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Money Laundering - Case Laws
Showing 121 to 140 of 1544 Records
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2023 (11) TMI 1084
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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2023 (11) TMI 1083
Money Laundering - continuation of ECIR instituted under the PMLA against the petitioner - petitioner stands acquitted of the charges in a duly constituted criminal trial of the allegations of committing the predicate offence - HELD THAT:- The Hon’ble Supreme Court in VIJAY MADANLAL CHOUDHARY & ORS. VERSUS UNION OF INDIA & ORS. [2022 (7) TMI 1316 - SUPREME COURT] has clearly observed that such property which is derived or obtained directly or indirectly as a result of criminal activity relating to a scheduled offence can be recorded as proceeds of crime but the authorities under the 2002 Act cannot resort to action against any person for Money Laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum and in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (schedule offence) against him their can be no action for money laundering against such a person or person claiming through him in relation to the property link to the stated scheduled offences.
The order passed by the learned Session Judge, Patna whereby cognizance of offence under Section 4 of the Act has been taken and the petitioner has been summoned is hereby quashed - Petition allowed.
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2023 (11) TMI 1033
Money Laundering - interpretation of statute - Certainty of the Special Designated Court to try the scheduled offence - provisions of Section 44(1)(c) of PMLA, 2002 - language of the statute mandatorily direct that the transfer of the case under the schedule offence to the Special Court is automatic or not - HELD THAT:- A conjoint reading of Section 44(1)(a), Section 44(1)(c) along with Explanations (i) to the Section 44(1) makes it abundantly clear that the legislative intention was that one and same Court would try both the offences and the Special Designated Court being vested with the Sessions power for dealing with offences under PMLA would try such offence. Further the subject matter of transactions being same along with the factual foundation and the outcome in trial of the Scheduled offence having an impact in respect of the offences relating to money laundering, a harmonious construction of the provisions would lead to one and only conclusion that the Special Designated Court for trying offences under PMLA would be the Court which would try the Scheduled offences in the factual circumstances of the present case.
As such the order dated March 24, 2021 passed by the learned Metropolitan Magistrate, 4th Court, Calcutta, do not call for any interference and the said order is hereby affirmed.
Application disposed off.
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2023 (11) TMI 904
Money Laundering - Scheduled offences - seeking grant of bail - twin conditions for the grant of bail contained in Section 45(1) of PMLA satisfied or not - HELD THAT:- It is trite that the court while considering an application seeking bail, is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless, the court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witness being tampered with, the larger interests of the public/State etc. Though, the findings recorded by the Court while granting or refusing bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion for granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the economic offences.
So far as facts of the present case are concerned, as transpiring from the supplementary complaint filed against the appellant, apart from the statements of witnesses recorded under Section 50 of the PML Act, there has been sufficient material collected in the form of documents which prima facie show as to how the appellant was knowingly a party and actually involved in the process and in the activities connected with the proceeds of crime, and how he was projecting/ claiming such proceeds of crime as untainted and how he was the beneficiary of the proceeds of crime acquired through the criminal activities relating to the scheduled offences.
As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail - Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr.P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act.
With the advancement of technology and Artificial Intelligence, the economic offences like money laundering have become a real threat to the functioning of the financial system of the country and have become a great challenge for the investigating agencies to detect and comprehend the intricate nature of transactions, as also the role of the persons involved therein. Lot of minute exercise is expected to be undertaken by the Investigating Agency to see that no innocent person is wrongly booked and that no culprit escapes from the clutches of the law. When the detention of the accused is continued by the Court, the courts are also expected to conclude the trials within a reasonable time, further ensuring the right of speedy trial guaranteed by Article 21 of the Constitution.
Appeal dismissed.
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2023 (11) TMI 903
Money Laundering - seeking grant of bail - bogus product bookings - conditions specified under Section 45 of the Prevention of Money Laundering Act, 2002 satisfied or not - HELD THAT:- In the present case, it is pertinent to mention here that the trial of both CBI case and ECIR lodged by Enforcement Directorate have been clubbed. Since charge sheet has already been submitted and documents have already been seized, there is no chance of tampering evidence. The petitioner was cooperative during investigation and never misused his liberty of not being arrested during investigation. It is also mentioned here that the petitioner is a permanent resident of his locality, having his family members and ancestral property. Therefore, there is no scope for his absconding, if enlarged on bail.
The petitioner is a blind person. This fact has been recorded by the Supreme Court while granting bail. Thus, the petitioner is entitled to bail under Section 45 of the PMLA Act.
It is well settled that the court is only required to look at the prima facie case and is not required to look into the test of guilt. It is required to maintain a delicate balance between the judgment of acquittal and conviction and an order granting bail before commencement of trial - In the present case, the entire transaction of the company is on website and the mode of payment is also by Bank. None of the customers were claiming any default by the company prior to freezing of the account of the company by Bank. Therefore, there is absolutely no material against the petitioner. As such, the petitioner who has no role in the alleged crime is entitled to be released on bail.
