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TMI Blog2025 (3) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence punishable under Sections 120-B, 420,467,468,471 of IPC and Section 7 & 12 of the Prevention of Corruption Act against Mr. Anil Tuteja (retired IAS) then Joint Secretary in CG State, Anwar Dhebar, Mr. Arunpati Tripathi (ITS) then Special Secretary, Government of Commerce and industry Department and MD CG State Marketing Corporation Ltd. Mr. Vikas Agarwal @ Subbu, Mr. Sanjay Diwan and Others for collecting commissions and supplying unaccounted liquor to government liquor shops resulting in an approximate loss of Rs. 2161 crores to the government. 3. The manufacturers of country liquor in Chhattisgarh namely CG Distilleries Ltd., M/s. Bhatia Wine Merchant Private ltd. And Welcome Distilleries Pvt. Ltd. Are licensed to supply country liquor in the State. It is alleged that Co-accused Anwar Dhebar took advantage of his political influence and family relations with Anil Tuteja and in association with Arunpathi Tripathi, the Managing Director of CSMCL lead to increase in the rate of liquor production and supply and in return gained illegal commissions amounting to lakhs of rupees from the distillery owners which is called Part -A. 4. Similarly, a new system which ran parall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer supplier agencies and others were recorded under Section 50 of the PMLA, 2002. Ont he basis of the above documents and records it has been established that a well planned systematic conspiracy was executed by the syndicate to earn illegal commission in the sale and licensing of liquor in the State of Chhattisgarh. 8. The excise policy in the State of Chhattisgarh was amended in the year 2017 The excise policy in the State of Chhattisgarh was amended in the year 2017 and CSMCL in February, 2017, was thus created with the responsibility to exclusively retail liquor in the State of Chhattisgarh through its stores. The CSMCL was established with the vision to provide genuine liquor, to stop sale of illegal Liquor, to provide liquor on MRP. It established its own stores to retail the liquor/beer/wine/country liquor after procuring liquor from manufacturers directly and IMFL from another State PSU CSBCL. 9. It has also been revealed that with the advent of new policy in the State, CSMCL was incorporated and it established its own stores to retain the liquor/beer/wine/country liquor after procuring country liquor directly from manufacturers and IMFL was procured from suppliers and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ECIR was registered merely 3 days after the quashing of the 1st ECIR on the same alleged liquor scam making the same allegations arising of the same transaction. 13. Based upon the Prosecution Complaint filed by the Income Tax Department bearing Ct. Case No. 1183/2022 under Sections 276(C)/277/278/278E of the IT Act read with Section 120-B/191/199/200/204 IPC the Ed registered an ECIR bearing No. ECIR/RPZO/112022. The ED considered Section 120-B IPC standalone as the underlying scheduled offence. 14. It is submitted that the ED had filed the first Prosecution Complaint in the said ECIR arraigning co-accused of the applicant as an accused therein. Pertinently, the Prosecution Complaint was nothing but an exact replica of the Prosecution Complaint filed in the ECIR 11, wherein the Applicant was made an accused and which was quashed by the Apex Court vide order dated 08.04.2024. On 08.08.2024, pursuant to the production warrant, the applicant was produced before this Court and was arrested by the Prosecuting Agency for the second time in relation to the same alleged liquor scam to which the applicant had opposed and he was remanded to ED custody. On 14.08.2024, the applicant prefer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SLP 5191/2021; Krishnan Subramanian Vs. State NCT of Delhi 2022 SCC Online Del 1384. He submits that there has been no recovery of any unaccounted assets or incriminating material from the applicant or his family members. 18. It is submitted that as per the ED, investigation against 11 persons including the applicant is complete and three prosecution complaints against 11 accused persons spanning to nearly 20,000 pages with over 30 witnesses and 250 documents have been filed by the investigating agency and the investigation is going on. Despite the alleged huge scam, prosecution complaint has been filed against 11 persons. Even as per allegations made in the complaint filed by the ED role of other individuals have also been surfaced. The status of trial in the scheduled offence must be taken into account while considering the issue of delay in trial in the PMLA case because the PMLA proceedings are contingent on the proceedings in the scheduled offence. In the matter of Senthil Balaji Vs. Directorate of Enforcement Crl. App. No. 4011/2024, it has been held as under: "21. Hence, the existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial." 21. Similarly, in the matter of Bibhav Kumar Vs. State (NCT of Delhi) 2024 SCC Online SC 2646, wherein the bail was granted inter alia on the ground that he has been in custody for 100 days. It further reads as under: "4. It is not a matter of dispute that the investigation is complete and the charge sheet has been filed. Keeping that stage in mind, we do not deem it necessary to hear learned Senior Counsel for the petitioner or learned Additional Solicitor General of India on the point as to whether a prima facie case under Section 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial, the Prosecution should not even oppose the bail on the ground of seriousness of offence. He