9911796707
TMI Blog2025 (2) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... bjective opinion of ED officer, the court said an officer's "reasons to believe" that a person was guilty an deserved arrest should not be based on mere suspicion. The Apex Court in the matter of Directorate of Enforcement Vs. Aditya Tripathi [2023 (5) TMI 527 - SUPREME COURT] has held that the power to arrest under the Prevention of Money-laundering Act (PMLA) cannot be exercised on the "whims and fancies" of Directorate of Enforcement (ED) officers. The court wondered if the ED even had a consistent, uniform and "one-rule-for-all" policy on when they should arrest people. It said the ED's power to arrest must be based on objective and fair consideration of material against the accused. It is prima facie clear that on the one hand, it is claimed that the matter is of a huge economic loss to the State Exchequer and the offence is of highly serious nature and on the other hand, the distillers who are allegedly supplying illegal liquor causing huge financial loss to the State exchequer, have not been made accused despite the fact that their names have been mentioned in the complaint made by the ED as member of the syndicate. Prima facie it appears that the prosecution has adopted a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This ECIR 04 is identical to the investigation carried out by it previously in relation to another ECIR bearing ECIR No. ECIR/RPZO/11/2022. The applicant was arrested in relation to ECIR 11 and has undergone 10 months of custody. The proceedings in relation to ECIR 11 were ultimately quashed by the Apex Court with a finding that there were no proceeds of Crime therein. Immediately thereafter the ED registered ECIR04 to investigate the case which was quashed by the Apex Court. Despite having in custody for 14 days, the applicant was remanded by the learned Special Judge to a further custody of 8 days and subsequently remanded to judicial custody. The applicant preferred application before the Special Judge (PMLA) ASJ-04, Raipur seeking regular bail which was dismissed vide order dated 8.10.2024. 4. Apart from the instant case, following cases are pending against the applicant. 1. FIR No. 04/2024 registered by the ACB, Raipur under Sections 420, 467,468,471 and 120-B IPC read with Section 7 & 12 of the PC Act. The applicant was arrested and charge sheeted and the matter is pending trial before the court of Special Judge (PC Act), Raipur. 2. ECIR/RPZO/11/2022 for the alleged of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant ie. 19.06.2024, 27.09.2024 and 5.10.2024 and there are 35 witnesses in all and the said ECIR is against nine accused persons spanning into over 21,000 pages. It is further contended that 3-4 charge sheets are yet to be filed in the scheduled offence which would evidently prolong the proceeding under the PMLA being contingent on the proceeding in the scheduled offence resulting in trial. He further submits that the imprisonment before conviction is also punitive amounting to violation of Article 21 of the Constitution of India. 9. Further contention of the counsel for the applicant is that the ED is relying upon the same alleged material that was collected illegally during the course of investigation carried out in relation to the first and second ECIR. He contended that the applicant cannot be prejudiced and his legal rights can't be violated because of the illegal actions of the ED in the first ECIR. The ED cannot derive benefit out of its own illegal actions and arrest the applicant for the second time for the same alleged offence under Section ¾ of the PMLA. It is contended tht the applicant had already undergone ED custody for the maximum permissible period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant case, it is pointed out by the learned counsel for the ED that the complaint case is at the stage of framing of charges and 24 witnesses are proposed to be examined. The conclusion of proceedings, thus, will take some reasonable time. The petitioner has already been in custody for more than a year. Taking into consideration the period spent in custody and there being no likelihood of conclusion of trial within a short span, coupled with the fact that the petitioner is already on bail in the predicate offence, and keeping in view the peculiar facts and circumstances of the case, it seems to us that the rigours of Section 45 of the Act can be suitably relaxed to afford conditional liberty to the petitioner. Ordered accordingly." 12. He submits that time and again it has been 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. The Apex Court in the matter of Manish Sisodia Vs. CBI and ED (2023) SCC OnLine SC 1393 has held that : "27. However, we are also concerned about the prolonged period of incarceration suffered by the appellant - Manish Sisodia. In P. