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TMI Blog2024 (3) TMI 1356X X X X Extracts X X X X X X X X Extracts X X X X ..... if a person has committed one offence and when said person is produced before the concerned court seeking remand then the court is to accept the remand by assigning the reason of remand. It is, thus, evident that Section 19 of the PML Act, 2002 confers power upon the competent authority to arrest a person if he has got reason to believe of commission of offence. The phrase reason to believe is having bearing and this Court is to consider on the basis of imputation as to whether the arrest is based upon any reason to having been said to be believed by the Director in order to come to the conclusion with respect to fact as to whether the remand/arrest is legal or not. This Court, in order to reach to the conclusion as to whether the material has been available before the learned Special Judge for passing the order of remand, has perused the order of remand, based upon the incriminating material claimed by the ED as per reference to that effect made in paragraph 7 to 17 of the application for custody. It has been found by learned Special Judge that huge amount of proceeds of crime is involved with larger conspiracy to illegally sell the land by manipulation of official records and la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome under the fold of proceeds of crime and hence Section 3 will not be attracted but this Court is dealing with the issue of bail and not analyzing the veracity of the imputation which is only to be done at appropriate stage and at this stage which requires consideration is parameters of Section 45 (ii) of the PML Act, 2002 as per which the twin condition is to be fulfilled. After perusal of the record of the instant case it appears that the holding number was issued to show that the possession of the said land is in the name of Pradeep Bagchi and based upon which title of the said land was established with the help of present petitioner by relying upon the report which is based upon a forged deed planted in the Registrar Kolkata Assurance Office and petitioner used his official position to give legal colour to the transaction when he himself was aware that the title to the said land is in dispute and possession belongs to Defence and from the various paragraph of prosecution complaint it is evident that in the said act proceeds of crime is generated wherein forged deed is relied upon and transaction was entered into a miniscule rate wherein no actual amount of payment was done - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Prevention of Money Laundering Act, 2002, pending in the court of learned Additional Judicial Commissioner-I cum Special Judge, Ranchi. Prosecution Case: 2.The prosecution story, in brief, as per the allegation made in the instant ECIR/complaint reads as under: 3.An ECIR bearing No. 18/2022 was recorded on the basis of the FIR bearing No. 141 of 2022 [Bariatu P.S.] dated 04.06.2022, lodged at Bariatu police station, Ranchi Jharkhand under Sections 420, 467 and 471 of the Indian Penal Code against one Pradeep Bagchi on the basis of complaint of one Sri Dilip Sharma, Tax Collector, Ranchi Municipal Corporation, for submission of forged papers i.e., Aadhar Card, Electricity Bill and Possession letter for obtaining holding number 0210004194000A1 and 0210004031000A5. Investigation revealed that by submitting the forged documents, a holding number was obtained in name of Pradeep Bagchi for property at Morabadi Mouza, Ward No. 21/19, Ranchi having an area of the plot measuring 455.00 decimals approx. at Ranchi. 4.Investigation further revealed that the above property belonged to Late B.M. Laxman Rao which was given to the Army and had been in the possession of the Defence, in occupa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in illegal transfer of the land of Cheshire Home of Khata No. 256 Plot Nos. 891 and 893, Mauza Bargai, but it would be evident from the order of remand wherein the reference of distinct properties has been made. Hence, as per requirement of Section 19 (1) of the PML Act, 2002, the remaining ground of arrest, as has been taken note of in the order of remand, since is not available in the communication made at the time of arrest hence the arrest itself is illegal not in consonance with the provision of Section 19(1) of the PML Act, 2002. II.The consequential argument has also been advanced that since the remand order itself is bad and illegal and hence the very custody of the petitioner is bad in the eye of law. III.Therefore, submission has been made that the law is well settled that if the foundation will go the subsequent action will also collapse. IV.Further ground has been taken that the ECIR has been said to be recorded on 21.10.2022 while the alleged transfer of the land in question is prior to the aforesaid ECIR and hence it cannot be said to be predicate offence on the basis of definition of proceeds of crime reason being that the proceeds of crime will only be said