This Court is inclined to grant bail to the petitioner with conditions imposed - Accordingly, it is directed that the court in seisin over the matter shall release the Petitioner on bail in the aforesaid case on stringent terms and conditions imposed - application disposed off.
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2023 (11) TMI 750
Rejection of Bail application - Money Laundering - proceeds of crime - sale of property and receipt of cash - reliability of statement recorded under Section 50 of the PMLA, 2002 - burden of proof to prove non-involvement in the crime of money laundering - requirements under Section 45 of the PML Act, 2002 complied or not - HELD THAT:- It is necessary for the applicant to prima facie establish that he is not involved in the commission of offence under the PMLA, 2002 to enlarge on bail, therefore, this Court is now considering the factual matrix as projected by the applicant and the respondent to substantiate their respective stands.
The submission made by learned Senior counsel for the applicant that the applicant has sold the property to Smt. Shanti Devi Chaurasia for consideration of Rs. 2.53 crore through registered sale-deed and through banking channels, which cannot be said to be amount of proceed of crime and his submission that allegations made by the respondent that the present applicant has received cash of Rs. 61.02 lacs over the above sale proceeds, which were then deposited into his bank account, is not proceed of crime, cannot be prima facie considered for releasing the applicant on bail as the applicant in his statement recorded under Section 50 of the PMLA, 2002 has admitted that Mr. Anurag Chaurasia and Smt. Shanti Devi Chaurasia have purchased the land and the sale proceeds of the firm was Rs. 2,53,59,842/- and he was working as Supervisor in the firm and in the further statement, he has admitted that he will submit invoice related to sale proceeds of Rs. 61,02,550/- but he has stated that he has no sale receipt as recorded on 26.10.2022.
Taking into consideration the statement recorded under Section 50 of the PMLA, 2002, wherein he has stated that the excess amount of Rs. 61.02 lacs as proceed of sale of fruits but this was denied by one Chandrashekhar Sinha in his statement recorded under Section 50 of the PMLA, 2002 wherein he has stated that the bill produced by the present applicant is bogus. From these statements, it is quite vivid that prima facie involvement of the applicant is also in the commission of offence under the PMLA, 2002. As such, twin conditions which are required for grant of bail, are not available.
Considering the records of the case, other material placed on record, which prima facie shows involvement of the applicant in crime in question, therefore, considering entirety of the matter, this Court is of the opinion that the applicant is unable to satisfy twin conditions for grant of bail under Section 45 of the PMLA, 2002, as such, it is not a fit case for grant of bail to the applicant - the bail application filed under Section 439 of the Cr.P.C. is liable to be and is hereby rejected.
Application rejected.
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2023 (11) TMI 749
Seeking grant of anticipatory bail - Money Laundering - active member of extortion syndicate - transaction of cash money - non-arresting of the present applicant entitled him to get anticipatory bail in view of Section 19 of the PMLA, 2002 or not - twin conditions for grant of bail under Section 45 of the PMLA, 2002 are available or not.
Whether non-arresting of the present applicant entitled him to get anticipatory bail in view of Section 19 of the PMLA, 2002? - HELD THAT:- Considering the fact that as per Section 19 of the PMLA, 2002, it is for the authority who on the basis of material in their possession, and reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this Act, he may arrest such person. The authorities while conducting the investigation has not opted for this option which was available with them, but it does not mean that the right of arrest to a person who is involved in the commission of offence under the PMLA, 2002 has come to an end. This can be exercised by them as and when the reasons are available with them for arresting. Thus, the submission that arresting of the present applicant has not been done by the Enforcement Directorate, therefore, the present applicant is entitled to be released on anticipatory bail.
Thus, the applicant cannot claim anticipatory bail on the strength that during investigation, he has joined the investigation, though the authorities have power to arrest but they have not arrested him.
Whether the twin conditions for grant of bail under Section 45 of the PMLA, 2002 are available on record to release the applicant by granting anticipatory bail? - HELD THAT:- In the present case, prima facie the Enforcement Directorate has collected certain material against the applicant, particularly the role played by him as he was an active member of the extortion syndicate and was focal point as all the extorted cash was deposited, stored and subsequently dispatched for utilization as per the instructions of Suryakant Tiwari. The material so collected by the investigation prima facie reflects that many hand written entries in the diaries were made by the present applicant only. Thus, he was knowingly and actively participated in the extortion racket and acted as the accountant who managed the illegal cash. It is also revealed during the investigation by Enforcement Directorate that the applicant is the brother and a close associate of Suryakant Tiwari who is the mastermind behind the present illegal coal levy scam at ground level, is having strong links with politicians and businessmen in the State of Chhattisgarh as Suryakant Tiwari being closely associated with Ms. Saumya Chaurasia, who is a highly influential individual in Chhattisgarh.
