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Money Laundering - Case Laws
Showing 1 to 20 of 342 Records
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2023 (12) TMI 1428
Seeking grant of bail - alleged involvement in the offences U/s. 13(2), R/w.13(1)(b) of the Prevention of Corruption (Amendment) Act, 1988 - acquisition and possession of assets disproportionate to known sources of income by the Petitioner - HELD THAT:- Admittedly, in the case in hand the learned court has issued summon directing the Petitioner to appear with an option either to appear in person or through pleader. No order of NBW has been issued even though the offence alleged is non-bailable in nature.
Adverting to the provision enumerated U/s 209 Cr.P.C it is apt to mention that the Special Court upon appearance of a party pursuant to the institution of a case by the Directorate subject to the restrictions enumerated U/s 45A of the PMLA relating to bail, inter alia, may remand the accused to custody during, and until the conclusion of the trial.
Conclusion - While this court is not inclined to grant relief prayed for directs that in the event the Petitioner appears before the learned Special Court in seisin over the matter and move for grant of regular bail, the same shall be considered on its own merit, keeping in view the developments in law as laid down by the Apex Court in the matter of Vijay Madanlal Choudhury v. Union of India [2022 (7) TMI 1316 - SUPREME COURT (LB)] vis-à-vis the facts emerges in the case in hand in their proper perspective and further that Petitioner has cooperated with the investigation so far as acknowledged by the opposite party too and dispose of in accordance with law without being influenced of any observation made herein.
The ABLAPL stands disposed of accordingly.
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2023 (12) TMI 1388
Money Laundering - provisional attachment of properties - proceeds of crime - nexus between the alleged schedule offences and the attached property - reasons to believe - complainants availed loans through various instant loan apps that have been charging exorbitant interest rates along with high processing fee and GST charges - HELD THAT:- The contention of the learned counsel for the appellants that M/s Sarvottam Fincap Ltd. was the only NBFC against which there are no allegations regarding involvement of any Fintech Company is devoid of merit, as it took ICD of Rs. 4.52 crores on 14.01.2020 from its newly incorporated sister company M/s VPoint IT Solutions Pvt. Ltd. and the new company received loan from foreign/overseas companies in the month of February to May 2020. This proves that M/s VPoint IT Solutions Pvt. Ltd. was incorporated by M/s Sarvottam Fincap Ltd. for the purpose of receiving overseas loan from Foreign Fintech Companies. The conspiracy between both the appellants and the overseas investor is apparent on the face of record.
The fact that no sanction or adverse order is passed by the RBI against the appellant companies till date is also no ground to allow the present appeals, being a separate prerogative of the RBI as a Regulatory Authority. The fact that appellant M/s Sarvottam Fincap Ltd. after taking ICD of Rs. 4.52 crores from appellant M/s VPoint IT Solutions Pvt. Ltd. disbursed the small loans on high rate of interest and processing fee shows that huge amount was rotated again and again to earn high profits in a very short span by exercising coercive re- payment techniques, as mentioned above. Respondent ED in its written submissions pointed out that appellant M/s Sarvottam Fincap Ltd. through their APP “Paisa Finch” has disbursed a loan amount of Rs. 90,49,91,734, out of which a whopping amount of Rs. 17,27,97,774 was deducted upfront in the name of processing fees. M/s Sarvottam has also received an amount of Rs. 79,60,938 as interest/penalty. Thus, the total proceeds of crime are much more than the total attached amount of Rs. 5,03,85,408 & Rs. 59,416 in the accounts of the appellants respectively.
The contention of appellants that the reasons to believe recorded in the ShCN of the Ld. Adjudicating Authority are merely copy & paste of the allegations made by ED in their original complaint is also devoid of merit. The ECIR was registered on the basis of FIR lodged against the appellants and the allegations made in the said FIRs, is sufficient to form basis for reason to believe by the ED, as well as by Ld. Adjudicating Authority and accordingly recorded. The said reason to believe is not going to change its colour or form a divergent/contradictory view, after perusal of material on record by Ld. Adjudicating Authority.
Conclusion - The provisional attachment of properties as justified under PMLA due to the appellants' involvement in money laundering activities - Appeal dismissed.
