Second bail application for grant of anticipatory bail - illegally earned the money and purchased the property in the name of his wife - HELD THAT:- Issue notice, returnable on 4th December, 2023.
In the meanwhile, the petitioner shall not be arrested in connection with ECIR No.AMZO/18/2020, subject to condition that the petitioner will always cooperate and remain present before the concerned Court on all the dates fixed.
Seeking grant of bail - accused detained without trial - Money Laundering - Criminal Conspiracy - misappropriation of huge funds of Social Welfare Department - siphoning off of the funds from the bank account of Social Welfare Department - HELD THAT:- The record shows that the accused has been in judicial custody as noted in the interim order in connection with the case since 21.04.2018, that is, for 5 years 5 months 26 days. On the other hand, further proceedings in the case has been stayed by order, dated 21.05.2019, which is still in force resulting in non-commencement of trial of the case. The accused has been apparently detained without trial, which cannot indefinitely be allowed to continue without assurance of effective speedy justice to him, who has already undergone one-half of the maximum period of imprisonment specified for the offences. Thus, it appears that the accused has been deprived of the right to liberty and access to speedy justice and trial enshrined under Article 21 of the Constitution of India and right to liberty of bail under Section 436-A Cr.P.C.
It is provided that the accused petitioner namely, Mohet Hojai shall be released on bail of Rs.50,000/- with 02 sureties of like amount to the satisfaction of the learned Special Judge, Assam, Guwahati, subject to the conditions imposed - application allowed.
Seeking grant of bail - Money Laundering - ramifications involved in the Teachers’ Recruitment Scam - economic offences - applicability of principles as under Section 439 of the Cr.P.C. - factum of the complicity of the present petitioner so far as the proceeds of crime - HELD THAT:- At the initial stage when the argument commenced and the Enforcement Directorate prayed for filing their affidavit, this Court directed to clarify whether any policy has been adopted by the Investigating Agency so far as the exercise of the powers under Section 19 of the PMLA is concerned - There were no cogent reasons assigned by the Investigating Agency which in the background of the present case satisfies the conscience of the Court regarding the exercise of such powers. Towards the end of the hearing, it was pointed out by the Enforcement Directorate that the Teachers’ Recruitment Scam involves wide magnitude and there are materials which have recently surfaced leading to money trail where the involvement of the petitioner is glaring.
Having considered the tentative time limit set by the Hon’ble Division Bench to the Investigating Agency to conclude the investigation and further materials having surfaced for which the Investigating Agency at this stage sought for time to examine two more witnesses apart from the witnesses who have already been examined particularly with regard to the amount which has transpired relating to the donations in the account of the school, having regard to the ramifications involved in the Teachers’ Recruitment Scam, the Investigating Agency at this stage must be granted an opportunity to exhaust their powers relating to investigation. Accordingly, at this stage, the petitioner cannot be released on bail.
Money Laundering - generation of illegal income - extorting crores of Rupees from different rich people by blackmailing them to get their video footage containing objectionable and inappropriate photographs viral - applicability of provision of Section 45(1) of the PMLA - HELD THAT:- Undeniably, the provisions as to bail are founded on the philosophy of protecting the most precious individual liberty of a person which is guaranteed under Article 21 of our sacred Constitution, but grant or refusal of bail to a person accused of offence is the discretion of the Court, however, such discretion should not be arbitrary or whimsical. Article 21 of the Constitution of India always reminds that the personal liberty is paramount and sacrosanct and no person shall be deprived of his personal liberty except according to the procedure established by law.
An accused person who is sick in terms of proviso to Section 45(1) of PMLA can be granted bail without insisting upon him the strict compliance of the conditions enumerated therein, but who can be considered as a sick or what would be the level of sickness that would bring the accused within the parameters of “sick” has not been precisely defined or explained either in the PMLA or in any other act governing the provisions of bail. Normally, “sick” means suffering from disease or illness or unwell or ill and one who needs medication, but mere sickness, such as suffering from fever or illness which can be treated in the jail without any difficulty cannot be considered as “sick” so as to entitle the accused to bail in view of the exception to Section 45(1) of the PMLA.
This Court is of the considered view that the sickness which are not only life threatening, but also serious and requires special medical attention and which the jail authority cannot provide in the jail would normally be considered as a ground for grant of bail to an accused by relaxing the strict compliance of Section 45(1) of the PMLA by giving benefit of the proviso appended thereto. Granting bail on mere sickness by extending the proviso appended to Section 45(1) of the PMLA will render the aforesaid proviso otiose.
The pre trial detention of the Petitioner for near about ten months with uncertainty prevailing about execution of NBWA against coaccused affecting the commencement of the trial and, thereby, conclusion of trial being not possible in near future and regard being had to the nature of “sickness” of the Petitioner which allows him to obviate the rigor of compliance of the provision of Section 45(1) of the PMLA by way of relaxation, 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 conditions imposed.
