9911796707
TMI Blog2024 (9) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, is not tenable. There are 14 main accused persons who were Member of Parliament or Member of Legislative Assembly or beneficiaries, but none of them has been arrested, except the petitioner which shows the role assigned to him is only of acquiring the land parcel worth Rs. 10.83 lakhs and the subsequent transfer of the company to Rabri Devi and Tejaswi Yadav in 2014 for a meagre amount of Rs. 1,00,00,000/-. The petitioner s role is miniscule essentially to the extent of Rs. 10.83 lakhs. While in this regard, it is pertinent to observe that while considering the grant of Bail, the parity is not so much essential considering as the role of the petitioner in the commission of offence. It is not disputed that out of 17 accused in PMLA, none of the accused even though they are the main perpetrators/beneficiaries of the offence under PMLA, have not been arrested and the prosecution Complaint had been filed against them without their arrest. Iit becomes significant and pertinent to examine the role of the petitioner in the present case. The allegations against him are that he had acquired a land valuing 10.83 lacs, which was the tainted money on the premise that the proceeds of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. ECIR/DLZO-I/31/2022 (hereinafter referred to as the said ECIR ). 2. The petitioner has been arrested in the aforesaid ECIR on 10.11.2023, on the allegations that he had projected and concealed the property which was a proceed of crime in relation to a Scheduled Offence and was a beneficiary thereof. 3. The brief background is that the CBI, Economic Offence-II Branch, New Delhi registered an FIR bearing No. RC2202022E0007 dated 18.05.2022 (hereinafter referred to as the said RC ) under Section 120B of the IPC, 1860 and Sections 11/12/13 (2) read with Section 13 (1) of the Prevention of Corruption Act, 1988 (hereinafter referred to as PC Act, 1988 ) against the then Railway Minister, Shri Lalu Prasad Yadav and others for entering into a criminal conspiracy to abuse official position in order to obtain pecuniary benefits in the form of land parcels being transferred to his family members and Companies thereof in return for appointment to the post of substitute (Group-D) under the various zones of the Indian Railways, commonly known as Job for Land Scam. As per the allegation in the said RC, seven land parcel ad measuring about 1,05,292 sq. feet land situated at Patna were acquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any purchased the land parcel in Bihta, Bihar on which the distillery plant was set up. 9. In the year 2006, M/s AK Infosystems Pvt. Ltd. was incorporated. Since the petitioner was having business interest in Bihar, he started purchasing small chunk of land/plots in Bihar for the purpose of expansion/or for godown/guest house in the other Companies. The Company purchased various properties in Danapur District and Gardanibagh District of Bihar, by borrowing money from the sister concerns and its Director, Promoters, including the petitioner. The distillery in Bihar was sold to one of the largest American Beer Company. Subsequently, the petitioner resigned from the Directorship and completely exited from the Company. Thereafter, the petitioner was in the process of winding up its business and properties in Bihar. 10. The petitioner has referred to the allegation made against him that he has concealed the proceeds of crime from its true origin with knowledge that the same were procured from the criminal activity in the Land for Job Scam. 11. The petitioner has asserted that the respondent has not placed on record a single document to show that the petitioner had any knowledge of scam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was orally informed that he has been arrested. Thereafter, the Officials of Vistara Airlines and five CISF personnel accompanied the petitioner to cancel his boarding. The petitioner was made to sign the Register and the respondent took the petitioner from the Airport to directly its Office and he was compelled to accompany to the respondent s Office. Admittedly, no grounds for arrest were provided to the petitioner by the respondent when he was detained at the Airport. The petitioner was illegally arrested on 11.11.2023 at around 01:44 A.M., even though he was not named in the said ECIR. The grounds for arrest were provided to the petitioner at about 01:44 hrs., but the perusal of the same show that there was no material for his arrest. The petitioner preferred a regular Bail Application before the Trial Court which also got dismissed without considering the relevant facts. 19. It is asserted that the respondent had made a subsequent declaration in the Prosecution Complaint preferred by the respondent that the investigations qua the petitioner is complete and that no supplementary investigations are pending against him. 20. The regular bail application filed on behalf of the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no evidence in the entire Police Complaint that the property was undervalued. The circle rate of the property purchased by M/s AK Infosystems Pvt. Ltd. has not been mentioned. However, the circle rate of every other property has been mentioned. 