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... berty 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, kidnapping 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 PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Ramkripal Meena v. Directorate of Enforcement was considering an application of the petitioner therein who was SLP(Crl.) No. 3205 of 2024 dated 30.07.2024 to receive a bribe of rupees five crore and from whom, an amount of Rs. 46,00,000/- was already recovered. In the said case, the petitioner was arrested on 26th January 2022 in connection with FIR No. 402/2021 registered against him for the offences punishable under Sections 406, 420, 120B of IPC and Section 4/6 of the Rajasthan Public Examination (Prevention of Unfair Means) Act, 1992. He was released on bail by this Court vide order dated 18th January 2023. Thereafter, the petitioner was arrested by the ED on 21st June 2023. The Court observed thus: "7. Adverting to the prayer for grant of bail in the instant case, it is pointed out by learned counsel for ED that the complaint case is at the stage of framing of charges and 24 witnesses are proposed to be examined. The conclusion of proceedings, thus, will take some reasonable time. The petitioner has already been in custody for more than a year. Taking into consideration the period spent in custody and there being no likelihood of conclusion of trial within a short span, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period of half of the maximum period of imprisonment. The detention or jail before being pronounced the guilty of an offence should not become punishment without trial. As has been held by the Apex Court in the case of Manish Sisodia 1, (2023) SCC OnLine 1393. the right to bail in cases of delay coupled with incarceration for a long period should be read into Section 439 cr.P.C. and Section 45 of the PMLA. The reason is that the constitutional mandate is the higher law and it is the basic right of the person charged of an offence and not convicted, he be given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court unless there are good reasons may well be guided to exercise the power to grant bail. 16. Further Contention of the learned counsel for the applicant is that the bail application of the accused/applicant cannot be rejected on the ground of severity of the offence or due to the 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 perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant herein is not necessary for the purpose of investigation. 11. The appellant has been behind the bars for the last five months. As observed by us in the case of Manish Sisodia (supra), taking into consideration that there are about 493 witnesses to be examined and the documents to be considered are in the range of about 50,000 pages, the likelihood of the trial being concluded in near future is impossible. 12. Relying on the various pronouncements of this Court, we had observed in the case of Manish Sisodia (supra) that the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. 13. We had also reiterated the well-established principle that "bail is the rule and refusal is an exception". We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions." 19. In the matter of Prem Prakash Vs. ED , SLP (Crl.) No. 5416 of 2024, it has been held as under: "46. The Investigating Agency have also referred to ECIR No. 4 as a criminal antecedent. A reference was made to ECIR No. 4 of 2022 pertaining to illegal Stone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... listed before the Special Judge in July 2022. 9. While the provisions of Section 212 (6) of the Companies Act 2013 must be borne in mind, equally, it is necessary to protect the constitutional right to an expeditious trial in a situation where a large number of accused implicated in a criminal trial would necessarily result in a delay in its conclusion. The role of the appellant must be distinguished from the role of the main accused." 22. In the case of Sujay U Desai Vs. SFIO, 2022 SCC OnLine SC1507, it has been held as under: "7. Having duly considered the provisions of Section 212 (6) of the Companies Act, 2013, we are of the view that in the facts of the present case, the appellant ought to be granted the benefit of bail under Section 439 of the Code of Criminal Procedure 1973 since the right to an expeditious trial is protected under Article 21 of the Constitution. We accordingly, direct that the appellant shall be released on bail subject to such terms and conditions as may be imposed by the Sessions Judge, Kanpur in connection with Sessions Trial No. 577 of 2020." 23. He submits that it is well settled that the object of bail is neither punitive nor preventive. The pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other individuals and save themselves. 