Legality of arrest - whether the action of the respondent ED in handing over the document containing the grounds of the arrest to arrestee and taking it back after obtaining the endorsement and his signature thereon, as a token of he having read the same, and in not furnishing a copy thereof to the arrestee at the time of arrest would render the arrest illegal under Section 19 of the PMLA 2002?
HELD THAT:- The validity of the various provisions including Section 19 of the PMLA was examined by the Three-Judge Bench in Vijay Madanlal Choudhary case [2022 (7) TMI 1316 - SUPREME COURT] in which the Bench while upholding the validity of Section 19 of the PMLA held that the said provision has reasonable nexus with the purposes and objects sought to be achieved by the PMLA.
It hardly needs to be emphasized that as well settled, it is in order to guard against the possibility of inconsistent decisions on the points of law by different Division Benches that the Rule of precedent has been evolved. It is in order to promote the consistency and certainty in the development of law and its contemporary status that the statement of law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges.
There remains no shadow of doubt that the law laid down by the Three-Judge bench in Vijay Madanlal Choudhary case that Section 19(1) of the PMLA has a reasonable nexus with the purposes and objects sought to be achieved by the PML Act and that the said provision is also compliant with the mandate of Article 21(1) of the Constitution of India, any observation made or any finding recorded by the Division Bench of lesser number of Judges contrary to the said ratio laid down in Vijay Madanlal Choudhary would be not in consonance with the jurisprudential wisdom expounded by the Constitution Benches - The Three-Judge Bench in Vijay Madanlal Choudhary case having already examined in detail the constitutional validity of Section 19 of PMLA on the touchstone of Article 22(1) and upheld the same, it holds the field as on the date.
In so far as the facts of the present case are concerned, it is not disputed that the appellant was handed over the document containing grounds of arrest when he was arrested, and he also put his signature below the said grounds of arrest, after making an endorsement that “I have been informed and have also read the above-mentioned grounds of arrest.” The appellant in the rejoinder filed by him has neither disputed the said endorsement nor his signature below the said endorsement.
The only contention raised by the learned Senior Counsel is that he was not furnished a copy of the document containing the grounds of arrest at the time of arrest. Since the appellant was indisputably informed about the grounds of arrest and he having also put his signature and the endorsement on the said document of having been informed, it is held that there was due compliance of the provisions contained in Section 19 of PMLA and his arrest could neither be said to be violative of the said provision nor of Article 22(1) of the Constitution of India.
Money Laundering - HELD THAT:- In course of hearing, respondent submitted on instruction that the custody of the petitioner would not be required by the Directorate of Enforcement. In such circumstances, we dispose of the present petition with a direction that in the event of arrest of the petitioner in connection with E.C.I.R. No. RPZO/09/2022 / CC No. 5956 of 2023, she shall be released on bail on such terms the Special Judge may consider fit and proper. The impugned order shall stand set aside.
Rejection of Bail application - Money Laundering - utilisation of proceeds of crime - scheduled offence or not - extortion racket - applicability of Section 45 of PMLA, being a lady - HELD THAT:- The object of the PMLA hardly needs to be delineated. The said Act has been enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for the matters connected therewith and incidental thereto. As per Section 2(1)(p), “Money Laundering” has the meaning assigned to it in Section 3. The offence of Money Laundering has been defined in Section 3, which is punishable under Section 4 of the said Act. Section 45 makes the offences under the PMLA to be cognizable and non bailable.
As regards the twin conditions for the grant of bail contained in Section 45(1), it has been held by the Three-Judge Bench in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT] that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering.
Though the findings recorded by the Court while granting or refusing to grant bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion while granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences.
The evidence relating to strong relations between the Appellant and Mr. Suryakant Tiwari, between the Appellant and Mr. Manish Upadhyay, and between the Appellant and Mr. Anurag Chaurasia; the evidences of movement of funds acquired out of extortion syndicate run by Mr. Suryakant Tiwari to Manish Upadhyay, proxy of the appellant; the utilization of proceeds of crime and acquisition of properties by the appellant in the name of her mother Shanti Devi and cousin Mr. Anurag Chaurasia along with the details of the said properties etc. have been detailed in the said prosecution complaint, which leave no doubt in the mind of the Court that prima facie the appellant has been found involved in the commission of the offence of money laundering as defined in Section 3 of the said Act.
Whether the appellant being a woman should be granted the benefit of the first proviso to Section 45 of the PMLA? - HELD THAT:- The use of the expression “may be” in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the Court considering the facts and circumstances of each case, and could not be construed as a mandatory or obligatory on the part of the Court to release them. Similar benevolent provision for granting bail to the category of persons below the age of sixteen years, women, sick or infirm has been made in Section 437 Cr.P.C. and many other special enactments also, however by no stretch of imagination could such provision be construed as obligatory or mandatory in nature, otherwise all serious offences under such special Acts would be committed involving women and persons of tender age below 16 years.
