9911796707
TMI Blog2024 (4) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. The Hon ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement [ 2023 (11) TMI 904 - SUPREME COURT ] by taking into consideration the law laid down by the Larger Bench of the Hon ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. [ 2022 (7) TMI 1316 - SUPREME COURT ], has laid down that since 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 was revealed in the investigation that the illegal mining activities are unaccounted and undeclared and the proceeds out of it are generally dealt in cash which are laundered through the Associates of the accused persons. On 08.07.2022, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA, the statements that have been recorded and which has been relied upon in the complaint must be taken to be an important material implicating the petitioner. The statements that were recorded during the investigation has been dealt with in prosecution complaint and many of the statements clearly implicate the petitioner. Therefore, the statements that have been recorded and which has been relied upon, is also a strong material that prima facie establishes the offence of money laundering against the petitioner. This Court while considering the prayer for regular bail has taken into consideration that though the Court is not sitting in appeal on the order passed by learned court since this Court is exercising the power of Section 439 Cr.P.C but only for the purpose of considering the view which has been taken by learned court while rejecting the prayer for bail, this Court is also in agreement with the said view based upon the material surfaced in course of investigation. Grounds of parity - HELD THAT:- The Hon ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement [ 2023 (11) TMI 904 - SUPREME COURT ], it has been held that parity is not the law and wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant application stands dismissed. - HON BLE MR. JUSTICE SUJIT NARAYAN PRASAD For the Petitioner : Mr. S. Nagamuthu, Sr. Advocate Mr. Indrajit Sinha, Advocate Ms. Sonam Gupta, Advocate Mr. Shiva Pande, Advocate Mr. Yash Badkur, Advocate Mr. Shreyas Kaushal, Advocate Ms. Sneh Singh, Advocate Ms. Pinki Kumari, Advocate For the Opp. Parties : Mr. Anil Kumar, Addl. SGI Mrs. Chandana Kumari, AC to Addl. SGI Mr. Priyanshu Shekhar, AC to Addl. SGI ORDER 1. The instant application has been filed under Section 439 and 440 of the Code of Criminal Procedure, 1973 praying for grant of bail in connection with Case No.ECIR-04/2022(S), arising out of ECIR/RNZO/03/2022 registered under Section 3 punishable under Section 4 of PML Act, 2022. Factual Matrix of the Case : 2. The prosecution story in brief as per the allegation made in the instant ECIR/complaint reads as under: The case of prosecution in brief is that the investigation under the Prevention of Money Laundering Act, 2002, was initiated by recording an ECIR bearing no. 3/2022 based on the FIR no. 85/2020 dt. 22.06.2020 of one Sambhu Nandan Kumar at Barharwa Police Station, Distt-Sahebganj, Jharkhand against accused Pankaj Mishra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l as close associates of the prime accused Pankaj Mishra. Further, the supplementary prosecution complaint reveals that the proceeds of crime out of the illegal mining are generated in cash and are also being transferred to the accused, Pankaj Mishra, by the accused, Tinkal Kumar Bhagat, Krishna Kumar Saha, and the present petitioner. In the instant case, these accused persons have knowingly acquired and possessed the proceeds of crime in such a manner as if it was untainted money; they also trying to project the said ill-gotten money/proceeds of crime as untainted. Further, it has been alleged that the accused petitioner has not only received the huge amount in illegal way earned through illegal mining, trade and transportation of stone chips etc. but also came in possession of such proceeds of crime and now claiming the same as untainted. The present petitioner had been arrested on 07.07.2023 and accordingly the petitioner had preferred the Misc. Cri. Application No. 2850 of 2023 for grant of his bail but the same was dismissed vide order dated 09.10.2023 by the learned Spl. Judge, PML Act, Ranchi. Hence the present petition has been preferred for the grant of bail. Argument on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement passed in Criminal Appeal No. 2779 of 2023, particularly paragraphs-17 and 29 thereof. ix. Learned counsel for the petitioner has also taken the ground of parity since one of the co-accused persons, namely, Krishna Kumar Saha has been directed to be released on bail by the order passed by the co- ordinate Bench of this Court vide order dated 07.12.2023 passed in B.A.No.8709 of 2023. 4. Learned counsel for the petitioner based upon the aforesaid ground has submitted that the learned court while considering the prayer for bail ought to have taken into consideration all these aspects of the matter both legal and factual but having not done so, serious error has been committed. 