The statement of present applicant recorded under Section 50 (2) of the PMLA, 2002, prima facie, involvement of the applicant is reflected. The material collected by the Enforcement Directorate has not been rebutted which also prima facie reflects about involvement of the applicant. The record of the case would further demonstrate that the applicant is unable to fulfill the twin conditions which are required for grant of bail under the PMLA, 2002, is equally applicable for grant of anticipatory bail, which has not been satisfied by the present applicant.
Considering the above stated facts and law, gravity of offence, possibility of tempering of the witnesses and prima facie considering the fact that the applicant is unable to satisfy twin conditions of Section 45 of PMLA, 2002 for grant of anticipatory bail, the applicant is not released on anticipatory bail. Thus, the question is answered against the present applicant.
The bail application filed under Section 438 of the Cr.P.C. is liable to be and is hereby rejected.
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2023 (11) TMI 725
Money Laundering - scheduled/predicate offence - illegal excavation and theft of coal from the leasehold area of ECL - main grievance of the petitioner is that he has been repeatedly summoned by the Directorate of Enforcement directing him to appear for questioning at the New Delhi office in connection with present ECIR, though he resides in Kolkata, West Bengal and the respondent has a zonal office in Kolkata.
HELD THAT:- It is apparent from the reading of Section 50 of PMLA as well as decision in Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT] that the power conferred upon the authorities by virtue of Section 50 of PMLA empower them to summon ‘any person’ whose attendance may be crucial either to give some evidence or to produce any records during the course of investigation or proceedings under PMLA. The persons so summoned are also bound to attend in person or through authorised agent and are required to state truth upon any subject concerning which such person is being examined or is expected to make statement and produce documents as may be required in a case.
The investigation in the present ECIR is still continuing and the petitioner has only been summoned to appear and submit certain documents. Even otherwise, this Court has taken note of the order dated 10.05.2023 wherein the learned ASG had fairly submitted that the respondent will not take any action in respect of summons which have already been issued to the petitioner herein i.e. the nine summons issued to the petitioner till 21.03.2023, out of which the petitioner had appeared and got his statement recorded on one occasion - this Court finds no ground to quash the summons issued under Section 50 of PMLA to the petitioner.
Seeking quashing of ECIR - HELD THAT:- This Court notes that the petitioner himself is not aware as to whether he is being summoned under Section 50 of PMLA as an accused or as a witness. It is also important to take note of the contents of the status report and the written submissions filed by respondent, i.e. Directorate of Enforcement in which it has been clearly stated that as of now, the respondent has not filed any prosecution complaint against the petitioner and he is yet not an accused in the present ECIR and it cannot be said that respondent is identifying the petitioner as an accused, in absence of any formal accusation to this effect.
Since this Court is of the opinion that the petitioner’s prayer for quashing of ECIR itself is premature as the status of the petitioner herein is not yet identified in the ECIR, thus, the contentions regarding cause of action in this case having arisen in State of West Bengal and prosecution complaints in ECIR being filed in New Delhi being illegal and without any jurisdiction, cannot be dealt with at this stage.
This Court finds no ground to either quash the impugned summons or the ECIR registered by the respondent - This Court, however, is not deciding any question of law as to whether a man aged above 65 years can be summoned by the Directorate of Enforcement under Section 50 of PMLA at any place and whether the same will be in contravention of Section 160 of Cr.P.C., since the controversy involving applicability of Section 160 of Cr.P.C. to Section 50 of PMLA is pending adjudication before the Hon'ble Apex Court in case of NALINI CHIDAMBARAM VERSUS THE DIRECTORATE OF ENFORCEMENT & ORS. [2018 (8) TMI 2080 - SC ORDER].
It is directed that in the present case, the respondent will be at liberty to require the attendance of the petitioner herein (aged about 67 years) in its office situated at Kolkata by giving at least 24 hours’ notice - The petitioner being the Law Minister of the State of West Bengal itself where he wants to be examined will also ensure that no harm is caused to the officers of Directorate of Enforcement examining him at Kolkata as this relief is being granted to him at his request only.
The present petition alongwith pending applications, stands disposed of.
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2023 (11) TMI 618
Maintainability of Revision petition - impugned order is an interlocutory order - Allowing release of property in lieu of fixed deposit - Money Laundering - HELD THAT:- On going through the analysis in entirety, it is explicitly evident that the order passed by the Courts regarding handing over the custody of property would be considered as final order since they are finally adjudging the possession of the property. However, when the order is challenged on the basis of violation of law, without applying proper procedure and passed without jurisdiction, the revision certainly lies. Accordingly, the contentions of respondents regarding non-maintainability of this revision deserves to be and is dismissed.
