9911796707
TMI Blog2025 (2) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhojpur Districts under Sections 38, 120B, 378, 379, 406, 409, 411, 420, 467, 468 and 471 of IPC, and under Section 39(3) of the Bihar Mineral, (Concession, Prevention of Illegal Mining, Transportation & Storage) Rule, 2019. It was alleged inter alia that M/s Broad Son Commodities Private Ltd and its Directors were engaged in illegal mining and selling of sand without using the departmental pre-paid transportation E-challan, issued by the Mining Authority Bihar, and thus had caused revenue loss of Rs.161,15,61,164/- to the Government Exchequer. Since the said FIRs contained Scheduled offences as defined under Section 2(1)(y) of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the ''PMLA''), an ECIR bearing No. ECIR/PTZO/14/2023 dated 15.03.2023, addendum ECIR No. ECIR/PTZO/14/2023 dated 08.11.2023 and dated 04.05.2024 came to be registered, and the investigation for the offences of Money Laundering was initiated. 4. During the course of investigation and pursuant to the information made available, search operations were carried out under Section 17 of PMLA at the various locations and premises related with the said Company and its Directors, including four ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal Misc. No.17738/2024 before the High Court of Judicature at Patna seeking regular bail in connection with the said Prosecution Complaint registered as Special Trial (PMLA Case No.8/2023) before the Special Judge, PMLA. The said application has been allowed by the High Court vide the impugned order. 8. The bone of contention raised by the learned counsel Mr. Zoheb Hussain appearing for the appellant-ED is that the impugned order passed by the High Court is in the teeth of Section 45 of the PMLA as also of various pronouncements made by this Court with regard to the mandatory requirement of the said provision. According to him, the High Court has thoroughly misinterpreted and misread the ratio of the judgments particularly of the judgment of the three-judge bench in Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors. 2022 SCC OnLine 929, while holding that the provisions of Article 20(3) of the Constitution shall prevail upon Section 50 of the PMLA. Mr. Zoheb Hussain relying upon the Prosecution Complaint and other material on record submitted that there was a prima-facie case made out by the appellant against the respondent, and the offence under the PMLA being very serio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer 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 Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ........The provision post the 2018 Amendment, is in the nature of no bail in relation to the offence of money laundering unless the twin conditions are fulfilled. The twin conditions are that there are reasonable grounds for believing that the accused is not guilty of offence of money laundering and that he is not likely to commit any offence while on bail. Considering the purposes and objects of the legislation in the form of the 2002 Act and the background in which it had been enacted owing to the commitment made to the international bodies and on their recommendations, it is plainly clear that it is a special legislation to deal with the subject of money laundering activities having transnational impact on the financial systems including sovereignty and integrity of the countries. This is not an ordinary offence. To deal with such serious offence, stringent measures are provided in the 2002 Act for prevention of money laundering and combating menace of money laundering, including for attachment and confiscation of proceeds of crime and to prosecute persons involved in the process or activity connected with the proceeds of crime. In view of the gravity of the fallout of money la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay Madanlal (supra) in which it has been held inter alia that the person summoned under Section 50(2) is bound to attend in person or through authorized agents before the authority and to state truth upon any subject concerning which he is being examined or is expected to make statements and to produce the documents as may be required by virtue of sub-section (3) of Section 50. It has been further observed that Article 20(3) of the Constitution would not come into play in respect of the process of recording statement pursuant to such summon issued under sub-section (2) of Section 50. The phrase used in Article 20(3) is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused insofar as it is related to the phrase "to be a witness" is in respect of testimonial compulsion in the court room, and it may also extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled, which in the normal course may result in a prosecution. 19. We also do not find any substance in the submission made by learned Senior Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide Finance (No. 2) Act, 2019. Thus understood, inclusion of clause (ii) in the Explanation inserted in 2019 is of no consequence as it does not alter or enlarge the scope of Section 3 at all. 271 to 405............... 406. It was urged that the scheduled offence in a given case may be a non-cognizable offence and yet rigours of Section 45 of the 2002 Act would result in denial of bail even to such accused. This argument is founded on clear misunderstanding of the scheme of the 2002 Act. As we have repeatedly mentioned in the earlier part of this judgment that the offence of money laundering is one wherein a person, 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 proceeds of crime. The fact that the proceeds of crime have been generated as a result of criminal activity relating to a scheduled offence, which incidentally happens to be a non-cognizable offence, would make no difference. The person is not prosecuted for the scheduled offence by invoking provisions of the 2002 Act, but only when he has derived or obtained property as a result of criminal activity relati ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