Money Laundering - proceeds of crime - Changing hands of settlement money - requirement of impleadment of petitioner - HELD THAT:- It is noticed that Soshit Karamchari case [1980 (11) TMI 160 - SUPREME COURT], Fertilizer Corporation case [1980 (11) TMI 158 - SUPREME COURT] as well as R.Rathinam case [2000 (2) TMI 881 - SUPREME COURT] were rendered prior to 31.12.2009 before the aforementioned amendments kicked in qua Cr.PC. In this view of the matter also, they do not come to the aid of the petitioner. However, as regards Jagjeet Singhcase [2022 (4) TMI 1519 - SUPREME COURT], it is post amendment i.e., rendered in 2022 and what Jagjeet Singh case deals with is, right of a victim. This has been elucidatively articulated by Hon'ble Supreme Court in paragraph Nos.14 and 15 of Jagjeet Singh case, holding that Until recently, criminal law had been viewed on a dimensional plane wherein the Courts were required to adjudicate between the accused and the State. The 'victim' - the de facto sufferer of a crime had no participation in the adjudicatory process and was made to sit outside the Court as a mute spectator. However, with the recognition that the ethos of criminal justice dispensation to prevent and punish 'crime' had surreptitiously turned its back on the 'victim', the jurisprudence with respect to the rights of victims to be heard and to participate in criminal proceedings began to positively evolve.'
This Court has no hesitation in saying that victimology has no application to implead petitioner.
Whether the settlement money has not changed hands? - HELD THAT:- This is a case where there is nothing to demonstrate that there is 'proceeds of crime'. This is a private transaction between private individuals / entities and the two individuals /entities have chosen to resort to ADR [Alternative Disputes Resolution] i.e., arbitration by SIAC [Singapore International Arbitration Centre]. In the course of arbitration by SIAC, the private entities / individuals have chosen to give a closure to the dispute by entering into a Memorandum of Understanding / Settlement. This Court is also acutely conscious of the position that an Arbitration Tribunal (SIAC) is a Private Tribunal and as far as this Court is concerned, the paramount consideration is, this is not a matter where it is anybody's case, much less the case of prosecution that public money is involved.
Paragraph No.467 of Vijay Madanlal [2022 (7) TMI 1316 - SUPREME COURT]case is the ratio. It is instructive and we respectfully follow paragraph No.467 of Vijay Madanlal case. In the case on hand, to state with specificity, what is applicable is paragraph No.467(v)(d) of Vijay Madanlal case. This is a case where there is a closure of the predicate offence and therefore, we say that paragraph No.467(v)(d) of VijayMadanlal case is applicable in all force to the case on hand. In any event, this paragraph No.467(v)(d) of Vijay Madanlal case is now subject to the caveat in Emta Coal case [2023 (7) TMI 885 - SC ORDER], i.e., caveat that if predicate offence is resuscitated or opened, the entire matter will get revived. The rights are preserved as done in Emta Coal case by Hon'ble Supreme Court. Therefore, we make it clear that we respectfully follow the ratio in Vijay Madanlalcase {paragraph No.467(v)(d)} and Emta coalcase {paragraph No.16} which we have followed in Anil Jain case [2023 (9) TMI 1379 - MADRAS HIGH COURT].
Law is well settled that in a Section 482 of Cr.PC quash legal drill, what the Section 482 Court would look into is, uncontraverted averments in the complaint without adding or subtracting to the same. In the case on hand, this legal drill becomes extremely simple as quash prayer turns on the legal point that on closure of predicate offence, ECIR cannot proceed. In this view of the matter, there are no hesitation in saying that the inevitable conclusion is that prayers need to be answered in the affirmative i.e., acceded to.
Seeking grant of bail - bail sought on the ground of sickness - Money Laundering - HELD THAT:- The health report of the petitioner does not appear to be a medical condition which could be taken care only if he is released on bail. That apart, his past conduct, his present position as Minister without Portfolio and the abscondence of his brother Mr.Ashok Kumar, coupled with the attack on the Income Tax Officials, all cumulatively leads to an irresistible conclusion that, certainly, he will directly and indirectly influence or cause deterrence to witnesses, if released on bail.
The non-cooperation of the co-accused Mr.Ashok Kumar, who is blood brother of the petitioner also justifies the apprehension of Enforcement Directorate that, there is flight risk causing impediment in progress of trial.
This Court is not inclined to grant bail to the petitioner. Accordingly, this Criminal Original Petition is dismissed.
