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TMI Blog2024 (9) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... blic. Reference has been made to Vijay Madanlal Choudharv Ors [ 2022 (7) TMI 1316 - SUPREME COURT ] wherein while considering the twin conditions under Section 45 of the PMLA, the Apex Court observed that the twin conditions are valid being reasonable on having correct nexus with the purposes and objects sought to be achieved by the 2002 Act to combat the menace of money-laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the country. It is asserted that the investigations against the Applicant are complete and the prosecution Complaint has also been filed. The IO and the ED have taken all steps to expedite the trial and has been proactive in complying with the directions of the Court. The Directorate of Enforcement as per the established law, is not required to give the list of un-relied documents to the accused persons before the stage of trial and thus, had challenged the Order of the Trial Court dated 05.01.2023 wherein it was directed to only provide the list of un-relied documents. In regard to the medical ground for Bail, it is stated that it is only on the exceptional sickness that Bail can be exercised and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;BLE MS. JUSTICE NEENA BANSAL KRISHNA For the Petitioner Through: Mr. Dhruv Gupta, Mr. Anubhav Garg, Mr. Indhirajith Parbhakaran, Ms. Yogya Singh Mr. Nishesh Gupta, Advocates. For the Respondent Through: Mr. Zoheb Hossain, Special Counsel, Mr. Vivek Gurnani, Mr. Siddarth Kaushik, Ms. Abhipriya Rai, Mr. Kartik Sabharwal, Mr. Vivek Gaurav, Mr. Kanishk Maurya Mr. Pranjal Tripathi, Advocates with Mr. S.K. Sharma, IO/AD, ED. JUDGMENT NEENA BANSAL KRISHNA, J. 1. The present Petition has been filed under Section 439 of the Code of Criminal Procedure, 1973 ( Cr.P.C. hereinafter) read with Sections 45 and 65 of the Prevention of Money Laundering Act, 2002 ( PMLA, 2002 hereinafter) on behalf of Applicant Sameer Mahandru seeking regular Bail in ECIR/HIU-II/14/2022 dated 22.08.2022 ( ECIR hereinafter) registered under Section 3 and Section 4 PMLA, 2002. 2. Briefly stated, the Applicant was arrested on 28.09.2022 and has been suffering incarceration for more than 18 months. The Central Bureau of Intelligence ( CBI ) had registered an FIR No. RC0032022A0053 dated 17.08.2022 P.S. CBI, ACB under Sections 120-B read with 477-A of Indian Penal Code, 1860 ( IPC ) and Section 7 of Prevention of Corrup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of the custody; and xi. the bail is also sought on medical condition of himself and his wife. 6. The Applicant has claimed that he was arrested on 28.09.2022 and was mechanically remanded to custody of the ED up to 06.10.2022 which was followed by another extension of four days i.e. up to 10.10.2022. Pertinently, the Applicant had moved an Application dated 06.10.2022 seeking copy of ECIR as well as the grounds of arrest. On 10.12.2022, the ED did not seek further custody of the Applicant and he was remanded to judicial custody thereafter. 7. The Applicant has further agitated that though the investigations qua the Applicant are claimed to be complete by the ED, but the investigations are still ongoing and incomplete and piecemeal Complaints are being filed in the Court, only to somehow scuttle the right of the Applicant to default bail. It is evident from the fact that main prosecution Complaint was filed on 26.11.2022 on which cognizance was taken on 20.12.2022. Five supplementary Complaints have been filed between 06.01.2023 till 02.12.2023against 26 additional accused persons. 8. It is further contended that firstly, the core ingredient constituting the offence of money-la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, the Applicant being an experienced and established stakeholder in the liquor industry, his experience and knowledge of the liquor trade of Delhi spanning to more than 15 years, he had a right to send bona fide suggestions to the aforesaid persons. The suggestions given by the Applicant through email were his genuine attempt of providing his neutral insights, inputs and suggestions based on his experience and understanding of the liquor trade and in no way whatsoever, it can possibly be taken and held against him, the way ED has unreasonably tried to do. 11. Further, the ED in its Complaint has relied upon a purported WhatsApp forwarded message sent by the Applicant on 31.05.201 to Sh. Manoj Rai (RUD-14) which allegedly contained the Draft Policy and the ED in an attempt to attribute the role of the Applicant in the conspiracy of formulation of Delhi Excise Policy, 2021-22. This allegation is baseless and in no way whatsoever can even remotely been used to attribute any role of the Applicant in the conspiracy for formulating the Excise Policy. The said draft of alleged Policy was in wide circulation on the said date on various WhatsApp groups of Liquor Traders and the Applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st