The learned Special Judge, in impugned order, has not mentioned anything with regard to the said manner specified in the Rules 3 and Rule 3A of PMLA Rule, 2016. Likewise, learned Special Judge has not clarified as to how the applicant coming into purview of definitions of 'claimants' mentioned in Rule 2(b) of PMLA Rule, 2016 and first proviso of Section 8(8) of the PMLA, 2002. Virtually, the impugned order is a sear violation of the respective provisions of PMLA, 2002 and PMLA Rule, 2016.
Thus, it can be safely held that the impugned order has been passed by the Special Judge without proper appreciation of the provisions of PMLA, 2002 and the PMLA Rule, 2016. As such, this order is suffering from gross infirmity and illegality. As a result thereof, this revision petition is allowed.
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2023 (11) TMI 617
Money Laundering - case has been registered in continuation of a predicate offence which is registered for offence under Sections 120-B, 406 and 420 of IPC - It is contended by the petitioner that an offence under 2002 Act, cannot be dealt with before the scheduled offences have been tried and proved - HELD THAT:- In the present case, the petitioner himself has admitted his acquaintance with the 1st accused. The FIR in the predicate offence may not of course reveal the involvement of the petitioner. However, the statement obtained from the witnesses who were examined in connection with the predicate offence would show how the petitioner was introduced to the bank officials as person who is the authorised signatory of the business concern of the 1st accused.
Though the learned counsel for the petitioner pointed out that the petitioner was not a Partner or a share holder in the business concern and the account was purely in the name of the enterprises, which is not connected with the petitioner, the case of the petitioner that he has no connection with the predicate offence under Section 3 of the 2002 Act, cannot be accepted. Despite the fact that the petitioner was not shown in any of the documents relating to the business concern of the 1st accused, the petitioner himself has admitted that substantial amount that was mobilised following the predicate offence alleged to have been committed by the 1st accused, was transferred to the accounts of the petitioner.
The learned counsel for the petitioner submitted that the statement of the petitioner under Section 50(2) and (3) of 2002 Act, was given under coercion and hence, it cannot be the basis for prosecution. This Court is of the view that it is for the trial Court to decide the said issue and this Court cannot adjudicate this issue in the instant quash petition.
This Court is unable to find any one of the circumstances indicated in the judgment of the Hon'ble Supreme Court to quash the complaint as against the petitioner. Therefore, finding that there is no merit in this quash petition, the Petition is dismissed.
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2023 (11) TMI 616
Seeking grant of bail - Money Laundering - predicate offence - taking bribes, illegal commissions and unaccounted monies etc. in the State of Chhattisgarh - discharge of burden to prove - admissibility of statement under Section 50 of the PMLA - twin conditions under Section 45 of the PMLA, satisfied or not - HELD THAT:- On going through the statements recorded in various cases of Arunpati Tripathi and Vidhu Gupta wherein role of Arunpati Tripathi has been stated and specially in the statement of Vidhu Gupta the role of Arunpathi Tripathi has been elaborated. Likewise in the case of Nitesh Purohit, apart from the statement of Nitesh Purohit under Section 50 of the PMLA, Arvind Singh had stated the modus operandi which shows that for commission of Part A, B & C, the money of the commission was distributed by nine shareholders, which shows that all the persons are influential one, few of them are part of system.
In case of Trilok Singh Dhillon statement of Sanjhiv Fatehpuria & Kamlesh Kumar Kesharwani was seen wherein the specific role played by Trilok Singh Dhillon has been explained - In respect of Anwar Dhebar all the witnesses have named him in their respective statements and attributed the role played.
Section 45 of the PMLA envisages that when the Public Prosecutor opposes the application and the Court is satisfied that there are reasonable grounds for believing that the applicant is not guilty of such offence; and that he is not likely to commit any offence while on bail, the bail can be granted - after going through the statements of witnesses, filed with reply, the ways and means have been disclosed which inculpate the applicant, at this stage, the first part of condition of Section 45 that applicants are not guilty of offence of money laundering cannot be presumed.
In the case in hand, the complaint has already been registered in pursuance of registration of scheduled offence, proceeds of crime has also been recovered and after enquiry the complaint has been filed and it is pending before the competent Court. Apart from it is not a case of defence that scheduled offence has not been registered with the jurisdictional police. Applicants have not been finally absolved of their offences by a Court of competent jurisdiction by an order of discharge, acquittal or quashing of a criminal case of a scheduled offence, therefore, the attempt to take a guard would be a misinterpretation.