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2023 (12) TMI 1359
Seeking grant of interim bail - Money Laundering - bail sought on medical grounds - grievance of the applicant is that the applicant is not being provided proper and appropriate treatment in terms of post-epidural care in the prison premises, and thus, the applicant seeks that he be released on interim bail, in order to get appropriate treatment from Indian Spinal Injuries Centre, Vasant Kunj, Delhi - HELD THAT:- This Court notes that the medical facilities available at the jail dispensary is not able to provide the medical treatment which is required by the applicant, as advised by the doctors concerned in terms of post-epidural care after his spinal surgery. Thus, considering that at this stage, no immediate arrangement can be made by the jail dispensary for ensuring appropriate medical care of the applicant, this Court deems it fit, for the purpose of ensuring that a balance is struck between the right of the prisoners to appropriate medical care and the right of the State to ensure rule of law, to allow the request of applicant to get the required physiotherapy treatment at the Safdarjung Hospital, Delhi. In case, the required medical care is not available at Safdarjung Hospital, Delhi, the applicant may move a fresh application before this Court for being treated at Indian Spinal Injuries Centre, Vasant Kunj, Delhi.
The applicant be admitted to Safdarjung Hospital, Delhi, which is also a referral hospital as per Jail Referral Policy, Delhi for a period of two weeks, within two days of receipt of this order. However, the applicant shall continue to be in the custody of Superintendent of Jail concerned, and the Jail Superintendent concerned shall ensure that appropriate and adequate security is provided/deputed in the hospital since the accused will continue to remain in judicial custody though under treatment in the hospital.
Application disposed off.
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2023 (12) TMI 1355
Money Laundering - proceeds of crime - provisional attachment order - mis-joinder of parties in the proceedings before the Adjudicating Authority - non-compliance of section 8(1) of PMLA 2002 - Jurisdiction and power of the Adjudicating Authority.
Mis-joinder of parties - HELD THAT:- The proceeds of crime was under the possession and control of the Official Liquidator, but he was not given an opportunity of hearing despite the mandate under section 5(1) of the Act. There are no mandate under section 5(1) that before attachment of the property, the Official Liquidator was required to be heard by the Adjudicating Authority. The provision for hearing is given under section 8(1) of the Act. Section 5(1) provides for attachment against "any person" in possession of proceeds. At the relevant time defendant was in possession of the proceeds. The Competent Authority passed the order of attachment was not having information that an Official Liquidator has been appointed. The information was given only to the Adjudicating Authority - the argument in reference to section 5(1) of the Act of 2002 alleging mis-joinder of parties is not made out. The facts available on records shows a serious allegation against the accused for inviting investments on higher rate of interest and then investors were denied interest and refund of amount. Thus, the accused had cheated the investors.
The apprehensions of the respondent was that proceeds of crime or the property of equivalent value of the proceeds of crime may be transferred or alienated, thus the attachment of the property was made. In view of the aforesaid, ground of misjoinder in reference of section 5(1) is not made out.
Non compliance of section 8(1) of the Act of 2002 - HELD THAT:- As per section 8(1), the Adjudicating Authority remain under obligation to have reasons to believe that any person has committed an offence under section 3 of the Act of 2002 or is in possession of proceeds of crime then to serve a notice of not less than thirty days calling up the person to indicate the source of income, earning or assets out of which he has acquired the property attached under section 5(1) of the Act - The Adjudicating Authority found and recorded reasons to believe that defendant have committed offence under section 3 of the Act of 2002 and accordingly all those persons were given an opportunity of hearing. It is not that Official Liquidator has made an application to provide an opportunity of hearing and has been denied. Rather, it is found that M/s Birla Surya Limited remain unrepresented and it is they who were relevant party to inform about the appointment of Official Liquidator - section 8(1) mandate a notice to a person committed an offence under section 3 of the Act and defendants were alleged to have committed offence and for possession of proceed, it could have been either M/s Birla Surya Limited or the Official Liquidator and not the appellant. It is not that the hearing under section 8(1) is to be given only to a person in possession of proceeds of crime, but also to a person committed the offence under section 3 of the Act and accordingly all the defendants before the Adjudicating Authority, having an allegation for commission of offence under section 3 of the Act of 2002 were necessary party and provided an opportunity of hearing.
The Official Liquidator never came forward to seek an opportunity of hearing and otherwise the appellant said to be not in possession of proceeds of crime cannot make an issue when they alleged to have committed an offence under section 3 of the Act of 2002 and were provided opportunity of hearing. - there are no violation of section 8(1) of the Act of 2002.