has referred to the judgment of Gulam Nabi shaikh Vs. State of Maharastra, 2024 SCC OnLine SC1693, wherein it has been observed that : "19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime." 24. It is contended that the investigating agency in the scheduled offence has submitted that at least 3 to 4 more charge sheets are yet to be filed in the scheduled offence. There are nearly 70 accused persons in the Chhattisgarh FIR and the charge sheet has been filed only against 11 persons. There are over 400 witnesses in the scheduled offence. The Apex Court has opined that the trial is not likely to conclude in the scheduled offence vide order dated 12.12.2024 in SLP (Crl.) No. 16219/2024. He submits that the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36A of the Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, would be guided to exercise the power to grant bail. The Court specifically observed that this would be true where the trial would take years. It could thus clearly be seen that this Court, in the first round of litigation between the parties, has specifically observed that in case of delay coupled with incarceration for a long period and depending on the nature of the allegations, the right to bail will have to be read into Section 45 of PMLA. XXXX XXXX XXXX 39. A Division Bench of this Court in the case of Ramkripal Meena v. Directorate of Enforcement5 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson will stand trial when called upon. Punishment can only begin after conviction and necessity is the operative test. in the matter of Manish Sisodia 3 (2024) SCC OnLine SC 920, it has been held as under: "54. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State. 55. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant." 27. In the matter of Gudikanti Narasimhulu Vs. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240 it has been held as under: The significance and sweep of Art. 21 make the deprivation of liberty 'a matter of grave concern and permissible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicant. He submits that the arrest of applicant is completely malafide and he cannot be arrested twice for the same alleged offence. The applicant has already been subjected to illegal custody of the ED in relation to the same set of allegations and alleged transactions for a period of over 2.5 months. Since the Prosecution complaint against the applicant stood filed in the first ECIR there was no necessity of any arrest or custodial interrogation of the applicant and the applicant could not have been arrested in the same for the allegations for a second time. 30. It is contended by the learned counsel for the applicant that the ED had relied upon the same inadmissible material including some whatsapp chats which was not enough to make the applicant an accused in the Prosecution Complaint filed in ECIR 11. The series of facts clearly demonstrates that there was no necessity to arrest the applicant and he was not arraigned as an accused in the prosecution Complaint dated 19.06.2024 solely to keep alive the prospects of arrest of the applicant in the said ECIR and deny him the benefit of the law laid down by the Apex Court in the matter of Tarsem Lal Vs. Enforcement Directorate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02.2013. Now, the punishment prescribed under Section 4 of PMLA to the offender is rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and the offender is also liable to pay fine. The limit of fine has been done away with and now after the amendment, appropriate fine even above Rs. 5,00,000/- can be imposed against the offender. 29. The term "reason to believe" is not defined in PMLA. The expression "reason to believe" has been defined in Section 26 of IPC. As per the definition in Section 26 IPC, a person is said to have "reason to believe" a thing, if he has sufficient cause to believe that thing but not otherwise. The specified officer must have "reason to believe" on the basis of material in his possession that the property sought to be attached is likely to be concealed, transferred or dealt with in a manner which may result in frustrating any proceedings for confiscation of their property under the Act. It is stated that in the present case, exercising power under Section 5 of the PMLA, the Adjudicating Authority had attached some of the properties of the appellant. Challenging the attachment, the appellant and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 17 of PMLA also uses the expression "reason to believe" and "reason for such belief to be recorded in writing". Here again, the authorised officer shall immediately on search and seizure or upon issuance of freezing order forward a copy of the reasons so recorded along with the material in his possession to the Adjudicating Authority in a "sealed envelope" in the manner as may be prescribed and such Adjudicating Authority shall keep such reasons and material for such period as may be prescribed. In order to ensure the sanctity of the search and seizure and to ensure the safeguards, in exercise of power under Section 73 of PMLA, the Central Government has framed "The Prevention of Money-Laundering (Forms, Search and Seizure or Freezing and the Manner of Forwarding the Reasons and Material to the Adjudicating Authority, Impounding and Custody of Records and the period of Retention) Rules, 2005"." 32. It has been contended by the counsel for the applicant that bail can be granted even if there is a ground to believe that trial would not conclude in near future. The Court does not have to wait for 436-A Cr.P.C. As has been held in the matter of Manish Sisodia Vs.ED SLP (Crl.