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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 ..... the Court that the applicant is not guilty of the said offence and the special benefit as contemplated in the proviso to Section 45 of the PMLA, 2002 should be granted to the applicant who is a lady. The order-sheet of the case would demonstrate that the trial could not be proceeded on the count that other accused are not available or various applications were filed by different accused to delay the trial. The order-sheet further reflects that despite the directions issued by the trial Court seeking presence of the accused, the accused have not appeared before the trial Court causing delay in trial, therefore, various steps have been initiated for seeking their presence - the other accused are not seeking their presence before the trial Court, therefore, the trial has not begun, as such it cannot be said that the trial is being delayed without any rhyme and reason. Therefore, the submission made by learned senior counsel for the applicant that there is delay in trial, therefore, the applicant is entitled to be released in bail, deserves to be rejected. In the present case, considering that the applicant has remained only 1 year 8 months, the accused are not cooperating with the tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the legal amount against Coal Delivery Orders. It has also been alleged that pursuant to the Order F.No.4138-47/Sankhikiya/Coal bhandaran/N.Kra 2020 dated 15.07.2020 issued by the State Government the dispatch rules of coal mines by authorities have been changed from an online process to introduction of manual verification. The said notification was issued under the signatures of one Sameer Vishnoi, IAS who was the Director, Geology Mining as well as MD of CMDC. It is also case of the prosecution that it is only after the said notification Suryakant Tiwari in conspiracy with certain other persons started obtaining an illegal levy of Rs. 25 per ton of coal for issuance of delivery order for coal transportation. The handwritten diaries maintained by one Rajnikant Tiwari who is brother of Suryakant Tiwari contained entries of incoming and outgoing amounts of unaccounted cash generated, inter alia from illegal levy on coal transport revealed profits of more than Rs. 500 crores in 16 months from different kinds of levies. On 29.09.2022, ECIR/RPZ0/09/2022 was registered by Directorate of Enforcement, Raipur Zonal Office for commission of offence under Sections 120 (B) 384 of IPC being a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... OC 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. Therefore, she has directly indulged in the offence of Money Laundering as defined under section 3 of the PMLA, 2002 being actually involved in the process of Money Laundering by way of possession, concealment, use, acquisition and projecting the Proceeds of Crime as untainted property. The investigation reveals that the applicant was actively involved in this syndicate with Suryakant Tiwari of extortion of illegal levy on coal, iron pellets and others sectors. The applicant misused her official position and also engaged in collecting of cash from other persons/ businessmen/ bureaucrats etc. other than the coal levy. She was the main perpetrator who used to deliver powers to syndicates for extortion of illegal levy on coal and other sectors. A part of illegal levy extorted by Suryakant Tiwari through his syndicate, was paid in cash to the applicant through her associates i.e., Manish Upadhyay others. She also managed bureaucrats and politicians through Suryakant Tiwari. There are numerous outgoing entries in the diaries relating to payment of cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property has established that Suryakant Tiwari himself is helping Manish Upadhyay to repay that loan by routing the ill-gotten cash to him (Manish Upadhyay) and then taking it back as loan repayment'. Thus, the loan and its repayment is not a genuine transaction and the flat of Manish Upadhyay is in fact purchased by Suryakant Tiwari to install Manish Uppadhyay in front of the applicant. One Anurag Chaurasia is cousin of the present applicant. The investigation establishes that he is a benami of present applicant. Despite being a man of limited means, he has taken large number of unexplained undocumented unsecured loans and invested in assets which are completely under the physical control of the present applicant. On paper Anurag Chaurasia, owns Flat No. 606 and Flat No. 103 in Block-A of the same residential colony as that of Saumya Chaurasia. During the search seizure, it was found that the maids of the applicant are living in Flat No. 606, A-Block, Surya Residency, Bhilai and further, the electric meter connection of this flat is in the name of Manish Upadhyay. Although, Anurag Chaurasia is the owner of Flat No. 606 Flat No. 103, it can be seen that the payment for the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d got the deals done for the purchase of these plots. 9. One Nikhil Chandrakar disclosed about various codes and expenses done for the applicant using the cash generated out of illegal levy by Suryakant Tiwari and also use of the said cash in creation of immovable properties by the applicant. Nikhil Chandrakar explained the entries done by Rajnikant Tiwari including the expenses done for the applicant. The investigation also revealed that transporters were also pressurized by Smt. Kiran Kaushal, the then District Collector of Korba and Mr. Shiv Shankar Nag, the then Deputy Director, Mining Department, Korba for providing work to Mansukh Lal Patel, relative of the applicant. The investigation conducted so far reveals that in the seized diaries by Income Tax Department, entries of 30 crores approximately were found in the name of her associates Manish Upadhyay, Jay and other associates/relatives/family members of the applicant. 10. Suryakant Tiwari was acting as the eyes ears of the applicant. To safeguard herself, she was using Suryakant Tiwari as a layer in the middle to receive inputs issue instructions to District level officers. In the process, all of them were enriching themsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso of all others who are involved in the offence. For that purpose, bail ought not be allowed in the same way as conceded in the event of regular offences. 21. Keeping all the aforesaid facts and circumstances of the case and also taking into consideration the magnitude of the offence, this Court is not inclined to grant bail to the present applicant as of now. The bail application accordingly stands rejected . 