28. It is submitted that as per ED, it is alleged that liquor scam is of Rs. 2161 crores. As per EOW the liquor scam is of Rs. 1660 crores. As per the STF, the liquor same is of Rs. 3200 crores. All this established that the investigation is being conducted by different agencies and calculating different numbers which is baseless. Further the alleged chats being relied upon is of February 2020 and the allegations are made for the period between April 2019-February 2023. it is contended that the allegation of the ED that the collection of bribe by sale of Part-B liquor is on the basis of assumptions and have tried to implicate the officer by using chats and by recording false statements by threatening the persons with arrest. There is no seizure of illegal liquor or holograms and bottles and the Ape Court has opined that prima facie there are no proceeds of crime in the instant case. It is submitted that according to the statement of erstwhile Secretary of the Excise Department, no loss has been caused to the State Exchequer and the liquor trade had taken place as per law. There was no recovery of any unaccounted money, incriminating material, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.2013 in SEBI vs. PACL India Ltd. in CA 6753-54/2004 wherein, the Hon'ble Supreme Court refused to classify M/s. PACL as CIS but had only directed the SEBI on 22.08.2014 to look into its affairs and that there was no embargo for 18 years upon M/s. PACL on its operation. Admittedly the petitioner was a downstream investor of funds hence his submission he did not knowingly became a party to money-laundering cannot be brushed aside lightly. Even otherwise he allegedly was a nominee non-executive director since 11.09.2012 in M/s. DDPL and M/s. Unicorn and prior to 11.09.2012 had nothing to do with these companies; further substantial amount received in the companies of petitioner was returned in the manner alleged above and even Gurmeet Singh's statement would show the petitioner represented the 25 companies were not associated with M/s. PACL. What weigh the statements under Section 50 of PMLA would carry at the end of trial cannot be tested at the stage of bail, more importantly when the intermediary companies were never made an accused in the present ECIR. The ultimate effect of their non-inclusion would be seen at the conclusion of trial. Further considering the order date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat evidence." In Bhuboni Sahu v. King(1949) 76 I.A. 147 at p. 155.) 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 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, becau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under S. 396, of the Indian Penal Code." 32. In the matter of Sanjay Jain Vs. ED. 2024 SCC OnLine SC 656, 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." 33. He contended that the none of them had admitted to the fictitious liquor scam in their statement under Section 131 (1A) It Act before the IT Department which is as much a judicial proceeding as the statement recorded under Section 50 of the PMLA. Nothing has been mentioned about the payment of commission or Part A, B or C liquor before the IT department by any individual as alleged by the respondent. The distillers who have given false statements before the respondent had denied making any payment of bribe or of the existence of the imaginary liquor syndicate. 34. Next contention of the counsel for the applicant is that the investigation conducted by the ED is mala fide and fictitious. The right to fair trial and investigation is a facet of the right to life and liberty under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the alleged liquor syndicate or the entire set of allegations made by the ED are fictitious and imaginary and therefore the pick and choose manner of investigation entitles the applicant to bail. 37. He contended that the there is no material on record to suggest that the applicant does not satisfy the triple test as there is no allegation that he would either tamper with any evidence or influence any witness if granted bail. Mere apprehension of the investigating agency without any substantial basis for the same cannot be a ground for denying bail to the applicant. In the matter of P. Chidambaram Vs. Central Bureau of Investigation (2020) 13 SCC 337, wherein it has been observed as under: "31. It is to be pointed out that the respondent - CBI has filed remand applications seeking remand of the appellant on various dates viz. 22.08.2019, 26.08.2019, 30.08.2019, 02.09.2019, 05.09.2019 and 19.09.2019 etc. In these applications, there were no allegations that the appellant was trying to influence the witnesses and that any material witnesses (accused) have been approached not to disclose information about the appellant and his son. In the absence of any contemporaneous materials, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mining the nature and manner of occurrence that took place on 13.05.2024. It is, thus, urged that the prayer for bail may be deferred till such time the vulnerable witnesses are examined by the Trial Court." 39. He submits that the ground of arrest and the reason to believe do not meet the threshold of Section 19 PMLA and are grossly insufficient and there can be no necessity of arrest in the in the instant case. It is trite law that the provisions of Section 19 are mandatory and the compliance of the said provisions is a solemn function of the arresting authority which brooks no exception. He further submits that since all the material is illegal and nullity in law and the prosecution complaint filed by the respondent/ED in relation to ECIR 11 has been quashed, no reasons to believe that the applicant is guilty of the offence under Sections 3 read with 4 of the PMLA can be reached at the by respondent. He submits that the entire basis on which the custody of the applicant was sought