Maintainability of petition - Availability of remedy under section 438 Cr.P.C. - Issuance of summons u/s 50(2) and (3) of the PMLA - Illegal detention/arrest by the Respondents and he will be made a scapegoat in order to protect the interest of the main promoters/alleged main beneficiaries of the company.
HELD THAT:- The power to arrest is conspicuously absent in section 50 of the PMLA - Though section 19 of the PMLA empowers designated officers of the ED to arrest any person, subject to satisfying the conditions mentioned in that provision, it is clear that the power to arrest does not reside in section 50 nor does it arise as a natural corollary of summons issued under section 50.
The power under section 50 of the PMLA to issue summons to a person and to require the production of documents and record statements, which is akin to the powers of a civil court, is different and distinct from the power under section 19 to arrest a person. These are two separate and distinct provisions. The exercise of the powers under one, cannot be restrained on the apprehension that it could lead to the exercise of powers under the other - this court would be loath to simply brushing aside the petitioner’s contention that apart from filing the present petition, he has no other way of protecting himself from possible unlawful arrest at the hands of the ED and that he is remediless in law. This court is clear that if it is indeed true that the petitioner is remediless in relation to his grievance, a writ petition invoking the extraordinary plenary jurisdiction of this court under Article 226 of the Constitution would always lie.
Availability of remedy under section 438 Cr.P.C. - HELD THAT:- A meaningful reading of the decision in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], when it says that the underlying principles and rigours of section 45 of the PMLA, viz. the requirements of satisfying the additional twin conditions prescribed therein for obtaining bail, would apply equally to grant of bail under section 438 Cr.P.C., makes it clear that the remedy of applying for anticipatory bail under section 438 Cr.P.C. is available to the petitioner if he apprehends arrest under the PMLA.
Though section 71 of the PMLA contains a non-obstante clause, there is nothing in the PMLA which restricts the court from granting relief under section 438 Cr.P.C. in an appropriate case. The only rider being that the twin conditions in section 45 of the PMLA will also have to be satisfied - In the opinion of this court therefore, there is no requirement in law for a prosecution complaint to have been filed for a person to maintain an application under section 438 Cr.P.C. Save for the stringent twin-conditions contained in section 45 PMLA, there is no provision in the PMLA which modifies the provisions of section 438 Cr.P.C.
In fact it is the respondent’s stand that the petition is not maintainable since the petitioner has no locus standi to seek quashing of an ECIR or the prosecution complaint in which he is not an accused. The respondent has also said that there is an alternate, efficacious remedy available to the petitioner, by way of an application seeking anticipatory bail under section 438 Cr.P.C., which remedy he would be entitled to seek at the appropriate stage.
This court does not deem it necessary to entertain the present writ petition seeking quashing of the impugned ECIR, since the petition is premature - Once this court has held that an application seeking anticipatory bail is maintainable notwithstanding that the petitioner is not named as an accused in the ECIR or in the prosecution complaint, this court cannot delve into whether the concerned court before whom the application under section 438 Cr.P.C. is filed would, or would not, grant relief to the petitioner.
Money Laundering - seeking arrest of respondent - issuance of non-bailable warrants which were never cancelled.
It was submitted that it is the case of the department that the said non-bailable warrants remained in force and, therefore, the execution of the same by arresting the present respondent was within permissible parameters of the procedure.
HELD THAT:- Admittedly, in the present case, the non-bailable warrants issued on 12.01.2018 remained on the file of the investigating agency and no steps were taken to execute them. A copy of the said non-bailable warrants has been placed on record as Annexure P-5 to the present petition. A perusal of the said non-bailable warrants reflects that the columns provided to enumerate the steps taken in furtherance of the said warrants are blank except that there is an endorsement that the warrants were executed and the respondent was arrested on 14.02.2023 at 2100 Hours.
Normally, warrants are issued by the concerned Court during the course of investigation when an accused person is not available despite efforts or after filing of the chargesheet when the person who has been summoned by the concerned Trial Court does not appear to face trial. Another possible situation can be where warrants issued against a person during the course of investigation could not be executed and a chargesheet/complaint is filed with respect to the other accused persons and the person against whom warrants have been issued is shown as absconding.
In the present case, open ended nonbailable warrants remained unexecuted till the complaint was filed and cognizance was taken by the learned Special Court. It is also relevant to note that the said non-bailable warrants were never returned to the learned Special Court. In the present complaint, the respondent is not being shown as an absconder. There is no mention of NBWs being issued, during the course of investigation, in the complaint.
In the instant case, admittedly, upon completion of investigation, the complaint had been filed, in pursuance of which summons had been issued to the present respondent. If the unexecuted non-bailable warrants issued prior to filing of the complaint had been duly returned to the Court, could the department have arrested the respondent when only summons for appearance had been issued? The department, after issuance of summons, in such a case, could not have arrested the respondent unless warrants were issued by the learned Special Court on requisite grounds. The exercise of power of arrest by the department was totally unjustifiable.
