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TMI Blog2025 (2) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... ctors from July, 2020 to June, 2022 - The proceeds of crime generated by this syndicate have been utilized for political funding, making bribes to Government Officials, purchasing of properties including coal washeries by the co-accused persons, Smt. Saumya Chaurasia in the name of their benamidars and members of syndicate & their family members. The ECIR further prima facie reveals that the present applicant has played specific role in commission of offence. The investigation revealed that the applicant was actively involved in formation of syndicate, arranged meetings with coal businessmen, coal transporters etc., collected illegal cash from businessmen, distribution of illegal cash to different persons on direction of Suryakant Tiwari - The investigation conducted under PMLA, 2002 revealed that the applicant has received cash as salary out of the illegal extortion money as in his statement under Section 50 of PMLA, 2002 has stated that apart from salary he also used to receive bonus in cash from Suryakant Tiwari at regular intervals. Hence, the applicant is in possession of proceeds of crime which have been utilized by him in purchasing immovable properties on his name and on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 186, 204, 353 & 120B of IPC against the applicant & other persons on the basis of complaint filed by Deputy Director of Income Tax, Foreign Assets Investigation Unit-I Bengaluru alleging that as part of conspiracy, during course of search by Income Tax department on 30.06.2022, the applicant had obstructed the officials from carrying their official duties and destroyed crucial incriminating documents and digital evidence about the alleged illegal extortion on Coal Transportation, payments collected by the applicant and his associates. 3. It is also case of the prosecution that on 13.09.2022, OM in F. No. 22-IT was forwarded by Central Board of Direct Taxes (for short "CBDT") to the Directorate of Enforcement containing the FIR No. 1292022 Police Station-Kadugodi along with a report on the investigation conducted by the Income Tax Department on M/s Jay Ambey Group of Raipur (Suryakant Tiwari's Group). In the report, it has been mentioned that during search operations on 30.06.2023 by Income Tax Department in the premises of the applicant and his associates, evidence was gathered related to a syndicated being operated and coordinated by the applicant whereby additional u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physical form and illegal cash was collated with the applicant & his colleagues Roshan Kumar Singh & Rajnikant Tiwari at the house of Suryakant Tiwari i.e. 1-34, Anupam Nagar, Raipur. At the said address, Rajnikant Tiwari, the applicant and Roshan Kumar Singh used to maintain consolidated data of this illegal levy collection along with the cash collected. Thereafter, such illegal cash was used for making bribes to Saumya Chaurasia, other senior bureaucrats & politicians for incoming miscellaneous political expenses & election campaign purchasing immovable properties & coal washeries by Suryakant Tiwari & members of coal syndicate, miscellaneous expenses of Suryakant Tiwari and other syndicate members etc. by the applicant, Roshan Singh and Rajnikant Tiwari on the direction of Suryakant Tiwari. The applicant & Rajnikant Tiwari also used to transfer part of collected illegal cash to house of Rajnikant Tiwari and Laxmikant Tiwari in Mahasamund for safe keeping. 5. The applicant was also looking after layering & projection of illegal cash into acquisition of the properties by Suryakant Tiwari, Saumya Chaurasia etc. A part of proceeds of crime has also traveled to the applicant which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA, 2002 cannot be sustained in absence of a predicate offence as the same is confirmed by the Order dated 07.08.2024 passed by Hon'ble the Supreme Court in case of Sunil Kumar Agrawal Vs. Directorate of Enforcement [SLP (Crl.) No. 5890/2024]. He would further submit that the other co-accused persons namely Deepesh Taunk & Ranu Sahu have already got the bail in the present Crime No. ECIR/RPZO/09/2022 by Hon'ble the Supreme Court vide order dated 07.08.2024 and accused Kailash Tiwari has been granted anticipatory bail from Hon'ble the Supreme Court and another accused namely Rajesh Chaudhary has been granted bail by this Hon'ble Court. He would further submit that the power to arrest was exercised without due compliance with the safeguards under Section 19 of the PMLA, 2002. On 20.06.2023, there was no reasonable grounds to conclude that the applicant was guilty of the offence of money laundering and there was no live scheduled offence on such date to even sustain a prosecution under the PMLA, 2002 on such date. He would further submit that no grounds of arrest were supplied to the applicant and the applicant was not informed orally of the grounds on which he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the rule and its denial is the exception. The denial of bail, in the present case would act as a completely disproportionate restriction on the personal liberty of the applicant guaranteed under Article 21 of the Constitution of India. He would further submit that custody of the applicant at trial can be secured by imposing conditions and the extreme measure of pre-trial detention ought not to be resorted in. The applicant is also willing to abide by all reasonable restrictions imposed by this Hon'ble Court for grant of bail. Deprivation of the liberty of the applicant is not necessary for the purposes of ensuring that the applicant would stand trial when called upon to do so. He would further submit that the prosecution complaint clearly establishes that the investigation into the said allegations stands completed at present and the respondent has presently attached the property of the applicant and taken into custody all necessary documents and evidence in relation to such allegations. As such, denial of bail to the applicant would serve no purpose. There is no material on record to show that the custody of the applicant is required for the investigation by the Enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame in the seized diaries. He was also a member of various WhatsApp Group with Suryakant Tiwari, Rajnikant Tiwari, Roshan Singh wherein multiple entries of cash collection & distribution of proceeds of crime are shared. He would further submit that the investigation conducted under PMLA, 2002 revealed that the applicant has received cash as salary out of the illegal extortion money as in his statement under Section 50 of PMLA, 2002 has stated that apart from salary he also used to receive bonus in cash from Suryakant Tiwari at regular intervals. Hence, the applicant is in possession of proceeds of crime which have been utilized by him in purchasing immovable properties in his name and in the name of his wife Smt. Talvinder Chandrakar. Thus, he was involved himself in the acquisition of proceeds of crime. He would further submit that the applicant is also involved in concealment, use, claiming and projecting assets acquired out of extortion racket. 