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TMI Blog2018 (9) TMI 2150X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 of the said Act, 2002 and thereby acted contrary to the well settled principle of law regarding appreciation of materials collected in the course of investigation as well as guidelines for deciding an application for bail. 3. Mr. Ghosh adverted to statement of the petitioner dated 24.3.2015 who is a debenture trustee member of Rose Valley Group to argue that the petitioner is innocent and not involved in the alleged offence who had surrendered on his own before the concerned Court. It appears from his voluntary statement recorded under PMLA that he was nominated as the Debenture Trustee for the period 2007-08. The number of Debenture Trustees were four including him. Debentures were issued two times, about five crores value each time. In his statement he has stated that Shri Goutam Kundu was the person responsible for the acts and affairs of the Debenture issue who knew about the process of issue of debenture and the money was directly deposited to Rose Valley Branch Office by Debentures Holders. Mr. Ghosh contended that the petitioner was made Debenture Trustee without his contribution or role of such action. 4. My attention to the specific role of the petitioner in commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day to day conduct of the company. Had it been so, Abir Kundu, Subhra Dey and others whose names are reflected in the statement of N.C. Pillahi should have been implicated in the case since the complaint discloses that the period of offence under investigation was from 2001 to 2008. It is also argued that no search and seizure has been made and no bank account of the petitioner has been scrutinized and that the issue of proceeds of crime cannot be said to be accrued in favour of the petitioner. 8. Mr. Ghosh referred to a decision in case of Nikash Tarachand Shah v. Union of India and Anr. reported in 2018 (11) SCC 1 to argue that twin restrictions on the discretion of the Court to grant bail to the accused under section 45 of Prevention of Money Laundering Act has been done away with as the provision is manifestly arbitrary and used in arbitrary fashion to deny bail for offences under the said Act and struck down as unconstitutional and specifically placed reliance on the observation made by the Hon'ble Supreme Court in paragraphs 11, 12 and 13 reproduced thus:- "11. Having heard learned counsel for both sides, it is important to first understand what constitutes the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere a court of sessions. Under section 46, read with section 65 of the Act, the provisions of the Code of Criminal Procedure apply to proceedings before the Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a court of sessions." 9. Thus, the Hon'ble Apex Court has declared section 45(1) of Prevention of Money Laundering Act, 2002, insofar as it imposes two conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India holding that the said provision is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. 10. Mr. Ghosh further referred to case of Goutam Kundu v. Directorate of Enforcement (2015) 16 SCC 1 and in Rohit Tandon v. Directorate of Enforcement (2018) 11 SCC 46 to argue that vires of section 45 was never considered in the cited cases and it was simply an application for bail and both the decisions were taken into consideration while deciding the issue in the case of Nikesh Tarachand Shah (supra). Rohit Tandon subsequently was granted bail by the Hon'ble High Court Delhi in Bail Applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning off public funds for commission of offence under section 3 of the said Act. 13. In conclusion it is argued that the petitioner being a Debenture Trustee member of the company along with other accused persons is responsible for the acts and affairs of the company at the relevant time who planned and designed the illegal scheme and issue of debenture with false assurances of high return and thereby generated huge sums of money and diverted and laundered the money for different purpose by befooling the common public which is evident from the statements of Goutam Kundu one of the main accused persons, statements of the petitioner himself and said N.C. Pillahi, General Manager of Rose Valley Group who raised Rs. 12,74,00,000/- from the public without taking permissions from SEBI and RBI and thereby committed the offence under section 3 read with section 70(2) of PMLA, 2002 punishable under section 4 of the said Act. 14. Mr. Chanda raising serious objection to grant of bail to the petitioner, adverted to the provision of section 45 of PMLA, 2002 and the amendment brought in with effect from 19.4.2018 vide GSR 383(E) in exercise of powers conferred under section 207 of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed of an offence under this Act shall be released on bail or on his own bond unless he is under the age of sixteen years or is a woman or is sick or infirm or is accused either on his own or along with other accused of money laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs. 16. It appears prima facie from the entirety of the complaint and final report submitted after investigation that the accused petitioner along with other accused persons collected funds and laundered the proceeds of crime generated through cheating the public at large who were motivated to invest their money through agents of Rose Valley with high rate of interest. 17. Bearing in mind the serious nature of the offence under section 45 of PMLA, 2002 and amended provision thereto, I am not inclined to enlarge the accused petitioner on bail even though the charge sheet has been submitted. 18. The CRM 2033 of 2018 is thus, dismissed with direction to the concerned Court to undertake trial of the case as expeditiously as possible. Urgent certified photostat copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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