5. Further submission has been made in the aforesaid view of the matter as per the ground agitated, it is a fit case where the petitioner is to be given the privilege of bail. Argument on behalf of the learned counsel for the respondent-ED: 6. While on the other hand, Mr. Anil Kumar, learned Additional Solicitor General of India for the opposite party-Enforcement Directorate has vehemently opposed the prayer for grant of regular bail by taking the following grounds: (i) It is incorrect on the part of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he co-ordinate Bench has already rejected the prayer for bail sought for by Pankaj Mishra and Prem Prakash, other co-accused persons. (viii) The ground, therefore, has been taken that since the ground of parity is being taken on behalf of the petitioner then the requirement will be to consider the involvement of the present petitioner with the involvement of Krishna Kumar Saha, Pankaj Mishra and Prem Prakash so as to come to the conclusion while granting the benefit of parity by assessing the involvement of the present petitioner with the involvement of accused persons whose prayer for bail has been denied and the accused person whose prayer for bail has been allowed. (ix) The contention has been made that Pankaj Mishra is the person who is in the helms of the affairs of illegal mining and the present petitioner is his close associate. Further, the complicity has also been shown against the Prem Prakash whose bail application has already been rejected. 7. Learned ASGI for the opposite party-ED, based upon the aforesaid grounds, has submitted that since the nature of allegation committed by the present petitioner is identical to that of Pankaj Mishra to the extent that he has been f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threat are outlined below: (a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected activities and confiscation of proceeds derived from such offence. (b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money-laundering. (c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material forcomprehensive legislation to combat the problem of money- laundering. The recommendations were classified under various heads. Some of the important heads are (i) declaration of launderin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere such property is taken or held outside the country, then the property equivalent in value held within the country or abroad. 13. In the explanation it has been referred that for the removal of doubts, it is hereby clarified that proceeds of crime include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. The aforesaid explanation has been inserted in the statute book by way of Act 23 of 2019. 14. It is, thus, evident that the reason for giving explanation under Section 2(1)(u) is by way of clarification to the effect that whether as per the substantive provision of Section 2(1)(u), the 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 but by way of explanation the proceeds of crime has been given broader implication by including property not only derived or obtained from the scheduled offence but also any property which may directly or indire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.] 19. It is evident from the aforesaid provision that offence of money- laundering means whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. 20. It is further evident that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 21. The punishment for money laundering has been provided under Section 4 of the Act, 2002. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready referenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation the object and intent of the Act, 2002. 23. The interpretation of the condition which is to be fulfilled while arresting the person involved in the predicate offence has been made as would appear from paragraph-265. For ready reference, relevant paragraphs are being referred as under: 265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression including , which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provision (as also the Explanation) predicates that if a person is found to be directly or indirectly involved in any process or activity connected with the proceeds of crime must be held guilty of offence of moneylaundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word and preceding the expres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 002 Act dealing with powers of Director to impose fine in respect of acts of commission and omission by the banking companies, financial institutions and intermediaries. From the setting in which Section 50 has been placed and the expanse of empowering the Director with same powers as are vested in a civil Court for the purposes of imposing fine under Section 13, is obviously very specific and not otherwise. 425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression proceeding in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than to furnish evidence , and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross examination. It is not a guide to the connotation of the word witness , which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is to be a witness and not to appear as a witness . It follows that the protection afforded to an accused in so far as it is related to the phrase to be a witness is not merely in respect of testimonial compulsio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence. 434. