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TMI Blog2025 (1) TMI 1447X X X X Extracts X X X X X X X X Extracts X X X X ..... t that there is no direct or specific evidence against the applicant to suggest that he was involved in any of the offence as alleged in the subject ECIR or the prosecution complaint. From the investigation of the ED, it has been revealed that the applicant was one of the key conspirator and main beneficiary of the POC extorted from the rice millers. It has also been revealed that the rice milers were forced for payment of the same under threat that their incentive bills would not be cleared from the MARKFED. As per Section 50(4) of the PML Act, the statements recorded under Section 50 of the PMLA has evidentiary value as the proceedings under Section 50(2) and (3) are deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the IPC, 1860. The applicant is closely connected with POC as he had deputed some persons at certain place and the cash was not physically taken by him but it was initially demanded by the applicant and payment, he conveyed it to the rice millers over phone. It has come in the statements of some of the rice millers who have personally handed over the extortion amount as demanded by the applicant - the application for bail of the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the prosecution and therefore, it is not proper to order release of present applicant on regular bail for the reasons.
Conclusion - Considering the role of the applicant in obtaining the money through illegal source, which is the proceeds of crime and that there is sufficient evidence collected by the ED to prima facie show the involvement of the applicant in the alleged offences. It is an organized crime having various facets of its complexion, therefore, further considering the nature of offence and material collected during the investigation, this Court is satisfied that there is prima facie evidence for believing that the applicant is involved in the offence, therefore, it is not required to release the applicant on bail.
The prayer for bail made by the applicant under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (BNSS) read with Section 45 of the PMLA, 2002 for the offences under Section 3 & 4 of the PMLA, 2002, deserves to be and is hereby rejected. X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the applicant and seven other persons as accused for the alleged commission of the offences under Section 277 of the IT Act and Sections 181, 191,193,196, 200, 383, 384, 415, 417, 418, 420/34 and 120-B of IPC. (iv) the applicant was neither given an assessment proceedings initiated against him nor had issued any show cause notice. There is allegation of cheating and extortion in the IT complaint against the applicant. On 14.10.2023, the ED had registered the subject ECIR based on the scheduled offences. On 20.10.2023, the ED had carried out search under Section 17 of the PMLA in his residential premises and on finding the house locked, it was sealed and summons was affixed outside his resident. Thereafter summons under Section 50 of the PMLA directing his personal appearance on 20.10.2023 was issued and sent to the office of the Chief Secretary, Govt. of CG. Thereafter the ED issued repeated summons to the applicant for his appearance. On 4.11.2023, the applicant filed certain objections to the IT complaint inter alia on the maintainability which were dismissed by the competent court on 26.12.2023. The applicant filed a writ petition before the High Court seeking quashing of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SS read with Section 45 of the PMLA before the learned trial court seeking grant of regular bail in the ECIR. On 24.08.2024, the ED filed reply to the bail application and on 03.09.2024, the bail application dated 14.08.2024 was dismissed by the trial court vide order dated 3.09.2024. Hence he has filed the instant application seeking grant of regular bail. SUBMISSION ON BEHALF OF THE APPLICANT 3. Contention of Shr Gupta learned counsel for the applicant is that the proceedings in respect of the alleged scheduled offences are not maintainable and therefore the proceedings in the ECIR are completely without jurisdiction. The existence of a scheduled offence is a sine qua non for an offence under the PMLA to be made out. He contended that the prosecution complaint filed by the ED itself is not maintainable in as much as the proceedings/investigation in respect of the alleged predicate offences are not maintainable and without jurisdiction. 4. He further contended that the IT complaint filed before the learned Chief Judicial Magistrate, Raipur itself is not maintainable for the reason that it has been filed by the Deputy Director of Income Tax who is not the competent statutory aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in absence of any order, circular, notification of any authority thereunder to that effect. The Deputy Director of Income Tax for that matter, as the framework of the Act would reveal, has not been acknowledged to be the appellate forum from any order or the decision of the assessing officer/I.T.O., notwithstanding several other provisions with regard to conferment of various powers and assignments of duties on the said office. In the teeth of such mindful and unequivocal module of the Act, recognition of the Deputy Director of Income Tax to be a forum to whom an appeal would ordinarily lie from any decision or action