There is a legal presumption envisaged under Section 23 of the PMLA, which speaks that where money laundering involves two or more inter-connected transactions and one or more such transactions is or are proved to be involved in money laundering, then for the purposes of adjudication or confiscation under Section 8 or for the trial of the money laundering offence, it shall unless otherwise proved to the satisfaction of the Adjudicating Authority, be presumed that the remaining transactions form part of such inter-connected transactions - there is a reverse burden of proof under Section 24 of the PMLA that in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering.
Thus, on the basis of conclusion laid down by the Supreme Court in the matter of Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT], it is evident that action taken under the PMLA falls under the definition of ‘enquiry’. The enquiry is like a judicial proceeding (Section 50 of the PMLA) and further since the authorities are not police officers, the statement of person including accused recorded during the enquiry can be seen at the stage of grant of bail and presumption can also be made by the Court if the statement so recorded contains facts constituting the offence of money laundering as envisaged under Section 3 of the PMLA.
The present is not a fit case to grant bail to the applicants - all the bail applications are liable to be and are hereby rejected.
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2023 (11) TMI 374
Seeking release of petitioner (writ of habeas corpus) - passing of mechanical remand orders without application of mind - HELD THAT:- In Ram Narayan Singh [1953 (3) TMI 38 - SUPREME COURT] , the Apex Court has observed that a writ of habeas corpus is with respect to legality of detention at the time of return of rule and not to the date of institution and that if on the date of return i.e. the return of the rule, the detention is not illegal and is duly authorised by a Competent Magistrate by remand orders then the writ of habeas corpus will not lie.
In Kanu Sanyal [1974 (2) TMI 85 - SUPREME COURT] , the grounds raised by the petitioner therein were (i) that he was not informed of the grounds of arrest and (ii) the Magistrate had no jurisdiction to try the case, and hence, the remand could not be granted. The Apex Court held that the earliest date with reference to which the legality of the detention can be challenged is the date of filing of the writ and not any other date; that on the date of filing of habeas corpus, the detention of the petitioner was in district jail and therefore, the legality of his earlier detention cannot be considered; and that a writ of habeas corpus cannot be granted when the person is jailed and is in judicial custody.
In the present case, it cannot be said that the remand orders are absolutely mechanical or suffer from the vice of lack of jurisdiction, warranting our interference in this writ petition, which seeks a writ of habeas corpus.
The petitioner was arrested on 1st September 2023 and was served with the grounds of arrest on 1st September 2023. The petitioner has acknowledged receipt of the same. The law that held the field till Pankaj Bansal [2023 (10) TMI 175 - SUPREME COURT] , with respect to serving the grounds of arrest was Chaggan Bhujbal [2016 (12) TMI 1014 - BOMBAY HIGH COURT] - the Apex Court vide judgment dated 3rd October 2023 in Pankaj Bansal, has used the words `henceforth’ and has held that the decision of the Bombay High Court in Chaggan Bhujbal and Delhi High Court in Moin Qureshi [2017 (12) TMI 289 - DELHI HIGH COURT] does not lay down the correct law. Thus, in the facts, having regard to the same, there is no merit in the petitioner’s submission, that he ought to have been furnished with a physical copy of the grounds of arrest. The petitioner was not orally read out the grounds of arrest but was served a copy of the grounds of arrest which he acknowledged by signing thereon.
The petition seeking writ of habeas corpus, in the facts, cannot be entertained and as such, the petition is dismissed - it is always open for the petitioner to avail of other statutory remedies, as permissible in law to him, vis-a-vis other prayers raised in this petition.
Petition dismissed.
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2023 (11) TMI 263
Grant of anticipatory bail - Seeking quashing of ECIR against the petitioner - Money Laundering - schedule offences/predicate offence - person who is not named in the ECIR has locus to seek relief such as quashing of ECIR or not - HELD THAT:- The power conferred upon the authorities by virtue of Section 50 of PMLA empower them to summon ‘any person’ whose attendance may be crucial either to give some evidence or to produce any records during the course of investigation or proceedings under PMLA. The petitioner herein has been summoned vide impugned notice dated 06.10.2023 whereby he has been called upon to submit certain documents and records, which are deemed necessary by the Directorate of Enforcement for the purpose of investigation in the Railway Job for Land Scam case, for which the present ECIR has been registered.
A perusal of the chargesheet filed by the CBI in the predicate offence, and the reply filed by Directorate of Enforcement in another writ petition i.e. W.P.(C) 16957/2022 preferred by the petitioner in some other case for seeking permission to travel abroad, both of which have been placed on record by the petitioner, throws light on the position of the petitioner in the alleged Railway Job for Land Scam - the investigation in the present ECIR is still continuing and the petitioner has merely been summoned to appear and submit certain documents. Even as per the own case of petitioner, he has joined investigation in the present ECIR upon being summoned by the Directorate of Enforcement on six occasions in past, between March till August 2023. Thus, no tenable grounds have been shown now as to why the impugned summons deserve to be quashed.