by the ED in ECIR 04 and the allegations made in the application seeking remand, grounds of arrest and the reasons to believe was the same as that in the ECIR 11/prosecution complaint. He submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CG Distilleries Ltd., M/s. Bhatia Wine Merchant Private Ltd. and Welcome Distilleries Pvt. Limited are licensed to supply country liquor in the State. (b) that accused Anwar Dhebar took advantage of his political influence and family relations with another accused Anil Tuteja and in association with one Arun Pati Tripathi, the Managing Director of CSMCL lead to increase the rate of liquor production and supply and in return, gained illegal commission amounting to lacs of rupees from the distillery owners. This mechanism is called Part -A. (c) Similarly a new system which run parallel to the existing system of selling country liquor through government shops was created without any records from distillery operators which involved constructing duplicate holograms and selling them separately through government liquor shops. The illegal sales of these duplicate holograms resulted in earning worth crores of rupees. Various persons were implicated in this scheme including distillery owners, bottle supplying agencies, duplicate hologram supplier agencies, agencies involved in the collection of money from these type of illicit sale which took place during the years 2019 to 2022. (d) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Liquor was divided into two categories namely Country liquor and Indian Manufactured Foreign Liquor (IMFL). Country Liquor was produced in the State of Chhattisgarh through three distilleries : I) M/s. Chhattisgarh Distilleries Ltd. ii) M/s. Bhatia Wines and Merchants Pvt. Ltd. iii) M/s. Welcome Distilleries Pvt. Ltd. The CSMCL became the tool in the hands of the syndicate which was used by it to enforce a parallel excise department. The syndicate comprises of senior bureaucrats of State, politicians and officials of excise department. In February 2019, Arun Pati Tripathi (ITS Offier) was chosen by the syndicate to lead the CSMCL and later on he was made the Managing Director of the organization at the behest of accused Anwar Dhebar. 45. It is submitted that the as part of the conspiracy, Arun Pati Tripathi was assigned with the task to maximize the bribe commission collected on liquor procured by M/s.CSMCL and to make necessary arrangement for sale of non-duty paid liquor in the CSMCL run shops. Arun Pati Tripathi was supported by Anwar Dhebar and Senior IAS Officer in this operation. In furtherance of his plans, Anwar Dhebar gave the task of cash collecting to Vikas Agr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant was supported by his nephew Amit Singh in this whole operation and their main role included logistics related to sale of Part-B liquor. The applicant and his nephew were also responsible for the transportation of Part-B liquor supply of duplicate hologram, supply of empty bottles for Part-B liquor. It is further contended by the counsel for the respondent that the applicant in association with his nephew had also considerable amount of proceeds of crime which is relatable aspects including transportation of Part-B liquor and supply of un invoiced empty bottles from Part-B sale. He further contended that the applicant and his nephew used to control the logistics of liquor business by way of his immediate relatives. He further contended that the applicant was also involved in collection of Part-B sale proceeds. He submits that the applicant along with his nephew set up two fronts ie. the entities M/s. ADIP Empire and M/s. ADIP Agrotech Pvt. Ltd. for laundering and earning proceeds of crime. 49. He submits that the multiple instances of use of cash on the part of the applicant has been noticed, whether it be the use of cash for purchase of land or availing bank entries. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... syndicate and for purchase of properties. 52. It is contended that during investigation, it has been revealed that the applicant leveraged his influence to enter the business of supplying bottles to the liquor syndicate and to facilitate this, he established a firm named M/s. ADIP empire under the name of his wife. This firm was involved in supplying bottles to M/s. Welcome Distilleries Ltd. The firm was also involved in the transportation however later switched its profile to trading of bottles. The investigation has thus revealed that the actual supply of bottles was carried out by M/s. Anurag Traders while M/s. ADIP Empire merely raised invoices for the transactions. 53. He submits that the investigation has also revealed that the bills raised before the distillers were highly over invoiced to the tune of 20% to accommodate the Part-B liquor. As a result, M/s. Adip Empire played a role in committing the criminal activity related to the scheduled offence by serving as the intermediary for over invoicing which allowed for extra supply of bottles and additionally profited from the margin included in the invoices it raised. This margin related to the scheduled offence as proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to accused Anwar Dhebar. He has also arranged bank entry of Rs. 2 crores against cash in the bank account of his wife for investing in the share market. In this manner, the proceeds of crime has been used by the applicant and profit made by the wife of the applicant has been freezed. 