TMI Blog2016 (1) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... erges out of the scheduled offences are the SIM Cards. That what was derived or obtained directly or indirectly were the SIM Cards, and as far as the usage of the SIM Cards are concerned, it is a separate offence and the same is not relied upon by the Enforcement Directorate. It is true that in the case of Ankush Bansal, whose bail order forms part of the bail application, this Hon’ble Court while admitting the bail in para No.10 have observed that money generated from cricket betting are not proceeds of crime. If this is the situation, then without there being any proceeds of crime the offences under Section 3 of PMLA is not made out against the present applicant herein and since no offence as such under the PMLA are made out against the applicant, hence, the applicability of Section 45 of the PMLA does not arise. A bare perusal of Section 45 of the PMLA shows that when the Courts are satisfied that there is a reasonable ground of believing that when the applicant is not guilty of such offence and that he is not likely to commit any offence while on bail, he can be granted bail. Since, in the present condition there are no proceeds of crime existing hence Section 3 of the PMLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the documents including statements of A1 and A2 were shared/given by E.D. to Commissioner of Police, Vadodara for further investigation. 5. Further, it is the case of prosecution that, Police Inspector Shri D.I.Vaghela attached with Kishanwadi Police Station gave FIR for State against the accused, which was registered as C.R.No.II222 of 2015 registered on 21.03.2015, under Section 4 and 5 of the Prevention of Gambling Act against 16 accused persons. It is the case of prosecution that, all 16 accused persons were arrested on 21.03.2015 by officers of S.O.G (Special Operation Group) and they were produced on the same day before the learned Judicial Magistrate, First Class, Vadodara City and Police asked for remand of 7 days, which was rejected by the learned Magistrate and all the accused were granted bail by the learned Magistrate on the same day. 6. It is further case of prosecution that, investigation which was carried out by Kishanwadi Police Station, on the basis of the material provided by E.D., also revealed use of simcards, which were obtained by way of forging documents. Since forgery was committed by the accused, and another FIR bearing C.R.No.I85 of 2015 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . offence on 22.04.2015. 10. From the perusal of the record, it appears on 23.01.2015, E.D. produced the petitioner before the learned Special Designated Judge under P.M.L., Ahmedabad Rural and sought remand for 14 days. The learned Special Judge by his order dated 24.04.2015 partly allowed the said application and granted remand upto 27.04.2015, on which, dated again remand was asked by E.D., but the same was rejected. This is how the entire back ground of the matter stands for the consideration of present bail applications. 11. As per the facts of the present petitioner along with co-accused namely Chirag Parikh filed Misc. Criminal Application No.9197 of 2015 for regular bail before this Hon'ble Court directly, and therefore, this Hon'ble Court vide order dated 08.06.2015 permitted the petitioners to withdraw the petition with a liberty and permission to file the bail application firstly before the Lower Court. 12. Thereafter, the petitioners have preferred Misc. Criminal Applications before the learned Designated Special Judge on 10.06.2015 and the same was fixed for hearing. Meanwhile, on 15.06.2015, after a thorough investigation, a detailed complaint along w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the IPC, as there are the scheduled offences, hence, on the very next date i.e. 23.03.2015 and ECIR i.e. ECIR/03/AMZO/2015 was registered by the Enforcement Directorate and thereby the investigation started. F) That it is important to see here that, in the complaint No.8 filed by the respondent No.2 on 15.06.20156 is silent about the IInd C.R. i.e. CR No.222 of 2015, even the written submissions filed by the respondent No.2 does not speak/specify about Case No.222 of 2015 filed against the present applicant pursuant to the search conducted by the Enforcement Directorate on 19.03.2015 under Section 37 of the FEMA, 1999. G) That on the bare perusal on the above mentioned facts and circumstances it shows that the two FIRS have been registered by the local police, fist i.e. I CR No.85/2015 pertaining to the conspiracy hatched by the four persons, i.e. Shri Girish Patel, Shri Kiran Mala, Shri Dharmendra Singh and Shri Chirag Parikh the applicant herein for procurement of the SIM cards on the basis of false and forged documents and a second FIR was registered i.e. IInd CR No.222 of 2015 for the involvement of 16 accused persons in cricket betting and the said case was registered u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onging to different areas under the name of M/s. Maruti Ahmedabad. It is further the case of E.D. that lines were offered to other bookies as well who operated from other parts of India. Accused had received and placed various bets from large number of bookies and punters on different matches which were played. M/s Maruti Ahmedabad settled proceeds of crime generated therefrom and also settled different accounts as per E.D., such proceeds of crime were also utilized and invested in certain immovable properties and accused also handed and dealt with proceeds of crime. It is the case of E.D. that furthermore for swift running of racket, accused also procure mater log in I.D. for Maruti Ahmedabad. It is the case of E.D. that aforesaid offences were committed by the accused in collusion and in conspiracy with each other, wherein each accused has played different role. 15. After aforesaid filing of written complaint, the petitioners have filed Misc. Criminal Application before the learned Special Court and the learned Judge by special designates rejected the same. Hence, these petitions are filed by the present applicants .For the purpose of deciding present application, the Court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Cricket Betting activity was carried out by accused nos1 2 (who are kingpins) with Foreign Punters through Mobile numbers of different witnesses by projecting before Foreign Bookies that such mobile numbers were belonging to the Company formed by accused persons and thereby, the accused persons have committed the offence of criminal breach of trust and cheating etc. 20. Learned counsels have also placed reliance on the remand report of Police dated 21.03.2015, wherein Police applied for remand from the Ld. JMFC, Vadodara City. As per the remand report, A1 and A2 are master minds and leaders of the entire racket. Mr. Panchal has also drawn attention to that observation of Police in the remand report. Both the counsels of the applicants have submitted that, in the present case, the E.D. officials have recorded statements of accused as well as witnesses, which are incorporated in nutshell and reproduced in the written detailed complaint filed by E.D. In the submission of both the counsels, if those statements of accused as well as witnesses are taken into account at their face value, no involvement of the petitioners are revealed. For that purpose, my attention was also invit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the counsels have requested the Court to enlarge both the applicants on bail considering the fact that there are no criminal antecedents against the present petitioner. Thus, the main thrust of submission of learned counsels are that, from single offence the same is bifurcated and divided in three different offences. 