to be at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty or claiming as an untainted property as per the Explanation No.l, as provided under PML Act, 2002. XII.Learned counsel for the petitioner has heavily relied upon the judgment by Hon ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., (2022) SCC OnLine SC 929and Pankaj Bansal vs. Union of India and Ors., 2023 SCC OnLine SC 1244 as also the reference of judgment of United Kingdom in the case of Regina Vs. GH [(2015) UKSC 24]. XIII.Learned counsel for the petitioner has also relied upon the judgment rendered by Hon ble Apex Court in the case of Chinna Gowda Vs. State of Mysore [(1963) 2 SCR 617] and Ameena Begum Vs. State of Telangana Ors [(2023) 9 SCC 587]. XIV. Learned counsel for the petitioner based upon the aforesaid ground has vehemently argued that it is a fit case where the petitioner is fit to be released from judicial custody taking into consideration that he is languishing in judicial custody for his no fault rather on the ground of failing to discharge his official duty, even though there is no ingredient of Section 3 of the PML Act, 2002. Argument on behalf of Respondent-ED: 11. Per contra, Mr. Anil Kumar, [learned senior counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tea Estates Pvt. Ltd. VI.Further, it would be evident from the prosecution complaint that the present petitioner, in the capacity of Deputy Commissioner, Ranchi, has also directed the Sub-Registrar, District Land Registry Office, Ranchi to get the land registered. It has been submitted that under the notification of the Government, the Deputy Commissioner is also the District Registrar but as per the delegation of power the Deputy Commissioner in the capacity of District Registrar has got no power to register the land rather the power is vested with the Sub-Registrar of the concerned district land registration office but even then, the petitioner has interfered with the affairs of Sub-registrar for the purpose of getting the land registered in favour of accused persons. VII.These activities of the petitioner in the capacity of Deputy Commissioner cannot be said to be in discharge of official duty rather it is only in connivance with the other accused persons, namely, Pradeep Bagchi, Amit Kumar Agarwal and others who are ultimate beneficiary and hence it can well be concluded that due to illegal act of the petitioner the other accused persons have got the valuable property in meager ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upon different paragraphs of the judgment as rendered in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) as also the Explanation part of Section 3 of PML Act, submission has been made by learned counsel for the respondent-ED that it is incorrect on the part of the petitioner that no offence under Section 3 of the PML Act has been committed as Section 3 of the PML Act starts from the word 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. 12. Learned counsel for the respondent-ED based upon the aforesaid grounds has submitted that it is not a fit case for grant of regular bail in favour of the petitioner. Analysis: 13. This Court has heard learned counsel for the parties, considered the argument advanced on behalf of parties as also the judgments relied upon by the parties and other materials available on record. 14. This Court, before appreciating the argument advanced on behalf of the parties, deems it fit and proper to first discuss herein some of the provision of law as co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 laundering of monies carried through serious crimes a criminal offence; (ii) to work out modalities of disclosure by financial institutions regarding reportable transactions; (iii) confiscation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 22. 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 indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. 23. The property has been defined under Section 2(1)(v) which means any property or assets of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foresaid 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. 28. 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. 29. The punishment for money laundering has been provided under Section 4 of the Act, 2002. 30. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready reference, Section 50 of the Act, 2002 is quoted as under: 50. Powers of authorities regarding summons, production of documents and to give evidence, etc. (1) The Director shall, for the purposes of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the predicate offence has been made as would appear from paragraph 265. For ready reference, relevant paragraphs is 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 expression projecting or claiming therein. This Court in Pratap Singh v. State of Jharkhand, enunciated that the international treaties, covenants and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 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 the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, 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. 