This Court finds no reason to interfere with the impugned order dated 16.02.2023 - Petition dismissed.
Money Laundering - predicate offence - matter amicably settled between the petitioner and the complainant and No Dues Certificate was issued in favor of the petitioner - embezzlement and misappropriation of loan amount which had been disbursed by Yes Bank towards the development of a hospital in Gurugram - non-payment of salaries - reduction of equity shareholding of the complainant - falsification of accounts.
HELD THAT:- The Telangana High Court in Manturi Shashi Kumar [2023 (4) TMI 1199 - TELANGANA HIGH COURT] has also quashed a complaint under Section 3 of the PMLA on the grounds of the accused being discharged/acquitted of the scheduled offence.
In view of the aforesaid legal position, the present complaint filed by the ED and the proceedings arising therefrom cannot survive. Considering that the FIR has been quashed by this court and that it has not been challenged till date, there can be no offence of money laundering under section 3 of the PMLA against the petitioners.
The Supreme Court of India dismissed the special leave petition as withdrawn since the FIR on the predicate offense was quashed, making the petition irrelevant. The petitioner's client retains the right to revive proceedings if the quashing order is overturned by a superior forum.
Money Laundering - seeking release of petitioner - Use of forged identification documents and falsified addresses by Chinese shareholders of GPICPL, while projecting itself to be a subsidiary company of Vivo, China - it is argued by learned Senior Counsel that the said ingredient of Section 19 is missing in the present case since the investigating officer has not recorded any such satisfaction.
HELD THAT:- This Court has carefully considered the decision of Hon’ble Apex Court in case of Pankaj Bansal [2023 (10) TMI 175 - SUPREME COURT] and has perused the remand order impugned before this Court. This Court is of the opinion that the impugned order takes note of the allegations leveled against the accused persons in the FIR as well as the investigation conducted so far by Directorate of Enforcement. The learned Sessions Court had also perused the written grounds of arrest placed on record and had also taken note of the fact that the grounds of arrest in writing had been supplied to the accused persons in compliance of judgment of the Hon’ble Apex Court in case of Pankaj Bansal.
After perusing the records of the case, the learned Sessions Court has categorically recorded that prima facie there was no violation of Section 19 of PMLA since the investigating officer, from the material and investigation conducted so far, had formed an opinion that the accused persons were guilty of offence of money laundering and had affected their arrest accordingly.
The impugned order also mentions that the custody of the accused persons was sought not only due to their non-cooperation and evasive replies, but also due to the deliberate attempts to evade/mislead investigation and to find out the deep rooted conspiracy for the commission of offence under PMLA. Only after considering the abovementioned facts, the remand order impugned before this Court was passed.
This Court notes that the present remand order is clearly distinguishable from the remand order which was challenged before the Hon’ble Apex Court in case of Pankaj Bansal in which the concerned Sessions Judge had failed to even record a finding that he had perused the grounds of arrest to ascertain as to whether Directorate of Enforcement had recorded reasons to believe that the accused persons therein were guilty of an offence under PMLA and the order had merely recorded that the custodial interrogation of the accused was required in view of the seriousness of the offences and the stage of investigation.
Having also considered the judgment of Hon’ble Apex Court in case of V. Senthil Balaji, this Court notes that the investigating agency i.e. Directorate of Enforcement had satisfied the learned Sessions Court with adequate material for the need of custody of the accused and the learned Sessions Court had arrived at a conclusion that Section 19 of the Act was duly complied with and it is only thereafter that the accused persons including petitioner had been remanded to the custody of Directorate of Enforcement.
This Court does not find any infirmity in the order of remand dated 10.10.2023 challenged before this Court as the same takes into account the mandate of compliance of provisions of Section 19 of PMLA as well as Section 45 of PMLA.
Money Laundering - Refusal to discharge the petitioner / A.1 - Conspiracy with other accused - receiving the keys of bank locker wherein the bribe amount was secreted by A.2 through his son - contention of the petitioner is that by the date of the alleged incident the Prevention of Money Laundering Act, 2002 viz., Act 2 of 2013 was not even promulgated and did not come into force.
HELD THAT:- Section 3 of the Act does not attract to the case of the petitioner is concerned, the Hon’ble Supreme Court in Vijay Madanlal Choudhary Vs. Union of India [2022 (7) TMI 1316 - SUPREME COURT], the amendment to the Act is only in the nature of clarificatory and that the said amendment shall have the effect from the date of enactment of the PML Act, 2002 - Though the said amendment has come into force on 15.02.2013, nowhere in the Act it was stated that it is only prospective in nature. But it is only in the nature of clarificatory.