time was approached by Shri Arun Pillai in May, 2021 way after when the policy had already been drafted and finalized by the Government, only to explore the potential investment in the business of the Applicant. Therefore, no clear role whatsoever, can be attributed to the Applicant with regard to any allegations relating to being a part of conspiracy in Policy formulation. Such allegations made by ED, are self-contradictory and absolutely meritless. The Applicant has relied on the findings of the Apex Court in the case of Manish Sisodia vs. Central Bureau of Investigation 2023 SCC OnLine SC 139 , wherein it has been observed that the assertion in the complaint of DoE that kickback of Rs. 100,00,00,000/- (Rupees One Hundred Crore) was actually paid by the liquor group is somewhat a matter of debate . 16. It is further claimed that ED has alleged that Applicant had given 65% stake to the alleged persons of South Group in Indo Spirits firm, with an intent of giving 6% alleged profit margin out of the total 12% profit margin to be earned by the Firm, as kickback to the alleged members of South Group. These allegations are completely unfounded and dehors any rationale or merit and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the form of credit Notes, etc. by the manufacturers like Pernod Ricard and others, to promote the sales of their brands to the retailers, wherein the role of the wholesaler like Indo Spirits was primarily to act as an intermediary. Similarly as part of a normal practice at any given time, all theL-7Z Retailers under the said Policy, were provided with credit period ranging between 15-90 days depending upon their credit worthiness which used to be confirmed by Pernod Ricard as per their diligence. Merely, because the dues are outstanding against the three Companies, it cannot be said that there was any illegality in the same for the purposes of present ECIR. It is claimed that given regular business practice of issuing credit Notes and regular business outstanding, colour of something that they aren t, is nothing but an attempt by the ED to grasp at the straws, especially when in lieu of the L-1 business of Indo Spirits a total of approx. Rs.160+ crores of the Firm is still outstanding from the various L-7Z Retailers who have defaulted in making their payment of outstanding dues against whom various legal actions have already been initiated by the Firm. 20. The Applicant has exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade approver belatedly on 03.10.2023 and his statements are still required to be tested in so far as their admissibility, voluntariness etc. are to be tested during trial. Moreover, his statement does not incriminate the Applicant. Further it is a settled law that approver is unworthy of credit unless corroborated in material particulars. There is no recovery of any tainted money till date and there is no evidence of commission of alleged offence. Admittedly, the basis of Award of retail licenses was through open e-tender. There is no allegation in regard to the process of tender, submission of bids and the final results, thereof. 26. It is also contended that there are material contradictions between the case as set up in ECIR and the predicate/scheduled offence. In the end, it is submitted that between the chargesheet in the predicate offence and the ECIR complaint, there are more than 400 documents running into 31,000 pages besides voluminous digital data and there are more than 200 witnesses to be examined in the chargesheet filed by CBI. 27. There are 162 cited witnesses and more than 20,000 pages of documents in the 5 prosecution complaints filed by ED aside from voluminous d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been placed on Rajat Sharma vs. State; Sanghian Pandiyan vs. CBI; Court in its own Motion vs. CBI, Anil Mahajan vs. Commissioner of Customs, Sanjay Chandra vs. CBI, Gagan Dhawan vs. ED and Rohit Tandon vs. ED. 31. Moreover, such continued incarceration of an accused militates against fundamental postulate of presumption of innocence on the part of an accused in criminal prosecution as has been held by the Apex Court in the case of Gurbaksh Singh Sibbia vs. State of Punjab [(1980) 2 SCC 565]; Gurcharan Ors. vs. State [AIR 1978 SC 179]; and Babu Singh vs. State of UP [(1978) 2 SCC 179]. 32. It is further submitted that the Applicant is also entitled to be released on regular bail on the medical grounds being in the category of sick and infirm. 33. The Applicant has sought the benefit of Proviso to Section 45 of the PMLA on the ground that he is in the category of sick and infirm . He has undergone five serious medical surgeries. On 09.03.2023, he had his gall bladder removed and Laproscopic Cholecystectomy under General Anesthesia was performed on the Applicant. He has been suffering from various medical ailments and has been taking doses of Caudal Epidural block with Selective Ner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce has also been placed on State of Maharashtra Vs. Captain Buddhikota Subha Rao ,1989 AIR 2292 and Virupakshappa Gouda v. State of Karnataka, (2017) 5 SCC 406. 