33. It is evident from the observation so made as above that the purposes and objects of the 2002 Act for which it has been enacted, is not limited to punishment for offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 nonbailable 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. 38. 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. 39. 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. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 41. 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 proved, that in any proceedings relating to proceeds of 17 A.B.A. No. 10671 of 2023 crime under the Act, in the case of a person charged w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enace of moneylaundering. 44. 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. 45. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 19. Discussion on the argument advanced by the parties: 48. Now, after having discussed the judgments passed by the Hon ble Apex Court on the issue of various provisions of the Act, 2002, this Court, is now proceeding to answer the legal grounds as has been raised on behalf of the learned counsel for the petitioner. 49. It has been informed that the petitioner has also filed an application for grant of compulsory bail but the same is now pending before the Hon ble Apex Court. 50. It also needs to refer herein that Cr. Misc. Application was also filed challenging the order of remand and since regular bail application was filed hence the said petition was not pressed with a liberty to take all the grounds at appropriate stage. 51. This Court before coming to the facts of the case thinks fit to the deal with the first issue i.e., the issue of remand as has been raised by the learned counsel for the petitioner stating the same to be bad in law, and hence requires to refer herein the interpretation of word remand . 52. It is pertinent to refer herein that under the Code of Criminal Procedure the word remand has not been defined. The concept of remand is in order to achieve the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In re [(1969) 1 SCC 292 : AIR 1969 SC 1014] it has been stated that: (SCC p. 299, para 12) 12. Once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand the Magistrate directed detention in jail custody after applying his mind to all relevant matters. 54. It is evident from the aforesaid judgment that the power conferred to the Court to remand a person in the judicial custody if there is imputation of prima facie case said to be committed under cognizable offence. The word remand bifurcates that whether the same is for one allegation or more than one allegation, rather irrespective of number of allegations even if a person has committed one offence and when said person is produced before the concerned court seeking remand then the court is to accept the remand by assigning the reason of remand. 55. It can be considered on different angle also supposed at the time of remand the basis of remand is only imputation and after remand there may be several imputations having been surfaced in course of investigation. Then it cannot be said that the order of remand since is based upon one imputation wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuance of a detention order, the authority making the order shall, as soon as may be, but not later than five days from the date of detention, communicate to him the grounds on which the order has been made, and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. 63. The said provision since is under the Prevention of Detention Act and hence the same will not be applicable in the matter of other penal offences herein the PML Act, 2002. If the content of Section 19(1) will be taken into consideration then it would be evident that if the Director, Deputy Director, Assistant Director or any other officer authorized in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person and shall, as soon as may be, inform him of the grounds of such arrest. 64. It is, thus, evident that Section 19 of the PML Act, 2002 confers power upon the competent authority to arrest a person if he has got reason to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the country, then the property equivalent in value held within the country or abroad. 68. In the explanation of the aforesaid provision 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. 69. This Court, in order to reach to the conclusion as to whether the material has been available before the learned Special Judge for passing the order of remand, has perused the order of remand, based upon the incriminating material claimed by the ED as per reference to that effect made in paragraph 7 to 17 of the application for custody. It has been found by learned Special Judge that huge amount of proceeds of crime is involved with larger conspiracy to illegally sell the land by manipulation of official records and later acquiring the said land on meager price. Accordingly, the petitioner was remanded in the case. 70. