Chandrakar, in his statements given under Section 50 (2) & 50 (3) of the PMLA, 2002, has, inter alia, stated that the expenses relating to the applicant mentioned in the screen shots were made from the cash generated out of illegal coal levy. He also disclosed the 'secret code' used and written by Rajnikant Tiwari for expenses relating to the applicant. He disclosed that Manish Upadhyay used to carry cash from safe house of Suryakant Tiwari for Saumya Chaurasia, Dy. Secretary to CM, Chhattisgarh and entry was made in the name of 'MU'. Also, a person namely Narayan who worked as chhauffer for Suryakant Tiwari used to carry cash for the applicant and such entry was maintained in the name of 'Narayan Durg'. In reply to question related to benami property of the applicant, he disclosed that a few plots were purchased in the name of a relative of the applicant in Wallfort City, Bhatagaon. He also disclosed that one Mansukh Lal Patel is the benamidar of the applicant and the properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vestigation establishes that Mr. Manish Upadhyay was inserted in as an extra layer of protection for cash dealings between Mr. Suryakant Tiwari and the applicant. He used to transport cash from Mr. Suryakant Tiwari to the applicant. The investigation establishes that the applicant and her family members went on a spree of acquiring immovable assets during the period which coincided with the coal levy scam. 12. The record of the case would show that the applicant filed an application for grant of regular bail before the learned PMLA Court, Raipur (C.G.) seeking enlargement on regular bail. Learned Special Judge vide order dated 20.01.2023, dismissed the bail application filed by the applicant. This order was assailed by the applicant before this Court by filing first bail application bearing MCRC No. 1258 of 2023. The said bail application was dismissed by the Coordinate Bench of this Court on 23.06.2023 by observing as under:- "20. In such circumstances, the need of impartiality and fair play requires distinctive modus operandi to lift the veil off of economic offences. One way is to keep the accused parties in custody for longer period, so that there will be minimum hinderance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemselves in the commercial ventures and enterprises, and advertently or inadvertently engage themselves in the illegal activities. In essence, the courts should exercise the discretion judiciously using their prudence, while granting the benefit of the first proviso to Section 45 PMLA to the category of persons mentioned therein. The extent of involvement of the persons falling in such category in the alleged offences, the nature of evidence collected by the investigating agency etc., would be material considerations. 25. In the instant case as discussed hereinabove, there is sufficient evidence collected by the respondent Enforcement Directorate to prima facie come to the conclusion that the appellant who was Deputy Secretary and OSD in the Office of the Chief Minister, was actively involved in the offence of Money Laundering as defined in Section 3 of the PMLA. As against that there is nothing on record to satisfy the conscience of the Court that the appellant is not guilty of the said offence and the special benefit as contemplated in the proviso to Section 45 should be granted to the appellant who is a lady. 26. The Court also does not find any substance in the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fences under Sections 353 & 204 IPC. Thus, no proceedings survive in relation to Section 384 and 120-B IPC which were the only alleged schedule offences in the said case. 16. He would further submit that Hon'ble the Supreme Court while considering the bail application of co-accused Sunil Kumar Agrawal vide its order dated 17.05.2024 in SLP (Crl) No. 5890/2024 (Sunil Kumar Agrawal vs. Directorate of Enforcement) has passed the following order:- "3. On 17.05.2024 and 08.07.2024, the matters were heard at a considerable length and after taking notice of the relevant facts and circumstances, this Court prima facie found that the petitioners had made out a case for their enlargement on interim bail. Accordingly, they were directed to be released on interim bail, subject to their furnishing bail bonds to the satisfaction of the Special Court, Raipur, Chhattisgarh. 4. On some of the factual and legal issues, which require further consideration after the interim bail was granted, we have heard learned senior counsel/counsel for the petitioners as well as learned Additional Solicitor General representing the Directorate of Enforcement at a considerable length. 5. Keeping in view the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onged incarceration of the applicant has deprived her children of appropriate maternal care due to which there is risk of severe psychological trauma for the children which will have lifelong effects for no fault of theirs. Thus, considering that the applicant is ready to co-operate with the investigation by extending all support as required by the authorities, it is requested that the instant bail Application may kindly be allowed. 20. He would further submit that the applicant has complied with the summons of the non-applicant/Enforcement Directorate, she is in jail for more than 1 year & 8 months and the investigation of Enforcement Directorate qua the applicant was completed on 30.01.2023. Moreover, the Enforcement Directorate has reserved its right to file further supplementary complaints with respect to other persons entities only (excluding applicant herein) which further fortifies the fact that the investigation qua applicant is complete in all respects. Thus, at this stage custodial interrogation of applicant is not required for the reasons that the investigation qua applicant is already complete and if any interrogation is to be done, the same can be done by issuing summ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e as regards the predicate offence was not taken. He would further submit that Hon'ble the High Court of Delhi in case of Preeti Chandra Vs. Directorate of Enforcement, reported in 2023 SCC OnLine Del. 3622 has discussed the doctrine of triple test which provides for flight risk, influencing of witnesses and tampering of evidence and has granted bail to the accused/woman under the PMLA, 2002 and the same has been upheld by Hon'ble the Supreme Court vide order dated 7409/2023 in SPL (Crl.) No. 7409/2023 as also in P. Chidambaram (supra). He would further submit that Hon'ble the Supreme Court in recent judgment dated 09.08.2024 in case of Manish Sisodia Vs. Directorate of Enforcement has considered that long incarceration and delayed trial entitles the applicant to release on bail. Hon'ble the Supreme Court has held as under:- "29. A perusal of the aforesaid would reveal that this Court was concerned about the prolonged period of incarceration suffered by the appellant. After considering various earlier pronouncements, this Court emphasised that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. Relying on Vijay Madanlal Choud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not guilty of the offence of money laundering is highly impossible. To substantiate the submission, he would refer to paragraph 135 of the the judgment rendered by Hon'ble the Supreme Court in case of Vijay Madanlal Choudhary (supra). He would further submit that the applicant with proceed of crime and having deep roots in the society, is in a position to influence witnesses. He would further submit that economic offence constitutes a separate class of offence and in the present case, the amount involved in the offence of money laundering is Rs. 540 crores approximately and in view of well settled position of law that economic offence constitutes a separate class of offence and bail should not normally be granted in such cases and would pray for rejection of bail petition. 26. I have heard learned counsel for the parties and perused the documents placed on record including ECIR with utmost satisfaction. 27. Before adverting to the facts of the case, it is expedient for this Court to extract Section 45 of the PMLA, 2002, which reads as under:- "Section 45 of PMLA, 2002-Offences to be cognizable and non-bailable.- (1) [Notwithstanding anything contained in the Code of Criminal P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contemplated in the proviso to Section 45 of the PMLA, 2002 should be granted to the applicant who is a lady. 29. Hon'ble the Supreme Court in Criminal Appeal No......./2024 arising out of Special Leave Petition (Criminal) No. 8167/2023 in case of Manish Sisodia Vs. Central Bureau of Investigation [decided on 30.10.2023] [2023 INSC 956] has held as under:- "28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, dep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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