26. Moreover, Hazari Rai in his Statement dated 11.12.2023 has stated that he had sold the land due to financial distress and he had received appropriate consideration for the sale. The Statement under Section 161Cr.P.C. of the valuers in the said RC is inadmissible and also does not disclose factoring in of social, environmental and comparative sales factors to be taken into account for valuation but is a simple multiplication by four or five of the Sale Deed value. 27. The sale transaction of the land dated 21.02.2007 is wide apart from the dates on which nephews of Hazari Rai received employment in Railways i.e., 30.10.2006 and 24.06.2008. There is no live link between the purchase of the property and the posting of the nephews, one being prior to sale, one being post it. 28. The petitioner has explained that the allegation of the respondent that the petitioner sold M/s AK Infosystems Pvt. Ltd. at a nominal value of Rs. 1,00,000/- on 3.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 2011-12, much prior to the control having been taken over by his family members. The Appointment Letter of Suman Kumar Nayak is dated 30.09.2014 and his Consent Letter is dated 14.09.2014. The Balance Sheets for the year 2011-12 onwards were filed by Suman Kumar Nayak after transfer of the Company and the same were digitally signed by Tejaswi Yadav. Suman Kumar Nayak failed to produce any Appointment Letter during the period of petitioner which depicts that he filed the Balance Sheet later. While the petitioner was a Director and Shareholder of the said Company, the balance sheets were being filed by Mukesh Mittal Company. 33. The respondent has alleged that M/s AK Infosystems Pvt. Ltd. purchased the property from Tejaswi Yadav and Tej Yadav in 2010 for a sum of Rs. 70,00,000/- which has not been disclosed in the books of account till the Financial Year 2017-18. It has been explained that the property has not been shown in the records of the Company at Yadav s behest because all the Balance Sheets, after the purchase of property, were filed by Suman Kumar Nayak. Even in a case of existence of undisclosed income and irrespective of its volume, the definition of crime under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dge has erred in not taking into consideration that he was examined by the CBI in the said RC and neither any incriminating evidence or any role of the petitioner was found in the commission of predicate offence in the said RC. The petitioner has thus been cited as a witness in the Supplementary Chargesheet. 39. The petitioner s Statement under Section 164 of Cr.P.C., 1973 was recorded in the CBI Court, Fort Mumbai in the predicate offence by the CBI and after investigation, he has been absolved in the predicate offence. 40. Thus, in terms of the law laid down by the Apex Court in Vijay Madanlal Chaudhary, (supra), no proceedings under PMLA, 2002 can be initiated against him. 41. It is asserted that the judgment in Pavana Dibbur vs. Directorate of Enforcement, decided on 29.11.2023 vide Crl. Appeal No. 12779/2023 by the Apex Court relied upon by the learned Sessions Judge, is not applicable to his case. There is no averment to reflect that the petitioner had any knowledge or mens rea as no person would pay money if he was aware that the property is being transferred in exchange of a benefit. 42. The petitioner has claimed that a person who is a witness in the predicate offence in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing investigated are powerful and influential persons as despite filing of three Chargesheets against the main conspirator and beneficiaries, they have not been arrested. In fact, most of them have not been arrayed as accused and those who are arrayed as an accused, were Charge-sheeted without arrest. The petitioner being a witness in the RC, had joined the investigations on multiple occasions and he is not a flight risk and has never tampered with the evidence or violated any of the parameters for grant of interim bail. The petitioner had been arrested illegally and detained for approximately 7 hours before being formally arrested. 49. Reliance has been placed by the petitioner on the recent judgment of the Apex Court in Sanjay Jain vs. Enforcement Directorate, 2024 SCC OnLine Del 1656, wherein the ground of parity has been endorsed. Similar observations have been made in Ramesh Manglani vs. ED, 2023 SCC OnLine Del 3234, Ajmer Singh vs. State of Haryana, (2010) 3 SCC 746 and State of M.P. vs. Sheetla Sahai, (2009) 8 SCC 617. 50. It is further contended that the investigations qua the petitioner are based on bald averments without any credible evidence against him which clearly es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that the twin conditions of Section 45 of PMLA, 2002 have not been satisfied. 58. It is submitted that the twin conditions under Section 45 of PMLA, 2002 are necessarily required to be satisfied for consideration of bail under PMLA, 2002, for which, reliance has been placed on the decision in Directorate of Enforcement vs. Raj Singh Gehlot, decided vide CRL.M.C. 3713/2022. Though the petitioner has been asserting that he requires medical treatment but appropriate medical treatment has been made available to him by the Jail Authority. The petitioner cannot take it as a ground for bail by referring to proviso to Section 45 of PMLA, 2002. 