Power and jurisdiction of Adjudicating Authority under Sections 8(2) and 8(3) of the Act - HELD THAT:- It is not correct to state that the final conclusions about commission of offence has been drawn by the Adjudicating Authority. The Adjudicating Authority is under obligation to record a finding that properties are involved in money laundering. To find out that a case of money laundering is made out, essentially a prima facie opinion has to be drawn about commission of offence. Otherwise, the question may be raised for formation of opinion of money laundering without an offence - no illegality has been committed by the Adjudicating Authority to record a prima facie opinion about the commission of offence which may generate the proceeds of crime and if laundered, then an offence under section 3 of the Act of 2002. It is however made clear that the prima facie opinion of Adjudicating Authority is not conclusive, rather it would be recorded by the Special Court in criminal case and accordingly the issue is clarified to the extent - there are no reasons to cause interference in the impugned order.
The appeals are disposed of.
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2023 (12) TMI 1354
Money Laundering - obtaining huge loans from financial institutions with outstanding liabilities - siphoning off of funds - reasons to believe - search and seizure conducted under Section 17 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The reason for search and seizure is to be based on the information that person has committed an act of money laundering or is in possession of proceeds of crime involved therein and so on. The authorized officers then enter and search any building, place and vessel etc. and seize the records and the property etc. The authorized officer may even examine a person on oath which is found to in control of any record or property relevant to the case. The retention of the property would not be beyond a period of 180 days from the date of seizure and freezing. Its continuance would be subject to confirmation of retention by the Adjudicating Authority within the period given above and unless the Adjudicating Authority permits retention of property and documents etc. beyond the period of 180 days, it would be returned to the person concern.
The show cause notice otherwise discloses all the relevant materials to seek retention of the seized material. In the instant case, ECIR was recorded in the year 2019 itself and the search was conducted in the year 2023. The relevant documents are now part of the show cause notice. In the background aforesaid, we do not find that any prejudice is caused to the Appellant on non-service of the copy of the reasons to belief recorded in writing for search and seizure under Section 17(1) of the Act of 2002.
In case of J. Sekar v/s. Union of India & Ors. [2018 (1) TMI 535 - DELHI HIGH COURT], the Division Bench of Delhi High Court has not addressed the issue in reference to Section 17(1) of the Act of 2002 but was in reference in Section 5(1) of the Act of 2002. The provisions may be similar but purpose of the proceedings under two provisions are altogether different. One pertains to the attachment of the property till conclusion of the trial, if the attachment order is confirmed by the Adjudicating Authority. The retention of the documents or property would remain for the period given by the Adjudicating Authority and infact if the investigation is completed followed by the prosecution complaint, justification of retention of documents subsequent to it may require to be addressed by the Adjudicating Authority on merits. It is looking to the facts that if the materials seized became part of the prosecution complaint with a copy thereupon to the Appellant then an appropriate order can be passed by the Adjudicating Authority.
It is not found that copy of reason to believe under Section 20 and 21 of the Act of 2002 was prayed before the Adjudicating Authority thus prayer for it cannot be made for the first time in the Appeal.
There are no reason to cause interference in the impugned order - appeal dismissed.
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2023 (12) TMI 1349
Seeking grant of Regular bail - Money Laundering - bail sought on medical grounds - applicant have argued that the applicant herein is 'sick' and 'infirm', and thus, should be granted regular bail in the present ECIR - twin conditions u/s 45 of PMLA satisfied or not - it was held by High Court that 'this Court is of the opinion that the applicant is not suffering from any life threatening condition or sickness or infirmity which involves danger to his life and for which treatment cannot be provided to the applicant in jail' - HELD THAT:- It is not required to interfere with the impugned judgment and hence, the special leave petition is dismissed.
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2023 (12) TMI 1347
Money Laundering - illegal mining and transportation of stones from Sahebganj and illegal activities were carried out under political and administrative patronage - HELD THAT:- It is difficult to be persuaded by the argument on behalf of petitioner that the mandate of directions given in Pankaj Bansal [2023 (10) TMI 175 - SUPREME COURT] was intended to have retrospective operation. The plain reading of para 35 of the said order and the use of word ‘henceforth’, can only mean that that direction of the Hon’ble Supreme Court was prospective and not retrospective in nature. Furthermore, if the suggested interpretation of the expression ‘henceforth’ is accepted, it will amount to review all the arrest so far made under Section 19(1) of PMLA.
