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TMI Blog2024 (12) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 50 of the PMLA. The Hon ble Supreme Court has held in a catena of judgments with the statement of the coaccused 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. In the authority in A. Tajudeen v/s. Union of India [ 2014 (10) TMI 367 - SUPREME COURT] the Hon ble Court has held that statement of the accused can under no circumstances constitute the sole basis for recording the finding of guilt against him. The E.D. has placed reliance on a voice recording of the petitioner. Whether the said recording is relevant to the present proceeding shall be decided at the appropriate stage of trial - True, the conditions laid down in section 45 of the PMLA are the guiding factors for grant of bail to an accused under the Act and the accused has to satisfy the said condition for earning an order of bail in his favour. The petitioner is in custody for considerable period of time. It is not in dispute that he was lastly interrogated by the E.D. before about eleven mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed ECIR no. KLZO/19/2022 dated 24th June, 2022 under The Prevention of Money Laundering Act, 2002 (henceforth referred to as the PMLA). The petitioner was not named in the prosecution complaint filed by the E.D. on 19th September, 2022 or the three supplementary complaints filed on 7th December 2022, 21st March 2023 and 8th May 2023 respectively. He was arraigned as an accused in the fourth supplementary prosecution complaint filed on 28th July, 2023. 4. The petitioner is in custody for about one year and six months. The E.D. has relied upon 180 witnesses and 438 documents in the complaints and charge is yet to be framed. There is no possibility of commencement of trial in near future. 5. The petitioner is not a Government employee and has been implicated on the basis of statement of Tapas Kumar Mondal and Kuntal Ghosh recorded under section 50 of the PMLA, both of whom are co-accused. Their statements cannot be deemed to be substantive evidence for implicating the petitioner. The statement of Tapas Kumar Mondal reveals nexus between Manik Bhattacharyya, Kuntal Ghosh and himself. Tapas Kumar Mondal has stated that Manik Bhattacharyya was close to the petitioner and the list of 325 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and Bounds in terms of work order dated 3rd January, 2020. The said money cannot qualify as proceeds of crime or tainted money. 10. The petitioner is in custody for considerable period of time and his further detention is not required, moreso, since incriminating material has not transpired against him and the allegations are based solely upon the statement of the co-accused recorded under section 50 of the Act. The case is based on documentary evidence which is in custody of the E.D. There is no scope for the petitioner to tamper with the same. The petitioner has deep roots in the society and there is no chance of his abscondence. The petitioner undertakes to appear before the trial Court on every date of hearing, not to tamper with evidence or influence witnesses in connection with the case and not to misuse the liberty, if granted to him. He has been lastly interrogated by the E.D. before about eleven months. The layering of funds as alleged by the E.D. is required to be substantiated during trial. 11. This Court being a constitutional Court, Article 21 of the Constitution can be read into the twin conditions laid down under section 45 of the PMLA. Though the E.D. points out t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remium and siphoned them by purchasing shares of other companies. The said company as well as M/s. Arhieve Consultancy Private Limited and M/s. Nimbus Club Private Limited are under control of the petitioner. The Directors of the company acted on instructions of the petitioner. Huge amount of money was infused in the accounts of M/s. Wealth Wizards through issuance of preference shares at huge premium. The petitioner was involved in financial transactions with Santanu Banerjee and Kuntal Ghosh in the garb of business transactions. Several incriminating documents and electronic devices have been recovered pursuant to searches at several locations including the premises of the petitioner which reveal his role in the offence of money laundering. Statements of several witnesses demonstrate the various means adopted by the petitioner for layering of funds. The petitioner had direct access to the office of Manik Bhattacharyya and shared details of the candidates of TET-2014 with him for the purpose of their selection and appointment. Huge amount of money was found to have been deposited from various companies in the account of M/s. Wealth Wizards and an amount of Rs. 5 lakhs was deposite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged layering of money has to be substantiated by the E.D. during trial. Referring to section 70 of the PMLA, learned counsel has submitted that the company Wealth Wizards is not an accused in the present proceeding. The petitioner is entitled to be released on bail in view of Article 21 of the Constitution as well as Section 479 of The Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as the BNSS). 17. I have considered the rival contention of the parties, material on record and the relevant laws. 18. The Hon ble Supreme Court, in the authority in Prasanta Kumar Sarkar v/s. Ashis Chatterjee and another reported in (2010) 14 Supreme Court Cases 496, has laid down the factors which are required to be considered while dealing with an application for bail:- i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; ii) nature and gravity of the accusation; iii) severity of the punishment in the event of conviction; iv) danger of the accused absconding or fleeing, if released on bail; v) character, behaviour, means, position and standing of the accused; vi) likelihood of the offence being repeated; vii) reasonable ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid, the authorities under the 2002 Act cannot step in or initiate any prosecution. 23. The case essentially hinges on the statement of the petitioner and the co-accused and recovery made pursuant to the same. The prosecution has in fact commenced with the statement of Tapas Kumar Mondal and Kuntal Ghosh under section 50 of the PMLA. 24. It is trite law that prosecution cannot commence with the statement of a co-accused under section 50 of the PMLA. The Hon ble Supreme Court has held in a catena of judgments with the statement of the coaccused 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. In the authority in A. Tajudeen v/s. Union of India (supra) the Hon ble Court has held that statement of the accused can under no circumstances constitute the sole basis for recording the finding of guilt against him. 25. In Kashmira Singh v/s. State of Maharashtra reported in (1952) SCR 526 , the Hon ble Supreme Court has observed that The proper way to approach a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court Cases OnLine SC 1693 wherein the Hon ble Court has dealt with the law laid down in the judgments in Gudikanti Narasimhulu and others v/s. Public Prosecutor, High Court of Andhra Pradesh reported in (1978) 1 Supreme Court Cases 240, Shri Gurbaksh Singh Sibbia and Others v/s. State of Punjab reported in (1980) 2 Supreme Court Cases 565, Hussainara Khatoon and Others (I) v/s. Home Secretary, State of Bihar reported in (1980) 1 Supreme Court Cases 81, Union of India v/s. K.A. Najeeb reported in (2021) 3 Supreme Court Cases 713 and Satender Kumar Antil v/s. Central Bureau of Investigation and Another reported in (2022) 10 Supreme 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his right to speedy trial under section 21 of the Constitution as well as his prolonged incarceration without trial. 38. Accordingly, the application for bail being C.R.M. (S.B) 227 of 2023 is allowed. 39. C.R.A.N. 1 of 2024 is also disposed of. 40. The petitioner be released on bail upon furnishing bond of Rs. 10,00,000/- (Rupees Ten lakhs) with adequate sureties, half of whom should be local, subject to the following conditions:- i. The petitioner shall surrender his passport with the learned trial Court at once. ii. He shall not leave the territorial jurisdiction of the learned trial Court without leave of the trial Court. iii. He shall appear before the learned trial Court on every date of hearing fixed before the learned Court. iv. He shall not tamper with evidence or intimidate witnesses in any manner whatsoever. v. He shall not indulge in any criminal activity and shall not communicate with or come in contact with the witnesses. vi. He shall provide his mobile number before the learned trial Court and shall not change the said number without prior intimation to the Court. 41. In the event the petitioner violates any of the bail conditions as stated above, the learned trial ..... 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