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TMI Blog2024 (9) TMI 1686X X X X Extracts X X X X X X X X Extracts X X X X ..... IR, Clause 3.4. The nature of the documents so recovered are certain FIRs lodged against the applicant relating to the year 2016. Documents indicating investments made in PIP Plan of Shine City Infra Project relating to Ajay Pal, Kuldeep Singh, Ram Awadh Yadav and the applicant herself. It could not be explained by the applicant as to why there large number of original sale deeds belonging to third parties were present at the residence of the applicant. Thus, in absence of any plausible reason, either the properties have been parked in names of third parties to cerate a smokescreen to evade it being traced to the applicant or the applicant has deep rooted connections to hold on to said documents for third parties for some ulterior gains. Merely to suggest that a sum of Rs. 16,00,000/- and odd has been shown as proceeds of crime and the applicant being a school teacher and later promoted to the post of Headmaster between the year 2009 to 2020 had the means to garner such amount which was in her account and it cannot be treated as an alarming figure. The applicant could have easily indicated her source of income from agricultural activities if she could give details of the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, as alleged, as and when the said cheques matured for redemption, they were dishonored. 4. It is further alleged that in order to dupe the investors forged documents were shown to the investors in order to instill confidence that the company had a very healthy land bank, however, neither the investors got the plot as promised nor the amount invested was returned. 5. The company is also alleged to have a scheme for investing in its alleged virtual currency titled as 'Shine Victory Coin' which was floated through Shine City Infrastructure Projects Pvt. Ltd though the Company had no authority or approval from its Board of Directors nor from any Government Authority. 6. All the companies, under the umbrella of Shine Group of Companies, were managed by its main director and supremo namely Sri Rasheed Naseem. He was responsible for luring investors by persuading them to invest in a scheme namely 'Bid and Hot Deal'. In the instant bid and hot deal , the company promised to provide vehicles (two wheeler and four wheelers) to its investors at discounted price, however, despite deposit of money in the said scheme, neither the vehicles were delivered nor the money was return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as already provisionally attached by the Enforcement Directorate. This led to frustrating the final confiscation of the attached property which had been confirmed by the Adjudicating Authority; (ii) Several incriminating information and data in digital form was available on the applicant s mobile phone which established her role in assisting Sri Rasheed Naseem and Shine City Group of Companies to conceal the proceeds of crime and also siphoning the said proceeds; (iii) The applicant is said to be the single point of contact between Rasheed Naseem and Shine City Group of Companies; (iv) The account statement of the applicant indicated that the applicant had deposited cash in bank accounts maintained with the Aryavart Bank and during her interrogation she was confronted with the said statements, however, she could not explain the source of cash amounts; (v) The applicant is a Government School Teacher by profession and apart from her salary, she does not have any other known source of income and thus the deposits apparently links her to the Shine City Group of Companies; (vi) That the mobile records of the applicant reflects her being in touch with another co-accused namely Abhishek ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irectorate to persons being loyal to the offending group of companies. 14. The specific role of the applicant as indicated in para 6.1 of the ECIR, is being reproduced hereinafter for ease of reference:- ROLE OF SHASHI BALA (ACCUSED 1) 6.1 She is a teacher in a government school and confidant of Rashid Naseem, head of operations of Shine City Group. She created a social media group and channel namely 'Customer ka Haq' and acting on the directions of Rashid Naseem. Further evidence from the WhatsApp group chat clearly shows that she is in possession of important information regarding the assets/properties of shine city which establishes her role in the concealment and laundering of the proceeds of crime. She is involved in dissipation of proceeds of crime by giving possession of the land/plots belong to Shine City companies which were earlier attached by this office. She has been assisting Rashid Naseem in acquisition, possession, concealment and use of the Proceeds of Crime and has indulged in offence of continuous money laundering by continuing to cheat innocent public investors even till date, despite knowing about various FIRs registered against Rashid Naseem Shine City. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seem and his group of companies and associates. The applicant is neither a Director nor Officer or employee or associated with Rasheed Naseem or any companies of the Shine City Group of Companies. 