57. the reply to the contention of the applicant that the applicant has already been arrested by the same agency for the same offence on same facts and therefore the second arrest of the applicant is illegal in terms of law, to which it has been contended by Shri Pandey, learned counsel for the respondent that he was arrested in the first ECIR RPZO11/2022 on 14.06.2023 and got bail on 02.04.2024 though the Apex Court had advised to grant only interim bail. Relevant part of the order of the Supreme Court in WP No. 153/2023 is reproduced below: "A reading of the aforesaid order, prima facie, gives rise to a scenario that the High Court ought to have continued the interim bail order to await the order to be passed by this Court. The High Court's order rejecting the petition for bail and vacating the interim bail has resulted in the issuance of the NBW. Reply may be filed by the Enforcement Directorat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in that regard are left open to be decided in appropriate proceedings." 59. It is submitted that the ECIR/11/2022 recorded on 18.11.2022 on the basis of Income Tax Complaint filed before the Tiss Hazari Court, Delhi while ECIR/04/2024 was recorded on the basis of FIR No. 04/2024 dated 17.01.2024 registered by EOW/ACB, Raipur, Chhattisgarh Police under Sections 420,46,7,468,471 and 120-B IPC and 7 & 12 of the PC Act, Sections 120-B, 420,467 and 471 of IPC and 7 & 12 of the PC Act which are the schedule offences included in para 1 & 8 of the schedule to PMLA 2002 as defined under Section 2(1)(y) of the Act. It is further submitted the present investigation is based on the new ECIR bearing No. ECIR/RPZO/04/2024 which is recorded on 11.04.2024 on the basis of FIR registered by the CG State Police at EOW/ACB, Raipur. The applicant was arrested by the ED on 01.07.2024 and the Special Court PMLA, Raipur vide orders dated 02.07.2024 and 06.07.2024 had granted ED custody of the accused till 11.07.2024 and subsequently has been remanded to judicial custody. Further It is submitted that the present arrest was made only after recording of reasons to believe in writing. The arrest of the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to consider bail was grounded in the anticipation of the impending sentence that the respondent-accused might face upon conviction and since the respondent-accused had already served portion of the maximum imprisonment i.e., more than five years, this court took it as a factor influencing its assessment to grant bail. Further, in KA Najeeb's case the trial of the respondent-accused was severed from the other co-accused owing to his absconding and he was traced back in 2015 and was being separately tried thereafter and the NIA had filed a long list of witnesses that were left to be examined with reference to the said accused therefore this court was of the view of unlikelihood of completion of trial in near future. However, in the present case the trial is already under way and 22 witnesses including the protected witnesses have been examined. As already discussed, the material available on record indicates the involvement of the appellant in furtherance of terrorist activities backed by members of banned terrorist organization involving exchange of large quantum of money through different channels which needs to be deciphered and therefore in such a scenario if the appellant is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR bearing No. ECIR/RPZO/04/2024 which is recorded on 11.04.20-24 on the basis of the FIR registered by the Chhattisgarh State Police at EOW/ACB, Raipur. It is submitted that the economic offences fall in the category of the offences which travel far ahead of personal or private wrongs having the potential to usher in economic crisis. In the matter of Alok Agrawal Vs. Directorate of Enforcement bearing M.Cr.C. No. 6533 of 2019, decided on 03.01.2021, it has been discussed about the seriousness of the offences of money-laundering and their impact on the economy of the country. In the said judgment it has been categorically stated that allegations in the Enforcement Case Information Report/Prosecution Complaint is a matter of final outcome of the trial, but the burden of proof under Section 24 of the PMLA 2002 with regard to the said money is not proceeds of crime is always on the accused person. Relevant para is produced herein: "6….It is true that at present there may or may not be direct or indirect attempts to indulge the applicant in any process of activity connected with the proceeds of crime, there is no attempt on the part of the applicant to disclose the source of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant is released on bail, he may tamper the evidence and influence the witnesses which many not only hamper the investigation but also result in further layering and concealment of proceeds of crime therefore the bail application filed by the applicant