59. The reliance has been placed on the decision in State vs. Jaspal Singh Gill, (1984) 3 SCC 555 and State of U.P. vs. Gayatri Prasad Prajapati, 2020 SCC OnLine Sc 843. 60. The exceptional grounds of sickness for seeking bail should be exercised sparingly and in a cautious manner and every nature of sickness would not entitle an accused to be released on bail, for which, a reference has been made to Sanjay Jain, (supra). 61. The proviso to Section 45 of PMLA, 2002 is a pari materia to the proviso to Section 437 of Cr.P.C., 1973. The term si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Order dated 16.11.2023. The respondent has been filing the Application thereafter seeking judicial custody which is being extended from time to time. Therefore, the legality of initial arrest and remand cannot be challenged at this stage, while at the same time it is claimed that there was no legality in the arrest and remand of the respondent. Reliance has been placed on the decision in Serious Fraud Investigation Office vs. Rahul Modi, (2019) 5 SCC 266, wherein it has been observed that the legality at the time of arrest does not render the subsequent remand orders to be invalid. 67. Reliance has been placed by the respondent on the decision in Basanta Chandra Ghose vs. King-Emperor, 1945 SCC OnLine FC 3, Naranjan Singh Nathawan vs. State of Punjab, (1952) 1 SCC 118, Talib Hussain vs. State of J K, (1971) 3 SCC 118, Col. B. Ramchandra Rao (Dr) vs. State of Orrisa, (1972) 3 SCC 256, Kanu Sanyal vs. Distt. Magistrate, (1974) 4 SCC 141, Sanjay Dutt, (supra), Bhagwan Singh vs. State of Rajasthan, 2005 SCC OnLine Raj 861, Saurabh Kumar vs. Jailor, Koneila Jail, (2014) 13 SCC 436, State of Maharashtra vs. Tasneem Rizwan Siddiquee, (2018) 9 SCC 745, Rahul Modi, (supra) and State vs. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, possession, concealment of proceeds of crime. The petitioner acquired several immovable properties in Patna on the directions of Lalu Prasad Yadav and handed over M/s AK Infosystems Pvt. Ltd to Rabri Devi and Tejaswi Yadav along with its assets worth Rs. 1.35 crore against the payment of Rs. 1,00,000/- only in 2014. The market value of the properties was about 3-4 times higher. In the year 2017, a payment of Rs. 1.35 crore was made to the petitioner by M/s AK Infosystems Pvt. Ltd. This payment was the consequence of proceedings of Income Tax Department under Benami Act. 75. Suman Kumar Nayak, Chartered Accountant of Lalu Prasad Yadav, and the petitioner in the wake of I-T benami proceedings and other cases against Lalu Prasad Yadav and his family members, met at the residence of Rabri Devi in Patna 2017, wherein it was decided that the affairs of the Companies linked to Lalu Prasad Yadav should be regularised to avoid detection by authorities and to project things in a way which add tinge of legality to the past transactions/asset acquisition of the Companies to cover the loopholes left during handing over the Company with an intention to avoid the inquiries from various Agen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s Kingdom Hotels Resorts Pvt. Ltd. 79. The petitioner had also controlled another Company called M/s ABEPL, wherein there were no actual business/commercial operations being done by the said Company. 80. The petitioner is also connected with the property involved in the money laundering i.e., D-1088, New Friends Colony, New Delhi. 81. The petitioner has concealed the proceeds of crime from its true origin. The petitioner consciously projected receipt of the proceeds of crime as legitimate transactions by keeping a shareholding of M/s AK Infosystems Pvt. Ltd. to himself and later transferring it to Tejaswi Yadav and Rabri Devi. 82. In regard to the contention of parity on the ground of non-arrest of other persons, it has been contended that this is an irrelevant factor while considering the Bail and this principle would apply a fortiori for a person seeking bail under Section 45 of PMLA, 2002, wherein he has to make out reasonable ground for believing that he is not guilty, as held by the Supreme Court in CBI vs. Vijay Sai Reddy, (2013) 7 SCC 452. 83. It is further claimed that the land parcel purchased at price consideration of Rs. 10.83 lakh was received as illegal gratification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner has reiterated the averments as made in the present petition. 91. Learned Senior Advocate on behalf of the petitioner and the learned Special Counsel on behalf of the respondent have argued in extenso, essentially on the grounds as have been detailed in the present petition and counter-affidavit and also in their respective Written Submissions. 92. Submissions heard. 