There is sufficient evidence collected by the respondent Enforcement Directorate to prima facie come to the conclusion that the appellant who was Deputy Secretary and OSD in the Office of the Chief Minister, was actively involved in the offence of Money Laundering as defined in Section 3 of the PMLA. As against that there is nothing on record to satisfy the conscience of the Court that the appellant is not guilty of the said offence and the special benefit as contemplated in the proviso to Section 45 should be granted to the appellant who is a lady.
In the instant case, there is neither discharge nor acquittal nor quashing of the criminal case by the court of competent jurisdiction against Suryakant Tiwari in the predicate/ scheduled offence.
In that view of the matter the Court does not find any merit in the instant appeal - Appeal dismissed.
Money Laundering - proceeds of crime - double jeopardy - prosecuting the person accused of an offence under Section 13(1)(e) of the Prevention of corruption Act and for an offence u/s 3 of PMLA - mandatory inquiry under Section 202 (2) Cr.P.C., not conducted, before issuing the summons - HELD THAT:- The point raised by the petitioner has been answered by the Hon'ble Supreme Court in Vijay Madan Lal Choudhary's case [2022 (7) TMI 1316 - SUPREME COURT]case where it was held that the offence under the PMLA is a distinct offence and it concerns only with the proceeds of crime which had been derived as a result of the criminal activity in relation to a scheduled offence. Therefore, the possession of proceeds of a crime is still an offence and therefore, is not hit by Article 20(1) of the Constitution of India - the question whether the petitioner has indulged in dealing with the proceeds of the crime (scheduled offence) is factual and is a matter for trial.
Whether the prosecuting the petitioner for an offence under Section 3 of the PMLA would amount to double jeopardy? - HELD THAT:- The offence under Section 13(1)(e) PC Act, which is possession of disproportionate assets, can arise even if a public servant spends the entire money derived illegally while holding office as a public servant. However, the ingredients of the offence under Section 3 of the PMLA are different - The ingredients of Section 3 of PMLA would indicate that the offence under Section 3 of PMLA has nothing to do with the criminal activity / commission of a scheduled offence. If a person indulges or continues to indulge in dealing with proceeds of crime, he is liable to be prosecuted under the PMLA. Even in the case of holding disproportionate assets punishable under Section 13(1)(e) of the PC Act, if the offender continues to possess or conceal the proceeds of crime, after the check period, the offence of money laundering is made out. Therefore, the two offences are distinct and different and it cannot be said that the offence under PMLA is subsumed within the PC Act - the submission of the learned counsel for the petitioner that prosecuting the person accused of an offence under Section 13(1)(e) of the PC Act and for an offence under Section 3 of PMLA would amount to double jeopardy, is untenable.
Both the reasons cited by the learned counsel for the petitioner for issuance of a certificate for appeal to the Hon'ble Supreme Court, are not sustainable. The instant case does not involve any unanswered substantial question of law and hence, we are not inclined to grant the certificate for appeal, as prayed for by the learned counsel for the petitioner.
As regards the Criminal Original Petition, the primary contention of the learned counsel for the petitioner is that Section 202 (2) Cr.P.C was not followed because the Special Court is deemed to be a sessions Court - this argument cannot be countenanced.
Section 44 of PMLA is an exception to Section 190 of Cr.P.C., which provides for cognizance only by the Magistrate. Section 193 of Cr.P.C., provides that the Sessions Court can take cognizance of any case only if the Code or any other law permits it to do so.
Both the Criminal Revision Case and the Criminal Original Petition are liable to be dismissed and accordingly, dismissed.
Money Laundering - predicate offence - proceeds of crime - specific contention raised by the learned Senior Counsel appearing for the petitioners is that consequent to the acceptance of the refer report submitted by the police, the predicate offences based on which the proceedings under the PMLA were initiated are no longer in existence - whether the continuation of the proceedings under the PMLA in this case is legally sustainable?
HELD THAT:- It is now well settled that one of the basic requirements for initiating proceedings under the PMLA is the commission of an act or indulgence in any process of activity connected with the “proceeds of crime” by the accused persons - The Hon’ble Supreme Court in Vijay Madanlal Choudhary’s case [2022 (7) TMI 1316 - SUPREME COURT], after elaborately discussing the statutory provisions as well as the object and reasons behind the enactment of the PMLA, came to a specific conclusion that in the absence of a predicate offence, the proceedings initiated under the PMLA cannot be continued.
