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TMI Blog2024 (9) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has featured. At this stage, the only allegation is that the petitioner received Rs.45 Crores, which were part of the proceeds of the crime and had been placed, layered, and integrated by him in the expenditure incurred in the various events organized during the Goa Campaign for AAP Party. The statement of the Angadiyas and others persons, are required to be proved through cogent evidence during the trial that this particular Rs.45 Crores, which is being utilized by the petitioner, were in fact the part of the proceeds of crime and this fact was within the knowledge of the petitioner. The petitioner has sought to explain Rs.12 lakhs, which were recovered from his account by stating that he had been doing odd jobs and working and this Rs.12 lakhs were part of his earnings. Furthermore, it has been explained by him that he was a freelancer working for the political parties like BJP, TMC etc., in the past. Looking at his nature of work of a free lancer for various political parties which he has been doing in the past, merely because he spent certain amount the source of which is not certain, for the campaigning events in the election of Goa, it cannot be said that there is a stro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orded on 12.06.2023 while he was in Judicial Custody. Thereafter, the petitioner moved an Application for surrender before the ED in the ECIR case. Though, the Bail was granted in the CBI matter on 22.07.2023, his Application for Surrender remained pending, which was eventually disposed off by the learned Special Judge vide Order dated 24.07.2023. 5. As per the investigation conducted by the ED, the Excise Policy Scheme comprised of kickbacks/proceeds of crimes of Rs. 100 Cr. Paid to the AAP leaders in lieu of making favorable policy changes in the Delhi Excise Policy 2021-22 and further created an ecosystem for generating continuous proceeds of crime in the guise of profits to the bribe givers. The concerned AAP leaders then had channeled about 100 crore rupees through Hawala to Goa, to be used in the Election Campaign in the Assembly Elections. The AAP leaders had used various channels and persons for the transfer of these funds to Goa. 6. The allegations made against the petitioner were that he was one of the key persons who received Rs. 45 crore in cash for further transfer and use in the Election Campaign. It was also alleged that the petitioner was closely associated with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide Order dated 22.07.2023, it has been observed by the learned Special Judge that the CBI case is weak in nature against the petitioner. He further submits that the predicate offence is weak and no schedule offence exists and it has to be taken that ipso facto the petitioner shall be acquitted for the proceedings under the PMLA. Reliance has been placed on Sanjay Pandey v. Directorate of Enforcement 2022 SCC Online Del 4279. 13. It is further submitted that the Supreme Court in Vijay Madanlal Choudhary v. Union of India 2022 SCC Online SC 929 has discussed that while granting the Bail under Section 45 PMLA the provision of PMLA would apply when a person has derived or obtained the property as a result of a scheduled offence, and then indulged in the activity connected with such property. None of the ingredients of the scheduled offences have been made out against the petitioner concomitantly there cannot be proceeds of crime having been generated as there is no criminal activity relating to the scheduled offence. Since all the ingredients of scheduled offences are not made out, there can be no sustainable allegation of alleged acquisition or retention of proceeds of crime, which u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Goa in 2021 at some of the AAP candidate s campaign sabha and he was introduced as a freelancer for BJP and TMC. Thereafter, he has remained in touch with him over the phone to get the feedback. 21. The Learned Special Judge also did not consider the statement of Mr. N.D. Gupta in toto where he specifically stated that if an individual person made any expenditure in regard to the expense incurred by him on behalf of the AAP, they would directly have made payment to such volunteer, freelancer, employees of M/s Chariot Productions Media Pvt. Ltd./vendors after due verification of the Bills/Vouchers and were endorsed by the State Prabhari and further verification by the Secretary Office. He further explained why AAP made payment of Rs. 2,20,340/- to the petitioner which was for the campaigning expenditure. Likewise, the other amounts have been transferred to him for the expenditure incurred in the Goa Assembly Elections. 22. It is asserted that the instant ECIR is nothing but gross abuse of the process of law and the petitioner has been implicated in a false and concocted story, though no case is made out against him and the arrest in the instant matter is absolutely illegal. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case has been made out against him as has been observed b the Apex Court in the case of Manharibhai Muljhibhai Kakdia Anr Vs. Shaileshbhai Mohanbhai Patal Ors. 2012 10 SCC 517. 26. Reliance is also placed on Tarun Kumar Vs. Enforcement Directorate 2023 SCC OnLine SC 1486 and Gautam Kundu vs. Directorate of Enforcement, (2015) 16 SCC 1. 