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in the records of registrar of assurances, Kolkata was Prafulla Bagchi. Accordingly on receipt of the sale deed, report was prepared by the Circle Officer Manoj Kumar wherein he was directed by Mr. Chhavi Ranjan to mention that as per the transfer of property Act, the first right on the abovesaid property is of Pradip Bagchi. A copy of the sale report was also made to the ADSR, Ghasi Ram Pingua (which was unusual and extraordinary step) for his information which was meant to direct the DSR to register the property in name of Jagatbandhu Tea Estate Pvt. Ltd. based on the report of the Circle Officer, which in turn was backed by the fake deed of Kolkata. 10. It is revealed that the earlier arrested accused persons Afshar Ali and Saddam Hussain visited the office of the present accused I.e. then D.C Mr. Chhavi Ranjan with a very close associate and confidant of Prem Prakash. The said close confidant of Prem Prakash was acting on the instructions of Amit Kumar Agarwal and Prem Prakash. During meeting the Circle Officer of Bargai Anchal, Mr. Manoj Kumar was also present there. Mr. Chhavi Ranjan directed the said circle officer to get the claim of Pradip Bagchi verified from Registrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arwal. The CBI, New Delhi has lodged an FIR against Amit Kumar Agarwal and others for conspiracy to malign the image of Judiciary and other government officials. In the said FIR, the CBI has also enquired and found that Mr. Chhavi Ranjan tried to influence Rajeev Kumar on behest of Amit Kumar Agarwal. 14. The accused persons while holding the post of Deputy Commissioner, Ranchi had received complaints from the Defence against the sale of the abovesaid property by Jayant Karnad. Therefore, it was in the knowledge of the accused persons that the property was in possession of the Defence and there was existing dispute between the defence and JayantKarnad who had sold land to thirteen different people. The defence had also requested the D.C to cancel the registration of the said property. Being aware of this fact, Mr. Chhavi Ranjan In collusion with the other accused persons, knowingly entertained the frivolous claim of Pradip Bagchi, held meetings with the accused persons and even directed the Circle Officer to conduct enquiry regarding the claim of Pradip Bagchi. This was knowingly done to register the property and transfer its ownership to Jagat Bandhu Tea Estates, a beneficial comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Investigation has revealed that bribe amounting to Rs. 1 crore was paid by the accused persons arrested earlier to the present accused through Prem Prakash for unblocking one plot of land at Bargain Mauja from the restricted list. Further, it is also revealed that a fixed amount of money ranging from 2-2.5 lacs was paid from Circle Offices to the accused person which was deposited to one of his close confidants. 71. It is, thus, evident that the petitioner while working as Deputy Commissioner has acted on the application of one Pradeep Bagchi, a fake owner of the property and verbally directed Mr. Manoj Kumar, the then Circle Officer, Bargai to forward the verification report of the ownership of the property. Mr. Manoj Kumar, Circle Officer submitted a report stating that the name of Pradeep Bagchi did not appear in the record and Jayant Karnard is the rightful owner of the property. The petitioner has directed the Circle Officer to visit the office of Registrar Assurance (Records) Kolkata and verify the original deeds for ascertaining the owner of the property. It was surfaced in course of investigation that original registers in the records of Registrar of Assurance, Kolkata is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by him to the Circle Officer and based upon said forged document, the documents pertaining to the said land was prepared in the name of Pradeep Bagchi who has subsequently sold out the land in favour of one firm, M/s Jagatbandhu Tea Estate Pvt. Ltd, the land situated at Cheshire Home, which was owned by Amit Kumar Agarwal, the accused no. 3. 76. The learned Special Judge based upon the aforesaid material available before him has remanded the present petitioner to Judicial custody. 77. The argument of learned counsel for the petitioner is that the ground of arrest is only the involvement of the petitioner in illegal transfer of the land in question, but it would be evident from the order of remand wherein the reference of distinct properties has been made. 78. But the question herein is that even accepting that the other piece of land has been included as part of enquiry making basis of allegation said to be committed under Section 3 of the PML Act, 2002, then merely because the reference of other piece of land which were sold out by way of committing forgery were not before the court, rather, allegation pertaining to transfer of land illegally was available with respect to on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erein the proposition, as has been laid down by Hon ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) wherein the Section 19(1) has been interpreted with its implication. 