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out in a legal manner. It is contended that no new statement has been relied upon in the grounds of arrest. In the second ECIR, investigating the same offence is completely illegal and tenable in law. The arrest of the accused is amenable to judicial review and arresting a person without the need and necessity of arrest would render it to be illegal. It is further contended that there has been no recovery of any unaccounted money, incriminating material, illegal liquor bottles or counterfeit holograms from the applicant or any other individual to implicate the present applicant. It is contended that 115 properties have alleged POC of 105 crores attached and confirmed by the Adjudicating Authority. The said attachment has been challenged before the Appellate Tribunal. Thus, the material relied upon by the ED is inadmissible as the whole case of the ED essentially stems upon the statements made by certain co- accused persons under Section 50 of the PMLA and certain whatsapp chats collected by the IT department during the course of raids conducted in the year 2020. It is contended that the applicant satisfies the twin conditions under Section 45 of the pMLa. Section 45 of the PMLA i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cated the accused petitioner but in all his previous statement(s) given under Section 50 of the Act, there was no implication for the petitioner. The Directorate of Enforcement has submitted as many as 9 prosecution complaints, one after the other and in the meantime, the petitioner has been in custody for about 22 months. As earlier noted, in the event of conviction, the maximum sentence that can be imposed on the petitioner is 7 years. XXXX XXXX XXXX 9. Mr. S.V. Raju would further place reliance on the three-judge bench decision of this Court in Vijay Madanlal Choudhary v. Union of India2 to argue that stringent conditions of Bail under Section 45 of the Act have to be satisfied before granting Bail. However, this Court in a series of decisions has held that the rigours under Section 45 can be relaxed if the custody is for a considerable period of time and there is no likelihood of conclusion of trial within a short span." 35. It is contended that the ED has relied entirely on the statements of co-accused which are not substantive piece of evidence and the prosecution cannot start with such evidence to establish a case. He has relied upon the decision of Prem Prakash Vs. ED, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by learned counsel for the respondent/ED that that applicant acted as strongman who ran the liquor syndicate for his political benefactors and in association with the topmost bureaucrat Anil Tuteja. Both of them orchestrate the entire liquor scam by using the vantage of Anil Tuteja (retired IAS). The applicant posted officials of his choice in the Excise Department and thus became the de facto Excise Minister. He ran the entire bribe collection racket for Part-A, C and FL-10A license holders. He ran the unprecedented scam of selling unaccounted illicit liquor from the State run shops. The applicant through his political affiliations and with the active support of Anil Tuteja, Arun Pati Tripathi and Niranjan Das, controlled all the limbs of liquor trade to run the manufacture and sale of illicit country liquor that too, from State run shops. All the accused persons in the Chhattisgarh Liquor scam ran this racket for 2 years selling more than 40 lakh cases of illicit liquor with active connivance of distillers, hologram makers, bottle suppliers, transporters, shop keepers, cash collection agencies, District Excise officials etc. without registration of even a single FIR. This rack ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. AJS Agro Trade Pvt. Ltd. and commission was paid to the applicant. This was done to generate accounted money which could be used to make more investments and large cash could be layered into those deals and was in continuous process of acquiring new proceeds of crime and layering and concealing the earned ill gotten cash. 42. It is alleged that the applicant and co-accused Anil Tuteja were receiving almost 15% of the revenue generated by the syndicate out of the sale of Part-B liquor. Asper the investigation conducted so far, a total of Rs. 40.67 lac cases of Part-B liquor have been found to be supplied to syndicate which implied that amount of Rs. 120 crores was earned illegally out of the sale of unaccounted liquor. Digital evidences show the payments to the tune of Rs. 14.41 crores from the present applicant and therefore it can be held that Rs. 105 crores out of the sale proceeds of Part-B liquor was lying with the applicant. The applicant utilized the proceeds of crime in acquiring assets in his name and in the name of his family members. 43. It is contended by the counsel for the respondent that the mandatory twin conditions of Section 45 of the PMLA are not being satis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sovereignty and integrity of the countries." 44. Further, in Sajjan Kumar Vs. Directorate of Enforcement, 2022 SCC Online Del. 1769, it has been held that: "27. In matter of regular 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 the 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." 45. Learned counsel for the respondent submits that the applicant applied for bail in ACB/EOW case before this Court vide M.Cr.C. No. 3455/2024 on medical condition and was granted bail. However, it was challenged by the State of CG before the Apex Court vide SLP (Crl) No. 9395/2024 and it was ordered that independent medical scrutiny of the applicant be conducted at AIIMS Raipur and no substantial medical issues were found with the applicant. 