Even otherwise, as held in several judicial precedents, this Court cannot throttle the investigative process at the stage of issuance of summons to the petitioner.
This Court notes that the petitioner herein in the past has been summoned by the Directorate of Enforcement on about six occasions, as per the own case of petitioner, and has not been arrested till date. It is also not in dispute that the petitioner has also not been arrested by the CBI in the RC pertaining to predicate offence. Merely because once again a summon has been issued under Section 50 of PMLA, no case for grant of no-coercive steps can be made out. It is also clear as per the scheme of PMLA that power to issue summons under Section 50 of PMLA is different from the power to arrest under Section 19 of PMLA, and the issuance of summons to join investigation and give some evidence or document to the investigation agency cannot be presumed to culminate into the arrest of person being so summoned.
This Court is not inclined to quash the impugned summons or the ECIR against the petitioner or to grant any relief of no-coercive steps as prayed by the petitioner - Petition dismissed.
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2023 (11) TMI 157
Money Laundering - proceeds of crime - Schedule/Predicate Offence - attachment of properties - whether in the present case, the provisions of Section 19 of the PMLA were duly complied with? - HELD THAT:- From the documents submitted by the respondents, during the course of arguments, it becomes clear that there was material in possession of the Assistant Director of the ED on the basis of which he had reason to believe that the petitioner should be arrested. The document dated 08.06.2023 which has duly been perused by us runs into 17 pages wherein the details of the investigation carried out and the material in possession of the Officer concerned has been referred to. All that had been revealed during the course of investigation was duly put in writing . Detailed reference was made to the material in possession - Both officers perused the facts as given in the noting/document dated 08.06.2023 and concurred with the proposal submitted by the Assistant Director and approved the same. There was, therefore, sufficient compliance of the provisions of Section 19 of the PMLA with regard to the authorities having material in their possession giving them reason to believe (recorded in writing) that the petitioner was guilty of an offence punishable under the PMLA and that he was required to be arrested.
The question which would, therefore, arise would be as to whether this would be sufficient compliance of the provisions of Section 19 of the PMLA or not. In view of the ratio laid down by the Hon’ble Apex Court in the case of PANKAJ BANSAL VERSUS UNION OF INDIA & ORS. [2023 (10) TMI 175 - SUPREME COURT], the answer would be in the negative. It has categorically been held in Pankaj Bansal Versus Union of India and others’s case that the grounds of arrest would have to be conveyed in writing.
The Hon'ble Apex Court noted that the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. Reference was made to Section 45 of the PMLA which enables the arrested person to seek release on bail. It was noticed that Section 45 prescribes twin conditions which are required to be satisfied in the absence of which, the arrested person would not be entitled to bail. The Hon'ble Apex Court held that to meet the requirement of Section 45 of the PMLA, it would be essential for the arrested person to be aware of the grounds of arrest and the basis for the officer's 'reason to believe' that the arrested person was guilty of offence punishable under the PMLA. Only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. It was held that the communication of the grounds of arrest, as mandated by Article 22 (1) of the Constitution and Section 19 of the PMLA, is, therefore, meant to serve this higher purpose and must be given due importance.
It is, therefore, clear that the mandate that grounds of arrest would have to be conveyed in writing to the accused would not operate prospectively.
The arrest of the petitioner and the subsequent orders remanding the petitioner to the custody of the ED cannot be sustained. The present petition is, therefore, allowed.
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2023 (11) TMI 63
Seeking grant of bail - Money Laundering - proceeds of crime - scope and ambit of the constitutional protection under Articles 74 and 163 of the Constitution of India on the decisions taken by the Council of Ministers - interpretation of Section 3 of the PML Act - 'the act/process of generation’ or ‘the attempt to generate the proceeds of crime’ falls within the ambit of the expressions ‘assist’, ‘acquisition’, ‘possession’ or ‘use’ under Section 3 of the PML Act or not - person can be prosecuted under the PML Act only when there is material to show that he has indulged or assisted in any activity/process of money laundering, albeit an activity/process different and separate from the scheduled offence? - Sections 45 and 50 of the PML Act should be read down in view of the constitutional scheme and mandate of Article 20 of the Constitution of India?
HELD THAT:- In Mohan Lal [2015 (4) TMI 688 - SUPREME COURT] , the expression ‘possession’, it is held, consists of two elements. First, it refers to corpus of physical control and second it refers to the animus or intent which has reference to exercise of self-control. In the context of narcotics laws, a person is said to possess control over the substance when he knows the substance is immediately accessible and exercises dominion or control over the substance. The power and dominion over the substance is, therefore, fundamental. The stand of the DoE as to the constructive possession, will be satisfied only if the dominion and control criteria is satisfied. If the proceeds of crime are in dominion and control of a third person, and not in the dominion and control of the person charged under Section 3, the accused is not in possession of the proceeds of the crime.