87. Section 19 of the 2002 Act postulates the manner in which arrest of person involved in money-laundering can be effected. Subsection (1) of Section 19 envisages that the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government, if has material in his possession giving rise to reason to believe that any person has been guilty of an offence punishable under the 2002 Act, he may arrest such person. Besides the power being vested in high-ranking officials, Section 19 provides for inbuilt safeguards to be adhered to by the authorised officers, such as of recording reasons for the belief regarding the involvement of person in the offence of money-laundering. That has to be recorded in writing and while effecting arrest of the person, the grounds for such arrest are informed to that person. The relevant paragraphs of the aforesaid judgment are being quoted here as under: 322. Section 19 of the 2002 Act post ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pursuant to the order of the Court, a formal complaint against such person accusing him of being involved in commission of an offence is essential. Moreover, the person produced before the Court would be at a loss to know the grounds for arrest unless a formal FIR or complaint is filed accusing him about his involvement in the commission of an offence. The provision if interpreted to permit the authorised officer to arrest someone being involved in the commission of offence of money-laundering without a formal complaint against him, would be ex facie manifestly arbitrary and unconstitutional. 458. The next issue is :whether it is necessary to furnish copy of ECIR to the person concerned apprehending arrest or at least after his arrest? Section 19(1) of the 2002 Act postulates that after arrest, as soon as may be, the person should be informed about the grounds for such arrest. This stipulation is compliant with the mandate of Article 22(1) of the Constitution. Being a special legislation and considering the complexity of the inquiry/investigation both for the purposes of initiating civil action as well as prosecution, non-supply of ECIR in a given case cannot be faulted. The ECIR m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of persons actually involved in the commission of offence are not mentioned in the FIR and described as unknown accused. Even, the particulars as unfolded are not fully recorded in the FIR. Despite that, the accused named in any ordinary offence is able to apply for anticipatory bail or regular bail, in which proceeding, the police papers are normally perused by the concerned Court. On the same analogy, the argument of prejudice pressed into service by the petitioners for nonsupply of ECIR deserves to be answered against the petitioners. For, the arrested person for offence of moneylaundering is contemporaneously informed about the grounds of his arrest; and when produced before the Special Court, it is open to the Special Court to call upon the representative of ED to produce relevant record concerning the case of the accused before him and look into the same for answering the need for his continued detention. Taking any view of the matter, therefore, the argument under consideration does not take the matter any further. 88. It is evident from the aforesaid discussion made therein that the authority under the Act, 2002 is to prosecute a person for offence of money-laundering only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner that there is no legal evidence, and as such the very arrest is illegal. 93. While on the other hand, Mr. Anil Kumar, learned ASGI appearing for the respondent-ED has submitted that there is ample material available in course of inquiry based upon which the prosecution report was submitted and hence it cannot be said that there is no legal evidence. 94. This Court, in order to appreciate the rival submissions, needs to refer herein the allegation which was collected in course of investigation/inquiry, which is being referred herein: 3. Brief Facts of the offence/allegation/charge/amount involved under PMLA 3.6 As stated above that there were ongoing litigations regarding the possession of this property between Army and the purported claimant Jayant Karnad who had sold the land to 14 persons by way of 16 deeds (RUD No. 115 to 130) on strength of the order obtained from the High Court of Jharkhand by concealing and manipulating facts. The accused persons namely Afshar All, Pradip Bagchi and his accomplices meanwhile prepared a fake deed from the office of the Registrar of Assurances, Kolkata in the name of Prafulla Bagchi F/o Pradip Bagchi (RUD No. 108 113). It was pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of PradeepBagchi and the direction to visit Kolkata to verify the records available with Registrar of Assurances was a well-executed plan so that the property