It is an admitted fact that the investigation reveals that huge sum of untainted money was recovered from the locker of A.2 and the petitioner is having custody of the keys of the said locker which stands in the name of A.2. Therefore, the explanation given in the above section does attract to the case of the petitioner herein though it the amendment came into force from 15.02.2013 onwards since he is indirectly involved in the alleged crime.
As seen from the record, there was an agreement between A.2 and A.1 and A.3 with regard to grant of bail, which itself shows the complicity of the case. The respondents have filed voluminous evidence in the form of documents, which have to be gone through during the course of trial only.
Seeking grant of anticipatory bail - bail sought on medical grounds - Money Laundering - Scheduled offences - applicability of Section 45 of Prevention of Money Laundering Act, 2002 - HELD THAT:- It is relevant to note that in the case of Gayatri Prasad Prajapati [2020 (10) TMI 1281 - SUPREME COURT] the High Court had passed the impugned order without considering the report of SGPGI. The Hon’ble Supreme Court observed that SGPGI is a super specialty hospital and it had reported that the accused’s glycaemia was better controlled, hypertension was well controlled, pulmonary consultation had been completed and only urology workup was going on and, therefore, the Hon’ble Supreme Court set aside the order passed by the High Court.
Moreover, even Section 45 PMLA has a Proviso appended to it which provides that a person who is sick, may be released on bail even by the special court.
The applicant was granted interim anticipatory bail keeping in view his medical conditions only, which claim stands fortified by the subsequent reports submitted by the medical board constituted by five expert doctors of SGPGIMS in furtherance of an order passed by this Court. As has already been noted above, this court lacks the requisite expertise to doubt the reports submitted by SGPGI. The subsequent documents relating to medical condition of the applicant annexed with the supplementary affidavit indicate that the applicant continues to be seriously ill. The allegations of a witness being influenced have been emphatically denied on behalf of the applicant.
The applicant has been granted anticipatory bail in Case Crime No. 119/2023, under sections 409, 420, 467, 468, 471, 120-B I.P.C., P.S. Hazratganj, District Lucknow, which is the scheduled offence - this court finds no reason to vacate the interim anticipatory bail granted to the applicant by means of order dated 30.05.2023.
Rejection of prayer for default bail - right accrued in favour of the petitioner in terms of Subsection (2) of Section 167 Cr.P.C. - HELD THAT:- The Court has gone through the materials on record and finds that admittedly the petitioner was arrested on 04.05.2023 and was remanded on 05.05.2023. The prosecution complaint being ECIR/RNZO/18/2022 was filed on 12.6.2023. The learned court has taken cognizance on 19.06.2023. If the contention of the learned counsel for the petitioner is accepted, the 60 days’ period came to an end on 03.07.2023 and the petitioner filed a petition for default bail on 04.07.2023 which has been rejected by the learned court by the impugned order dated 10.07.2023. It appears that FIR bearing No. 141/ 2022 dated 04.06.2021 was registered by Bariyatu police station, Ranchi under section 420, 467, 471 of the I.P.C against one Pradip Bagchi.
The petitioner being the then Deputy Commissioner of Ranchi utilized his official position and helped them in transferring of the land. The property with regard to ECIR/ RNZO/18/2022 was the subject matter of the lands which has been noted in the submission of the learned A.S.G.I. appearing on behalf of the respondent Enforcement Directorate (E.D)(supra). It further appears that FIR bearing No. 399 of 2022 was registered by Ranchi police and on the basis of which a separate ECIR/RNZO/10/2023 dated 07.03.2023 was also recorded by the Enforcement Directorate (E.D).
As the charge sheet is not filed within the meaning of section 173(2) of the Cr.P.C., the investigation remains pending. Filing of final report or charge sheet, however, does not preclude the investigating officer to carry on further investigation in terms of Section 173(8) Cr.P.C. Indisputably, the power of the investigating officer to make a prayer for making further investigation in terms of section 173(8) of the Cr.P.C., is not taken away only because a charge sheet has been filed under section 173(2) Cr.P.C. - There is no doubt that such right of bail although is a valuable right, but the same is a conditional one. The condition precedent being pendency of the investigation. Whether an investigation, in fact, has remained pending and the investigating officer has submitted the charge sheet only with a view to curtail the right of the accused, would essentially be a question of fact.
The materials which has come in the first ECIR, the investigation in the first case is complete and the learned court has taken the cognizance on 19.06.2023. Thus, it cannot be said that the investigation is still pending so far as ECIR/18/2022 is concerned. The another ECIR, being ECIR/10/2023 is the subject matter of other properties in which the final form has been submitted on 01.09.2023. The Court finds that it cannot be said, in the aforesaid facts, that charge sheet was not submitted within the stipulated period, and in view of that, Sub-Section (2) of Section 167 Cr.P.C. is not available to the petitioner - the Court come to the conclusion that this is not a case to grant default bail to the petitioner under section 167(2) of the Cr.P.C.