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government. 24. It is evident from the obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also there as under sub-section (2) thereof which is for the purpose of removal of doubts. A clarification has been inserted that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section. 29. The fact about the implication of Section 45 has been interpreted by the Hon ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) at paragraphs-372-374. For ready reference, the said paragraphs are being referred as under: 372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub-section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory 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 conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. For ready reference, paragraph-17 of the said judgment is quoted as under: 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. 33. The Hon ble Apex Court in the case of Gautam Kundu vs. Directorate of Enforcement (Prevention of Money-Laundering Act), Government of India through Manoj Kumar, Assistant Director, Eastern Region, (2015) 16 SCC 1 has been pleased to hold at paragraph -30 that 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 Cr.P.C 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 overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. 34. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant paragraphs of supplementary prosecution complaint are referred herein: 7. Details of the accused arrested under section 19 of PMLA, 2002 for the offence of money laundering (iii) During the further investigation of the instant case, it was Hals. revealed that Accused No. 5 (Krishna Kumar Saha), Accused No. 6 (Bhagwan Bhagat) Accused No. (Tinkal Kumar Bhagat) are directly indulged in illegal mining activities and are knowingly a party to the accused persons arrested earlier. Further, they are involved in concealment, possession, acquisition, use of proceeds of crime and projecting and claiming the proceeds of crime as untainted property. Thus, Accused No. (Krishna Kumar Saha) was arrested on 05.07.2023 under section 19 of PMLA, 2002. Thereafter, Accused No. 6 (Bhagwan Bhagat) and Accused No. 7 (Tinkal Kumar Bhagat) were subsequently arrested on 07.07.2023 owing to their involvement in the offence of money laundering. 8. Brief detail of persons examined u/s 50(2) (3) of PMLA 8.2 Bhagwan Bhagat (Accused No.6)- In his statement dated 06.08.2022 (RUD No. 13) recorded under section 50 of PMLA, 2002, it is revealed that he looks after the business of stone loading on railway rakes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hra. 8.6 Vinod Jaiswal In his statement dated 15.06.2022 recorded under section 50 of PMLA, 2002, (RUD No. 55 of PC dated 16.09.2022) Vinod Jaiswal stated that Tinkal Kumar Bhagat along with his accomplices extorted levies amounting to Rs. 1 ac per month from every stone crusher operating in Sahebganj. Further, he has also stated that a levy amounting to Rs. 25,000 was extorted by Tinkal Bhagat from every railway rake loaded from Sahebganj for transportation. BRIEF SUMMARY OF EVIDENCE TO PROVE THAT THE ACCUSED AND PROPERTIES ARE INVOLVED IN MONEY LAUNDERING ALONG WITH THE FINDING OF THE INVESTIGATION OFFICERUNDER PMLA 2002 9.8 On 29.07.2022, illegal mining by M/s Bhagwan Stone Works, one of the firms of Bhagwan Bhagat was identified at Mauja Borna. The lease was given for mining on a total area of 13.13 acres at block Patna. However, the inspection revealed that the total mining has been done on an area of 21 acres. The mining exceeded in adjacent plots no. 135P, 138P, 137P, 136, 1299, 120, 119, 118P, 89P, 111P and 110P of Mauja Borna. It revealed that from April, 2019 to June, 2022, total mining challan obtained by Bhagwan Bhagat was around 23908985 CET whereas the actual mining d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re deliberately concealed from the financial system. Brief summary of the result of the investigation under PMLA 10.5 A joint inspection of multiple stone mining sites conducted between July 25, 2022, and July 29, 2022, confirmed extensive illegal mining activities in Sahebganj, Krishna Kumar Saha (Accused No. 5), Bhagwan Bhagat No. 6), and Tinkal Kumar Bhagat (Accused No. 7) were found to have excavated stone mines beyond authorized limits. This not only led to significant financial losses for the treasury but also caused considerable environmental damage. During the investigation, the bank accounts of these three accused individuals were scrutinized, revealing substantial cash deposits and interlinked transactions with Pankaj Mishra. 10.6 The investigation exposed that the accused parties engaged in unlawful mining operations in Sahebganj with the support of Pankaj Mishra. They supplied stone chips and aggregates to regions in Jharkhand, Bihar, and West Bengal. It was also revealed that Tinkal Kumar Bhagat and Bhagwan Bhagat actively aided Pankaj Mishra in carrying out illegal mining operations at his direction. 13. Role of Accused in offence of money laundering under Section 3 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laundered through the Associates of the accused persons. On 08.07.2022, searches were conducted on the premises of Pankaj Mishra and his associates and cash worth Rs 5 was seized. Further bank balances of Pankaj Mishra and his associates were frozen having balances worth 13 crores approx. out of which Rs. 28,50,000/- was seized from the premises of the present petitioner. 