46. He next contended that the applicant is suffering from long incarceration to which it has been stated that the applicant has been arrested in the present case on 08.08.2024 and he has been arraigned as an accused in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 49. Learned counsel for the respondent next contended that from the conduct of the applicant, it appears that he has been trying to delay the proceedings before the agency as well as before the court. In the matter of Pankaj Grover Vs. ED, Criminal Misc. Anticipatory Bail application under Section 438 Cr.P.C. No. 7661 of 2021, it has clearly been held that the accused in economic offences/PMLA cases are in possession of huge proceeds of crime and may use those to influence witnesses. It has also been held that since such offences are committed mostly be influential persons, there is high likelihood of their using influence to tamper with the evidence and influence witnesses. Relevant observation of the court is as follows: is as under: "38.... Crimes are now committed by influential persons belonging to upper class in organized manner after well planning by use of modern gadgets in course of performance of their official, professional, business activities in which they have expertise. Criminal Acts committed by professionals, businessmen and public servants, it is very difficult to identify whether sober and civilized activity was committed or criminal act was committed. Such cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us threat to the financial system of the country but also to the integrity and sovereignty of a nation and reiterated the view of the Apex Court of denial of bail in cases of economic offences. Relevant observation is 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 product. The Supreme Court of India has consistently held that economic offences are sui generis in nature as they stifle the delicate economic fabric of a society. These offences permeate to human consciousness posing numerous questions on the very integrity of the business world. The offences, such as this, are committed with a deliberate design with an eye on personal profit and often shown to be given scant regard for a sordid residuum left behind to be borne by the unfortunate "starry eyed" petty investors. The perpetrators of such deviant "schemes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g. It is also reiterated that satisfaction of triple test is not sufficient for persons arrested under PMLA, 2002 as this triple test stage will come when the applicant satisfy the twin conditions given under the Section 45 of the PMLA, 2002. The Apex Court in the case of Gudikanti Narasimhulu and Others Vs. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240, has observed that the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial. Moreover, he submits that the delay in trial is no ground for bail keeping in view the fact that the ED is working in a timely manner as per the due process of law. The Special Court had issued summons to the accused after taking cognizance upon the Prosecution Complaint. There is no iota of doubt that the Right to Speedy Trial is a foundational facet of the Right to Life and Personal Liberty given under Article 21 of the Constitution of India. However, if the accused be enlarged on bail, then being such a influential person, there would be a chance that he would induce the witnesses and tamper with the evidence and consequently, the trial would further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trar (Judicial) order dated 08.08.2024 passed by the learned Special Judge, PMLA is quite detailed one and it has assigned the reasons for allowing. The petitioner had taken a plea before the learned Special Judge that the ECIR/RPZO/11/2022 was already quashed by the Hon'ble Supreme Court and as such, the second ECIR was not maintainable on the basis of some materials. This issue has also been dealt with by this Court in Cr.M.P. No. 721/2024." 55. It is further submitted that this Court after considering the facts and circumstances of the present case has passed the order wherein various facts were challenged. Relevant extracts are as under: "140. According to the petitioners, the ECIR/RPZO/04/2024 is a second ECIR in relation to the same alleged transaction and has been registered on the basis of the same underlying schedule offence for a second time and all proceedings and investigation in relation to the same are thus liable to be quashed. ECIR/RPZO/11/2022 was registered on the basis of prosecution complaint filed by the ITD before learned ACMM Court, Tis Hazari New Delhi. However, the new ECIR bearing No. ECIR/RPZO/04/2024 has been recorded on the basis of FIR bearing No. 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that detailed modus operandi used by the applicant for generation and use of proceeds of crime is mentioned in the Prosecution Complaint dated 5.10.2024 along with money trial investigation. It is further submitted that the statements were recorded without any threat, fear, force or coercion and under CCTV surveillance. From the evidence it is clear that the applicant is involved in the Chhattisgarh Liquor Scam case. The fact that there is no recovery of unaccounted money, incriminating material, counterfeit holograms etc. from the applicant, to this it is submitted that there are multiple properties belonging to the applicant which are found to be proceeds of crime and hence attached. The seizure made by ACB/EOW of half burnt counterfeit holograms from the premises are linked to the applicant. 