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TMI Blog2024 (12) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... maker. Furthermore, the arrest should be rational, fair and as per law and shall not be merely based upon guilt of accused established from inadmissible evidence. Additionally, forming of opinion of the designated officer of the guilt of accused in writing is must. In the instant case before the arrest of the applicant, he was neither summoned, nor his statement was recorded by the investigating authorities. As alleged, the applicant carried out his import business under valid license. No information was called by ED from the licensing authority to show that the applicant adopted fraudulent practices in obtaining import license. Opinion formed by the ED u/s 19 of the PMLA with respect to the guilt of the applicant, is based upon the statement of the co-accused person which is prima facie inadmissible. Therefore, it appears that in this case provisions of section 19 of the PMLA has not been complied with. In the case of V. SENTHIL BALAJI VERSUS THE STATE REPRESENTED BY DEPUTY DIRECTOR AND ORS. [ 2023 (8) TMI 410 - SUPREME COURT] in paragraph 97.2, it has been held that in any non-compliance of the mandate under section 19 of the PMLA, the same would enure to benefit of the person a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed offences under the Prevention of Money Laundering Act, 2002 (hereinafter referred as PMLA) accordingly, the ECIR bearing no. ECIR/STF/15/2023 dated 02/11/2023 was recorded for investigation under the PMLA. 3. During PMLA investigation it was revealed that the applicant is involved in importing poppy seeds from China and Turkey by misrepresenting/ hiding the facts and circumventing the stipulated guidelines issued by competent authority in the name of aforesaid 9 Benami firms situated around the same place. He has been obtaining import authorisation from Central Bureau of Narcotics, Gwalior in a fraudulent manner in a different proprietorship and firms set up in the name of his family members and employees/ co-accused persons but beneficiary owned and controlled by him in gross violation of the licensing provision for import of the poppy seeds as stipulated by the Department of Revenue, Ministry of Finance and Government of India. It was also revealed that the applicant is the master mind behind the entire scheme of obtaining import licence of poppy seeds. He played an active role in getting up various proprietorship firms in the name of his family members and employees/ co-accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same the ED arrested the applicant. On 04.10.2024, the applicant was produced before the remand court and he was remanded to judicial custody. There was no requirement expressed by ED for taking him into its custody at the relevant time. It is further submitted that twin condition under section 45 will be attracted only when mandatory provision under sections 19 and 50 of the PMLA has been complied with. In order to comply with the aforesaid mandatory provision, twin condition mentioned under section 45 will not apply. The applicant has carried out his business upon a valid licence and it has not been alleged by the ED that any evasion of tax is carried out by the applicant. It is also submitted that when the applicant was in judicial custody, the ED had recorded statement of applicant on 27.10.2024 and 28.10.2024 which is not admissible in evidence. In these circumstances it is prayed that the applicant be released on bail. 5. Learned counsel for the applicant placed reliance in the case of Prem Prakash Vs. Union of India [2024 SCC Online SC 2270], Pankaj Bansal Vs. Union of India And Ors. [2023 SCC Online SC 1244], Pushpendra Singh Vs. Directorate of Enforcement [MCRC 19929/ 2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of belief of not guilty of offence to exercise power of grant of bail. Reason to believe is sin qua non for exercising power under Section 19 by authorized officer under Section 45 by the Court. Accused will also have proper opportunity, if reason of belief are in writing and clearly spelt out in arrest order. There is a thread running between Section 19 Section 45 of PMLA, 2002. Rights of liberty of a person may be jeopardized, if reason of belief of guilt under Act is not in writing in arrest order, as condition for grant of bail is rigorous under PMLA, 2002. In such conditions, Court while considering the bail application has to see that arrest has been made by complying with provisions of Section 19 of the Act. In this case, provisions of Section 19 of the Act has not been complied with. Total sum, which is said to have been diverted is Rs. 10.93 Crores according to the report of CBI though allegations were made in respect of about Rs.14,93,67,500/-. Enforcement Department is making allegation in respect of Rs. 4377.94 Lacs. Search has been conducted. In complaint, it has been mentioned that there is non-cooperation by applicant and he tried to hide facts, therefore, he was ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept. Hence, insofar as Afshar Ali's statement is concerned, the Investigating Agency will have to first marshal the other evidence and can at best look at the statement for lending assurance. Independently, the statement of Afshar Ali does not prima facie indicate anything about the role of the appellant in the forgery of sale deed and other documents or being involved in the offence of money laundering. 10. In the case of Pankaj Bansal (Supra) the Apex Court opined as under:- 27. Further, when the second ECIR was recorded on 13-6-2023 after preliminary investigations , as stated in ED's replies, it is not clear as to when ED's Investigating Officer had the time to properly inquire into the matter so as to form a clear opinion about the appellants' involvement in an offence under the Act of 2002, warranting their arrest within 24 hours. This is a sine qua non in terms of Section 19 (1) of the Act of 2002. Needless to state, authorities must act within the four corners of the statute, as pointed out by this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ED from the licensing authority to show that the applicant adopted fraudulent practices in obtaining import license. Opinion formed by the ED u/s 19 of the PMLA with respect to the guilt of the applicant, is based upon the statement of the co-accused person which is prima facie inadmissible. Therefore, it appears that in this case provisions of section 19 of the PMLA has not been complied with. In the case of V. Senthil Balaji V State Represented by Deputy Director and Ors. [(2024) 3 SCC 51] in paragraph 97.2, it has been held that in any non-compliance of the mandate under section 19 of the PMLA, the same would enure to benefit of the person arrested. It also appears that as submitted by the learned counsel for the ED, no further custodial interrogation is required. 14. Considering the aforesaid facts and circumstances of the case, in view of this court it is a fit case to grant bail to the applicant. Hence, without expressing any opinion on merit of the case, this application is allowed. 15. It is directed that the applicant-MR. ASIF HANIF THARA be released on bail upon his furnishing personal bond in the sum of Rs. 5,00,000/- (Rupees Five Lakhs only) with two sureties in the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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