Money Laundering - Corruption - bribery along with criminal conspiracy - constitutional validity of Section 19 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- The failure of the appellants to respond to the questions put to them by the ED would not be sufficient in itself for the Investigating Officer to opine that they were liable to be arrested under Section 19, as that provision specifically requires him to find reason to believe that they were guilty of an offence under the Act of 2002. Mere non-cooperation of a witness in response to the summons issued under Section 50 of the Act of 2002 would not be enough to render him/her liable to be arrested under Section 19. As per its replies, it is the claim of the ED that Pankaj Bansal was evasive in providing relevant information. It was however not brought out as to why Pankaj Bansal’s replies were categorized as ‘evasive’ and that record is not placed before us for verification. In any event, it is not open to the ED to expect an admission of guilt from the person summoned for interrogation and assert that anything short of such admission would be an ‘evasive reply’.
In Santosh S/o Dwarkadas Fafat vs. State of Maharashtra [2017 (10) TMI 1478 - SUPREME COURT], this Court noted that custodial interrogation is not for the purpose of ‘confession' as the right against self-incrimination is provided by Article 20(3) of the Constitution. It was held that merely because an accused did not confess, it cannot be said that he was not co-operating with the investigation. Similarly, the absence of either or both of the appellants during the search operations, when their presence was not insisted upon, cannot be held against them.
In Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], this Court held that non-supply of the ECIR in a given case cannot be found fault with, as the ECIR may contain details of the material in the ED’s possession and revealing the same may have a deleterious impact on the final outcome of the investigation or inquiry. Having held so, this Court affirmed that so long as the person is ‘informed’ of the grounds of his/her arrest, that would be sufficient compliance with the mandate of Article 22(1) of the Constitution.
There is no valid reason as to why a copy of such written grounds of arrest should not be furnished to the arrested person as a matter of course and without exception. There are two primary reasons as to why this would be the advisable course of action to be followed as a matter of principle - In the case on hand, that is the situation insofar as Basant Bansal is concerned. Though the ED claims that witnesses were present and certified that the grounds of arrest were read out and explained to him in Hindi, that is neither here nor there as he did not sign the document. Non-compliance in this regard would entail release of the arrested person straightaway, as held in V. Senthil Balaji [2023 (8) TMI 410 - SUPREME COURT]. Such a precarious situation is easily avoided and the consequence thereof can be obviated very simply by furnishing the written grounds of arrest, as recorded by the authorized officer in terms of Section 19(1) of the Act of 2002, to the arrested person under due acknowledgment, instead of leaving it to the debatable ipse dixit of the authorized officer.
To give true meaning and purpose to the constitutional and the statutory mandate of Section 19(1) of the Act of 2002 of informing the arrested person of the grounds of arrest, it is held that it would be necessary, henceforth, that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception - Further, the clandestine conduct of the ED in proceeding against the appellants, by recording the second ECIR immediately after they secured interim protection in relation to the first ECIR, does not commend acceptance as it reeks of arbitrary exercise of power.
In effect, the arrest of the appellants and, in consequence, their remand to the custody of the ED and, thereafter, to judicial custody, cannot be sustained - the impugned order set aside - appeal allowed.
Money Laundering - Maintainability of writ petition under Article 226 of the Constitution of India - availability of alternative efficacious remedy available to the appellants - adjudication of the provisional attachment of properties is in progress, as provided under Section 8 of the Prevention of Money-Laundering Act, 2002 - decision of such adjudicating authority would be subject to appeal under the Act itself.
HELD THAT:- It is true that there is no provision for challenging an order of provisional attachment, passed under Section 5(1) of the PMLA Act. In the absence of any statutory appeal being provided to challenge a provisional attachment order, a petition under Article 226 of the Constitution of India may be maintainable on its own merits, and the Court may examine the case on hand and may or may not entertain the writ petition on its merit. However, dealing with the present facts of the case, it is undisputed that the complaint under Section 5(5) of the PMLA Act has already been made before the adjudicating authority, and notices have already been issued.
The provision u/s 6 of PMLA makes it clear that the Chairman or Members of the Committee are persons with sufficient experience in the field of law, administration, finance, and accountancy. Only a person having the qualification for appointment as a District Judge or has been a Member of the Indian Legal Services and has held a post in Grade I of the service will be appointed as a Member. Therefore, there is expected to be judicial scrutiny of a complaint filed under Section 5(5) of the PMLA Act - As per the aforesaid provision, the adjudicating authority must either accept the complaint and proceed further with the same or refuse to accept the complaint. The adjudicating authority has to follow the procedure prescribed in Section 8, which suggests that detailed scrutiny would be carried out and that too, at the earliest.