of the assessing officer/income tax officer would not only be inferential but would also amount to unwarranted judicial legislation by extrinsic additions and doing violence to the language of the law framed. On the contrary, acceptance of the Deputy Commissioner (Appeals) as the forum to which an appeal would ordinarily lie from an order/decision of the assessing officer/I.T.O., would neither be inconsistent with nor repugnant to any other provision of the Act and certainly not incompatible with the legislative scheme thereof. Mere silence in Section 246 of the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 277 of the IT Act, 1961 and Sections 181,191,193,417 and 418 IPC. He contended that the learned CJM, Raipur had not taken cognizance of the ofences under Sections 200,383,384,420,120-B/34 and the alleged offences under Sections 383 and 384 IPC. 6. He contended that the FIR No. 01/2024 was registered on the basis of the complaint sent by the ED to the ACB/EOW by abusing the provisions of Section 66 of the PMLA in order to register the scheduled offence under the PMLA and to create its jurisdiction. He submits that the practice of registration of an FIR by the ED by misusing Section 66 of the PMLA for the sole purpose of creating its own jurisdiction, is impermissible and must be deprecated. This complaint was sent by the ED to the ACB/EOW after objections being raised by the accused persons in the IT complaint. The FIR was allegedly investigated and thereafter without obtaining necessary sanction under Section 17A of the PC Act from the concerned government is illegal. However, in the reply, the ACB has stated that the sanction was obtained. He contended that the FIR was registered without conducting any preliminary enquiry even though the information of the alleged offences wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of CrPC (which corresponds to Section 218 of Bhartiya Nagrik Suraksha Sanhita, 2023) reads thus: "197. Prosecution of Judges and public servants.-- (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction -- (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression "Sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sections 383 and 384 IPC was registered and therefore the offence of extortion is not made out against the applicant. He submits that no proceedings have been initiated under Section 8 of the PC Act against the persons who have allegedly paid the commission. The statements recorded by the ED under Section 50 of the PMLA shows that 'diktat' was allegedly given by another person (Ram Gopal Agrawal) however he has not been made an accused. Similarly role of collection of alleged kickback amount was attributed to one Pramod Agrawal though he has not been made accused. He submits that only recovery of unaccounted money of Rs. 47.60. lacs has been made from the possession of one Manoj Agrawal and Rs. 7.30 lacs from Sunil Ubhrani but but none of them has been made accused. 11. It is therefore submitted by the counsel for the applicant that it is a clear case of pick and choose method adopted by the ED which is completely against the principles of fair investigation. Without prejudice the allegations are made and various other persons who ought to have been arraigned as accused such as rice millers, office bearers of the District Rice Millers Association are not made accused. He has plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that the applicant has no knowledge about the alleged scam. He had neither demanded nor received any unaccounted amount from any rice miller and was not involved in the alleged proceeds of crime. He further submits that despite the allegation that the incentive amount was increased from Rs. 40/- to Rs. 120/-, for payment of commission which had given way to corruption in the MARKFED, the pricing has not changed even after the change in the government which clearly shows that either the current regime is also complicit and part of the alleged custom rice milling scame in the State or the allegations made by the agencies are fictitious and imaginary. 13. He submits that the applicant had received the alleged proceeds of the crime, is incorrect and contrary to the ED's case in the prosecution complaint. It is alleged by the ED that a sum of Rs. 147 crores was collected from the rice millers which is the proceeds of crime. He submits that the ED has failed to establish the trail of money alleged to the proceeds of crime from various rice millers to the applicant. As per the statement of the rice millers recorded under Section 50 of the PMLA, the alleged extortion money was given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abilities, or reasons to believe, that the bail applicant is not guilty. Meaning thereby, the statements under Section 50 of the PMLA have to be taken at their face value, but in case any such statement is patently self-contradictory or two separate statements of the same witness are inconsistent with each other on material aspects, then such contradictions and inconsistencies will be one of the factors that will enure to the benefit of the bail applicant whilst ascertaining the broad probabilities, though undoubtedly the probative value of the statement(s) of the witnesses and their credibility or reliability, will be analyzed by the trial court only at the stage of trial for arriving at a conclusive finding apropos the guilt of the applicant." 