Be that as it may, there are factors from which an inference can be drawn that rigors of Section 45 PMLA Act will not apply in the present case. The petitioner was not named in the earlier two prosecution complaints submitted by E.D. and his name has transpired in the 3rd supplementary prosecution complaint. The F.I.R. which has been lodged under Sections 279 and 304A, read with Section 120B of the IPC, will have no bearing on the present case.
The above named petitioner is directed to be released on bail on furnishing bail bond of Rs. 1,00,000/-(One Lakh) with two sureties of the like amount each to the satisfaction of the Court below, subject to the condition that one of the bailor shall be an income tax payee - Petition allowed.
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2023 (12) TMI 1318
Money Laundering - predicate offence - condition u/s 45 of PMLA satisfied or not - the revenue officials misused their official position and wrongly allocated shamlat land amongst the residents of village Seonk - HELD THAT:- In the present case, considering the custody of more than 03 months and the benefit which the petitioner took was just Rs. 50,000/-, it would be a perversity of justice if this Court continues further pre-trial incarceration. Thus, given the amount attributed to the petitioner viz-a-viz pre-trial custody and the other factors peculiar to this case, there would be no justifiability of further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order.
The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions - In Sushila Aggarwal v. State (NCT of Delhi), [2020 (1) TMI 1193 - SUPREME COURT], the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence - Petitioner to comply with their undertaking made in the bail petition, made before this court through counsel as reflected at the beginning of this order. If the petitioner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the victim/complainant may file any such application for the cancellation of bail, and the State shall file the said application.
Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order in any language that the petitioner understands - If the petitioner finds bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
Petition allowed.
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2023 (12) TMI 1317
Seeking grant of bail - Money Laundering - proceeds of crime - extortion of crores of Rupees from different rich people by blackmailing them to get their video footage containing objectionable and inappropriate photographs viral - conditions u/s 45 of PMLA satisfied or not - HELD THAT:- Taking into consideration the vital aspect of the case which is the pre trial detention of the Petitioner for near about 1 year with uncertainty prevailing about execution of NBWA against co-accused adversely affecting the commencement of the trial and, thereby, conclusion of trial being not possible in near future and regard being had to the status of the Petitioner as a woman, which puts her in the bracket of persons specified in the proviso to Sec. 45 of PMLA allowing her some relaxation in complying the rigor of provision of Section 45 of the PMLA, this Court considers that the Petitioner has made out a case for grant of bail.
The bail application of the petitioner stands allowed and the petitioner may be released on bail subject to fulfilment of conditions imposed - bail application allowed.
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2023 (12) TMI 1316
Money Laundering - Seeking grant of Regular bail - cheating the complainant by dishonestly inducing him in getting admission for his daughter in Post Graduation Course at Himalayan Institute and Hospital Trust, Jolly Grant, Dehradun - HELD THAT:- The expression “reasonable grounds” means something more than prima facie grounds. It is the mandate of the Legislature which is required to be followed. The non-obstante clause with which Section 45 of the Act, 2002 starts should be given its due meaning and clearly it is intended to restrict the powers to grant bail.
Allegations against the present applicant are not without substance. The allegations are categorical and specific. A definite role has been assigned to the applicant. On perusal of the record, it reveals that serious and grave allegations have been levelled against the applicant. The mandate of the Parliament is that the person accused of the offence under the Act should not be released on bail unless the mandatory conditions provided under Section 45 of the Act, 2002 are satisfied.
In the facts and circumstances of the case, it cannot be said that mandatory conditions, have been satisfied. It is, therefore, not possible for this Court to record satisfaction that there are reasonable grounds for believing that the applicant is not guilty of such offence. The bail application is liable to be rejected.
The bail application of the applicant is rejected.
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2023 (12) TMI 1293
Seeking grant of bail - money laundering - applicant and other accused persons in conspiracy with the office bearers of the housing societies have purchased the land which had already been sold to the members - HELD THAT:- So far as the role of this applicant is concerned, he got executed the sale-deed of Rs.2,00,00,000/- by issuing four cheques of Rs.50 – 50 Lacs and out of said four cheques, three were bounced and one cheque of amount of Rs.50 Lacs was transferred and that too in the forged account in the name of society. Thereafter, he took loan of Rs.10 Crores by mortgaging the said land from Allahabad Bank which he invested in C-21 Mall, Bhopal thus, he got benefited to the tune of Rs.8.63 Crores. It is submitted that this is the only case registered against the applicant. He is ready to appear in the trial Court to get the regular bail.