27. It is further contended that the satisfactions contemplated under Section 45 PMLA regarding the accused being guilty, has to be based upon reasonable grounds which means something more than the prima facie grounds, for which reliance has been placed on Collector of Customs, New Delhi Vs. Ahmadalieva Nodira (2004) 3 SCC 549. 28. The respondent has further contended that the seriousness of the offence is sufficient to reject the Bail, even if the Trial is likely to take time, for which reliance has been placed on State of Bihar Anr. Vs. Amit Kumar (2017) 13 SCC 751, Religare Finvest Ltd. Vs. State of Delhi Anr. 2023 INSC 819 and Sunil Dahiya Vs. State Govt Of NCT of Delhi 2016 SCC Online Del 5566. The mere fact that he was in Jail for a long time would not per se be termed illegal and such detention in Jail of under trail prisoners is not violative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 454 and Salim Khan vs. Sanjai Singh (2002) 9 SCC 670. 34. In regard to the role of the petitioner, it has been explained that he is the key person involved in the transfer and use of the proceeds of crime generated out of the Excise Policy Scam. The petitioner was closely associated with the co accused persons and suspects such as Mr. Vijay Nair, Mr. Rajesh Joshi and others and is a cash handler on behalf of the Aam Aadmi Party in the Goa Elections and had received approximately Rs.45 crores in cash through Hawala Operators and then distributed that to the vendors, survey workers, volunteers etc. working for the AAP campaign in Goa. 35. The Ld. Counsel has made elaborate reference to the statements of various witnesses and the Hawala Operators. Mr. Sagar Patel, in his statement dated 14.08.2023 recorded under Section 50 of the PMLA, 2002 revealed that he had delivered an amount of Rs. 17,38,14,500/- to the petitioner in Goa. 36. Likewise, Rajiv Ashok Mondkar, associate of the petitioner working in the AAP campaign in Goa dated 01.09.2023, has recorded his statement which reveals that about 10 to 12 times in the month of November and December, 2021, the petitioner directed him to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts. He has not been able to explain the reasons for these payments. Moreover, he was never reimbursed by the Aam Aadmi Party for this amount, which shows that this was reimbursed by the AAP from the cash amount of 45 crores which he collected and distributed on behalf of AAP. 41. The National Treasurer of the AAP, Mr. N.D. Gupta had given the details of the expenditure made by AAP in the Goa Elections which reveals that the payment made by the petitioner at Grand Hyatt, Bambolim is an out of the book transaction. When asked to explain these cash transactions, he stated that he did odd jobs in Goa and that is how he got the cash but he was unable to give the details of these odd jobs or even the names of the employers despite several opportunities being provided to him. The detailed evidence thus, established a deep relationship of the petitioner with all the major accused /conspirators in the Delhi Liquor Scam. 42. It can therefore be safely inferred that the petitioner was aware of these funds being proceeds of crime. 43. To corroborate the role of the petitioner in the usage and transfer of the proceeds of crime, the statements of Mr. Amit Mahadev, Mr. Anand Kashimath Desai, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrested on 12.04.2024. The 7th Supplementary complaint has also been filed. It is asserted that the petitioner has been implicated falsely and his fundamental right of liberty which is at stake may be considered while deciding the present bail application. 48. Learned Senior Advocate has highlighted that the arrest has been made purely on the basis of the statements recorded during the investigations under Section 50 of the PMLA; most of whom are the Angadiyas or co-accused persons, and some have already retracted their statements. Such statements have the weakest evidentiary value. Furthermore, reliance has been placed on Chandra Prakash Khandelwal vs. Directorate of Enforcement, 2023 SCC Online Del 1094 wherein it was observed that the statements recorded under Section 50 PMLA can be looked into only during trial and not at the stage of bail. 49. There is no evidence aside from the statements against the petitioner. Pertinently, he was not named as an accused in the main Prosecution Complaint or in the 5 Supplementary Prosecution Complaints and it was only in the 6th Supplementary Prosecution Complaint filed by the ED that he has been implicated as an accused. 50. A flowchart h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. It has been claimed by the ED that he had arranged for various events with great emphasis on the amount being paid to Hotel Grand Hyatt in the sum of Rs.3,20,287/- for the stay and the conference of the members of AAP during the Goa campaign. The petitioner was in the business of freelancing and the work done for organizing the events for AAP in Goa campaign was only part of his job. His past and present business conduct has not been appreciated while leveling the allegations of him being a money handler on behalf of the main accused persons. 54. There is no cogent evidence whatsoever to establish that the money of about 45 crores as alleged by the ED, were proceeds of crime or that he was in any manner a part of the entire crime syndicate. 