15. He submits that from perusal of the statements of the rice millers and other persons whose statements are being relied upon by the ED, they have been tutored by the ED for making similar statements as similar words and phrases have been used by all the rice milers. It is further contended that their statements were not recorded in the presence of Assistant Director of the Investigating Officer ie. the competent authority, which is a cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued any instructions to the DMO and the employees of MARKFED to keep the bills of those rice millers pending who had not paid the extortion amount. He contended that so far as the alleged delay in clearance of the bills is concerned, it is submitted that the department had to clear thousands of invoices and the pendency of the invoices of the rice milers is a part of regular business process. The custom milling comprises of two charges-1. Custom milling charges which comes from receipt of sale proceeds of the rice deposited with the FCI/CGSCSC and 2) miller incentive charges which comes from the State fund. 17. In order to clear the payments, money should be available in both the funds. Till March 2023, only 1/3rd of the total funds for payment of the first instalment was available with MARKFED and the additional grant was released by the State Government in the month of April 2023. No mala fide can be attributed to the applicant merely on the ground that some invoices of the rice millers were pending. He contended that the only material which the ED has placed reliance is the statements recorded under Section 50 of the PMLA apart from the inadmissible diary entries. It is a sett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is : "where there is evidence against the co-accused sufficient, if,. believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King(1) the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellants substantially because it thought that the confessions of the coaccused persons could be first considered and the rest of the evidence could be treated as corroborating the said confessions. We are, therefore, satisfied that the High Court was not right in confirming the conviction of the two appellants under s. 396, of the Indian Penal Code." 19. It is further contended by the learned counsel for the applicant that the applicant satisfies the triple test. As has been held in catena of judgments including P.Chidambaram Vs. CBI 2020 13 SCC 337, that while dealing with the bail application it is not in dispute that 'three factors' or the 'triple test' must be seen /satisfied viz. (I) flight risk; (ii) likelihood of tampering with evidence and (iii) likelihood of influencing witnesses. Pertinently all the three facts are satisfied by the applicant and as such the applicant may be granted bail. 20. He contended that the applicant does not have the propensity to evade the process of law. In fact there has been allegation by the ED that the applicant is a flight risk. There is no such allegation so far by the ED seeking his judicial/police custody. Even during investigation, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as mandated by Article 22(1) of the Constitution and Section 19 of the Act of 2002, is meant to serve this higher purpose and must be given due importance. 21. Contention of the learned counsel for the applicant is that the applicant is an ITS Office and a public servant, has never been convicted for any offence and that the applicant is not a flight risk. Therefore, there is no scope for any doubt or apprehension about the applicant's availability in the future. There is no likelihood of tampering with evidence or influencing the witnesses. Another paramount consideration for grant of bail is that there is no likelihood of the applicant to tamper with the evidence. He submits that the investigation is concluded and the prosecution complaint has been filed. The allegation that the applicant is intimating witnesses on the basis of an uncorroborated statement by co-accused in the predicate offence, Ms. Pritika Pooja Kerketta, who has not even been named as a witness in the list of witnesses filed by the ED along with the Prosecution Complaint dated 28.06.2024 and as such, she is not a witness at all and therefore there arises no question of the applicant influencing/intimidating her ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of Sanjay Jain Vs. Directorate of Enforcement, (2024) SCC OnLine Del. 1656, it has been held that : "62. Thus, the confessional statement of a co-accused under Section 50 of the PMLA is not a substantive piece of evidence and can be used only for the purpose of corroboration in support of other evidence to lend assurance to the Court in arriving at a conclusion of guilt." 