93. Essentially, the case of the respondent is that petitioner was the Director of M/s AK Infosytems Pvt. Ltd. and he had projected and concealed the property which was proceed of crime in relation to a schedule offence and was a beneficiary under the schedule offence. The Company, namely, M/s Iceberg Industries Ltd, previously known as Iceberg Consultants Limited, was incorporated in the year 29.07.1994 and the petitioner became its Director. The said Company was acquired for the purpose of setting up breweries and distilleries plant and it purchased the land parcel in Bihta, Bihar. In the year 2006, M/s AK Infosystems Pvt. Ltd. was incorporated. Since the petitioner was having business interest in Bihar, he started purchasing small chunk of land/plot in Bihar for the purpose of expansion/or for godown/guest hous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect has been clarified by the Apex Court in the case of Pavana Dibbur, (supra) and Vijay Madanlal Chaudhary, (supra). 101. Similar observations have been made by the Bombay High Court and the Punjab and Haryana High Court in the case of Deepak Kumar vs. The Enforcement Directorate Mumbai Zonal Office, decided vide Bail Application No. 31/01/2023 and Dilip Lalwani and Another vs. CBI and Anr., 2022 SCC OnLine P H 4240 respectively. 102. In Laxmipat Choraria vs. State of Maharashtra, 1967 SCC OnLine SC 30 , the Apex Court observed that Section 118 of the Indian Evidence Act, all persons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them for reasons indicated in that Section. Under Section 132 of the Indian Evidence Act, a witness shall not be excused from answering any question as to any matter relevant to the matter in issue in any criminal proceeding upon the ground that the answer to such question will incriminate or may tend directly or indirectly to expose him to a penalty or forfeiture of any kind. The safeguard to this compulsion is that no such answer which the witness is compelled to give, exposes him t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceeds of crime have been generated by one set of accused persons against whom the CBI case has been registered. However, the petitioner herein was roped in subsequently for laundering the proceeds of crime which had been generated by the accused persons in the predicate offence. Merely because those persons against whom the predicate offence has been registered, are also an accused under PMLA case would not in any way dilute or impact the involvement of the present petitioner whose role essentially has been determined to be in laundering the proceeds of crime. The argument, therefore, as projected by the petitioner, is not tenable. 107. The petitioner has contended that principal accused person i.e., Lalu Prasad Yadav, was the Minister for Railways from the year 2004-2009. He gave appointment to the post of substitute (Group-D) under the various zones of the Indian Railways, commonly known as Job for Land Scam, which travelled to him and his family members. 108. According to the respondent, the land parcel was purchased worth Rs. 10.83 lakhs from Hazari Rai by the Company of the petitioner i.e., M/s AK Infosystems Pvt. Ltd. which was eventually transferred to Tejaswi Yadav and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondents. This in itself reflects not only a pick and choose policy of the respondent which has been deprecated by the Apex Court in the case of Sheetla Sahai (Supra) case, but also entitles the petitioner to bail on the principle that the role of the present petitioner is much less than that of the other accused persons for which reference may be made to Ajmer Singh (Supra). 113. Even if it is accepted that the non-arrest of the main accused persons may not be a relevant fact and the role of each accused has to be considered individually and that in itself would not entitle the petitioner to bail, what thus, becomes important to consider is whether the allegations made against the petitioner entitle him to the benefit of proviso to S.45 PMLA wherein he need not satisfy the twin test in order to get Bail. 114. In this regard, it becomes significant and pertinent to examine the role of the petitioner in the present case. The allegations against him are that he had acquired a land valuing 10.83 lacs, which was the tainted money on the premise that the proceeds of sale are less than Rs. 1,00,00,000/-. It has been vehemently contended on behalf of the respondent that as per the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MLA 2002 in Vijay Nair v. Directorate of Enforcement in SLP (Crl.) No. 22137/2024 vide order dated 02.09.2024. 119. Having considered all the aforesaid facts, it may be observed that he is not a flight risk, as he has all throughout been joining the investigations and at no point of time tried to evade the summons or to join the investigations. There has been no endeavour him to tamper with the evidence which is essentially documentary in nature or to influence the witnesses. The Triple Test for grant of bail is, therefore, satisfied by him. 120. In the end, it may be observed that the investigations vis- -vis him already stands concluded and the Prosecution Complaint stand filed. He is in judicial custody since 10.11.2023. The trial may take long to get concluded. No purpose for his further detention in judicial custody has been made out. 121. In the light of the aforesaid discussion, the applicant is directed to be released forthwith on bail in connection with the ECIR No. ECIR/31/DLZO-I/2022 dated 16.08.2022, registered by the Directorate of Enforcement, subject to furnishing a personal bond in the sum of Rs. 10,00,000/- with two sureties of the like amount; to the satisfaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