It is directed that in the event of arrest, the applicant – Keshav Nachani shall be released upon his furnishing personal bond in the sum of Rs.5,00,000/- with one surety in the like amount to the satisfaction of the arresting officer. This order shall be governed by the conditions No.1 to 3 of sub-Section (2) of section 438 Cr.P.C. The applicant shall also co-operate with the investigation.
Application allowed.
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2023 (12) TMI 1289
Money Laundering - predicate offence - forgery - purchase of the land by Shri Anil Parab from Mr. Sathe - allegations are that by exerting pressure building permissions are illegally obtained - applicability of rigours of Section 45 of the PMLA - HELD THAT:- There are no substance in the submission of the learned senior advocate Shri Desai that the accusations in the present case of money laundering involve a sum of less than Rs. 1 Crore for enabling the applicant to claim the benefit of the first proviso to section 45 of the PMLA. It is for this reason that the estimation of proceeds of crime as set out in the complaint is reproduced hereinbefore. Though learned senior advocate Shri Desai was at pains to point out that the accusations of money laundering against the applicant are for a sum of less than one crore rupees, having regard to the materials in the complaint, it is opined that arriving at this conclusion will entail a detailed fact-finding exercise which may not be permissible at the stage of considering the bail application.
No doubt, the challenge to the order passed by the revisional Court quashing the process is pending in this Court but the order of the revisional Court has not been stayed. The applicant can not, therefore, be deprived of the fruits of the order passed by the revisional Court merely because the Writ Petition challenging the revisional Court’s order is pending in this Court. It is always open for the respondent to take such steps in accordance with law in case the MoEF succeeds in the Writ Petition.
It is the submission that the act of registering FIR No. 177 of 2022 is malafide action on the part of the respondent. A reading of the MoEF complaint and the FIR No. 177 of 2022 indicates that though the property may be the same but the allegations made are in different context on the basis of the complaint filed by the separate entities. It is not possible to render a finding of malafide at this stage.
No doubt this Court while considering twin test of Section 45 of the PMLA has to consider the broad probabilities of the case, however, having regard to the nature of the accusations and the materials on record, it is not possible to record a satisfaction that there are reasonable grounds for believing that the applicant is not guilty of such offence - application dismissed.
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2023 (12) TMI 1244
Arrest of appellant - HELD THAT:- Even during the course of investigation, the appellant was not arrested.
The interim order dated 16th October, 2023 is made absolute on the same terms and conditions - Appeal allowed.
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2023 (12) TMI 1243
Seeking grant of anticipatory bail - Money Laundering - proceeds of crime - statement recorded under Section 50 of the PMLA, 2002 - HELD THAT:- The co-accused persons Shesh Nath Chauha, Ashok Kumar Singh and Pramod Kumar Singh have been granted anticipatory bail in the present case - The complaint states that the applicant was working as a Junior Engineer; the applicant is aged about 63 years and besides the alleged Scheduled offence, he is not involved in any other case. He has already been granted anticipatory bail in the Scheduled offence and three co-accused persons have been granted anticipatory bail in the present case.
The applicant is also entitled for anticipatory bail in the present case - In the event of arrest/ appearance of applicant-Ashok Kumar Singh before the learned Trial Court in the aforesaid case crime, he shall be released on anticipatory bail on his furnishing personal bond and two solvent sureties, each in the like amount, to the satisfaction of S.H.O./Court concerned on the conditions imposed - bail application allowed.
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2023 (12) TMI 1170
Seeking enlargement of petitioner on bail - siphoning of government funds - played an active role in floating shell companies in the said process - HELD THAT:- A perusal of the provision of Section 19 and 45 of PMLA goes to show that the Public Prosecutor has to be given an opportunity to oppose the application for bail, and where the Public Prosecutor opposes the application for bail, duty cast on the Court is that it should be satisfied whether there are reasonable grounds to believe that the person accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The said provision is analogous to Section 37 of the NDPS Act, 1985 - if the Court comes to conclusion that there are reasonable grounds for believing that the person accused is not guilty of such offence and the second condition is that he is not likely to commit any offence while on bail.
