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TMI Blog2024 (9) TMI 1497X X X X Extracts X X X X X X X X Extracts X X X X ..... the existence of the appellant's cash income as MLA and the appellant's agriculture income. Therefore, at this stage, it will be very difficult to hold that there is no prima facie case against the appellant in the complaint under Section 44 (1) (b) of the PMLA and material relied upon therein. Effect of delay in disposal of cases - HELD THAT:- In the offence under the PMLA, the charge has not been framed. In view of Clause (d) of sub section (1) of Section 44 of PMLA, the procedure for sessions trial will have to be followed for the prosecution of an offence punishable under Section 4 of the PMLA. In view of clause (c) of sub section (1) of Section 44, it is possible to transfer the trial of the scheduled offences to the Special Court under the PMLA. The existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. A property derived or obtained, directly or indirectly, by a person as a result of the criminal activity relating to a scheduled offence constitutes proceeds of crime. The existence of proceeds of crime at the time of the trial of the offence under Section 3 of PMLA can be proved only if the scheduled offence is established in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulfilment of conditions imposed - appeal allowed. - HON'BLE MR. JUSTICE ABHAY S. OKA AND HON'BLE MR. JUSTICE AUGUSTINE GEORGE MASIH. For the Petitioner(s) : Mr. Mukul Rohatgi, Sr. Adv. Mr. Siddharth Luthra, Sr. Adv. Mr. S Prabakaran, Sr. Adv. Mr. N R Elango, Sr. Adv. Mr. Aditya Sondhi, Sr. Adv. Mr. Ma Gouthaman, Adv. Mr. N Bharanikumar, Adv. Mrs. Usha Prabakaran, Adv. Mr. Maheswaran Prabakaran, Adv. Mr. Naveen M, Adv. Ms. Misha Rohatgi, Adv. Mr. Thangadurai, Adv. Mr. Agilesh Kumar S, Adv. Mr. Kartikeya Dang, Adv. Mr. Shashir Seth, Adv. Ms. Aishwarya S M, Adv. Ms. Meghna S M, Adv. Mr. G Jai Singh, Adv. Mr. Muthu Ganesa Pandian, Adv. Mrs. Harini Ramsankar, Adv. Dr. Ram Sankar, Adv. For M/S. Ram Sankar Co, AOR. For the Respondent(s) : Mr. Tushar Mehta, Solicitor General, Mr. Kanu Agrawal, Adv., Mr. Zoheb Hussain, Adv., Mr. Arkaj Kumar, Adv., Mr. Merusagar Samantaray, Adv., Ms. Sansriti Pathak, Adv., Mr. Balaji Srinivas, Adv., Mr. Arvind Kumar Sharma, AOR. For the intervenor(s) in IA No.118279/24 : Mr. S Gurukrishnakumar, Sr. Adv., Mr. Pranav Sachdeva, Adv., Mr. Jatin Bhardwaj, Adv., Mr. Abhay Nair, Adv., Mr. Ashwin Kumar, Adv., Ms. Neha Rathi, AOR For intervenor(s) in IA No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se Information Report (for short ECIR ) bearing ECIR No. MDSZO/21/2021 on 29th July 2021. 4. The appellant was arrested on 14th June 2023 in connection with the said ECIR and was remanded to judicial custody. A complaint was filed for the offence under Section 3 of the PMLA Act, which is punishable under Section 4, on 12th August 2023. The appellant is the only accused named in the complaint. Cognizance has been taken based on the complaint by the Special Court under the PMLA. The scheduled offences cases have been transferred to the learned Assistant Sessions Judge, Additional Special Court for Trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu (Special MPMLA Court), Chennai. SUBMISSIONS 5. Learned senior counsel appearing in support of the appeal pointed out that in this case, ED is relying upon material collected by the investigating agencies investigating the scheduled offences. He submitted that five articles were allegedly seized during the search on 6th February 2020 in the appellant's premises. He invited our attention to the averments made in the complaint and, in particular, paragraph no. 14.5, which deal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of file name CS AC in the pen drive and the file name of the same file in the TNFSL report dated 31st March 2023, which shows collection of the sum of Rs. 67.74 crores by the appellant for providing employment in the various posts in the Transport Department. He submitted that if the TNFSL report is perused, the document at Sr.No.24 has the same name, CS AC. He submitted that the portion .xlsx is only a file extension, which signifies that it is a Microsoft Excel sheet. He submitted that a printout of the Microsoft Excel spreadsheet file with the name CS AC found in the seized pen drive was certified by the Special MPMLA Court, which is relied upon in the complaint. He submitted that at this stage, there is no reason to doubt the correctness of the printout of the file CS AC provided by the Special MPMLA Court. The learned counsel appearing for ED also pointed out that there is no discrepancy in the seizure of the H.P. hard disk. The learned counsel submitted that the salary/remuneration payable to MLAs is directly credited to the bank account of the concerned MLAs. Therefore, there is no question of any cash amount being received on the said count. He pointed out that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribe recipients was under scrutiny in the case. He pointed out that this Court heavily came down on such compromises in the said decision. He relied upon various paragraphs of the said decision. He submitted that the argument of learned senior counsel for the appellant in the said case that one Shri Shanmugam, who is allegedly involved, was not his personal assistant, has been expressly rejected. This Court found that he was working as a personal assistant of the appellant. 