21. It is also urged by the learned counsel for the applicant that the applicant has been falsely implicated for the reason that a Division Bench of this Court at Allahabad is seized of a bunch of writ petitions, leading petition being Criminal Misc. Writ Petition No. 1834 of 2021 (Sri Ram Ram Vs. State of U.P. and Others) wherein on 31st January, 2023 during the course of hearing, it was informed to the Court that the present applicant had filed her impleadment application in the said bunch of writ petitions and was present in the Court and it was further alleged that she was in regular touch with Rasheed Naseem who is allegedly in Dubai. 22. The said Court had made strong negative observations against the Enforcement Directorate and in view thereof the ED falsely implicated the applicant and apprehended her on 25.11.2023. A copy of the said order passed by the Division Bench of this Court at Allahabad has been brought on record as Annexure-7 with the affidavit in support of the bail app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(1) of the PML stated in paragraph 23 as follows: 23. .. No doubt the courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts, as the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements . 27. This Court, in the carefully couched paragraph extracted above used the phrase persons of tender age and woman who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements . This is vastly different from saying that the proviso to Section 45(1) of the PML applies only to vulnerable woman . Further, this Court in the case of Saumya Chaurasia (supra) does not say that merely because a woman is highly educated or sophisticated or a Member of Parliament or a Member of Legislative Assembly, she is not entitled to the benefit of the proviso to Section 45(1) of the PML. 28. We, therefore, find that the learned Single Judge of the High Court has totally misdirected herself while denying the benefit of the proviso to Section 45(1) of the PML. In the aforesaid case, the question whether the wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21(4) of the MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal presumption in either case is about the involvement of proceeds of crime in money-laundering. This fact becomes relevant, only if, the prosecution or the authorities have succeeded in establishing at least three basic or foundational facts. First, that the criminal activity relating to a scheduled offence has been committed. Second, that the property in question has been derived or obtained, directly or indirectly, by any person as a result of that criminal activity. Third, the person concerned is, directly or indirectly, involved in any process or activity connected with the said property being proceeds of crime. On establishing the fact that there existed proceeds of crime and the person concerned was involved in any process or activity connected therewith, itself, constitutes offence of money- laundering. The nature of process or activity has now been elaborated in the form of Explanation inserted vide Finance (No. 2) Act, 2019. On establishing these foundational facts in terms of section 24 of the 2002 Act, a legal presumption would arise that such proceeds of crime are involved in money-laundering. The fact that the person concerned had no causal connection with such pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid case cannot be disputed and this Court while considering the case of the applicant shall also notice the applicability of the said decision. (iv) Learned counsel for the applicant next relied upon the decision of the Apex Court in Manish Sisodia v. Enforcement Directorate, 2024 SCC OnLine SC 1920, wherein the Apex Court has held as under:- 49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. 50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor. 51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra 2024 SCC OnLine SC 1693 wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. 55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial. 56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State. 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with the respective submissions of the learned counsel for the parties, it will be appropriate to take a glance at the certain relevant provisions relating to The PML Act of 2002:- Proceeds of crime has been defined in Section 2(u) which reads as under:- 2 (u) proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property [or where such property is taken or held outside the country, then the property equivalent in value held within the country] [or abroad]. [Explanation- For the removal of doubts, it is hereby clarified that 'proceeds of crime' including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence] 35. Scheduled offence has been defined in Section 2(y) which reads as under:- (y) scheduled offence means (i) the offences specified under Part A of the Schedule; or (ii) the offences specified under Part-B of the Schedule if the total value involved in such offences is [one crore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act] shall be released on bail or on his own bond unless-} (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Provided that a person who 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 co-accused of money laundering a sum of less than one crore rupees], may be released on bail, if the special court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any office of the Central Government or State Government authorised in writing in this behlaf by the Central Government by a general or a special order made in this behalf by that Government. [(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. Section 45 of PML starts with a non obstante clause which indicates that the provisions laid down in Section 45 of PML will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of PML imposes the following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule of PML: (i) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) That the court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. 