In the aforesaid identical case in Sanjay Raghunath Agarwal’s case [2023 (4) TMI 874 - SUPREME COURT], lodging of the prosecution complaint is sequel to the registration of the FIR in the predicate offence way back in the year 2021. In the present case on hand also, no charge sheet has been filed in the predicate offence for the last more than 15 months. The petitioner has been in jail from 04.03.2023. It is the first offence insofar as the petitioner is concerned. There are no other complaints registered as against him. The said argument gives room to say that second condition in clause (2) of sub-section (1) of Section 45 of the PMLA would be satisfied. In the aforesaid circumstances, continued incarceration of the petitioner, is not justified.
In respect of a query raised by the investigating agency, the petitioner herein gave response to each and every question that has been asked for. Prosecution complaint was also filed on 01.05.2023. The petitioner was arrested on 04.03.2023 and since then he is in judicial custody. Time and again, petitioner is continuously attending before the investigating agency and co-operating with the investigation. This Court is of the opinion that it is not necessary to detain the petitioner in jail further. In view of the aforesaid facts and circumstances, this Court feels that request of the petitioner for grant of bail can be considered, however, on certain conditions.
The petitioner shall be enlarged on bail on his executing a personal bond for a sum of Rs. 50,000/- with two sureties each for the like sum to the satisfaction of the I Additional Sessions Judge-cum- Metropolitan Sessions Judge, Visakhapatnam. On release, the petitioner shall co-operate with the investigating agency and shall attend before the investigating agency once in a week i.e. on every Friday between 10.00 AM and 5.00 PM.
The Criminal Petition is allowed.
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2023 (12) TMI 1111
Validity of remand orders made by the learned trial Judge concerned - whether the arrest of the petitioners was terms of the relevant provisions embodied in Sections 17-A, 18(1), and, in Section 19(1) of the Prevention of Money Laundering Act, 2002? - HELD THAT:- It has but clearly emerged rather from the evident fact, qua the accused, thus respectively accompanying the officials of the E.D., on 27.10.2023, respectively in the seized car or in the car belonging to them. Therefore, the said manner of the accused accompanying the E.D. officials, does tantamount to theirs being then unlawfully restrained, and, as such, the accompanying of the accused in the said vehicles, thus on 27.10.2023 but also becomes the actual date of theirs being, thus arrested then. However, when on the said date the accused were not supplied with the grounds of arrest or the reasons to believe, that they have committed offences punishable under the Act of 2002. Consequently, thereby pervasive breach is caused to the mandatory provisions.
The argument, if any, as addressed before this Court by the learned ASG concerned, that the said accompanying of the accused in the vehicles, was only in pursuance to summons, becoming issued upon them, for ensuring that thereby, they are interrogated at the E.D. headquarters located at Delhi, is but also liable to be rejected - The reasons for rejecting the above argument, but is again planked, upon the trite evident fact, that unless the accused had willingly accompanied the E.D. officials concerned, thus in their private vehicles or in the vehicle of their relatives, thereupon theirs in the above mode of theirs accompanying the E.D. officials to the E.D. headquarters, located at Delhi, would be construed to be theirs thereby then, thus becoming unlawfully restrained.
The above argument, cannot become accepted by this Court, in view of the mandate recorded by the Hon’ble Apex Court in case titled as V. Senthil Balaji V. State Represented by Deputy Dikrector and Others [2023 (8) TMI 410 - SUPREME COURT], wherein, it has been expostulated, that when material, does emerge rather suggestive that the parameters laid thereins, relating to application of judicial mind by the learned trial Judge concerned, to the makings of the relevant statutory breaches but become infringed, thus in his making the impugned order of remand, as such, upon, the vice of non-application of mind rather emerging, thus planked, upon breach being caused to the mandate of Section 19 of the Act of 2002, thereby the orders of remand are illegal.
This Court quashes the order of remand, and, in the exercise of writ jurisdiction, declares the arrest of the petitioners to be non-est and void.