could be transferred to Amit Kumar Agarwal through his company JagatBandhuTeaEstates Pvt. Ltd. 8. Brief detail of persons examined u/s 50(2) 3 of PMLA 8.1 Circle officer Manoj Kumar The Circle officer Manoj Kumar has stated in his statement dated 03.02.2023 recorded under section 50 of PMLA, 2002 (RUD No.27) that Pradip Bagchi had submitted an application at the D.C Office, Ranchi and had claimed that the property situated at M.S Plot No. 557, MaujaMorabadi, Ranchi admeasuring 4.55 acres belonged to his father Prafulla Bagchi. The accused Chhavi Ranjan had directed him to provide a report on claim of Pradip Bagchi. On being directed by the accused Chhavi Ranjan, he further directed the Circle Inspector Birendra Kumar Sahu and the Revenue Sub-Inspector Jayant Vijay Toppo to provide a report immediately. He further stated that on 25.05.2021 (RUD No. 28), he had submitted a verification report to the accused Chhavi Ranjan, the then D.C, Ranchi which stated that the land belonged to Jayant Karnad as per the records. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he joined the office, the matter came into light of the superior authorities and this fixed collection ended. During his statement dated 04.05.2023 recorded under section (RUD No. 30), he stated that on 24.05.2021 he was called by the accused Chhavi Ranjan at his office and was verbally directed to visit Kolkata and give report as his earlier report dated 25.05.2021 was not correct. It also reveals from his above statement that he was unwilling to visit Kolkata and as such he demanded Rs. 50,000/- for the visit. Further, he also in his statement that he was under coercion by the accused Chhavi Ranjan who pressurised him to mention in his report dated 25.09.2021 that under transfer of property act, Pradip Bagchi has first claim on the property. 8.3 Afshar Ali He further stated that no government official demanded money for the registration of the said 4.55 acres Morabadi property because everyone knew that Amit Kumar Agarwal, Prem Prakash and the ex-D.C, Ranchi Chhavi Ranjan were involved behind the registration of this property in the name of Jagatbandhu Tea Estate Pvt. Ltd. He further stated that on earlier occasions also, he had prepared fake deeds of the landed properties from K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jharkhand). Mr. Chhavi Ranjan had knowledge that the above said property is disputed as one dispute between Defence and JayantKarnad was also pending for disposal before his court i.e., the court of the District Magistrate, Ranchi and the accused Chhavi Ranjan was also conducting the hearing in this matter. Yet on receipt of the application of PradeepBagchl, who falsely claimed himself to be the rightful owner of the property, the Ex- Deputy Commissioner, Mr. Chhavi Ranjan in connivance with Prem Prakash, Amit Kumar Agarwal, Afsar Ali, Saddam Hussainandothers knowingly directed the Circle Officer, Bargain, Manoj Kumar to forward a verification report on the ownership of the property. Vide letter dated 25.05.2021 (RUD No 28), the Circle Officer Manoj Kumar furnished a report stating that the name of Prafulla Bagchi/Pradip Bagchi did not appear in their records and further Pradeep Bagchi has not submitted any documents in support of his claim. The said report was deliberately not accepted by the accused Chhavi Ranjan and it was also not taken on his official record. However, the dispatch register of the circle office, Bargain shows that the said letter was dispatched on 25.05.2021 (R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021. The courier number is 403358804 and was addressed to the Circle Office, Baragal, Ranchi. 9.8.3 On receipt of the said deed, report dated 22.09.2021 favourable to the accused persons was prepared by the Circle Officer Manoj Kumar and he was also directed by Chhavi Ranjan to mention that as per the transfer of property Act, the first right on the abovesaid property is of Pradip Bagchi (RUD No 27). A copy of the said report was also sent to the ADSR, Ghasi Ram Pingua (which was unusual and extraordinary step) vide letter no. 847 dated 25.09.2021 for his information which was meant to enable the DSR to register the property in name of Jagatbandhu Tea Estate Pvt. Ltd. based on the report of the Circle Officer which in turn was backed by the fake deed of Kolkata. Thus, it is evident that it was a deep-rooted conspiracy wherein was pre-planned and was well executed too. The entire process ended in a very swift manner which was personally monitored by the accused Chhavi Ranjan. Brief summary of result of investigation under PMLA 10.2 The accused person Chhavi Ranjan also assisted two persons namely Ravi Singh Bhatia and Shyam Singh acquiring a very large parcel of land admeasuring 7.