Thus, the position of law in this regard is well settled. The existence of a predicate offence is a pre-requisite for initiating or continuing the proceedings under the PMLA. Therefore, the question to be considered in this case is whether the predicate offences exist. While considering the said question, the crucial document to be considered is Exhibit P18 refer report submitted by the Crime Branch in which, it is reported that the offences were not found out and the case was referred as a mistake of fact. On going through Exhibit P18 refer report, it can be seen that, the allegations raised by the respondents 3 and 4 were investigated into and found to be not correct.
Whether the acceptance of the final report/refer report by the jurisdictional court will have any impact on proceedings under the PMLA? - HELD THAT:- The learned Magistrate cannot refuse to take the refer report into the file, unless any defects or incompleteness in the said report are noted. In this case, no such defects or incompleteness are noted, and instead, the report as such was accepted. The term ‘refer accepted’, therefore, can only indicate that the conclusion arrived at by the Crime Branch in the refer report as such was accepted by the learned Magistrate, and the defacto complainant was granted an opportunity to pursue the protest complaint.
What would be the consequence of the protest complaint, which is now pending consideration before the learned Magistrate, in relation to the proceedings initiated under the provisions of the PMLA? - HELD THAT:- It is true that, the offence under Section 120B is included in the schedule. However, as far as the said offence is concerned, unless the criminal conspiracy relates to the commission of the offences coming within the schedule of PMLA, such conspiracy cannot be treated as a predicate offence. As far as the offence under Section 120B is concerned, which is criminal conspiracy, the character and punishment depend upon the offences, for the commission of which, the criminal conspiracy was entered into. Therefore, the criminal conspiracy has no independent existence as it will always depend upon the offence for which the conspiracy was entered - even if cognizance is to be taken for the offences referred to above, the same would not justify the initiation or continuation of the proceedings under PMLA as it cannot be held that those are predicate offences which would enable the 2nd respondent to continue the proceedings.
The only irresistible conclusion possible is that, the predicate offences, based on which proceedings were initiated under the PMLA, are no longer in existence - the present proceedings are without any legal sanction, and therefore, interference is required - Petition allowed.
Seeking grant of Regular bail - Enforcement Directorate officials have adopted illegal methods during investigation - violation of the twin requirements “reason to believe” - HELD THAT:- The petitioners have been complaining about the misuse of the powers of the Enforcement Directorate and the mode adopted was abuse of power and authority. Having the alleged information about the involvement of the petitioners, the ED authorities have resorted to keeping the petitioners under their control restricting the movements and statements allegedly recorded under Section 50 of the PML Act, 2002 and immediately arrested them. The Ed officials have acted arbitrarily.
There is nothing new which was found during the examination of these petitioners, which was not known earlier to the Agency through A2. The evidence collected is circumstantial. Even without a statement under section 50 of the Act, case can be proved against an accused.
In Satender Kumar Antil v. Central Bureau of Investigation [2022 (8) TMI 152 - SUPREME COURT], the Honourable Supreme Court held that arrest is not mandatory in every case. Before arrest is made, curtailing the personal liberty on the basis of the relevant facts should be considered.
All the transactions are of the year 2011 and it appears that all the transactions are to the knowledge of the Investigating Agency. The transactions are borne by record and the evidence is circumstantial in nature. Complicity or otherwise of the petitioners can be inferred from the transactions during trial, which is unlikely in the near future. Detention cannot be by way of punishment at the stage of investigation. The apprehension of the learned Assistant Solicitor General that the petitioners are at flight risk can be dealt with by imposing conditions.
This Court deems it appropriate to grant the relief of Regular Bail to the petitioners-A1 & A3 subject to the fulfilment of conditions imposed - petition allowed.
Money Laundering - rejection of application for grant of permission to travel abroad - HELD THAT:- In the present case, this Court is of the opinion that though it is not disputed that the proclamation issued under Section 82 of Cr.P.C. in relation to present FIR was set aside vide order dated 10.04.2023 and that the petitioner was granted anticipatory bail in this case vide order dated 20.04.2023, one of the conditions in the order by virtue of which he was granted anticipatory bail was that he will not leave the country without the permission of the Court. Thus, the anticipatory bail granted to him was by way of a conditional order, which was accepted by the petitioner and he had returned to India on 25.04.2023. The LOC opened by the State/EOW also stands cancelled vide order dated 26.04.2023 - However, the LOC opened by the Directorate of Enforcement has neither been cancelled nor quashed and remains in existence, alongwith an another LOC opened by the Income Tax Department. Further, while granting regular bail to the petitioner in the case arising out of ECIR dated 08.08.2021 also, the condition to seek prior permission of the Court before travelling abroad was imposed by the learned ASJ.