55. It has been argued that Section 3 PMLA may not require a mens rea in the sense of intent but definitely there has to be knowledge attributable to the petitioner that the money in his hand was proceeds of crime which he placed, layered and integrated. There is no prima facie case made out against the petitioner. Moreover, the antecedent and his present conduct also does not lead to any inference that he is likely to commit offence if admit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for ED has further argued that economic offences which is sought to be addressed by PMLA, has serious implications on the economy and stability of any nation. Therefore, the stringent twin conditions have been introduced in Section 45 of PMLA which have to be satisfied before the petitioner can claim bail. In addition, the triple test for bail as envisaged under the provisions of Cr.P.C, also has to be met. 61. In the light of the evidence which has been collected by the ED, it cannot be said that there is no complicity of the petitioner in the commission of crime. Moreover, while handling the money which was part of proceeds of crime, he had the requisite knowledge and therefore, the offence committed by him fall squarely under Section 3 PMLA. The credibility of the witnesses relied upon by the prosecution cannot be considered at this stage for which reliance has been placed on Satish Jaggi vs. State of Chhatisgarh, (2007) 11 SCC 195 . Moreover, the Legislature has used the words reasonable ground for believing instead of evidence for the purpose of granting bail. The various statements of the witnesses recorded under Section 50 gives reasonable ground to believe the commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ine SC 1465 and Vijay Madanlal (Supra). 65. The counsel for respondent has placed reliance on Pavana Dibbur v. the Directorate of Enforcement CRL. Appeal No. 2779 of 2023 and reiterated that offence of money laundering is an independent offence and it is not necessary that an accused of the offence of money laundering shall also be accused of the predicate offence. It was further submitted that the investigation in the schedule/predicate offence is an irrelevant consideration for the purpose of bail under Section 45 of the PMLA, 2002. Reliance for this proposition was placed on Directorate of Enforcement v. Aditya Tripathi, (2023) SCC OnLine SC 619. 66. It was further argued by Ld. Counsel for ED that taking cognizance of offence implies the application of the judicial mind on the facts of the case to establish that prima-facie offence has been committed. Reliance is placed on Manharibhai Mohanbhai Patel Anr. v. Shaileshbhai Mohanbhai Patel Ors. (2012) 10 SCC 517. 67. The Ld. Counsel for the ED vehemently submitted that at the stage of bail, the court must confine itself to the existence of material against the accused and not as to whether those materials are credible or not. Reli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the 6th Supplementary Prosecution Complaint in which the petitioner has been arrayed as an accused. The petitioner has filed a flowchart in the bail Application wherein it has explained how the conspiracy started at the first level and trickled down to the seventh level where the petitioner has featured. 75. The allegations are that Rs.100 Crores were generated from the predicate offence by the main accused persons, which had trickled down through the Hawala Operators/Angadiyas, to the petitioner. 76. At this stage, the only allegation is that the petitioner received Rs.45 Crores, which were part of the proceeds of the crime and had been placed, layered, and integrated by him in the expenditure incurred in the various events organized during the Goa Campaign for AAP Party. The statement of the Angadiyas and others persons, are required to be proved through cogent evidence during the trial that this particular Rs.45 Crores, which is being utilized by the petitioner, were in fact the part of the proceeds of crime and this fact was within the knowledge of the petitioner. 77. It has already been observed at the time of grant of bail to the petitioner in the predicate offence register ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Kalvakuntla Kavitha v. Directorate of Enforcement 2024 INSC 632. 83. Insofar as the role of the petitioner in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail. 84. The Apex Court in Manish Sisodia (supra) reiterated observation in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. (1978) 1 SCC 240 that the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure their attendance at trial. 85. In the present case, the petitioner is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing trial. Regardless, conditions can be imposed to ensure the petitioner s attendance to face the trial. 86. As noted in Manish Sisodia (supra) there is no possibility of tampering of evidence by the petitioner if the petitioner is granted bail as the case is primarily dependent on documentary evidence which is already seized by the prosecution. Similarly, the apprehension regarding influencing witnesses and that of being a flight risk can be diffused by imposing stringent conditions while granting ..... X X X X Extracts X X X X X X X X Extracts X X X X
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