41. Furthermore, the Bail Application in PMLA Cases is required to satisfy the twin conditions laid down under Section 45 of the PMLA. The Appellant has been accused of commission of grave economic offences and has a potential to tamper with evidence and influence the witnesses. Huge amount of proceeds of crime have been laundered and there exists a reasonable apprehension of crucial evidence being destroyed if the Accused is enlarged on Bail. 42. There is ample evidence to link the Accused to the commission of the offence of Money Laundering, and his release on Bail would adversely affect further investigation to trace remaining proceeds of crime especially in light of the nature of the case, severity of allegations and voluminous evidence on record. Certain facts are in the personal knowledge of the Applicant which the Investigation Agency is yet to unearth and there exists all likelihood of the accused tampering the evidence of the case, if released on Bail. There is also a likelihood of him evading the process of law, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shi and Gautam Malhotra are not granted on merits and there is no change in circumstances which has a direct impact on the earlier bail Order passed by this Court. It is claimed that the accused has tried to mislead the court by quoting only part of the Hon ble Supreme Court Order dated 08.12.2023 granting Bail to Mr. Benoy Babu on the peculiar facts and circumstances of his case. It is denied that the statements of the co accused and the witnesses have been recorded under Section 50 of the PMLA under force, threat and coercion. It is further asserted that the accused has failed to satisfy the triple test namely that of not being a flight risk and tampering with evidence or influencing witnesses. 48. In regard to the medical ground for Bail, it is stated that it is only on the exceptional sickness that Bail can be exercised and that too in sparing and cautious manner; any and every nature of sickness does not entitle an accused to be released on Bail. in a recent decision pertaining to interim medical bail in a PMLA case, this Court has accepted the principle that if the condition of the accused is not so serious or life threatening, he cannot be enlarged on medical bail. 49. Relia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also not tenable as his profit margin was only 1 percent as has been explained in detail. The applicant has further explained that though there are allegations made against him of destruction of evidence, but it is in regard to three mobile phones which he had to change because these mobile phones were seized by the CBI during the raids making it imperative for him to switch to the new mobiles. 55. Taking a prima facie view of the roll as defined of the applicant in the case, it can be observed that the twin test of guilt for the offence of money laundering or likely to commit any offence are weak. 56. Even if the case of the prosecution is accepted that there is a strong case made out, but it is pertinent to now refer to the latest judgments of the Apex Court in Manish Sisodia v. Directorate of Enforcement 2024 INSC 595, it has been observed that right of liberty guaranteed under Article 21 of the Constitution of India is a sacrosanct right which needs to be accepted even in cases where stringent provisions are incorporated in the special enactments. Similar observations have been made in the case of Javed Ghulam Nabi Sheikh v. State of Maharashtra and Anr2023 SCC OnLine SC 1693 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the accused persons, the conduct of the accused cannot be termed as vexatious or intended to delay. They were merely exercising their rights of fair Trial by seeking the documents relied and un-relied by the prosecution for their defense. It cannot be said that there is any delay which is attributable to the applicant; rather it is the complexity of the matter, voluminous records and the number of witnesses which are required to be considered in the Trial, which would take a reasonable time. 59. It may also be observed that the antecedents of the Applicant, who has no previous involvement, it cannot be said that he is of flight risk or is likely to tamper with the evidence or influence the witnesses since most of the evidence is essentially documentary in nature. 60. In the totality of the circumstances, the Bail Application is allowed and Sameer Mahandru is admitted to bail, on the following terms and conditions: - I. The applicant is directed to be released forthwith on bail in connection with the ECIR No. HIU-II/14/2022 dated 22.08.2022, registered by the Directorate of Enforcement subject to furnishing a bail bond in the sum of Rs.10,00,000/-with two sureties of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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