The Court may exercise its extraordinary powers under Article 226 of the Constitution of India under exceptional circumstances like; an order passed without jurisdiction, breach of fundamental rights, violation of the principles of natural justice, excess of jurisdiction, or a challenge to the vires of a statute or delegated legislation. However, in the present appeal, when the authority empowered under Section 5 of the PMLA Act has scrutinised the materials relied on while passing the provisional attachment order dated 09.06.2023, and when the adjudicating authority is going to examine all such issues and pass appropriate orders, we do not find any justifiable reason to reconsider the same, that too, in this intra court appeal.
Maintainability of petition - availability of effective remedy of appeal - Money Laundering - proceeds of crime - provisional attachment order - freezing the movable properties - proceeds of crime were allegedly generated in a partnership firm called 'M/s M.J Associates' in which the first petitioner held only 51% - HELD THAT:- Under the scheme of the PMLA, an independent authority is constituted as the first tier to consider the claim of an aggrieved, regarding the correctness of the provisional attachment. The second tier, in the form of the Appellate Tribunal, is also authorised to consider the correctness of the order of attachment on facts as well. Significantly, even the High Court as an Appellate Court can consider, even on facts, the validity or otherwise of an order of provisional attachment and its consequent orders. When such statutory remedies are provided, including an appellate power on facts as well to the High Court, exercising the power under Article 226 of the Constitution of India would be akin to usurping the power of the Appellate Court. Such a procedure is not legally proper or justifiable, unless there are exceptional reasons to do so.
The exceptional reason warranting an interference by this Court under Article 226 of the Constitution of India according to Sri. Rohatgi, the learned Senior Counsel is that the attachment could have been effected only to the extent of the percentage of share of the first petitioner in the proceeds of the crime quantified, and any excess is ex-facie a non est. Prima facie the said contention is not tenable - if the proceeds of the crime have emerged or flowed from the business of the firm, then, prima facie, all partners may have joint and several liabilities. Of course, this is an issue which requires detailed deliberation on facts as well as on law. Suffice to state, no exceptional circumstances are made out for an interference under Article 226 of the Constitution of India. Reckoning the nature of conclusion being arrived at in this writ petition, the question on the liability of the first petitioner for the entire Rs. 910.29 crores is left open for consideration.
The objection of the respondents regarding the maintainability of the writ petition is upheld. The writ petition is therefore held to be not maintainable in view of the alternative remedy available - Petition dismissed.
Maintainability of the writ petition under Article 226 read with Section 482 of the Criminal Procedure Code (Cr.P.C.) to challenge the LOC - Rejection of request to revoke the Look Out Circular (LOC) - summoning of the petitioner under section 50 of PMLA on suspicion alone.
Whether the summoning of the petitioner under section 50 of PMLA on suspicion alone is legally permissible? - HELD THAT:- In the instant case, there is no cognizable offence registered against the petitioner nor a non-bailable warrant is issued against the petitioner. The petitioner is summoned solely on the ground that his brother has been implicated as an accused in the scheduled offences and under the PMLA, and also alleging that his father had transferred 50,000 GBP which is the proceeds of the crime to a third party.
Section 50 is a crucial provision and states that a person, who is being summoned for investigation must be provided with a written notice specifying the nature and the reasons for it. While the said provision does not explicitly use the term " Probable cause", it emphasizes the importance of providing valid reasons and grounds for summoning an individual. The purpose of this provision is to protect the right of the person being summoned and ensure that investigation is not arbitrary. The summoning of a person repeatedly without probable cause or reasonable ground and only on the ground of suspicion alone is not in accordance with the principles of due causes and fairness.
LOC cannot be issued solely on the ground that the petitioner has not provided information to the convenience and satisfaction of the respondent No. 2, and in the absence of any material that the petitioner was aware of the transactions between his father and one Mr. Hanish Patel, the petitioner cannot be repeatedly summoned to give information to suit the convenience of the prosecution - It is well established in law that a person can be summoned to give statements during the course of investigation only when there exists a reasonable ground to believe that the said person has knowledge or information with regard to the commission of a crime. The principle of reasonable suspicion/ probable cause is fundamental to the criminal justice system and it ensures that persons are not subjected to investigation or summoned to give statements during the course of investigation which would otherwise result in violating the principles of fairness, justice and the Rule of Law, more so when the petitioner has cooperated with the investigation.