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to be punished under section 4 of PMLA, 2002 Property having Commercial value Rs. 41,51,68,390/- asper the minimum effective value per decimal fixed by District Registrar, Ranchi, effective from 01.08.2021. In addition to the above, acquisition of proceeds of crime amounting to Rs. 1 crore in cash from Afshar All, accused no. 6 95. From the aforesaid paragraphs of the prosecution complaint, it appears that the present petitioner Chhavi Ranjan influenced the officials of Circle Officer, Baragai, Ranchi and District Sub Registrar, Ranchi and managed to procure a favourable report for Pradeep Bagchi at the behest of Prem Prakash and Amit Kumar Agarwal, and the property was subsequently acquired dishonestly by M/s Jagat Bandhu Tea Estate Pvt. Ltd. 96. It further appears that the petitioner i.e. Chhavi Ranjan alongwith Amit Kumar Agarwal and Prem Prakash was aware and knew that the ownership of Pradeep Bagchi was fictitious and the deed was fake yet the petitioner assisted and knowingly became a party with Amit Kumar Agarwal to acquire the above property which was proceeds of crime. The accused Chhavi Ranjan had knowledge that the above said property is disputed, as one dispute betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,390/-. 100. This Court, in view of aforesaid imputation, is of the view that the argument which has been advanced that there is no legal evidence against the petitioner is not acceptable, hence, rejected. 101. Fourth argument has been advanced that even accepting that there is legal evidence then also it cannot be said to be proceeds of crime, as per the definition of proceeds of crime. 102. The argument has been advanced by learned counsel for the petitioner that offence said to be committed is only a forgery of the document attracting the schedule offence but merely because schedule offence has been committed the same cannot be brought to the purview of proceeds of crime. 103. While on the other hand, Mr. Anil Kumar, learned ASGI has vehemently opposed such ground by making submission that the petitioner has been found to be involved in facilitating the co-accused persons, namely, accused no.1 Jagat Bandhu Tea Estate Pvt. Ltd., accused no.3 Amit Kumar Agarwal, accused no.6 Afsar Ali, accused no.7 Mohammad Saddam Hussain and other accused persons in their activities connected with acquisition, possession, concealment as well as use of proceeds of crime for the purpose of transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s ; 108. The term proceeds of crime has been defined by Hon ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) as under paragraphs, as referred hereinabove. 109. The property has also been defined, which means assets of any description i.e., corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located, meaning thereby that the property will also include in terms of liquid money. 110. The Section 3 of the PML Act, 2002 provides that 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 or projecting as an untainted property or claiming as an untainted property shall be guilty of money laundering Act. 111. Section 3 of the 2002 Act, defines the offence of money-laundering. The expression money-laundering , ordinarily, means the process or activity of placement, layering and finally integrating the tainted property in the formal economy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Thus, involvement in any one of such process or activity connected with the proceeds of crime would constitute offence of money-laundering. This offence otherwise has nothing to do with the criminal activity relating to a scheduled offence except the proceeds of crime derived or obtained as a result of that crime. 113. Thus, it is evident that the penal offence under Section 3 will be attracted if a person is directly or indirectly even attempting 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, meaning thereby that it is not that it is direct involvement rather it is indirectly also even in taking attempts or by assisting in any process or activity connected with the proceeds of crime. 114. The question of commission of crime as per imputation, as per the argument advanced on behalf of learned counsel for the petitioner even accepting to be correct the same will not come under the fold of proceeds of crime and hence Section 3 will not be attracted but this Court is dealing with the issue of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as per the definition of proceeds of crime, has no substance. 122. The learned counsel for the respondent-ED has taken the ground that the provisions of Bihar Tenant s Holdings (Maintenance of Records) Act, 1973 will be applicable in the State of Jharkhand, which only provides provision of creation of mutation and cancellation by the Circle Officer, the competent authority and the Deputy Commissioner is the appellate authority. Further even in the State of Jharkhand, Sub-registrar has been notified to Act as a Registrar under the Indian Registration Act, 1908/relevant rule by virtue of Rule formulated in this regard. 