The investigation against the petitioner is pending in both the cases i.e. in FIR registered by the Special Cell (EOW) and in the ECIR registered by the Directorate of Enforcement. The liberty and the fundamental right under Article 21 of the Indian Constitution to travel abroad is not absolute and is subject to reasonable restrictions, and this restriction was imposed upon the petitioner while he was granted anticipatory bail in the present FIR and regular bail in the present ECIR. In this Court’s opinion, learned ASJ has rightly held that petitioner has not placed on record any cogent reason to travel abroad and that there is no permanent address of the petitioner in Dubai.
This Court finds no reason to interfere with the impugned order dated 08.07.2023 passed by learned Additional Sessions Judge-03, New Delhi District, Patiala House Courts, New Delhi - Petition dismissed.
Money Launderng - scheduled offence or not - criminal conspiracy - proceeds of crime - facilitating the accused no.1 to use her bank accounts to siphon the university funds - attachment of first and second property - HELD THAT:- The offence under Section 120B of IPC included in Part A of the Schedule will become a scheduled offence only if the criminal conspiracy is to commit any offence already included in Parts A, B or C of the Schedule. In other words, an offence punishable under Section 120B of IPC will become a scheduled offence only if the conspiracy alleged is of committing an offence which is otherwise a scheduled offence.
Coming back to the facts of the case, in the chargesheets filed in the alleged scheduled offences, there is no allegation of the commission of criminal conspiracy to commit any of the offences included in the Schedule - except for Section 120B of the IPC, no other offence in the schedule has been applied. Therefore, in this case, the scheduled offence does not exist at all. Hence, the appellant cannot be prosecuted for the offences punishable under Section 3 of the PMLA.
It is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged, must have been shown as the accused in the scheduled offence - Even if an accused shown in the complaint under the PMLA is not an accused in the scheduled offence, he will benefit from the acquittal of all the accused in the scheduled offence or discharge of all the accused in the scheduled offence. Similarly, he will get the benefit of the order of quashing the proceedings of the scheduled offence - The first property cannot be said to have any connection with the proceeds of the crime as the acts constituting scheduled offence were committed after the property was acquired.
The offence punishable under Section 120B of the IPC will become a scheduled offence only if the conspiracy alleged is of committing an offence which is specifically included in the Schedule.
The impugned order dated 27th September 2022 is, hereby, quashed and set aside, and the complaint pending before the Special Court for PMLA cases, Bengaluru is, hereby, quashed only insofar as the present appellant is concerned - appeal allowed.
Seeking grant of bail - Money Laundering - illegal appointments of primary teachers in West Bengal - twin conditions as per Section 45 of the PMLA Act satisfied or not - HELD THAT:- The nature and gravity of accusation in a case while deciding an application for bail assumes importance as the Court has to consider the manner of commission of the offence, the harm or likely harm which may be extended to the victim and the harm or likely harm which may be caused to the society and its values.
In the instant case, there was not even an FIR by the State Police or the State agencies and it was on the direction of the Hon’ble High Court that the CBI initiated the investigation wherein the main thrust of allegations related to the primary teachers’ job which have been purchased in lieu of huge amount of money and extraneous consideration extended to the ineligible candidates to get appointment as Assistant Teachers in primary schools.
Having regard to the issue relating to which the investigation of the case is being continued, the number of victims being involved, and the accused person being an influential person, whose means, position are beyond question at the State administrative level as also the education department, his release, will have an impact at this stage of the investigation when an outer limit of 31st December, 2023 has been fixed by the Hon’ble Division Bench to conclude the investigation, which is being carried on by the E.D.
The prayer for bail of the present petitioner is rejected.
Illegal appointments of teaching and non-teaching staff were made to different schools in the State of West Bengal - Crux of the allegation is that petitioner and others had entered into a conspiracy to issue illegal recommendation/appointment letters to unsuccessful candidates to fill up vacancies in Group ‘C’ posts in various schools in the State - whether continued detention of the petitioner is justified? - HELD THAT:- Evidence in the present case relates to documents already in the possession of the Investigating Agency and/or statements of public servants. There is remote chance of the petitioner influencing or intimidating such witnesses. In this backdrop it is highly improbable that release of the petitioner on bail would in any way interfere with the progress of investigation and/or intimidate witnesses.
It may also be relevant to note that in the opposition filed on behalf of the CBI, apart from stressing on the nature and gravity of the offence, there is no whisper that the petitioner would intimidate witnesses or tamper with evidence.
The petitioner is entitled to be released on bail.
Nature and gravity of the offences - HELD THAT:- Petitioner was the President of the Board and it is alleged he had wantonly abused his official position to issue fake appointment letters to fill up public posts. It is an aspiration of every citizen to be in public employment. Such aspirations were dashed by the nefarious avarice of the accused persons of whom petitioner is one. No doubt the allegations are grave and involve corruption which adversely impacts the society at large but till date no money trail or disproportionate assets of the petitioner have been unraveled - it is informed at the Bar that an investigation under Prevention of Money Laundering Act has been registered by the Enforcement Directorate but petitioner has neither been interrogated nor arrested in the said case.