38. Further during the Joint Inspection on 29.07.2022, the mining sites of M/s Bhagwan Stone Works, a company associated with present petitioner Bhagwan Bhagat, was Identified at Mauja Borna. The mining lease, originally granted for a total area of 13.13 acres in block Patna, was found to have exceeded its limits, with the actual mining covering an area of 21 acres. The excess mining occurred in adjacent plots in 135P,138P, 137P,136, 129P, 120, 119, 118P, 89P,111P, and of Mauza Borna. Investigation revealed that between April 2019 and June 2022, Bhagwan Bhagat obtained mining challans totalling approximately 23908,985 cubic feet Tower (CFT). However, the actual mining performed by him far exceeded the quantity specified in the Challans. Thus about 7.8 acres of excess mining by Bhagwan Bhagat i.e. present petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealed most of the documents evidencing illegal mining conducted by them to unknown destinations which they did not reveal during investigation. This fact is also established from the recovery of a letter from the mobile phone of Bhagwan Bhagat, written by this office on 20.05.2022 to the Sr. Division Commercial Manager, Malda Eastern Railway in which this office has sought details of transport made by different entities through railways. It prima-facie indicates that the present petitioner have access to the records of government offices and has good proximities with government officials too. However, during the searches, cash amounting to Rs 28,50,000/- was seized from the residential premises of the present petitioner. 42. Thus in nut shell, it is evident from supplementary prosecution complaint that the petitioner was directly involved in illegal mining. The mining lease, originally granted for a total area of 13.13 acres in block Patna, was found to have exceeded its limits. He has also knowingly assisted Pankaj Mishra in laundering proceeds of crime amounting to Rs. 4.87 crores in his HDFC bank account no. 50200062737102 during the period 29.10.2021 to 19.05.2022 by way of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities mentioned in Section 3. In the instant case the proceeds obtained from illegal mining activities are laundered through diverse methods, one of which Involves making incremental cash deposits in their bank accounts. This is done in a piecemeal manner with the intention of presenting the tainted property as untainted. 47. Keeping in mind these essential elements that make up the molecular structure of Section 3, this Court adverts in to facts of the instant case as discussed in preceding paragraph is of view that the contention of the learned counsel for the petitioner has no substance. 48. Further, the burden of proof is on the Petitioner until the contrary is proved, the same is observed in various judicial pronouncements and upheld in Vijay Madanlal Choudhary (2022) SCC Online 929. In Rohit Tandon vs. Directorate of Enforcement, (2018) 11 SCC 46, the Supreme Court observed that the provisions of section 24 of the PMLA provide that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. 49. So far as the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence. The explanation clarifies that the proceeds of crime include property, not only derived or obtained from scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. Clause (u) also clarifies that even the value of any such property will also be the proceeds of crime. 52. Further it is settled proposition of law that if a person who is unconnected with the scheduled offence, knowingly assists the concealment of the proceeds of crime or knowingly assists the use of proceeds of crime, in that case, he can be held guilty of committing an offence under Section 3 of the PMLA. Therefore, it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. 53. The contention of learned counsel for the petitioner that there was delay of 2 years on the part of the ED in registering ECIR after lodging of the FIR, is a self-serving argument. If the ED registers an Information Report immediately upon the registration of a FIR for a predicate offence, ED will be accused of acting in haste. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by any person as a result of criminal activity relating to a scheduled offence. The explanation clarifies that the proceeds of crime include property, not only derived or obtained from scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. Clause (u) also clarifies that even the value of any such property will also be the proceeds of crime and in the instant case from perusal of paragraph of the prosecution complaint it is evident that the petitioner is not only involved rather his involvement is direct in procuring the proceeds of crime by way of connivance with the other accused persons. 59. Further it is pertinent to mention here that It is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. Reference in this regard may be taken from the Judgment as rendered by the Hon ble Apex Court in Pavna Dibbur Vs. Directorate of Enforcement 2023 LiveLaw (SC)1021. 