11. He would further submit that the applicant is unable to fulfill the twin conditions of Section 45 of the PMLA, 2002 as from the above factual matrix, it is quite vivid that the possibility of the accused being not guilty of the offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on by this Court is :- "Whether the applicant fulfills twin conditions of Section 45 of the PMLA, 2002 for grant of bail?" 16. Before adverting to the facts of the case, it is expedient for this Court to extract Section 45 of the PMLA, 2002, which reads as under:- "Section 45 of PMLA, 2002-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 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 sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tigation revealed that the applicant was actively involved in formation of syndicate, arranged meetings with coal businessmen, coal transporters etc., collected illegal cash from businessmen, distribution of illegal cash to different persons on direction of Suryakant Tiwari. Besides Suryakant Tiwari, the applicant is also the person who is aware about each & every fact of the collection & utilization of proceeds of crime and person involved in the syndicate. The applicant had explained all the cash entries made in seized diaries as well as in WhatsApp Chats. He used to coordinate with other employees of Suryakant Tiwari posted in different districts & businessmen for illegal cash collection. He also used to coordinate with Chhattisgarh State Machineries for smooth running of coal syndicate. The applicant was also looking after the layering & projection of the illegal cash into acquisition of the properties by Suryakant Tiwari and other members of the syndicate. A part of proceeds of crime has also been traveled to the applicant. In this context, multiple cash entries are mentioned in his name in the seized diaries. He was also a member of various WhatsApp Group with Suryakant Tiwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count of delay, therefore, the applicant should also be considered for releasing him on bail, deserves to be rejected looking to the role played by the applicant regarding alleged involvement in coordinating with the members of syndicate. 22. Considering the above stated factual legal matrix, it is quite vivid that the applicant is unable to fulfill twin conditions for grant of bail as per Section 45 of the PMLA, 2002 and also considering the submission that the applicant has not prima facie reversed the burden of proof and dislodged the prosecution case which is mandatory requirement to get bail. Hon'ble the Supreme Court in case of Directorate of Enforcement Vs. Aditya Tripathi (Criminal Appeal No. 1401/2023) decided on 12.05.2023 has held at paragraph 6 & 7 as under:- "6. At the outset, it is required to be noted that respective respondent No. 1 - accused are facing the investigation by the Enforcement Directorate for the scheduled offences and for the offences of money laundering under Section 3 of the PML Act punishable under Section 4 of the said Act. An enquiry/investigation is still going on by the Enforcement Directorate for the scheduled offences in connection with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under the PML Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. 6.2 Now so far as the submissions on behalf of the respective respondent No. 1 that respective respondent No. 1 were not named in the FIR with respect to the scheduled offence(s) and/or that all the other accused are discharged/acquitted in so far as the predicated offences are concerned, merely because other accused are acquitted/discharged, it cannot be a ground not to continue the investigation in respect of respective respondent No. 1. An enquiry/investigation is going on against respective respondent No. 1 with respect to the scheduled offences. Therefore, the enquiry/investigation for the scheduled offences itself is sufficient at this stage. 6.3 From the impugned judgment(s) and order(s) passed by the High Court, it appears that what is weighed with the High Court is that chargesheet has been filed against respective respondent No. 1 - accused and therefore, the investigation is completed. However, the High Court has failed to notice and appreciate that the investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... activities having transnational impact on financial systems including sovereignty and integrity of the countries. The offence of money laundering has been regarded as an aggravated form of crime world over and the offenders involved in the activity connected with the Proceeds of Crime are treated as a separate class from ordinary criminals. Any casual or cursory approach by the Courts while considering the bail application of the offender involved in the offence of money laundering and granting him bail by passing cryptic orders without considering the seriousness of the crime and without considering the rigours of Section 45, cannot be vindicated. 22. The impugned order passed by the High Court being in teeth of Section 45 of PMLA and also in the teeth of the settled legal position, we are of the opinion that the impugned order deserves to be set aside, and the matter is required to be remanded to the High Court for fresh consideration. Accordingly, the impugned order is set aside, and the matter is remanded to the High Court for consideration afresh with the request to the Chief Justice to place the matter before the Bench other than the Bench which had passed the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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