30. The conditions specified under Section 45 of PML are mandatory and needs to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PML. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on the accused persons under Section 24 of the 2002 Act. 22. It is not necessary to multiply the authorities on the sweep of Section 45 of the 2002 Act which, as aforementioned, is no more res integra. The decision in Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra (2005) 5 SCC 294 and State of Maharashtra v. Vishwanath Maranna Shetty, (2012) 10 SCC 561 , dealt with an analogous provision in the Maharashtra Control of Organised Crime Act, 1999. It has been expounded that the Court at the stage of considering the application for grant of bail, shall 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n judicial custody since 2-1-2017 and has not been interrogated or examined by the Enforcement Directorate thereafter; all these will be of no consequence. 40. Similarly, the Apex Court in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 has held as under:- 11. Having heard the learned counsel for both sides, it is important to first understand what constitutes the offence of money laundering. Under Section 3 of the Act, the kind of persons responsible for money laundering is extremely wide. Words such as whosoever , directly or indirectly and attempts to indulge would show that all persons who are even remotely involved in this offence are sought to be roped in. An important ingredient of the offence is that these persons must be knowingly or actually involved in any process or activity connected with proceeds of crime and proceeds of crime is defined under the Act, by Section 2(1)(u) thereof, to mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence (which is referred to in our judgment as the predicate offence). Thus, whosever is involved as aforesaid, in a process or activity connected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to the accused named in the criminal activity relating to a scheduled offence. It would apply to any person (not necessarily being accused in the scheduled offence), if he is involved in any process or activity connected with the proceeds of crime. Such a person besides facing the consequence of provisional attachment order, may end up in being named as accused in the complaint to be filed by the authorised officer concerning offence under Section 3 of the 2002 Act. ---------******--------****** ****** 387. Having said thus, we must now address the challenge to the twin conditions as applicable post amendment of 2018. That challenge will have to be tested on its own merits and not in reference to the reasons weighed with this Court in declaring the provision, (as it existed at the relevant time), applicable only to offences punishable for a term of imprisonment of more than three years under Part A of the Schedule to the 2002 Act. Now, the provision (Section 45) including twin conditions would apply to the offence(s) under the 2002 Act itself. The provision post 2018 amendment, is in the nature of no bail in relation to the offence of money-laundering unless the twin conditions a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements of witnesses/accused are admissible in evidence in view of Section 50 of the said Act and such statements may make out a formidable case about the involvement of the accused in the commission of a serious offence of money laundering. Further, as held in Vijay Madanlal (supra), the offence of money laundering under Section 3 of the Act is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence. The offence of money laundering is not dependent or linked to the date on which the scheduled offence or predicate offence has been committed. The relevant date is the date on which the person indulges in the process or activity connected with the proceeds of crime. Thus, the involvement of the person in any of the criminal activities like concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so, would constitute the offence of money laundering under Section 3 of the Act. ---------******--------****** ****** 17. As well settled by now, the conditions spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in relation to the property linked to the stated scheduled offence. This interpretation alone can be countenanced on the basis of the provisions of the 2002 Act, in particular Section 2(1)(u) read with Section 3. Taking any other view would be rewriting of these provisions and disregarding the express language of definition clause proceeds of crime , as it obtains as of now. (underline supplied) 16. In paragraphs 269 and 270, this Court held thus: 269. From the bare language of Section 3 of the 2002 Act, it is amply clear that the offence of money-laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence. The