24. He contended that it is a clear case of pick and choose by the ED. the ED has picked Ms. Pooja Pritika Kerketta to get her false statement to implicate the applicant and though her statements are also self incriminatory where she has confessed to her own alleged wrong doing. It is further contended that there is allegation against the applicant that he had directed G.S.Painkara, Pritika Pooja Kerketta, Raj Kumar Bawne and Chandra Shekhar Chauhan to file a written complaint retracting their deposition before the Income Tax Department which is completely false. The veracity of the statement will have to be tested during trial and ought not be held against the applicant at this preliminary stage of consideration for grant of bail. It is submitted that the applicant had directed several DMOs and emplo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came into their possession which are his (PW-1) personal/private property over which no one else can have access. Not even a suggestion has been put to the witnesses to confront the recoveries effected from the accused persons. The cash recovered from the accused persons have already been released on superdari in favour of PW1 vide order dated 17.07.2017 passed by Ld.MM. The argument of defence counsels that no independent witness has joined the proceedings is without any force as these days no public person CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 14 Neutral Citation Number: 2023:DHC:2166 wants to join the police or court proceedings may be due to apprehension that they themselves might not get entangled in any criminal case in future." 27. Thus, considering the long period of pre-trial incarceration already undergone by the applicant, these aspects would no longer be a weighty factor in the determination of grant of bail. It has been time and again reiterated by the Apex Court that the right to speedy trial is a facet of the fundamental right to life of an accused under Article 21 of the Constitution of India. He has referred to the judgment of Manish Sisodia Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court, in Arnab Manoranjan Goswami v. State of Maharashtra and Others (2021) 2 SCC 427, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be. 29. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... attendance of the prisoner at trial." 29. He contended that the bail application of the accused cannot be rejected on the ground of severity of the offence or due to bar contained in Section 45 of the PMLA in cases where there is a violation of the right of the accused to speedy trial coupled with long period of pre-trial incarceration as has been held in Manish Sisodia (supra), wherein it has been held that : "44. The learned Special Judge and the learned Single Judge of the High Court have considered the applications on merits as well as on the grounds of delay and denial of right to speedy trial. We see no error in the judgments and orders of the learned Special Judge as well as the High Court in considering the merits of the matter. In view of the observations made by this Court in the first order, they were entitled to consider the same. However, the question that arises is as to whether the trial court and the High Court have correctly considered the observations made by this Court with regard to right to speedy trial and prolonged period of incarceration. The courts below have rejected the claim of the appellant applying the triple test as contemplated under Section 45 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of money laundering as defined under Section 3 and punishable under Section 4 of the PMLA,2002. 33. Contention of Shri Pandey, learned counsel for the respondent is that the present applicant has played the role in the commission of offence of Money Laundering under Section 3 of the PMLA and was arrested on 30.04.2024. Thereafter the ED remanded the accused till 04.05.2024. the arrestee was produced before the Special Court on 10.05.2024 and thereafter he was in custody till 14.05.2024. The Prosecution Complaint has been filed against the applicant and others on 28.06.2024 for the offence on money laundering as defined under Section 3 & 4 of the PMLA, 2002 and since then, the applicant is in judicial custody. 34. Shri Pandey submits that the specific role of the present applicant is that he worked as MD, MARKFED during the relevant period and had actively assisted the co-accused Roshan Chandrakar in collecting the extortion amount form rie millers in Chhattsigarh @ 20/- per quintal from January 2023 to July 2023 for passing their custom milling and special incentive bills. Investigation has revealed that the applicant being the MD had issued directions to all the DMOs and employe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re scheduled offence under the pMLA, this FIR was incorporated in the ongoing PMLA investifation by issuing an addendum on 19.04.2024, Later on, ACT/EOW had added Section 384 IPC which is also a scheduled offence under the PMLA. 38. It is contended that the ED is legally mandated under PMLA to share information about the commission of any offence surfaced during its investigation with such authority who are competent to investigate such offence and had shared the information with the CG Police under Section 66 of the PMLA about the commission of the offence of extortion from rice millers by the applicant and other co-accused persons. The police after due diligence and verification of the information shared by the ED registered FIR. Since investigation into the FIR lodged by EOW, Raipur is still going on, the case ought not be made on merits at this juncture for deciding the bail application especially when no charge sheet has not yet filed by the EOW. 39. He contended that the existence of even one scheduled offence is enough for initiating investigation under the money laundering Act/ Apart from the Prosecution Complaint of the Income Tax Department, scheduled offence in the for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zable offence and if the jurisdictional police fails to respond appropriately to such information, the authorized officer under the 2002 Act can take recourse to appropriate