The Hon'ble Supreme Court in the case of SELVI AND OTHERS -VS- STATE OF KARNATAKA, [2010 (5) TMI 907 - SUPREME COURT] with reference to Article 20(3) and 161(2) Cr.P.C., has held that these provisions protect the accused, suspects and witnesses from being compelled to make self incriminating statements and the person concerned has right to remain silent on questions which may incriminate him.
Therefore, in the absence of any reasonable suspicion leave alone probable cause, the LOC issued for securing the presence of the petitioner for recording further statements would be arbitrary and violate the fundamental rights enshrined under Article 21 of the Constitution of India.
Maintainability of the writ petition under Article 226 read with Section 482 of the Criminal Procedure Code (Cr.P.C.) to challenge the LOC - HELD THAT:- The proceedings initiated under the provisions of PMLA against the brother of the petitioner is the basis for issuing LOC and any action taken or order passed under PMLA can be challenged by invoking inherent jurisdiction under Section 482 Cr.P.C or under Article 226 r/w Section 482 Cr.P.C to prevent the abuse of the process of law/or to secure the ends of justice. Hence, the fundamental right of the petitioner to travel abroad as enshrined in Article 21 of the Constitution of India is infringed by the respondent No. 1 in the course of investigation under the provisions of PMLA. The petitioner has been restrained from travelling abroad for a period of 1 year 10 months spreading over from January 2021 till date. Therefore, the contention of the learned ASG that the LOC can only be challenged under Article 226 and not under 482 Cr.P.C. is not acceptable.
Conclusion - The continuation of the LOC against the Petitioner indefinitely on the ground of suspicion alone will be an abuse of process of law and also the object of LOC.
Setting aside the impugned order whereby application filed by the petitioner was erroneously and mechanically dismissed - permission to travel to London for a period of 4 weeks in order to receive medical treatment for his rare medical condition affecting the vision of his eyes - Setting aside/suspension of the Look Out Circular - HELD THAT:- The facts indicate that there are serious allegations against the petitioner. The ground on which the petitioner is seeking permission to travel abroad is allegedly to undergo ,“Prophylactic Laser Retinopexy”. It is a matter of the record that this treatment is widely available in India. It is also a matter of record that the Medanta Hospital as well as Dr. Rajendra Prasad, Centre for Ophthalmic Sciences, AIIMS have opined that the treatment of “Prophylactic Laser Retinopexy” is widely available in many hospitals in India including Medanata Hospital as well as Dr. Rajendra Prasad, Centre for Ophthalmic Sciences, AIIMS.
E.D. has contended that treatment of “Prophylactic Laser Retinopexy” is available in India and permission should not be granted to the petitioner to travel abroad. The contention of the petitioner that the passports of her daughter or father may be detained, cannot be accepted as admittedly they are also British nationals.
Taking into account that the facts are serious in nature and the medical treatment is available in India, the order of the learned Trial Court is well reasoned, there is no ground to consider the prayer for travela broad of the petitioner. It is also a settled proposition that the power under Section 482 Cr. PC is to be exercised wherein such power can only be used to prevent the miscarriage of justice or abuse of the process of law.
It is not considered that this is the case where the order of the learned Trial Court can be interfered while exercising the powers of Section 482 Cr. PC. The learned Trial Court has dealt with the matter in accordance with the law. Hence, there is no ground for the same, petition dismissed.
Money Laundering - proceeds of crime - Challenge to order passed for for maintaining the status quo regarding the release of the attached property - sufficient time has lapsed - HELD THAT:- The applicant in this case have offered to substitute thus attached properties as referred above with the bank guarantee of an equivalent amount. It is not the case of the ED that the properties attached were proceeds of crime. The properties attached are the properties of equivalent value of the proceeds of crime.
In ENFORCEMENT DIRECTORATE HYDERABAD VERSUS SMT. Y.S. BHARATHI REDDY [2022 (11) TMI 1488 - TELANGANA HIGH COURT], passed by the High Court for the State of Telangana at Hyderabad on an application being moved for release of the properties of equivalent valued allowed the same.
It is to be noted that there is a difference between “proceeds of crime” and “amount equivalent to proceeds of crime”. In case of attachment of proceeds of crime, the Court may not agree to the request for substitution of the attached property, but in case of attachment being on account of equivalent value of proceeds of crime, the Court may allow substitution of such attached property.
It would be in the interest of justice if the properties of Respondent No. 16 and 17 are released on furnishing an FDR in the name of Applicant Company by the Respondent No. 16 and 17. The applicant shall furnish the FDR in the name of the Company of the amount equivalent to the property to be released and deposit the same with the Additional Director, Enforcement Directorate, HIU with an undertaking that on such FDR there shall have a lien of the Additional Director, Enforcement Directorate, HIU and in case of ED Succeeds in appeal, the Additional Director, Enforcement Directorate, HIU shall be at liberty to encash the same.
9911796707