In the present case, the involvement of an accused may be direct or indirect. Prima facie, there is lack of clarity, as specific allegation on the involvement of the appellant – Manish Sisodia, direct or indirect, in the transfer of Rs. 45,00,00,000 (rupees forty five crores only) to AAP for the Goa elections is missing.
The offence of conspiracy and abetment, in terms of Sections 120/ 120B and Sections 107/108 of the IPC, are not applicable to offences under the PML Act. At the same time, Section 3 of the PML Act is wide and encompassing as it uses the words, “directly or indirectly”, with reference to the person involved, and knowingly assists, or knowingly is a party in an offence in relation to the concealment, possession, acquisition, use, projecting or claiming the proceeds of crime as untainted property.
The appellant – Manish Sisodia, it is claimed, had deliberately destroyed the two mobile phones so as to prevent any investigation. Further, he had changed his mobile phone on 22.07.2022, the date on which the media had covered the news of the complaint sent by the LG of NCT of Delhi to the CBI for investigation. The appellant – Manish Sisodia states that people do change mobile phones frequently, and old phones need not be retained. Whether or not the allegation as to deliberate destruction of mobile phones is correct would be decided post recording of evidence, but this would not be a weighty factor for deciding the question of bail, given the period of detention undergone by the appellant – Manish Sisodia.
Prolonged period of incarceration suffered by the appellant – Manish Sisodia - HELD THAT:- In P. Chidambaram v. Directorate of Enforcement [2019 (12) TMI 186 - SUPREME COURT] , the appellant therein was granted bail after being kept in custody for around 49 days In P. Chidambaram v. Central Bureau of Investigation, [2019 (10) TMI 879 - SUPREME COURT] , the appellant therein was granted bail after being kept in custody for around 62 days, relying on the Constitution Bench in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab [1980 (4) TMI 295 - SUPREME COURT] , and Sanjay Chandra v. Central Bureau of Investigation [2011 (11) TMI 537 - SUPREME COURT] , that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court.
Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious - The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years.
In view of the assurance given at the Bar on behalf of the prosecution that they shall conclude the trial by taking appropriate steps within next six to eight months, liberty given to the appellant – Manish Sisodia to move a fresh application for bail in case of change in circumstances, or in case the trial is protracted and proceeds at a snail’s pace in next three months. If any application for bail is filed in the above circumstances, the same would be considered by the trial court on merits without being influenced by the dismissal of the earlier bail application, including the present judgment.
Appeal dismissed.
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2023 (11) TMI 62
Money Laundering - fraud in sale and purchase of land belonging to two Housing Co-operative Societies - presumption that proceeds of crime used in money transaction - shame and bogus sale deed - HELD THAT:- From the provision of law of Section 3 of the PML Act, it is clear that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party, connected with proceeds of crime including its concealment, possession, acquisition or use shall be guilty of the offence of money laundering. As per the explanation, a person shall be guilty of money laundering if such persons is found to have indirectly or directly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in any of its concealment, possession, acquisition, use etc. in any manner whatsoever.
Prima facie, involvement of the applicant comes within the purview of Section 3 of the PML Act. Under Section 22 of the PML Act, there is a presumption as to the record or property in certain cases, according to which where any record or property is found in the possession or control of any person in the course of a survey or a search, such record or property shall be presumed to be belonging to such person. There is a presumption in inter-connected transaction also Section 24 castes a burden on a person charges with the offence of money laundering under Section 3, unless the contrary is proved, the presumption that such proceeds of crime are involved in the money transaction.
Under Section 22 of the PML Act, there is a presumption as to the record or property in certain cases, according to which where any record or property is found in the possession or control of any person in the course of a survey or a search, such record or property shall be presumed to be belonging to such person. There is a presumption in inter-connected transaction also Section 24 castes a burden on a person charges with the offence of money laundering under Section 3, unless the contrary is proved, the presumption that such proceeds of crime are involved in the money transaction. Therefore, as on today, no clean chit can be given to the applicant under Section 482 of the Cr.P.C. The burden is on the present applicant to prove his innocence in the trial.
Application dismissed.
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2023 (10) TMI 1377
Seeking grant of Regular bail - Money Laundering - bail sought on medical grounds - applicant have argued that the applicant herein is 'sick' and 'infirm', and thus, should be granted regular bail in the present ECIR - twin conditions u/s 45 of PMLA satisfied or not - HELD THAT:- A Co-ordinate Bench of this Court in case of Kewal Krishan Kumar v. Enforcement Directorate [2023 (3) TMI 746 - DELHI HIGH COURT], while dealing with a case wherein regular bail had been sought under PMLA on medical grounds, had analyzed as to who would qualify as a 'sick' or 'infirm' person under the proviso to Section 45 of PMLA, which is also analogous to the proviso under Section 437 of Cr.P.C.