However, to continue undertrial detention of the petitioner merely on the gravity of the offence when the other requirements of abscondence, tampering etc. i.e. the tripod test does not justify such end would, amount to punishing the accused under the garb of undertrial detention. It must also be borne in mind that the offences, even if proved, would not attract mandatory life imprisonment - Though the investigation appears to see some light at the end of the tunnel, in view of the large number of witnesses and voluminous documents proposed to be adduced in the two charge sheets filed till date, it is left to one’s imagination when the trial would ultimately conclude.
Early conclusion of trial – a distant mirage - HELD THAT:- No sanction has been obtained from the appropriate authority for commencement of prosecution. In fact cognizance has not been taken on the charge sheet filed as yet. In view of the state at which the criminal proceeding is presently poised, we are of the opinion there is little possibility of its commencement even in the near future. Petitioner is an old person who is suffering from various ailments. He is in detention for more than one year and two months - In this backdrop continued detention of the petitioner would not be in consonance to the principles of justice and fair procedure which is just, fair and reasonable on the touchstone of Article 21 of the Constitution of India - the petitioner is enlarged on bail however, subject to strict conditions.
Therefore, the accused/petitioner, namely Dr. Kalyanmoy Ganguly, be released on bail upon furnishing a bond of Rs. 50,000/-, with two sureties of like amount each, one of whom must be local, to the satisfaction of the learned Special Judge, CBI Court No. 1, Alipore, South 24-Parganas subject to condition that the said petitioner shall appear before the trial court on every date of hearing until further orders and shall not intimidate witnesses or tamper with evidence in any manner whatsoever and on further condition that the petitioner, while on bail, shall not enter the jurisdiction of Park Street Police Station as well as Bidhannagar Commissionerate where the offices of the School Service Commission are situated until further orders.
Money Laundering - challenge to order of the learned Adjudicating Authority under the PMLA 2002 allowing retention of the seized documents and digital evidence - participation in the criminal conspiracy to defraud the Andhra Bank and other public sector banks - non-recording of reasons/satisfaction under sections 17(1), 20(4), and 8(1) -
Aalleged non-recording of reasons/satisfaction under sections 17(1), 20(4), and 8(1) without which the authorities concerned could not have assumed jurisdiction under the respective provisions - HELD THAT:- The respondent has suggested that the case records available with the learned Adjudicating Authority may be called for. The Bench was inclined to accept the suggestion made by the learned counsel for the respondent Directorate. However, the learned counsel for the appellant submitted that instead of calling for the record from the learned Adjudicating Authority the appeal may be decided on the basis of the other contentions put forward by them. Having considered this submission for the appellant's side, the arguments relating to the non-recording of reasons/satisfaction under the respective provisions of section 17(1), 20(4), and 8(1) are treated as not pressed and are not being adjudicated upon in this order.
The documents seized would clearly constitute 'records' for the purposes of the Act. As regards the mobile phone itself, it would fall under the category of 'property'. However, the data contained in it would again answer to the description of 'records'. As mandated by the law, an 'application' (OA) was filed before the learned Adjudicating Authority on 1-12-2017, which was within the prescribed thirty-day period prescribed for this purpose under section 17(4). In the said application, the Assistant Director, Directorate of Enforcement had prayed for permission to retain the seized documents and digital evidence under section 8(3).
In the impugned order, the Ld. Adjudicating Authority has not made any mention of the above developments which would have been within its knowledge and which were pertinent for it to come to a reasoned conclusion. It also reveals that investigations in the case were not at such a preliminary stage as has been made out in the impugned order. It was also known at that stage which of the properties had been provisionally attached as the confirmation of provisional attachment was pending before the very same authority in the form of an OC.
The present appeal stands disposed of, along with any pending applications filed thereunder.
Challenge an interim order passed by Adjudicating Authority - denial of extension of time for filing reply after Inspection Of Record - seeking stay of the proceedings till Adjudication Authority is constituted with required coram - Seeking cross examination of the persons - Supply of the copy of reasons to believe.
Denial of extension of time for filing reply after Inspection Of Record - HELD THAT:- If the record was required to be inspected before filing reply, prayer for it should have been made at the earliest so that a reply is filed after inspection of record. However, in the instant case, the reply to the show cause notice was filed by the appellant and it is only thereafter that he sought inspection of record with extension of time to file reply. The inspection was permitted but there was no question of extension of time for filing reply when reply had already been filed. It is to be noted that the proceedings before the Adjudicating Authority has to be completed within 180 days of the issuance of provisional attachment order and that too after serving a Show Cause Notice, after recording of reasons to believe, as envisaged under section 8 (1) of the Act of 2002.