process or activity can be in any form be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Thus, involvement in any one of such process or activity connected with the proceeds of crime would constitute offence of money-laundering. This offence otherwise has nothing to do with the criminal activity relating to a sched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to extortion are scheduled offences included in Paragraph 1 of the Schedule to the PML. An accused may commit a crime of extortion covered by Sections 384 to 389 of IPC and extort money. Subsequently, a person unconnected with the offence of extortion may assist the said accused in the concealment of the proceeds of extortion. In such a case, the person who assists the accused in the scheduled offence for concealing the proceeds of the crime of extortion can be guilty of the offence of money laundering. Therefore, it is not necessary that a person against whom the offence under Section 3 of the PML is alleged must have been shown as the accused in the scheduled offence. What is held in paragraph 270 of the decision of this Court in the case of Vijay Madanlal Choudhary supports the above conclusion. The conditions precedent for attracting the offence under Section 3 of the PML are that there must be a scheduled offence and that there must be proceeds of crime in relation to the scheduled offence as defined in clause (u) of sub-section (1) of Section 3 of the PML. ---------******--------****** ****** 31. While we reject the first and second submissions canvassed by the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain FIRs lodged against the applicant relating to the year 2016. Documents indicating investments made in PIP Plan of Shine City Infra Project relating to Ajay Pal, Kuldeep Singh, Ram Awadh Yadav and the applicant herself. 48. Further, the documents recovered reveal the liabilities of Kuldeep Singh. Various cheques paid by Shine City Infra Projects Ltd. to Kuldeep Singh. Copy of investment made by Sri Ajay Pal, Kuldeep Singh, Ram Awadh Yadav, details of land holdings of Kuldeep Singh. 49. Several original sale deeds in the name of Kuldeep Singh, Santram son of Banwari, Nitish Singh Son of Virendra Singh and Kishor Kumar were recovered. About 12 original sale deeds in the name of Kuldeep Singh, 3 original sale deeds in the name of Santram, 4 original sale deeds relating to Kishore Kumar and 3 original sale deeds relating to Nitish Kumar (son of the present applicant) along with 2 sale deeds in favour of the present applicant were also recovered. 50. It could not be explained by the applicant as to why there large number of original sale deeds belonging to third parties were present at the residence of the applicant. Thus, in absence of any plausible reason, either the properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were found from her custody, sharing of data including GPS locations of various other properties in control of the Companies of Shine City and chats with Rasheed Naseem and co-accused Abhishek Thakur prima facie indicates the involvement of the applicant. 55. The applicant could have easily indicated her source of income from agricultural activities if she could give details of the extent of her landholding but it has not been done. No details were given to show how much live stock she had from where she could substantially earn by the sale of milk and dairy products. She has not indicated what her husband, son and daughter were doing that their source of earnings to justify that they could offer funds to the applicant to be utilized by her for investments nor the details of investments has been given by her to prima facie ascertain the quantum of funds available and how and when such investments were made that it have grown into a handsome amount and that they were duly reflected in her income tax returns. 56. In absence of such material or explanation to justify the documents, data and amount found with the applicant such as third party sale deeds, plot buyer agreements, e-paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raud committed as the number of FIR s spread across various States duping very large number of persons does not permit this Court to extend the benefit of the decision of the Apex Court in Kalvakuntla Kavitha (supra) and Manish Sisodia (supra) to the applicant at this stage. 60. Section 3 of The PML Act of 2002 not only takes into account a role of a person actively engaged in any process connected with the proceeds of crime but even if such person directly or indirectly is associated in the concealment, possession, acquisition or use or projecting as untainted property or claiming as untainted property, all such acts are covered under the offence of money laundering. 61. Thus taking an overall view including the gravity of offence including the fact that the witnesses of fact are yet to be examined also keeping in mind the dictum of the Apex Court in Pavana Dibbur (supra) and for all the reasons aforesaid, this Court is unable to persuade itself to form a, prima facie, satisfaction in terms of Section 45 of The PML Act of 2002, at this stage, that the applicant is not guilty or that she may not commit an offence on bail. Thus, for all the aforesaid reasons, the bail application is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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