Further, a Co-ordinate Bench of this Court in Sanjay Jain (in JC) v. Enforcement Directorate [2023 (6) TMI 1324 - DELHI HIGH COURT], while relying upon the observations in case of Kewal Krishan Kumar, had also observed that power to grant bail on medical grounds under PMLA is discretionary and must be exercised in a judicious manner.
Importance of Right to Medical Treatment of the Prisoners - HELD THAT:- There is no denying that the act of preserving health of a prisoner/undertrial is one of the rights of the prisoners as interpreted by various judgments in India as well as in International Law. The prisoners in jail have acceptable medical infrastructure in consonance with the duty and legal obligation of the State to provide access to medical care for all prisoners and under trials - The jurisprudence of medical care and attention to the prisoners mandates that timely medical care must be available to all undertrials/ prisoners, and in appropriate cases, timely medical care includes regular access to specialized diagnostic care or post surgery care etc. which should be made available without interruption.
This Court is of the opinion that all the basic medical facilities have been provided to the applicant in the jail dispensary itself and as far some other specialized activities are concerned, the same have been taken care of by the order dated 04.09.2023 passed by this Court which has been discussed in preceding paragraph. In any case, the report of the Medical Board of AIIMS has suggested that the applicant can be treated on an outpatient basis at any of the jail referral hospitals - this Court does not wish to comment on whether the fall was intentional to seek bail as suggested by the respondent or whether it was actual as pleaded by the applicant, since this Court is not solely relying upon only one incident to decide the present bail application.
Right of Accused to Medical Treatment in Custody: Duty of The Court - HELD THAT:- This Court has already discussed in extenso the present medical condition of the applicant and the fact that he does not even require hospitalization. There is no denying the fact that the applicant has undergone about five surgeries in the past, however, as on date, he is recovering in the jail itself and as per the report of AIIMS, he is only required to follow the medical and rehabilitation protocols as suggested to him and supplement the same by regular exercise and physiotherapy. It is also important to note that to address the issue that certain rehabilitation protocols cannot be followed by the applicant owing to non-availability of necessary equipment in jail, this Court has already directed vide order dated 04.09.2023 that the applicant be taken to VNA Hospital for rehabilitation sessions twice a week.
In the present case, the attention of this Court was drawn to the report dated 03.10.2023 prepared by Senior Medical Officer of Tihar Jail in which it was mentioned that as per the directions issued vide order dated 04.09.2023 by this Court, the applicant was being regularly taken to VNA Hospital for follow-up and physiotherapy sessions. It was also informed that the applicant was being kept in the jail dispensary and was under constant follow-up from doctors on duty as well as jail visiting specialists. It is also important to consider that the Medical Board of AIIMS, New Delhi had suggested that the applicant may be taken to any of the Jail Referral Hospital for periodic follow-ups and he need not be admitted in any hospital.
Medical Facilities and Policies in Delhi Prisons - HELD THAT:- This Court notes that while the medical facility in Delhi provides both primary medical care and provision of medical services in prison, the orders dated 10.02.2011 and 27.06.2022 contain guidelines that streamline the outside OPD and referrals which provides an exhaustive list of measures which aim to attain the goal of preserving the health of prisoners.
Right of Accused to receive Medical Treatment vs. Right of Prosecuting Agency to Investigate Fairly - HELD THAT:- The allegations against the present applicant in the present FIR have been that he was one of the main conspirators and a key player in the formulation of the excise policy and its exploitation later, and was also involved in the formulation of a super cartel between the manufacturers, wholesalers and retailers. The applicant had allegedly earned huge profits of around Rs. 192 crores against meagre investment of Rs. 15 crores, in his firm M/s. Indo Spirits which is the proceeds of crime. As regards the conduct of applicant, it is the case of respondent that the applicant had not cooperated during the investigation and had not provided the relevant details, and on his behest, his counsels had also made attempts to influence the witnesses, who were the employees of applicant, who had been called for investigation by the respondent. The applicant had allegedly also destroyed the evidence i.e. his mobile phone at least four times at the time of alleged scam being exposed in public - while the applicant‟s right to healthcare and medical treatment is a fundamental consideration, it cannot be allowed to overshadow the pressing need to investigate fairly and ensure that due legal processes are followed.
Thus, this Court is of the opinion that the applicant is not suffering from any life threatening condition or sickness or infirmity which involves danger to his life and for which treatment cannot be provided to the applicant in jail - there are no grounds to enlarge the applicant on regular bail in the present ECIR.
Bail application dismissed.
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2023 (10) TMI 1340
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.
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2023 (10) TMI 1255
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.
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2023 (10) TMI 1219
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.
Bail application dismissed.
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