In consequence, after allowing the instant petitions, this Court quashes the impugned order of remand (Annexure P-1 in both petitions), and, orders that the petitioners be released from judicial custody, but subject to theirs furnishing personal, and, surety bonds in the sum of Rs. 5,00,000/- each, before the learned trial Court/Chief Judicial Magistrate/Duty Magistrate concerned, and, to his satisfaction, and, also subject to theirs not tampering with prosecution evidence, and, also theirs not influencing prosecution witnesses - Petition allowed.
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2023 (12) TMI 957
Money Laundering - illegal transfer of funds out of India as import payments using forged Bill of Entries, Invoices, etc. - Disallowance of prayer of the applicant for an order under Section 267 of the Code of Criminal Procedure, 1973 for the production of respondent No. 1/original accused in a case being investigated by the applicant - HELD THAT:- It is apparent that the Division Bench of this Court granted bail to the respondent/accused in Criminal Writ Petition No. 1153 of 2023 on 5.12.2023. However, the bail bond has not been executed to date. According to Sections 441 to 444 CrPC, the accused cannot be released on bail unless a valid bond of the accused and surety are obtained in terms of the bail order. When the impugned order was passed, the bail order in favour of the respondent/accused did not exist. However, the Division Bench of this Court has now granted bail to the respondent/accused. In these circumstances, the trial Court shall determine the consequences of bail order, including the effect of non-execution of bail bond.
The criminal application stands disposed off.
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2023 (12) TMI 956
Money Laundering - grant of bail - whether the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded? - HELD THAT:- It is by now well settled and recognized principle of law that, prolonged custody amounts to infringement or violation of Article 21 of the Constitution of India of an accused. There is no debate that, incarceration in custody for long period without trial or completion of trial affects personal liberty guaranteed under Article 21 of the Constitution of India of an accused.
In the present case, as per the submissions of the learned senior counsel for the Petitioner, admittedly the Petitioner is in custody for more than five years and eight months. The trial Court has not yet framed charge in the case and the likelihood of completion of trial of the Petitioner in the present case within reasonable time is very bleak
The maximum sentence prescribed under Section 3 of the PMLA is 7 years. The period of incarceration undergone by the Petitioner has exceeded the substantial part of the prescribed sentence. It appears that, the Petitioner has already completed 3/4 of his sentence, if convicted and sentenced for minimum punishment of 7 years. The fact on record remains that, the Petitioner is in custody/house arrest for last more than five years and eight months for an offence wherein the maximum punishment prescribed is seven years.
The Petitioner is released on bail during the pendency of the present Petition on fulfilment of conditions imposed - bail application allowed.
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2023 (12) TMI 913
Illegal detention of the petitioners in Tihar Jail for want of judicial order remanding them to judicial custody - seeking for issuance of writ of habeas corpus or any other appropriate direction to the respondents, inasmuch as the fundamental rights of the petitioners as guaranteed under Articles 14, 21 and 22 of the Constitution of India have been violated - HELD THAT:- Pertinently, a writ of habeas corpus is an extraordinary remedy, when there is illegal confinement violating the personal liberty of a person. Ordinarily, an order of remand by a competent court is essentially a judicial function and cannot be challenged by way of writ of habeas corpus unless and until the remand order lacks jurisdiction or is absolutely illegal resulting in unlawful “custody”. It is true that an order of remand can be challenged in a Habeas Corpus petition if such an order is passed in an absolutely mechanical or casual manner. The contention of learned Senior Counsels for the petitioners cannot be brushed aside that a valid custody remand can be made in accordance with express provisions of law, when the custody of an arrested person is illegal, such a person is entitled to be released forthwith.
The power of remand is vested in the Court, firstly, at the stage of investigation, when the arrested person can be remanded initially either to police custody or judicial custody. Whereas, custody remand under Section 309 Cr.P.C operates only at post cognizance stage after conclusion of investigation when chargesheet is laid before the Court. In the present petitions, in fact, initially after being remanded to police custody, the petitioners were being remanded to judicial custody from time to time under Section 167(2) Cr.P.C by the court of learned ASJ-05 till 07.12.2003.
