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TMI Blog2025 (1) TMI 1448X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant & other persons on the basis of complaint filed by Deputy Director of Income Tax, Foreign Assets Investigation Unit-I Bengaluru alleging that as part of conspiracy, during course of search by Income Tax department on 30.06.2022, the applicant had obstructed the officials from carrying their official duties and destroyed crucial incriminating documents and digital evidence about the alleged illegal extortion on Coal Transportation, payments collected by the applicant and his associates. 3. It is also case of the prosecution that on 13.09.2022, OM in F. No. 22-IT was forwarded by Central Board of Direct Taxes (for short "CBDT") to the Directorate of Enforcement containing the FIR No. 1292022 Police Station-Kadugodi along with a report on the investigation conducted by the Income Tax Department on M/s Jay Ambey Group of Raipur (Applicant's Group). In the report, it has been mentioned that during search operations on 30.06.2023 by Income Tax Department in the premises of the applicant and his associates, evidence was gathered related to a syndicated being operated and coordinated by the applicant whereby additional unauthorized cash to the tune of Rs. 25 per ton of coal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout any interruption because the applicant had backing of the highest powers in the State due to his close association with Smt. Saumya Chaurasia and in turn with other senior IAS/IPS officers as well as politicians. The proceeds of crime generated by this syndicate has been utilized for political funding, making bribes to Government Officials, purchasing of properties including coal washeries by the applicant, Smt. Saumya Chaurasia in the name of their benamidars and members of syndicate & their family members. 5. The investigation conducted under PMLA, 2002 revealed that the applicant had been using various business groups to launder and park his ill-earned money generated out of the illegal levy on coal in the safe houses of his associates namely Laxmikant Tiwari, Rajnikant Tiwari & others. 6. The record of the case would show that the applicant filed an application for grant of regular bail before the learned Special Judge (PMLA Act), Fourth Additional Sessions Judge, Raipur (C.G.) seeking enlargement on regular bail which has been dismissed by the said Court vide order dated 04.09.2024. 7. Learned Senior counsel for the applicant would submit that the applicant is innoce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... called upon Punishment can only begin after conviction and necessity is the operative test. He would further submit that even if the allegation is grave of economic offence, it is not a rule that bail should be denied in every case and consideration has to be made on case to case basis on the facts. The primary object is to secure the presence of the accused to stand trial as held by Hon'ble the Supreme Court in case of P. Chidambaram Vs. ED [(2020) 13 SCC 791]. 8. He would further submit that the applicant shall be severely prejudiced and pre-judged if he is continually remanded to custody and the same is imperative for the proper and effective defence of the applicant and as a step to ensure the fair trial of the applicant that he be on bail unless there are overwhelming considerations otherwise the applicant cannot effectively instruct counsel in the captioned matter having peculiar facts and circumstances, including complex and technical matters and financial transactions, and as such, the denial of bail shall cause grave prejudice to the applicant as held by Hon'ble the Supreme Court in case of Gurbaksh Singh Sibbia vs. State of Punjab, [(1980) 2 SCC 565]. He would further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of investigation. In the instant case, the applicant has already undergone a period of 13 days of ED custody during which period a thorough investigation was conducted by the ED. The applicant has co-operated with the ED during the course of its investigation. No further investigation is continuing as against the applicant in the instant case. He would further submit that there is no underlying scheduled offence on which the said ECIR is premised and the proceedings being carried out by the respondent are completely without jurisdiction as it is well settled position of law that the existence of a scheduled offence is a sine qua non for an offence under PMLA, 2002 to be made out in fact, to initiate "prosecution" for offence under Section 3 of the PMLA, 2002, registration of scheduled offence is a prerequisite as held by Hon'ble the Supreme Court in case of Vijay Madanlal Chaudhary Vs. Union of India [SCC OnLine SC 929] and Yash Tuteja Vs. Union of India [2024 SCC OnLine SC 533]. 10. He would further submit that it is settled law that there cannot be any "proceeds of crime without the existence of any underlying scheduled offence since" only such property which is derived ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also not indulged in any activity relating to the alleged proceeds of crime and the applicant has neither given any money to any politician or any State functionary nor caused any obstruction in the discharge of duties by a public servant. He would further submit that it is settled law that mere diary entries cannot be read into evidence and the same are inadmissible in law especially without independent evidence of their trustworthiness and the same cannot be relied upon as held by Hon'ble the Supreme Court in case of CBI Vs. V.C. Shukla [(1998) 3 SCC 410], L.K. Advani Vs. Central Bureau of Investigation [Criminal Revision Petition No. 265 of 1996], Common Cause Vs. Union of India [(1998) 3 SCC 410]. 12. He would further submit that it is alleged that the applicant does not satisfy the triple-test for grant of bail i.e. the applicant is a flight risk or would influence any witness or would tamper with any evidence. In any event, there is no material on record to suggest that the applicant does not satisfy the triple-test. He would further submit that there is no allegation that the applicant would either tamper with any evidence or influence any witness, if granted bail. Learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling for angiography, accordingly, the matter was heard finally without further medical examination of the applicant regarding his alleged poor medical conditions. 15. Learned Senior counsel for the applicant would submit that the trial is delayed, therefore, his bail application be considered. Considering this submission, this Court vide order dated 12.12.2024 directed the parties to file an affidavit whether the delay is attributable to the applicant or the prosecution. To demonstrate this fact, the Enforcement Directorate has filed certified copy of the order-sheet. 