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TMI Blog2024 (10) TMI 1636X X X X Extracts X X X X X X X X Extracts X X X X ..... case of the applicant falls under Schedule One, Part -A (offence under the IPC) and para -8 (Offence under PC Act) as per Section 3 & 4 of the PMLA. 3.It is submitted that the apart from the present case, the applicant has following criminal antecedents against him. I) FIR No. 196/2023 registered by PS Kasna, Greater Noida, Commissionerate Guatam Buddh Nagar, Uttar Pradesh for the alleged offence under Sections 420, 468,471,473,484 and 120-B of IPC. The charge sheet has been filed against co-accused in the said matter however no cognizance of the same has been taken. Further the proceedings in the FIR has been stayed by the Hon'ble Supreme Court and accordingly, he was released from custody in the said case. ii) FIR No. 04/2024 has been registered by the ACB, Raipur u/s. 420,467,468,471,120-B IPC read with Section 7 & 12 of the Prevention of Corruption Act. The applicant was arrested and charge sheet has been filed inter alia against the applicant therein. The matter is pending trial before the learned Court of Special Judge (PC Act) Raipur. This FIR is the predicate offence for the ECIR 04. iii) ECIR/RPZO/11/2022 for the alleged offence under Sections 3 & 4 of the PMLA (co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Once complaint goes everything goes. Supreme Court says when foundation goes the superstructure collapses. In a recent judgment of the Supreme Court, it has been held by Justice B.Pardiwala that "stream can't be higher than the source." 7. In one of the judgment of the Supreme Court, it has been held initially the officer who is not empowered started investigation under NDPS. It is nothing like wait till the trial when factual aspect is there. The factum which the learned Sr. counsel intends to prove is that whatever material was there in ECIR 11 has been made the foundation in ECIR 4. He contended that between the registration of ECIR 4 and the arrest of the applicant ie. 08.08.2024, there is no new material found or till date ie. 5.10.2024. He has placed his reliance in the case of V. Senthil Balaji Vs. The Deputy Director, Directorateof Enforcement, 2024, INSC 739 in para 13 as under: "We have carefully considered the submissions. The main document relied upon by the ED showing incriminatory material against the appellant is a part of the pen drive seized by the State police from the appellant's premises in connection with scheduled offences. The concerned Court dealing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Constitution ensures liberty to a citizen, which is a far more higher and valuable right guaranteed under the Constitution, and therefore Section 45 of the PMLA cannot be read in stringent terms as it is drafter. Similarly, in the case of Prem Prakash Vs. Union of India, 2024 INSC 637, Hon'ble Supreme Court held that Bail is the Rule and Jail is an exception, and that Article 21 of the Constitution confers a higher right than Section 45 of the PMLA. 10. It is contended that the applicant has been illegally arrested in the first ECIR on 12.05.2023 immediately after he filed a petition before the Hon'ble Supreme Court. Subsequently, he was granted bail by this Court on 15.02/2024 after remaining for 14 days in ED custody and over nine months of judicial custody. The applicant has been in illegal custody of theED on the same set of allegations for over nine months and the present ECIR is the same and only ECIR number has been changed. Learned Sr. counsel contended that there was absolutely no necessity of any arrest or custodial interrogation of the applicant and the applicant could not have been arrested in the same case for the same allegations for the second time for the all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s exception." 13. All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, "bail is the rule and jail is the exception" is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 of PMLA by imposing twin conditions does not re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied. 14. Further he has reiterated in Manish Sisodia (II) (supra) relying on Ramkripal Meena Vs. Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024) where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial within a short span, the rigours of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt unless there are good reasons, may well be guided to exercise the power to grant bail. He has further reiterated to the judgment of Manish Sisodia 1 (2023) SCC Online SC 1393, wherein it has been observed as under: "29. On the necessity to satisfy the preconditions mentioned in Section 19(1) of the PML Act, we have quoted from the judgment of this Court in Padam Narain Aggarwal (supra) and also referred to and quoted from the Canadian judgment in Gifford (supra). Existence and validity of the "reasons to believe" goes to the root of the power to arrest. The subjective opinion of the arresting officer must be founded and based upon fair and objective consideration of the material, as available with them on the date of arrest. On the reading of the "reasons to believe" the court must form the 'secondary opinion' on the validity of the exercise undertaken for compliance of Section 19(1) of the PML Act when the arrest was made. The "reasons to believe" that the person is guilty of an offence under the PML Act should be founded on the material in the form of documents and oral statements." 17. He has contended that Hon'ble Supreme Court has granted bail to the accused persons sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detail the accused in custody, that too, after the completion of the investigation and filing of the charge sheet. " 19. It has been contended that the applicant is an ITS Officer of Department of Telecom and was working in the Excise Department on deputation as Special Secretary and Jt. MD/MD of CSMCL and he had no knowledge of the working and functioning of the Excise Department. All the policy proposals were proposed by the Commissioner, Excise Chhattisgarh to the Government of Chhattisgarh. The proposals so received were placed before the Cabinet and on approval, they were implemented and hence the applicant has no role to play in framing of policy and its approvals. Further the applicant had no role to play in increasing of landing price of Part A liquor. The tender of supply of country liquor was floated by Commissioner Excise Chhattisgarh Mr. Kamal Preet Singh (IAS) and finalized by him. The applicant has no role to play in the entire process of floating the tender and approving rate of supply of country liquor and the said price was in fact increased at the behest of the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol of Commissioner Excise Chhatisgarh CSMCL and the applicant is not at all involved in the entire process. 