Nature of “custody” of the petitioners, whether legal or illegal - HELD THAT:- Two situations have emerged when the chargesheet/prosecution complaint is filed in the Court. One is, when remand under Section 167(2) Cr.P.C has not expired and in the meanwhile chargesheet/prosecution complaint is filed by the investigating agency and the competent court takes cognizance under Section 309 Cr.P.C on the said chargesheet/prosecution complaint. On the date of taking cognizance, the accused is not produced before the Court and is not remanded to the judicial custody under Section 309 Cr.P.C. However, the Court issues production warrant against the accused for production on the next date of hearing. The validity of such remand under Section 167 Cr.P.C was challenged before this Court in case of Sunil Kumar Sharma vs. State of NCT of Delhi ILR [2005 (6) TMI 576 - DELHI HIGH COURT]- In the said case, during the period of a valid order under Section 167 Cr.P.C, accused was placed under judicial custody, his remand was to continue till 26.04.2005, however, the chargesheet was filed on 25.04.2005 and the Magistrate took cognizance on the chargesheet on the same day as the accused was in judicial custody till 26.04.2005. Production warrants were issued against him for the same date. The objection raised on behalf of the accused contemplating illegal custody on 25.04.2005 was that no valid order for remand was passed under Section 167(2) Cr.P.C or under Section 309(2) Cr.P.C on 25.04.2005 or on 26.04.2005.
The second situation is, when the chargesheet/prosecution complaint is filed before the competent court and cognizance is not taken by the Court under Section 309 Cr.P.C. However, the remand of said accused continues under the orders of the Magistrate. The Hon’ble Supreme Court, in the case of Suresh Kumar Bhikamchand Jain [2013 (2) TMI 821 - SUPREME COURT] has observed that such remand granted by the Magistrate was valid and the accused remained in the custody of the Magistrate till cognizance is taken by the concerned court. It is also held that in such a situation the accused has to remain in custody for “some court”.
Assuming a competent court has taken cognizance of chargesheet/prosecution complaint and posts the case at a particular stage of proceedings/trial, however, on the said date of hearing, the accused in that case is not produced from judicial custody, due to some unavoidable reason. In such a situation, the court issues production warrant against the said accused and the case is posted for the next date of hearing. Can it be said, during the period, when the accused was produced on the last date of hearing and is to be produced before the court on the next date of hearing in execution of production warrants, his judicial custody is illegal - the answer is in negative, as in such a situation, the custody of accused is continuum and there is no “break” in the custody of such an accused. The position, however, will be different when, the accused is not produced before such a Court on the date of hearing and no production warrant is issued for the said accused on the same date of hearing but is issued subsequently. In such a situation, the custody of the accused will not be in continuum and for the break period, it may be illegal.
The submissions made on behalf of the petitioners that the petitioners are suffering illegal custody since 07.12.2023, cannot be sustained - the learned ASJ-04 has rightly issued production warrants against the petitioners on 07.12.2023 for production of the petitioners and the petitioners remain in lawful custody of learned ASJ-04 - petition dismissed.
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2023 (12) TMI 855
Money Laundering - proceeds of crime - provisional attachment order - refusal by the Registrar of documents to register the Sale Certificate executed by the Respondent No. 4/Bank - HELD THAT:- Admittedly, on the date when the property in question was put to public auction and on the date when the consideration amount was deposited by the Petitioner and on the date when the possession of the property in question was handed over to the Petitioner by the Respondent No. 5/Bank, there was no communication from the Respondent No. 3/ED to the Registering authority informing the Registrar of documents regarding the fact that the property could be tainted with the proceeds of crime.
Section 17 (4) of the PMLA mandates that the authority seizing any record or property under sub-section (1) or freezing any record or property under sub-section (1A) shall, within a period of thirty days from such seizure or freezing, as the case may be, file an application, requesting for retention of such record or property seized under sub-section (1) or for continuation of the order of freezing served under sub-section (1A), before the Adjudicating Authority. Admittedly, this procedure has also not been complied with by the authority - It is also well settled that a Sale Certificate which is issued to an Auction Purchaser by a bank in public auction is an evidence of title and the Auction Purchaser derives title on the confirmation of Sale in his favour.
This Court does not find any impediment for the Registrar of documents to proceed ahead and register the Sale Certificate in favour of the Petitioner.
It is trite law that availability of an alternate remedy alone is not an absolute bar for a High Court to refuse to entertain a petition under Article 226 of the Constitution of India.
In the present case, the property in question had been sold in auction to the Petitioner herein before the steps under Section 17 of the PMLA were initiated, and, therefore, this Court in the facts of the present case is inclined to exercise its jurisdiction under Article 226 of the Constitution of India even though the matter is pending before the Tribunal - Petition allowed.
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