16. To substantiate his submission, learned senior counsel for the applicant would refer to the judgment rendered by Hon'ble the Supreme Court in case of Vijay Nair Vs. ED [SLP (Crl.) Dy. No. 22137 of 2024, decided on 02.09.2024], Neeraj Singal vs. ED [SLP (Crl) No. 8439 of 2024, decided on 06.09.2024], Kalvakunta Kavitha Vs. ED [SLP (Crl) No 10778 of 2024, decided on 27.08 2024], Prem Prakash vs. ED [SLP (Crl.) No 5416 of 2024 decided on 28.08.2024], Ramkripal Meena Vs. ED [SLP (Crl.) No. 3205 of 2024 decided on 30.07.2024], Javed Gulam Nabi Shaikh Vs. State of Maharashtra [2024 SCC OnLine SC 1693], Jainam Rathod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. From perusal of aforementioned O.M, it was learnt that a search and seizure action was carried out by the Income Tax Department at multiple premises of the applicant and his associates. During the course of search and seizure, large number of incriminating evidences were seized which are in the forms of hand written diaries, loose papers and digital devices like mobile phones, laptops etc. These evidences disclose numerous cash transactions relating to an organized syndicate being operated and coordinated by the applicant along with six associates and other persons wherein additional unauthorized cash was being extorted, over and above the legal amount fixed against the Coal Delivery Order issued by SECL (South Eastern Coalfields Limited), from various entities who were lifting and transporting the coal throughout the State of Chhattisgarh. The applicant deployed his following associates in the Coal producing districts and these associates had liaisons with Collectorate Office, Mining officers and other users to collect the illegal coal levy from their employees. He would further submit that once the employees of the applicant, received the illegal amount of Rs. 25/- tonne on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the possibility of the accused being not guilty of the offence of money laundering is highly impossible. To substantiate the submission, he would refer to paragraph 135 of the the judgment rendered by Hon'ble the Supreme Court in case of Vijay Madanlal Choudhary (supra). He would further submit that the applicant with proceed of crime and having deep roots in the society, is in a position to influence witnesses. To substantiate this submission, he has referred to the judgment of Hon'ble Allahabad High Court in case of Pankaj Grover v. ED [Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 7661 of 2021] wherein Hon'ble the High Court has held that the accused in economic offences/ PMLA cases are in possession of huge proceeds of crime and may use those to influence witnesses. Further the Court also held that since such offences are committed mostly by influential persons, there is a high likelihood of their using influence to tamper with evidence and influence witnesses. 20. He would further submit that economic offence constitute a separate class of offence and in the present case, the amount involved in the offence of money laundering is Rs. 540 crores approxi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 25. From perusal of the ECIR, it is prima facie vivid that present applicant with connivance of Saumya Chaurasia, Sameer Vishnoi and other senior bureaucrats and politicians hatched a conspiracy of illegal extortion of Rs. 25/- per tonne on Coal which was transported from SECL mines & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em as untainted assets. The said accused knowingly and willingly participated in these transactions to layer and obfuscate the real ownership of these tainted properties and acted as a benami for of present applicant. The ECIR would further reflect that all these transactions are sham transactions. He has only blocked his capital in these assets and the remaining entire cash transactions were still done by the applicant only. The record would further reflect that several properties in the names of companies of the applicant herein viz., M/s Indermani Minerals Pvt. Ltd. & M/s KJSL Coal & Power Pvt. Ltd. which were acquired using proceeds of crime have been attached under Section 5(1) of the PMLA, 2002 on 09.12.2022 and 29.01.2023 and the same were subsequently confirmed by the learned Adjudicating Authority (PMLA), vide orders dated 01.06.2023 & 17.07.2023. Thus, the applicant is unable to fulfill the twin condition of Section 45 of the PMLA, 2002. 26. The further submission of learned Senior counsel for the applicant that the other co-accused persons have been granted bail by Hon'ble the Supreme Court on the count of long incarceration, therefore, the applicant is also entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PMLA, 2002 and also considering the submission that the applicant has not prima facie reversed the burden of proof and dislodged the prosecution case which is mandatory requirement to get bail. Hon'ble the Supreme Court in case of Directorate of Enforcement Vs. Aditya Tripathi (Criminal Appeal No. 1401/2023) decided on 12.05.2023 has held at paragraph 6 & 7 as under:- "6. At the outset, it is required to be noted that respective respondent No. 1 - accused are facing the investigation by the Enforcement Directorate for the scheduled offences and for the offences of money laundering under Section 3 of the PML Act punishable under Section 4 of the said Act. An enquiry/investigation is still going on by the Enforcement Directorate for the scheduled offences in connection with FIR No. 12/2019. Once, the enquiry/investigation against respective respondent No. 1 is going on for the offences under the PML Act, 2002, the rigour of Section 45 of the PML Act, 2002 is required to be considered. Section 45 of the PML Act, 2002 reads as under:- "45. Offences to be cognizable and non-bailable.- (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her accused are discharged/acquitted in so far as the predicated offences are concerned, merely because other accused are acquitted/discharged, it cannot be a ground not to continue the investigation in respect of respective respondent No. 1. An enquiry/investigation is going on against respective respondent No. 1 with respect to the scheduled offences. Therefore, the enquiry/investigation for the scheduled offences itself is sufficient at this stage. 6.3 From the impugned judgment(s) and order(s) passed by the High Court, it appears that what is weighed with the High Court is that chargesheet has been filed against respective respondent No. 1 - accused and therefore, the investigation is completed. However, the High Court has failed to notice and appreciate that the investigation with respect to the scheduled offences under the PML Act, 2002 by the Enforcement Directorate is still going on. Merely because, for the predicated offences the chargesheet might have been filed it cannot be a ground to release the accused on bail in connection with the scheduled offences under the PML Act, 2002. Investigation for the predicated offences and the investigation by the Enforcement Director ..... X X X X Extracts X X X X X X X X Extracts X X X X
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