remedy, as may be permissible in law to ensure that the culprits do not go unpunished and the proceeds of crime are secured and dealt with as per the dispensation provided for in the 2002 Act. Suffice it to observe that the amendment effected in 2015 in the second proviso has reasonable nexus with the object sought to be achieved by the 2002 Act. 34. He further contended that it has been clearly held that as Section 45 of the PMLA uses a generic expression "Bail" without any specific reference to any kind of bail, no exception can be made with respect of applicability of the rigors of Section 45 to the different kinds of bail. It has been observed in Vijay Madanlal (supra) as under: 137. Another incidental issue that had been raised is about the non- application of rigors of Section 45 of the 2002 Act in respect of anticipatory bail filed under Section 438 of the 1973 Code. This submission presumably is linked to the observation in paragraph 42 in the case of Nikesh Tarachand Shah643. Similar argument was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money- laundering." 35. It is contended that the action of search under PMLA is merely a tool for investigation and is one of many such tools granted to ED by the Act which are employed to collect evidences during investigation. The possibility of parking the proceeds of crime at a secret place through layering cannot be denied. The applications filed by the applicant to retract the statements recorded are nothing but a deceptive tactic being employed by the applicant without any evidence to create some sort of defence for himself. The applicant had filed application under Section 439 Cr.P.C. read with Section 45 of the PMLA before the learned trial court seeking grant of regular bail in the subject ECIR. Learned trial court dismissed the bail application which clearly established the role of the applicant in the offence of money laundering. Since the applicant has failed to satisfy the twin conditions as per Section 45 of the PMLS the learned PMLA Court has rightly rejected his bail application. 36. It is contented that the search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisions of Section 45 of the PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions 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 the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes 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 un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles governing the grant of bail. The limitations on granting bail as 638 Supra at Footnote No.255 639 Supra at Footnote No.207 640 Supra at Footnote No.258 prescribed under Section 45 of the 2002 Act are in addition to the limitations under the 1973 Code." 42. Further in the case of Sajjan Kumar Vs. Directorate of Enforcement (MANU/DE2155/2022) has held that "in the matter of lregular bail, Court must consider aspects including but not limited to, the larger interest of the State or public-another factor relevant would be the gravity of alleged offence and/or nature of allegations levelled-Economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude" 43. Similarly, in the matter of Abdul Gafoor @ Kunhumon Vs. Assistant Director, Directorate of Enforcement in bail application No. 2840 of 2022 decided by the High Court of Kerala on 27.05.2022, has ordered as follows: "I have no hesitation to hold that the twin conditions as amended in Section 45(1) in 2018 have now become referable and reliable to the offences punishable under PMLA and an accused charged with an offence under the Act still has to satisfy th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f proof that the said money is not the proceeds of crime and, therefore, shifted to the applicant under Section 24 of the PML Act, 2002. For the sake of reference, Sections 3 and 24 of the PML Act are extracted herein below :- "3. Offence of money-laundering.-Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the 4[proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering." "24. Burden of Proof. - In any proceeding relating to proceeds of crime under this Act, (a) in the case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crim e are involved in money-laundering; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering." 46. Further contention of learned counsel for the applicant is that the applicant is a high ranking government officials and is familiar w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riminal Procedure in case of conflict between them. Section 45 of the PMLA imposes 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 the PMLA : (1) 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. As is clear from the Prosecution Complaint filed by the Directorate, it is clear that the applicant was involved in the offence of Money Laundering. 50. He further contended that it has been clearly held that as Section 45 of the PMLA uses a generic expression "Bail" without any specific reference to any kind of bail, no exception can be made with respect of applicability of the rigors of Section 45 to the different kinds of bail. It has been observed in Vijay Madanlal (supra) as under: 137. Another incidental issue that had been raised is about the non- application of rigors of Section 45 of the 2002 Act in respect of antici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money- laundering." 