10. Learned SG relied upon a decision of this Court in the case of Y. Balaji v. Karthik Desari and Another (2023) SCC OnLine SC 645. He pointed out observations made from paragraph 17 onwards of the said decision. He pointed out that this Court objected strongly to not registering offences under the Prevention of Corruption Act, 1988. He pointed out the observations of this Court regarding the compromise entered in the scheduled offence. It was observed that two teams were created just for the record, and an investigation was carried out as if it were a friendly match between the complainants and the accused. This Court further observed that it was only because of the position of the appellant as a Minister that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unishable under Section 4 of the PMLA. The minimum punishment for an offence punishable under Section 4 is imprisonment for three years, which may extend to seven years. If the scheduled offences are under paragraph 2 of Part A of the Schedule in the PMLA, the sentence may extend to 10 years. In the appellant s case, the maximum sentence can be of 7 years as there is no scheduled offence under paragraph 2 of Part A of Schedule II alleged against the appellant. 15. We have already narrated that there are three scheduled offences. In the main case (CC Nos. 22 and 24 of 2021), there are about 2000 accused and 550 prosecution witnesses cited. Thus, it can be said that there are more than 2000 accused in the three scheduled offences, and the number of witnesses proposed to be examined exceeds 600. 16. This Bench is also dealing with MA no. 1381 of 2024 seeking various reliefs such as a transfer of investigation of scheduled offences, appointment of special public prosecutor etc. The orders passed in the said application would reveal that the sanction to prosecute all public servants, including the appellant, has now been granted. Charges have not been framed in the scheduled offences. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (f) claiming as untainted property, in any manner whatsoever; (ii) 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.] 20. Existence of proceeds of crime is a condition precedent for the offence under Section 3. Proceeds of crime have been defined in Section 2 (u) of the PMLA which reads thus: 2 (u) proceeds of crime means any 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, then the property equivalent in value held within the country [or abroad]; Explanation . 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 relata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court ought to have given due weightage to this factor. 51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra6 wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikan ti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia v. State of Punjab, Hussainara Khatoon (I) v. Home Secretary, State of Bihar, Union of India v. K.A. Najeeb and Satender Kumar Antil v. Central Bureau of Investigation. The Court observed thus: 19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. 52. The Court also reproduced the observations made in Gudikanti Nara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State. 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant. . (emphasis added) 24. There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail. By way of illustration, we may refer to Section 45 (1) (ii) of PMLA, proviso to Section 43D (5) of the Unlawful Activities (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, NDPS Act ). The provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45 (1) (ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial. 30. The decisions the learned SG relied upon indicate that the appellant's influential position in the State may have resulted in a so called compromise between the bribe givers and the bribe takers. Considering the apprehension of the appellant tampering with the evidence, stringent conditions must be imposed. 31. Therefore, the appeal is allowed, and the appellant shall be enlarged on bail till the final disposal of CC No. 9 of 2023 pending before the Principal Session Judge, Chennai, on the following conditions: a. The appellant shall furnish bail bonds in the sum of Rs. 25,00,000/ (Rupees twenty-five lakhs only) with two sureties in the like amount; b. The appellant shall not directly or indirectly attempt to contact or communicate with the prosecution witnesses and victims of the three scheduled offences in any manner. If it is found that the appellant directly or indirectly made even an attempt to contact any prosecution witness or victim in the scheduled as well as offences under the PMLA, it will be a ground to cancel the bail granted to the appellant; c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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