21. He contended that the allegation against the applicant that large amount of cash was transferred to Netherlands and UAE to acquire benami foreign asset is completely baseless and that neither the applicant nor his family has any foreign assets in UAE and Netherland. Similar allegation has been levelled against the applicant in the first prosecution complaint which has already been quashed by the Hon'ble Supreme Court. It has been contended that the entire case of the ED is completely concocted and false and is rife with lacunae. It has been alleged that the applicant has been deputed as the MD,CSMCL was the "fist step" in institutionalizing the Part-A commission. It has been further alleged that the alleged liquor syndicate started functioning from 01.04.2019 onwards and the applicant was appointed only in May 2019. Further the alleged fake hologram manufacturing company ie. M/s. Prizm Holography and Films Securities Pvt. Ltd. was awarded the tender for supply of holograms for the first time only in October 2019. Hence no Part -B bribes could have been collected from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me into force with effect from 19.4.2018. We, therefore, confined ourselves to the challenge to the twin conditions in the provision, as it stands to this date post amendment of 2018 and which, on analysis of the decisions referred to above dealing with concerned enactments having similar twin conditions as valid, we must reject the challenge. Instead, we hold that the provision in the form of Section 45 of the 2002 Act, as applicable post amendment of 2018, is reasonable and has direct nexus with the purposes and objects sought to be achieved by the 2002 Act to combat the menace of money-laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the countries." 24. It is submitted that Section 45 of the PMLA starts with non- obstante clause and for deciding the bail in PMLA case, the conditions envisaged in Section 45 are invariably satisfied. It is further submitted that Section 37 of the NDPS is akin to Section 45 PMLA and Hon'ble Supreme Court while interpreting Section 37 in the case of State of Kerala Vs. Rajesh (2020) 12 SCC 122 held as under: "19. The scheme of Section 37 reveals that the exercise of power to g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made completely in accordance with the provisions of sub-section 1,2 and 3 of Section 19 of PMLA 2002. He contended that the applicant was not granted regular bail vide order dated 13.02.2024 in M.Cr.C. No. 60 of 2024 though Hon'ble Supreme Court on 19.10.2023 had advised to grant only interim bail. The relevant order of the Hon'ble Supreme Court in WP No. 15/2023 is as under: " 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 corder 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 Directorate within three weeks. Rejoinder, if any, be filed within two weeks thereafter. List it after six weeks. In the meantime, the petitioner(s) would continue on interim bail and the order issuing NBW is stayed. " 27. The High Court vide its order dated 6.10.2023 rejected the bail applications of the co-accused in spite of the order dated 18.07.2023 of the Hon'ble Supreme Court wherein the proceedings were stayed. The accused were not surrendering before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been shown and on the same date of cash deposit Rs. 1 crore was transferred to M/s. Nanse BV, a Netherland based company. It has also been gathered that the applicant had used hawala routes to transfer funds collected out of liquor scam to Dubai." 28. It has been submitted by the learned counsel for the respondent that the Hon'ble Supreme Court has observed that money laundering is a serious threat to the national economy and national interest. Orissa High Court in the matter of Mohd. Arif Vs. ED BLAPL No. 2606 of 2020 has observed that the impact of the offence of money laundering is an act of financial terrorism not only posing a serious threat to the financial system of the country but also to the integrity and sovereignty of a nation and has observed as under: " 22. the offence of money laundering is nothing but an act of financial terrorism that poses a serious threat not only to the financial system of country but also the integrity and sovereignty of a nation. The International Monetary Fund estimates that laundered money generates about $590 billion to $1.5 trillion per year, which constitutes approximately two to five percent of the world's gross domestic produ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormally not be granted in such cases and therefore, the applicant is not entitled for grant of bail at this stage. 29. I have heard learned counsel for the parties and perused the judgments cited by the learned Sr. counsel for the applicant as well as the documents submitted by the learned counsel for the respondent/Enforcement Directorate with utmost circumspection. 30. In the present case, the predicate offence has been registered against the applicant by ACB/EOW, Raipur Chhattisgarh under 120-B, 420,467,468,471 of IPC and Section 7 & 12 of the Prevention of Corruption Act which are schedule offences included in Paragraphs 1 & 8 of Part-A of the Schedule to PMLA, 2002 as defined under Section 2(1)(y) of the Act. The predicate offence FIR; documents including the statements recorded u/s. 50 of PMLA, 2002 shared by Mr. Thandi Lal Meena, Assistant Director, Prosecution Complaint filed by the IT and the date shared by the Income Tax Department were analyzed by the ED. From the statements of the witnesses who had reaffirmed their statements given in the earlier ECIR 11 it has come into fact that a well planned systematic conspiracy was executed by the syndicate to earn illegal commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partment of Chhattisgarh since the year 2019. The Excise department was set up to regulate the supply of liquor, ensure quality liquor to users to prevent hooch tragedies and to earn revenue for the State but the criminal syndicate have altered the policy as per their whims and fancies and extorted maximum personal benefit for themselves and total earning of Rs. 1660,41,00,056/- was made by the syndicate from the financial year 2019-20 to financial year 2022-23 to the State exchequer. Therefore, it cannot be said that no prima facie ofence whatsoever is made against the applicant. After carefully analyzing the material available on record which goes to show that there is prima facie involvement of the applicant in the crime in question and the charge sheet has been filed. Since, the allegations against the petitioner were serious nature therefore there was material to infer his involvement in serious crimes. 34. Thus taking into consideration the facts and circumstances of the case, and taking into account the nature and gravity of the offence, the role of the applicant herein, the manner in which he is alleged to have conspired with other co-accused persons and thereby was part o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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