123. In response, Mr. Indrajit Sinha, learned counsel for the petitioner has not disputed the aforesaid fact of applicability of Act, 1973 and the power of Sub-Registrar under the Jharkhand Registration Act. 124. There is no dispute to the fact that in the State of Jharkhand there is an Act, known as Bihar Tenant s Holdings (Maintenance of Records) Act, 1973, which is being followed in the State of Jharkhand wherein the competent authority to do mutation is the Circle Officer. Chapter III of the Act 1973 deals with the mutation under which, under Section 14 it has b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olved herein. There is no dispute about the law laid down therein that that all the crimes cannot be said to come under the fold of proceeds of crime . This Court is not disputing the aforesaid proposition of law but at the same time this Court is required to look into the basis of involvement of one or the other accused in the touchstone of PML Act, 2002, which has elaborately been dealt with by Hon ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) wherein the PML Act has been dealt with along with the reason and object for enactment of the said Act. 130. Furthermore, at this stage, this Court is to look into the fulfillment of twin condition under Section 45 as has been dealt with herein above and on consideration of such condition this Court has reached to the conclusion based upon the material that it cannot be said that there is no reason to believe of involvement of the petitioner in commission of crime. 131. From the aforesaid judgment which is of United Kingdom, it appears that there is no reference of pari materia provision to that of Section 45 of the PML Act, 2002. Hence, the judgment rendered in Regina Vs. GH is not appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensuring fairness and securing government properties himself misused his official position and influenced his subordinate officials. Ground of Parity 137. In course of argument, raising the issue of parity the fact about bail granted in favour of co-accused, Dilip Kumar Ghosh has been made. 138. This Court has considered the imputation made against said Dilip Kumar Ghosh vis- -vis the present petitioner so as to apply the principle of parity. 139. Law is well settled that the principle of parity is to be applied if the case of one or the other is exactly to be similar then only the principle of parity is to be applied but if there is difference in between the facts then the principle of parity is not to be applied 140. Ground of parity though has been raised but in the aforesaid context it may be noted that parity is not the law, rather the principle of parity is based on the guarantee of positive equality before law enshrined under Article 14 of the Constitution of India and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. 141. Reference in this regard may be taken to the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) 17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity.It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [MitthanYadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside. 26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order passed by the Co-ordinate Bench granting bail in favour of Dilip Kumar Ghosh is having no aid to the petitioner. 145. Further it is required to refer herein that the Money Laundering is an economic offence and economic offences come under the of grave offences hence needs to be visited with a different approach in the matter of bail as held by the Hon ble Apex court in the case of Y. S Jagan Mohan Reddy v/s C. B. I (2013) 7 SCC 439. For ready reference the relevant paragraphs of the aforesaid judgments are being quoted as under: 34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 146. Similarly, the Hon ble Apex Court in case of Nimgadda Prasad v/s CBI (2013) 7 SCC 466 has reiterated the same view from paragraph 23 to 25 which reads as under: 23. Unfortunately, in the last few years, the country has been seeing an alarming rise in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 147. It requires to refer herein that the parameter to deal with public servant is quite different to that of other person. The reason for this is that if the public servant, who is the custodian of public property will discharge his duty with utmost honesty and sincerity which is the bounden duty of the public servant then there will no occasion for causing loss to the State Government. Exactly the case herein is since the Deputy Commissioner, the post which was hold by the petitioner during the relevant time in the district of Ranchi, the capital of State of Jharkhand, has not only facilitated the accused persons in transfer of land in question in a meager amount but also indirectly supported the accused persons particularly Amit Kumar Agarwal, accused no. 3, who happens to be the beneficial owner M/s Jagatbandhu Tea Estate Pvt. Ltd and other companies in whose account the amounts has been transmitted. 148. It is, thus, evident from the discussion made hereinabove that so far as the case of the present petitioner is concerned, the twin condit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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