51. It is next contended that the economic offences constitute a class apart and need to be visited with different approach therefore in Y.S.Jagan Mohan Reddy Vs. CBI (2013) 7 SCC 439, the Apex Court has held as under: "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." 52. In yet another decision of the Apex Court ie. State of Gujarat Vs. Mohanlal Jitamalji Porwal & Others, (1987) 2 Scc 364, it has been specifically held that : "...5. The Community or the State is not a person non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt further contended that till date under the Prevention of Money Laundering Act revealed that rice millers were the onces who were forced to pay extortion by the co-accused Mr. Roshan Chandrakar with the help of the applicant and without paying extortion amount to him, no bills of rice millers were passed. The rice millers were neither beneficiaryof POC nor are they assisting in any other activity associated with the POC. The investigation in this case is not complete and the role of other persons is being probed. Since the involvement of the applicant is established, the prosecution complaint has been filed. 55. Lastly, it has contended by the counsel for the respondent that with regard to the medical condition of the applicant, the Court should put strrong proof of his claim. The jail authorities are well equipped to provide medical facilities to the applicant and there is no material to prove the seriousness of the ailments. CONSIDERATION OF THE APPLICATION FOR BAIL 56. Heard learned counsel for the parties at length and perused the records as well as the documents annexed with utmost circumspection. 57. The crux of the allegation against the applicant is that he was involv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted shifted on the accused persons Under Section 24 of the PML Act, 2002. The same proposition of law is reiterated and followed by the Orissa High Court in the unreported decision of Smt. Janata Jha v. Assistant Director, Directorate of Enforcement (CRLMC No. 114 of 2011 decided on December 16, 2013). Therefore, taking into account all these propositions of law, we feel that the application for bail of the Appellant should be seen at this stage while the Appellant is involved in the economic offence, in general, and for the offence punishable Under Section 4 of the PMLA, in particular. 60. Prima facie it appears that the prosecution has adopted an incompatible stance being both hot and cold in its approach and has acted in a pick and choose manner in the investigation where some of the accused persons were named in the ECIR but they have not been made accused. Though the concerned court took cognizance of some of the offences as alleged in the complaint by the IT. Further cognizance has been taken for the offences under Sections 181,191,193,417 and 418 of IPC. 61. In recent times, India's criminal law jurisprudence has witnessed an increasing emphasis on enacting stringent laws ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ociety by punishing the wrongdoers although no person should be punished without a fair trial. A person is presumed to be innocent until his/her guilt is proved beyond reasonable doubt in a trial before an impartial and competent court of law. It is very important, in the administration of justice, that justice should not only be done, but should manifestly and undoubtedly be seen to be done. However, the right to bail is not an absolute one. The legislation's like the PMLA, impose stricter conditions for granting bail, reflecting the gravity of the offences they address. 65. The Apex Court has held that while the nature of the offence under PMLA is indeed serious, the right to a speedy trial and the right to liberty cannot be ignored. The question is about the fairness of continued incarceration without a clear timeline for the trial's completion. The Court relied upon the judgment in Javed Gulam Nabi Shaikh v. State of Maharashtra and Another 2024 LiveLaw (SC) 437, in which it was held that - if the State or any prosecuting agency, including the concerned court, lacks the resources to ensure or safeguard the fundamental right to a speedy trial of an accused as guaranteed under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It is further held that if the authorities are adopting adequate measures to prevent deterioration of the health of the accused during the period of custodial internment, then the Court may not interfere. The applicant's medical record indicates manageable conditions and it has been found that there is no compelling medical reason for granting bail to the applicant. The Court has found substantial material indicating a strong nexus between the applicant and the crime, thereby failing to satisfy the conditions of bail under Section 45 of the PMLA. CONCLUSION 70. Thus, the guilt of the accused in the offence of money laundering has been gathered and since, the allegations against the applicant were extremely serious and taking into account, the nature and gravity of the offence and from perusal of the record and in view of the fact that looking to the special and stringent provision under Section 45(1) of the PMLA for grant of bail, in the considered opinion of this Court, prima facie the money trail has been established by the prosecution and therefore, it is not proper to order release of present applicant on regular bail for the reasons mentioned hereinabove. Considering the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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