The proceedings by the Adjudicating Authority has to be completed within time frame and at times, there may be effort of the person receiving show cause notice to delay the proceedings so that the attachment may lapse with the expiry of 180 days. The person may even seek additional time to file the reply - In the instant case, 180 days are going to expire on 30.11.2023 as informed to us. Hence, the Adjudicating Authority is required to pass the order within time frame and accordingly to regulate its schedule and thereby, once the reply to the show cause notice had been filed, there was no reason to extend the period for filing reply thereupon - the issue raised by the appellant is decided against them and accordingly the order of the Adjudicating Authority is confirmed on the issue.
Seeking stay of the proceedings till Adjudication Authority is constituted with required coram - HELD THAT:- The Delhi High Court in the case of Aprajita Kumari and Another Vs. Joint Director, Enforcement Directorate and Another [2018 (1) TMI 551 - DELHI HIGH COURT] decided the same issue. It was even in the case of K. Rethinam Versus Union of India and Ors. [2018 (1) TMI 535 - DELHI HIGH COURT]. It was held that Single Member can pass an order and it is not necessary that said member should be from the Judicial side. It can be an Administrative Member as well - thus, there are no illegality in the impugned order to deny stay of the proceedings till the Adjudicating Authority is constitute with the coram. In fact, one member of the Adjudicating Authority constitute the corum of the Authority.
Seeking cross examination of the persons - HELD THAT:- The Adjudicating Authority has already passed the final order on 8th November, 2023 and a copy of it has been supplied to the Tribunal. The order was passed before giving written arguments by the appellant for which liberty was sought and granted by the Tribunal. The written arguments were given on 10th November, 2023. In any case, we do not find that denial of opportunity of cross examination has caused any prejudice to the appellant. It is for the reason that statements of the persons sought to be cross examined were not recorded so as to rely their testimony - It is apart from the fact that the Regulation does not provide for cross examination of a person whose statement or the testimony was not recorded at any time and specifically during the course of investigation - there was no reason to allow cross examination of the persons who can otherwise be cross examined by the appellant in the Criminal Trial, if prosecution produced them as witness and their statement are recorded in the Court - there are no illegality in the order of the Adjudicating Authority to deny cross examination of the persons named by the appellant.
Supply of the copy of reasons to believe - HELD THAT:- The appellant was given reasons to believe while recorded by the Adjudicating Authority what has been prayed is the copy of reasons to believe recorded at the time of search under section 17 of the Act of 2002 and thereby the appellant has asked for two sets of reasons to believe, one recorded while issuing show cause notice under section 8 (1) of the Act of 2002 and another under section 17 of the Act - if the pending appeal before the Apex Court in the case of J. Sekar is decided adverse to the appellant holding that there is no necessity to supply a copy of reasons to believe recorded under section 17 which is otherwise to be kept in sealed envelope, the matter would be decided accordingly.
Seeking permission to withdraw the present petition at this stage - Validity of the cognizance/ summoning order - non-bailable warrant issued against the applicant - grant of pardon under Section 306 Cr.P.C. would fall within the purview of ‘finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the scheduled offence against him’? - HELD THAT:- Permission as sought for is granted - SLP is dismissed as withdrawn.
Money Laundering - predicate offence - proceeds of crime - prayer for interim stay of operation of the impugned summons issued to the concerned District Collector of the five Districts, who are shown as the third petitioner in each of the writ petitions - HELD THAT:- The authorities under the PMLA, 2002 cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and such complaint is pending enquiry or trial. As observed by the Hon'ble Supreme Court in paragraph 282 of the judgment in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], the authorised officer under the PMLA, 2002 can prosecute any person for offence of money laundering only if there exists proceeds of crime within the meaning of Section 2(1)(u) of the PMLA, 2002. The Hon'ble Supreme Court has held that merely because existence of undisclosed income and irrespective of its volume is noticed, the proceeds of crime under Section 2(1)(u) cannot be presumed, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence - the existence of proceeds of crime within the meaning of Section 2(1)(u) of the PMLA, 2002 is quintessential, as held by the Hon'ble Supreme Court and in the absence of existence of proceeds of crime as aforesaid, the authorities under the PMLA, 2002 cannot step in or initiate any prosecution.
Even the Hon'ble Supreme Court in Vijay Madanlal Choudhary has observed that the respondent even if it had unearthed any particular offence and found proceeds of crime relating to the said offence, then under Section 66(2), the respondent is bound to inform the investigating agency about such offence. Only if the offence is scheduled offence, the respondent will get a right to further investigate the proceeds of crime, as held by the Hon'ble Supreme Court. Having regard to the interpretation of various provisions by the Hon'ble Supreme Court, this Court is prima facie convinced that the nature of enquiry contemplated by issuing the impugned summons is not within the jurisdiction of the respondent. It is just an attempt to investigate the possibility of identifying any proceeds of crime as a result of any criminal activity, which is not so far registered by the State agencies.