13. The second bail application preferred by the applicant bearing MCRC No. 3194 of 2024 was dismissed as withdrawn vide order dated 03.05.2024. 14. The record of the case would show that the applicant has challenged the order passed by the Coordinate Bench of this Court in MCRC No. 1258 of 2023 before Hon ble the Supreme Court by filing appeal bearing Criminal Appeal No. 3840 of 2023 in case of (Saumya Chaurasia Vs. Directorate of Enforcement) and the same has been dismissed by Hon ble the Supreme Court vide order 14.12.2023. The operative part of the order reads as under:- 24. The use of the expression may be in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences i.e. Section 384 and 120 B having been dropped from the chargesheet submitted against the accused Suryakant Tiwari in connection with the FIR No. 129 of 2022 registered at Kadugodi Police Station Bengaluru, and the ACJM Bengaluru vide the order dated 16.06.2023 having taken cognizance for the offence punishable under Section 204 and 353 IPC only, which are not the scheduled offences under the PMLA Act, no scheduled offence survived at the time of passing of the impugned order and that the proceedings were/are without jurisdiction. 28. That apart, it is very much pertinent to note that when the FIR is registered under particular offences which include the offences mentioned in the Schedule to the PMLA, it is the court of competent jurisdiction, which would decide whether the Charge is required to beframed against the accused for the scheduled offence or not. The offences mentioned in the chargesheet by the I.O. could never be said to be the final conclusion as to whether the offences scheduled in PMLA existed or not, more particularly when the same were mentioned in the FIR registered against the accused. As held by the Three-Judge Bench in Vijay Madanlal (supra), it is only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the pendency of the trial. Consequently, the orders dated 17.05.2024 and 08.07.2024 are made absolute. 17. Thus he would submit that the applicant is also entitled to get bail by this Court on parity as incarceration period of the applicant is now more than 1 year and 8 months whereas maximum sentence can be imposed upon the applicant not admitting but assuming is 7 years, thus, about 1/3rd sentence has already been awarded though the applicant is under trial. He would further submit that the trial has been delayed and there is no fault of the applicant as no attempt was made by the applicant to stall the trial. 18. He would further submit that the learned Special Court (PMLA) in its order dated 16.04.2024 while rejecting the second bail application of the applicant has not given due regard to the change in circumstances and has rejected the bail application, thus committed illegality. He would further submit that the learned Special Court (PMLA) has failed to appreciate the fact that since the rejection of the first bail application of the applicant, the circumstances with respect to the alleged influencing power of the applicant are completely changed as the applicant is now ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is a resident of State of Chhattisgarh and is having all the family members in the vicinity of State of Chhattisgarh, therefore, there is no flight risk of the applicant. Moreover, the applicant is ready to report to the concerned investigating authority every week to ensure that she is present in the State. He would further submit that the applicant has appeared before the ED on multiple occasions and is willing to further co-operate with the investigation even after releasing on bail. He would further submit that the investigation qua the applicant has already been completed and the applicant is a suspended public servant, therefore, she does not have any control in the current administration, therefore, there is no possibility of tampering of evidences by the applicant. He would further submit that since the applicant lacks any control or power in the current administration, she cannot influence the witnesses, therefore, there is no risk of influencing of witnesses even if the applicant is released on bail. He would further submit that the applicant undertakes to abide by any condition or directions imposed by this Hon'ble Court in granting bail and also undertakes to fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period. This Court recorded the assurance given by the prosecution that they shall conclude the trial by taking appropriate steps within next 6-8 months. This Court, after recording the said submissions, granted liberty to the appellant to move a fresh application for bail in case of change in circumstances or in case the trial was protracted and proceeded at a snail s pace in next three months. This Court observed that if any application was filed, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail applications including its own judgment. It further observed that the observations made regarding the right to speedy trial will be taken into consideration. 30. Since the trial proceeded at a snail s pace in the period after three months of the first order of this Court, the appellant filed the second application for bail before the trial court. The same came to be rejected by the trial court on 30th April 2024. It can thus be seen that it took a period of almost three months for the trial court to decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) 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 auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years. 30. Further submission of learned senior counsel for the applicant is that the trial is delayed, therefore, the applicant is entitled to get bail. To substantiate his submission, he has placed on record the order-sheet of the trial upto July, 2024. The order-sheet of the case would demonstrate that the trial could not be proceeded on the count that other accused are not available or various applications were filed by different accused to delay the trial. The order-sheet further reflects that despite the directions issued by the trial Court seeking presence of the accused, the accused have not appeared before the trial Court causing delay in trial, therefore, various steps have been initiated for seeking their presence. On 02.03.2024, the learned Special Judge (PMLA) Fourth Additional Sessions Judge, Raipur has issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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