58. Further contention of the learned counsel for the respondent is that there are 3 prosecution complaints filed till date and whom to arrest and when to arrest are sole prerogative of investigating agency which are determined on the basis of specific circumstances of each case and are done only in the interest of concluding the investigation with optimum usage of resources and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is guilty. The provision for bail under Section 45 of PMLA lays down two essentials which are to be fulfilled for grant of bail. These conditions are called the 'twin conditions'. The two conditions that are to be established are that firstly, there are reasonable grounds for believing that the accused is not guilty of such offence and secondly, the accused is not likely to commit an offence while on bail. 63. In Nikesh Tarachand Shah Vs. Union of India (Tarachand), the Apex Court decided on the constitutionality of section 45 of PMLA, 2002 and the twin-conditions of bail attached to it. It held the same to be unconstitutional in the light of article 21 of the Constitution which stipulates for "no person shall be deprived of his life or personal liberty except according to the procedure established by the law"; essentially holding that constitutional provisions prevail over laws such as PMLA. In Vijay Madanlal Choudhary Vs. Union of India (Vijay Madanlal) case of 2022, three judge bench of the Supreme Court decided on the constitutionality of various provisions of PMLA including section 45, as revived in 2018. The court arrived at the conclusion that even though the provision is v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nalysis. In the interest of upholding the fundamental rights of the citizens, the legislature must relax the provision to provide wiggle room to the courts to determine bail on a more case-to-case basis. This would prevent minor bail cases reaching the apex court as the lower courts are hesitant to oppose the inflexible provision. Nevertheless, the court should also recognize the legislature's wariness towards money laundering and pass orders such that it balances caution with liberty. 68. A balanced approach which harmonizes judicial interpretations and legislative intent must be adopted without compromising on justice, fairness and liberty. The balance can be achieved by undertaking thorough research for collocation or stratification of money laundering offences based on their gravity and seriousness. The court has to rely on a preliminary assessment of merits, without a deep dive into the evidence, balancing considerations of potential flight risk, and ensuring a separate evaluation from the final trial outcome. 69. However, the Apex Court has held that the power of ED to arrest must be based on objective and fair consideration of material against a person. Under the PMLA, ED ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L Act, 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 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 a State Government authorised in writing in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther 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 a State Government authorized 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." By the impugned judgment(s) and order(s) and while granting bail, the High Court has not considered the rigour of Section 45 of the PML Act, 2002he Supreme Court on July 12 held that the power to arrest under the Prevention of Money Laundering Act (PMLA) can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has not at all considered the fact that the investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is still going on and therefore, the impugned orders passed by the High Court enlarging respective respondent No. 1 on bail are unsustainable and the matters are required to be remitted back to the High Court for afresh decision on the bail applications after taking into consideration the observations made hereinabove." 74. The Apex 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. CONCLUSION 75. Thus, from the documents and submissions of the counsel for the applicant, it appears that the applicant had actively participated in the commission of predicate offence; had acquired proceeds of crime and had substantial share in proceeds of unaccounted liquor cannot be ignored. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have an unintended fallout in a different set of facts. Depending on the facts of the case, such an interpretation may include persons who might have no genuine knowledge and connection with the predicate offence and/ or the tainted money circulated by the actual accused persons and may have to go through the rigours of trial for no fault. A balanced pragmatic interpretation/ view of the provisions of the Act would help in minimizing instances where there is an element of no genuine/ actual knowledge. the Supreme Court in Vijay Madanlal (supra) judgment interprets Section 3 in a manner to conclude that knowledge may not be a necessary ingredient, however, the said view may not be entirely correct in certain circumstances. Mens rea is a critical ingredient for any criminal offence and therefore requires its presence in any action or consequence which arises out of or in relation to an offence. It is important that to prosecute someone for mere possession of purported proceeds of crime, there should be an equal burden on the prosecution to prove at least a prima facie link to the proceeds of crime as defined under the Act. 77. The Supreme Court have further gone on to state that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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