This Court sincerely appreciates the way in which the respondent had responded to these writ petitions within a short time. A detailed affidavit of objection is filed by the respondent raising several issues. The learned Senior Counsel appearing for the petitioners requested time to file reply in response to the objection in the form of affidavit. The learned Additional Solicitor General also submitted that they may be permitted to file a detailed counter affidavit.
Post the matters on 21.12.2023 for hearing of the main writ petitions.
Money Laundering - Section 45 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The detailed investigation has been carried out. In fact in July, 2018, on two occasions, statements of the appellant have been recorded. What is pertinent to note is that even during the course of investigation, the Enforcement Directorate did not arrest him.
Considering these peculiar facts, the interim order passed on 13th October, 2023 deserves to be made absolute on the same terms and conditions.
Seeking grant of bail - money laundering - scheduled offences - extortion of money to the tune of Rs. 200 Crores - twin conditions of section 45 of PMLA satisfied or not - HELD THAT:- It is pertinent to mention here that the petitioner who is around 69 years of age and has a medical history is in custody for last more than two years. It has been submitted that the case is still at the initial stage and the trial may take a long time. It is necessary to take into account that the detention during trial cannot be taken as punitive detention. The rule is bail and not jail. Recently, in Manish Sisodia vs. Central Bureau Of Investigation & Anr. [2023 (11) TMI 63 - SUPREME COURT] the Hon'ble Supreme Court has held 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.
It is also a settled proposition that even in the economic offence case, it is not a rule that the bail should be denied in every case. It is a also settled proposition that merely levelling the allegation of 'flight risk' is not sufficient to deny the bail in the absence of any substantive material. The court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities.
Here is the case where the petitioner is 69 years of age with several ailments and is in custody for the last more than 2 years. If the case of the petitioner is seen on broad probabilities, he seems to be entitled to be admitted to bail. The offence alleged against the accused is punishable with imprisonment for a term which shall not be less than three years and may extend to seven years and shall also be liable to fine. The case of the petitioner does not fall under Paragraph 2 of para 2 A of the Schedule.
The Applicant shall furnish a personal bail bond in the sum of Rs. 5,00,000/-with two sureties of the like amount subject to the satisfaction of the learned Trial Court/CMM/Duty MM - petitioner is admitted to bail subject to fulfilment of conditions imposed - bail application allowed.
Money Laundering - Non-compliance of section 19 of PMLA by the Enforcement Directorate - fulfilment of conditions of section 45(1)(ii) of the PMLA or not - petitioner had no knowledge that the accused Pradeep Bagchi committed forgery in order to impersonate himself as owner of the property in question - Company of which the petitioner is Director was the victim of cheating.
Non-compliance of Section 19 of PMLA - HELD THAT:- At this stage it is pertinent to mention that reason to suspect and reason to believe are two different things and one of the conditions in Section 19 speaks of reason to believe. Reason to suspect is subordinate to reason to believe and cannot be equated with reason to believe. The expression reason to believe is made by two words i.e. reason and believe the word reason means cause or justification and the word believe means to accept as true or to have faith; thus, the officer has to have faith or accept a fact to exist and further there must be justification for such faith or acceptance - It is well settled that expression “reasons to believe” must be conditioned on the existence of tangible material and that reasons must have a live link with the formation of the belief.
In the instant case, even if the allegations levelled against the petitioner in the Prosecution Complaint are accepted at its face value and in their entirety; prima facie, the same do not make out a case under Section 3, punishable under Section 4 of the PMLA, inasmuch as, such allegations fall short of the essential ingredients for offence of money-laundering under Section 3 of the PMLA Act.
With regard to noncompliance of section 19 of PMLA by the Enforcement Directorate and also on merits of the case, prima facie with the available records produced before this court it does not transpire that the petitioner has committed the crime under the Act and/or is likely to commit any offence while on bail as the prosecution has not produced any material which would impress this Court that the petitioner might commit a similar offence.
Conditions of section 45 of the PMLA fulfilled or not - HELD THAT:- It has not been disputed that the petitioner does not have any criminal antecedent and since it is difficult to predict the future conduct of the petitioner, the lack of criminal antecedent, his propensities and the nature and manner of his involvement as demonstrated have been considered by this court to decide on the second limb of section 45 (1)(ii) of the PMLA - It goes without saying that this is only stage of bail and this Court is not sitting under its inherent power under section 482 for quashing the entire proceeding; further there are 31 charge-sheeted witnesses and the petitioner is in custody since 07.06.23.