may be dismissed. It is submitted that the applicant had played a very crucial role in the liquor scam. He along with Vikas Agrawal had earned approximately Rs. 40 crores from Part B liquor sale and the applicant was the key player in the syndicate eho convenes the meeting of distillers and accused Anwar Dhebar. The Special Court (PMLA), Raipur vide its order dated 5.10.2024 has taken cognizance of the above said prosecution complaint which shows that there is prima facie case of money-laundering against the applicant. The present applicant was involved in the scam which involves money-laundering of proceeds of crime of more than Rs. 2,000 crores approximately. As such the accused is involved in a grave and heinous financial crime and the present application is liable to be rejected. It has been held by the Orissa High Court in the matter of Mohd. Arif Vs. ED , BLAPL No. 2607 of 2020, describing the impact of the offence of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the State is not a person-non-grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community." 69. Contention of Shri Pandey, learned counsel for the respondent is that the applicant being an influential person close to the then ruling dispensation in the State of Chhattisgarh he may influence the witnesses and if released on bail there is a high likelihood that the petitioner would seek to frustrate the proceedings under the Act. The Apex Court in the matter of Neeru Yadav Vs. State of U.P.; (2016) 15 SCC 422, Hon'ble the Apex Court has held as under :- "11. It is a well settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are; (i) the nature of accusation and the severity of punishment in cases of conviction and the nature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken by the Special Court dated 5.10.2024 and had demonstrated the complete modus operandi adopted by the applicant for commission of the offence of money-laundering and investigation against the applicant is complete but the investigation with respect to the identification of remaining proceeds of crime and the persons involved therein is still going on. However, the delay in trial is no ground for claiming bail. The applicant has to satisfy the rigors provided in Section 45 of the PMLA prior to grant of bail. It is likely that if granted bail, the applicant would further launder or alienate the proceeds of crime which would frustrate the further proceedings. It is reiterated that satisfaction of triple test is not sufficient for persons arrested under PMLA,2002 and that the twin conditions imposed by Section 45 of the PMLA, 2002 have to be satisfied. 73. Next contention is that the averments made by the counsel for the applicant that the grounds of arrest and the reasons to believe do not meet the threshold of Section 19 of the PMLA an are grossly insufficient and there an be no necessity of arrest in the case is strongly denied by the learned counsel for the respondent a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming as untainted property as defined under Section 3 of the PMLA, 2002 and therefore the applicant is guilty of the offence of money-laundering under Section 3 of the PMLA, 2002 and punishable under Section 4 of the PMLA. CONSIDERATION OF THE APPLICATION FOR BAIL 76. Heard learned counsel for the parties at length and perused the records as well as the documents annexed with utmost circumspection. 77. In the present case, the applicant was involved in the criminal acts of the syndicate and is in possession of the proceeds of crime and that he received commission from the liquor suppliers. The applicant was the key player in the syndicate and convenor of meeting of the distillers and Anwar Dhebar about introduction of Part-A commission. However, no recovery of unaccounted money has been made in this regard. From the details of the whatsapp chats annexed with the charge sheet prima facie shows the involvement of the applicant in the present case has been established as massive corruption had taken place in the Excise Department by way of extorting amount of Rs. 2000 crores approximately and causing huge loss to the State Exchequer which otherwise would have yielded revenue fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authorized, 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." 80. Considering the judgment rendered by Hon'ble Division Bench of Madras High Court in N. Umashankar Vs. The Assistant Director, Directorate of Enforcement, reported in MANU/SCOR/25324/2022, wherein Hon'ble Division Bench of Madras High Court has examined Section 45 of the PMLA, 2002 and has held at para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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), no person accused of an offence [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 like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 charge sheet 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 Directorate for the scheduled offences under the PML Act are different and distinct. Therefore, the High Court has taken into consideration the irrelevant consideration. The investigation by the Enforcement Di ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