60. At the cost of repetition it is pertinent to mention here that the offence of money laundering under Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posite to refer the decision of Hon'ble Supreme Court rendered in the case of Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406 wherein at paragraph-12 the Hon ble Apex Court has observed which reads as under: 12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to say, filing of the charge- sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons. 67. Thus, this Court, after taking note of the settled legal proposition, is of view that the contention of the learned counsel for the petitioner is not tenable in the eye of law. 68. Now in the light of aforesaid discussion at this juncture this Court thinks fit to revisit the scope of section 45 of the PML Act 2002. As discussed in preceding paragraphs that Section 45 of the PMLA Act, 2002 provides twin test. First reason to believe is to be there for the purpose of reachi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to find, from a prima facie view of the materials collected during investigation that there are reasonable grounds to believe that the accused has not committed the offence and that there is no likelihood of him committing an offence while on bail. Recently, in Tarun Kumar v Assistant Directorate of Enforcement, 2023 SCC Online SC 1486, the Hon ble Supreme Court has held as under : 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 conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar other considerations. 76. This Court on the basis of aforesaid discussion factual aspect as also the legal position is of the view that there is no reason to believe by this Court that the petitioner is not involved managing the money said to be proceeds of crime. 77. This Court while considering the prayer for regular bail has taken into consideration that though the Court is not sitting in appeal on the order passed by learned court since this Court is exercising the power of Section 439 Cr.P.C but only for the purpose of considering the view which has been taken by learned court while rejecting the prayer for bail, this Court is also in agreement with the said view based upon the material surfaced in course of investigation, as referred hereinabove. On the issue of Parity 78. Now coming to the ground of parity as raised by the learned counsel for the petitioner, the law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied. 79. It is furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was assigned similar role of armed with stick (sic) . Again, bail was granted to Vanraj Koli (A- 16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion to the issue of parity. 83. This Court needs to go through the imputation of allegation against the Krishna Kumar Saha, which has been mentioned in the prosecution complaint which is being quoted as under: Krishna Kumar Saha The Accused No. 5 namely Krishna Kumar Saha is knowingly involved in money laundering and a party in illegal mining in plot no. 56, 59P, 60P, 211P, 212P, 225P, 203P and 210 of Mauja Chapande, Sahebganj. The investigation revealed that the total excavated volume from the above-mined100 Scen area was around 4,11,64,200 CFT. Considering even a maximum over bunden debris of 40%, the net stone excavation to around 2,46,98,520 CFT. Further, the accused Krishna Kumar Saha has acquired proceeds of crime to the tune of Rs. 2,17,00,000 in the bank accounts of his relatives out of which, he has transferred s. 2,07,00,000/- to his bank account. Further, the accused Krishna Kumar Saha is in possession of proceeds of crime amounting to Rs. 17,58,18,751/- which is projected to be untainted by way of concealing the said amount in the financial system through banking channels. Moreover, Krishna Kumar Saha has also assisted the accused Pankaj Mishra by way of providing him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused persons, is of the view that the petitioner since has been found to be closely associated with the affairs of Pankaj Mishra since the phone number of the present petitioner has been found in the account open in the name of Pankaj Mishra as also money was deposited. 88. Applying the principle of parity, this Court is of the view as per the judgment rendered by the Hon'ble Apex Court rendered in Tarun Kumar (supra) that the benefit of parity is to be given if the facts/involvement of the petitioner, is identical to the persons with whom parity is being claimed. 89. This Court, on the basis of the discussion of the involvement of the petitioner, vis- -vis, the other co-accused persons, is of the view that the case of the petitioner is quite distinguishable to that of the case of Krishna Kumar Saha as complicity of the petitioner is of being a close associate of Pankaj Mishra. 90. Otherwise also, it needs to refer herein by taking aid of the judgment rendered in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, (supra) that if the benefit of bail has been granted by a Court that appears to be contrary to the material collected in course of investigati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest. 24. While granting bail, the court has to 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. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
