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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 ..... 2023 was registered at P.S.-Morar, District-Gwalior (M.P.) against the applicant Asif Hanif Thara and co-accused persons namely Hanif Kadir, Putta Swamy, S. Murthy, Noor Ahmad, Shankar, Lokesh A, Irfan Pasha, Ali Mulla Sarif, Kiran Kumar, Amjad Khan and ors., as alleged who are proprietors of 9 Benami Firms, u/s 417, 420 and 120-B of the IPC at the instance of Assistant Enforcement Officer, Enforcement Directorate S.T.F. Branch, Government of India, New Delhi (hereinafter referred as ED). In the said FIR, it was alleged that during period 16.07.2014 to 16.06.2023 the applicant fraudulently obtained import authorization in the name of his Benami entities by cheating the Government authorities with an intent to acquire wrongful gain for himself by circumventing the existing guideline issued by Department of Revenue, Ministry of Finance and obtained maximum share of country quota by misleading the authority and concealing the fact from them and causing wrongful loss to government exchequer. Sections 417, 420 and 120 B of the IPC as mentioned in the aforesaid FIR are scheduled offences under the Prevention of Money Laundering Act, 2002 (hereinafter referred as PMLA) accordingly, the EC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority which issued the license in favour of the applicant. Tainted property or money has not been specified by the ED. While the ED ought to have collected the material as per the procedure prescribed u/s 50 of the Act and thereafter has to reach satisfaction on reasonable ground and belief regarding guilt of the applicant, the same has not been done and therefore, arrest is illegal and not warranted. It is also submitted that crime no.421/2023 offence punishable under sections 417, 420 and 120 B of IPC has been lodged against the applicant and others on 16.06.2023 at P.S.- Morar, Gwalior at the instance of ED but till date no chargesheet has been filed by the police nor has the applicant ever been called to join the investigation. No document or information has also ever been sought from the applicant. After lodging of the aforesaid ECIR and till arrest of the applicant in the instant case i.e. 03.10.2024 the investigating authorities had neither summoned the applicant nor recorded his statement and there was no investigation to outreach whatsoever to him despite of the same the ED arrested the applicant. On 04.10.2024, the applicant was produced before the remand court and he w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired. 7. I have heard learned counsel for the parties and perused the records. 8. In the case of Pushpendra Singh (Supra) the coordinate bench of this court opined as under:- "10. Now, it is to be seen that if Section 19 of the PMLA, 2002 has not been complied with, then whether Court can grant bail without satisfying itself on twin conditions mentioned in Section 45 of PMLA, 2002. Due to noncompliance of Section 19 of the Act, whether rigors of Section 45 of the PMLA, 2002 will be wiped out. Arresting Officer has to asses the material available in charge-sheet of predicate offence and also unearthed during enquiry and investigation by authorized officer. Such officer must have material on basis of which he forms opinion that accused is guilty of offence under the Act only then discretion, vested in him to arrest, is to be exercised. After arrest in bail application, Court will examine the material and reasons given by authorized officer if accused is not guilty of offence under PMLA, 2002. Authorized officer has to give reasons of belief of guilt and Court has to give reasons of belief of not guilty of offence to exercise power of grant of bail. Reason to believe is sin qua no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant assuming there is anything incriminating against the present appellant will not have the character of substantive evidence. The prosecution cannot start with such a statement to establish its case. We hold that, in such a situation, the law laid down under Section 30 of the Evidence Act by this Court while dealing with the confession of the co-accused will continue to apply. In Kashmira Singh v. State of Madhya Pradesh, (1952) 1 SCC 275 : 1952 SCR 526, this Court neatly summarized the principle as under:- ".... The proper way to approach a case of this kind is, first, to marshal the evidence against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that the arrestee is guilty." 12. After considering the judgments referred above, it is apparent that in case of non-compliance of section 19 of the PMLA, the court shall examine the material and resources whereby the authorized officer has to give reason to belief the guilt of accused and the court has to give reason to belief of not guilty of offence i.e. reason to belief becomes a sine-qua-non . It is also clear that when an accused is in custody under PMLA irrespective of the case for which he is under custody, any statement under section 50 of PMLA to the same investigating agency is inadmissible against the 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. 13. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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