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TMI Blog2024 (12) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 24 of the PMLA, the Hon ble Supreme Court has observed that only after the prosecution establishes at least three basic or foundational facts, the onus to rebut the presumption laid down under the said provision shifts on the accused. In the case in hand, huge assets and money have been recovered from the petitioner which according to the E.D. is tainted and can be termed as proceeds of crime. On the contrary, it is submitted on behalf of the petitioner that every unaccounted for or disproportionate property does not ipso facto lead to the inference that they are proceeds of crime. The link between the properties and the involvement of the accused in the crime is required to be proved - The petitioner shall be granted an opportunity before the learned Trial Court to substantiate the same and also rebut the presumption under section 24 of the Act. The E.D. intends to rely upon voluminous evidence including 182 statements, 210 documents spanning over 20,000 pages and examine 167 witnesses to substantiate their case. The case is primarily based on documentary evidence which is in custody of the E.D. and there is no scope for the petitioner to tamper with the same. To address the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as named only in the third complaint filed by the Enforcement Directorate (in short the E.D.). No predicate offence is made out against the petitioner and there is no evidence to suggest that he is involved in concealment of any proceeds of crime or laundering of money. In absence of a scheduled offence against the petitioner, the PMLA offence cannot survive and prolonged detention of the petitioner cannot be sustained. 5) Learned counsel draws the attention of the Court to the fact that after conclusion of argument on behalf of the petitioner on 10th September, 2024 the predicate offence agency sought issuance of production warrant against the petitioner and showed him as arrested in the predicate offence on 4th October, 2024. 6) Co-accused similarly circumstanced with the petitioner has been granted bail by this Court. The E.D. has filed at least five prosecution complaints and intends to rely upon evidence which includes 182 statements, 210 documents spanning over 20,000 pages and examine 167 witnesses to substantiate the charges against the twenty-five accused persons including the petitioner. Learned counsel submits that right to speedy trial and liberty is a fundamental right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foundational facts:- (i) that a criminal activity relating to a scheduled offence has been committed; (ii) that the property in question has been directly or indirectly obtained as a result of such criminal activity; and (iii) that the person concerned is directly or indirectly involved in any process or activity connected with the said property which constitutes proceeds of crime. The E.D. has failed to establish these foundational facts. 11) The E.D. has made out a new case that the candidates were given a nine digit roll number in TET-2012 and a fourteen digit roll number in TET-2014. The candidates who were unsuccessful in TET-2012 were allowed to reappear in TET-2014 with their earlier roll numbers of TET-2012. This argument not being a part of the complaints, affidavit-in-opposition or written submission made by the E.D., cannot be considered at this stage. No mens rea of the petitioner being made out in the predicate offence, the petitioner is entitled to be released on bail. 12) Learned counsel for the petitioner has relied upon the following authorities in support of her contention:- 1. Prem Prakash v/s. Union of India through Directorate of Enforcement reported in 2024 IN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the petitioner was named in the third supplementary complaint. Movable and immovable properties worth Rs. 11.96 crores belonging to the petitioner were attached. Interrogation of Kuntal Ghosh and Santanu Banerjee during E.D. custody reveals that the petitioner collected huge amount of money from candidates with the assurance of providing appointment to the post of teachers in TET-2012 and TET-2014 and made over the collected amount to Kuntal Ghosh and other agents for getting them appointed through Partha Chatterjee. One such candidate Tanay Kumar Dana stated in his statement recorded under section 50 of the PMLA that on his failure to qualify in TET-2012, he appeared in TET-2014 and gave a copy of his admit card and an amount of Rs. 4.5 lakhs to one Gunadhar Khanra who assured his appointment. The candidate visited the residence of Santanu Banerjee with Gunadhar Khanra with the cash which was handed over to Santanu Banerjee by Gunadhar Khanra. The candidate has neither been appointed nor his money refunded. 14) Various incriminating documents and digital evidence were recovered from the establishment of the petitioner which disclose his active involvement in illegal appointme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in 2023 SCC OnLine SC 619. 21. Saumya Chaurasia vs. Enforcement Directorate reported in 2023 SCC OnLine SC 1674. 22. Pavana Dibbur vs. Enforcement Directorate reported in 2023 SCC OnLine SC 1586. 16) I have considered the rival contention of both the parties and material on record. 17) The Hon ble Supreme Court, in the authority in Vijay Madanlal Choudhary (supra) has held as follows:- 388. The successive decisions of this Court dealing with analogous provision have stated that the Court at the stage of considering the application for grant of bail, is expected to consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The Court is not required to record a positive finding that the accused had not committed an offence under the Act. The Court ought to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. The duty of the Court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Further, the Court is required to record a finding as to the possibility of the accused committing a crime ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the co-accused cannot be considered against the petitioner and is not substantive piece of evidence. Its evidentiary value has to be tested at the time of trial and not at the stage of granting bail. The statement cannot be taken as gospel truth and only broad probabilities have to be seen. The Hon ble Court has also held that prosecution cannot commence with the statement of a co-accused under section 50 of the PMLA. 24) It is pointed out that most of the documents recovered from the petitioner s house pertain to TET-2012. The E.D. appears to have held a comprehensive investigation with regard to TET-2012, TET-2014 and some municipal scam, though only investigation in respect of TET-2014 falls within the ambit of the present matter as well as the predicate offence connected thereto. I am again tempted to revert to the observation of the Hon ble Supreme Court in Vijay Madanlal Choudhary (supra) that in a given case, the protection of section 25 of The Evidence Act may have to be made available to the accused. Whether the protection given to the accused who is being prosecuted for the offence of money-laundering, of section 25 of The Evidence Act is available or not, may have to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court Cases 51 and observed as follows:- 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. The Hon ble Court has also observed that the principle bail is a rule and refusal is an exception is, at times, followed in breach and it is high time that the trial Courts and the High Courts should recognize the principle that bail is rule and jail is exception. 27) Section 4 of the PMLA provides for rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and also fine. The petitioner is in custody for little more than twenty months. Though according to the E.D., investigation qua the petitioner is complete, charge is yet to be framed in respect of the twenty-five accused persons and there is no likelihood of trial commencing in near future. 28) The E.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the trial Court. c. He shall appear before the learned trial Court on every date of hearing fixed before the learned Court. d. He shall not tamper with evidence or intimidate witnesses in any manner whatsoever. e. He shall not indulge in any criminal activity and shall not communicate with or come in contact with the witnesses. f. He shall provide his mobile number before the learned trial Court and shall not change the said number without prior intimation to the Court. 37) In the event the petitioner violates any of the bail conditions as stated above, the learned trial Court shall be at liberty to cancel his bail in accordance with law without further reference to this Court. 38) It is made clear that the observation made in this judgment is for the limited purpose of deciding the bail application and shall not be construed as an expression of opinion on the merits of the case. The learned trial Court shall deal with the matter independently in accordance with law without being influenced by any observation which may have been made in this judgment. 39) All parties shall act on the server copy of this judgment duly downloaded from the official website of this Court. 40) Urgen ..... 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