Having regard to the number of oral and the documentary evidences and the present stage of trial and the period of custody undergone, this court is inclined to grant this petitioner on bail - the petitioner is directed to be released on bail subject to fulfilment of conditions imposed - application allowed.
The Supreme Court dismissed the special leave petition as withdrawn after the petitioner sought permission to withdraw it. Justices Sanjiv Khanna and S.V.N. Bhatti presided over the case.
Money laundering - predicate offence - some of the FIRs are compromised, while the scheduled offence continues to exist - HELD THAT:- In the present case, the two FIRs, i.e., FIR No. 16/2018 dated 24.01.2018 and FIR No. 49/2021 dated 12.03.2021 registered at PS EOW, have been compounded and quashed, respectively, on the ground of compromise. It is pertinent to note that the State has not challenged the aforesaid orders on the ground that the matter was not settled with all the complainants. It is also noted that the remaining complainants, if any, have also not challenged the aforesaid orders on the ground that settlement was not arrived at with them.
It is pertinent to note that the aforesaid FIRs were registered at the instance of investors who were aggrieved by the non-completion of a project by the company. A perusal of the aforesaid list of dates reflect that although the impugned ECIR was registered initially on the basis of scheduled offences registered vide FIR No. 16/2018 dated 24.01.2018 which stood compounded vide order dated 19.11.2019, the second FIR No. 49/2021 which was registered on 12.03.2021 was taken on record in the impugned ECIR by the department and the proceedings continued under the same. The department chose not to register a separate ECIR, but took on record the scheduled offences registered vide FIR No. 49/2021 in the same ECIR, inter-alia, on the ground that it related to the same transaction and involved the same accused persons. The fact that FIR No. 49/2021 was taken on record by the department in the present ECIR despite an order of compounding and acquittal was not challenged by the petitioner.
Hon’ble Supreme Court in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] has held that there is no corresponding provision to Section 154 of the CrPC in the PMLA requiring registration of an offence of money laundering.
In the peculiar facts and circumstances of the case, ECIR cannot be quashed in view of registration of FIR No. 55/2023 dated 10.07.2023 under Sections 409/420/120B of the IPC at PS EOW as this would constitute ‘scheduled offences’ legitimizing the existence of the said ECIR. However, since ‘scheduled offences’ in FIR No. 16/2018 dated 24.01.2018 under Sections 420/406/120B of the IPC and FIR No. 49/2021 dated 12.03.2021 under Sections 420/406/120B of the IPC, registered at PS EOW have been compounded and quashed, respectively, the department cannot initiate or continue any proceeding including investigation in connection with the said two FIRs. Accordingly, the proceedings undertaken with respect to the said two FIRs qua the present petitioner in the present ECIR stand quashed.
Seeking ex-parte ad-interim stay of the proceeding - applicant/petitioner submit that the proceedings in the said ECIR ought to be stayed against the petitioner as the predicate offence for the said ECIR are the proceedings under Section 135 of the Customs Act, 1962 which has already been stayed by this Court - HELD THAT:- A perusal of the Provisional Attachment Order No.06/2023 dated 03.11.2023 issued by the Deputy Director, ED, particularly the material placed before the Authority (para 2(i)) and the cause of action under the PMLA (para 4.1) reveals that the present ECIR dated 17.07.2023 was recorded by the respondent ED, as Section 135 of the Customs Act, 1962 is a scheduled offence under the PMLA, whereunder the complaint was registered for the illicit export of foreign currency.
The facts also reveal that dismissal of the adjudication proceedings against the petitioner vide order in PAWAN MUNJAL VERSUS COMMISSIONER OF CUSTOMS, NEW DELHI [2022 (4) TMI 212 - CESTAT NEW DELHI] has led to the petitioner being absolved of all charges. In fact, the Division Bench of this Court in CUSAA No.3/2023 has affirmed the same vide order dated 05.10.2023.
Considering what is borne out from the aforesaid and finding merit in the submissions made by the learned senior counsels for the petitioner, especially the peculiar facts and circumstances involving the common set of facts forming the genesis of all the three proceedings, being the proceedings before the CESTAT, the complaint case pending before the learned ACMM-01, Patiala House Court and the present ECIR, against the petitioner and taking note of the earlier order dated 03.11.2023 passed by this Court wherein the proceedings initiated by the Department of Revenue have been stayed, this Court is of the prima facie opinion that there is sufficient materials to stay the proceedings qua the petitioner.
Accordingly, till the next date of hearing, ECIR/DLZO-I/39/2023 dated 17.07.2023 and all proceedings emanating therefrom, including the summoning order dated 10.11.2023, shall remain stayed qua the petitioner - Renotify on 21.03.2024.
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