24. As against it the application is equally vehemently opposed by Ms. Trusha Patel, Standing Central Government Counsel for the department. As per the submission of Ms. Patel, accused are involved in the offences from the very beginning. Ms. Patel has submitted that, there is huge scam of 'Hawala Racket' running into crores of rupees in the game of cricket netting. In the submission of Ms. Patel, from farm house different material is recovered and seized, which shows that the present petitioner along with the other accused has committed the offences. Ms. Patel has further submitted that, investigation has revealed that accused have actively participated in the illegal activity of cricket betting. Ms. Patel has drawn the attention of the Court on various statements recorded by E.D. to point out that the accusedpresent petitioner has dealt with proceeds of cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional statements they have admitted that criminal act committed by them, so statements are admissible in eye of law. 26. For the ready reference and to appreciate the documents advanced by learned counsels for respective parties certain provisions of the PMLA Act is required to be considered which are reproduced herein below. Section 3 and 4 of PMLA read as under: 3. Offence of money-laundering-Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in nay process or activity connected with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money-laundering 4. Punishment for money-laundering Whosoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees: Provided that where the proceeds of crime involved in money laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this Section shall have effect as if for the words which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 157 Sec. 17] Provided that no search shall be conducted unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 157 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be. . 22 The Prevention of Money-laundering Act, 2002 of the Code of Criminal Procedure, 1973, (2 of 1974) or a complaint has been filed by a person, authorised to investigate the offence mentioned in the Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or in cases where such report is not required to be forwarded, a similar report of information received or otherwise has been submitted by an officer authorised to investigate a scheduled offence to an officer not below the rank of Additional Secretary to the Government of India or equivalent being head of the office or Ministry or Department or Unit, as the case may be, or any other officer who may be authorised by the Central Government, by notification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Adjudicating Authority or the Special Court], be presumed that the remaining transactions form part of such interconnected transactions. Section 24 of PMLA reads as under : 24. Burden of ProofWhen a person is accused of having committed the offence under Section 3, the burden of proving that proceeds of crime are untainted poverty shall be on the accused. Under Section 45 (2) of the PMLA Act, the other provision of the Code would be applicable and therefore, the case is to be dealt with accordingly. Section 50 provides as under:50. Powers of authorities regarding summons, production of documents and to give evidence, etc.-(1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:- (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a 1[reporting entity], and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; And (f) any other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Tros, a King of Phrygia and they traced the line of their Kings to the Dardanus. Further, derived has been defined as to draw or receive or obtain as from a source or origin or by regular transmission . Thus in the light of the above it can be inferred that since in the present case the scheduled offence is cheating, forgery and criminal conspiracy for the procurement of SIM Cards on the basis of false and forged documents hence there is no proceeds of the crime in the present case which is related to the commission of these scheduled offences. That even Section 17 of PMLA differentiates between proceeds of crime and property related to crime . Section 17 of the PMLA explains the position with respect to search and seizure, Section 17of the PMLA is provided as below: Search and seizure. (1) Where 1 [the Director or any other officer not below the rank of Deputy Director authorized by him for the purpose of this Section,] on the basis of information in his possession, has reason to believe (the reason for such belief to be recorded in writing) that any person (i) has committed any act which constitutes money-laundering, or (ii) is in possession of any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rated out of cricket betting does not come within the purview of the definition of proceeds of crime. In the present case, the scheduled offences are cheating and forgery and the conspiracy to commit the same with an object of procuring SIM Cards on the basis of false and forged documents. All the SIM Cards in the present case were recovered during the search conducted on the 19.03.2015 under Section 37 of the FEMA, 1999 and since the applicant herein was not present there at the time of search he has nothing to do with those SIM Cards. I have minutely perused contention of the FIR No.222 of 2015 where the name of the applicant does not figure. Even for the sake of argument if we believe that the contents of Case No.85 of 2015 are correct, then also what emerges out of the scheduled offences are the SIM Cards. That what was derived or obtained directly or indirectly were the SIM Cards, and as far as the usage of the SIM Cards are concerned, it is a separate offence and the same is not relied upon by the Enforcement Directorate. It is true that in the case of Ankush Bansal, whose bail order forms part of the bail application, this Hon ble Court while admitting the bail in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng, forgery and criminal conspiracy for the procurement of SIM Cards on the basis of false and forged documents, there is no proceeds of the crime in present case with related to the commission of scheduled offences. Learned counsel Ms. Patel who has cited bail order of Afzal Fattas case in which coordinate bench of this court has declined bail, but Hon ble Supreme Court has released him on interim bail who is also facing charges under PMLA Act as well as scheduled offences. As per the observation of Section 23 and 24 of PMLA Act from drawing a presumption but well there is no proceeds of crime as mentioned against the applicants then applicability of Section 23 and 24 of Act does not arise. 30. In the case of Rakesh Manekchand Kothari in Special Criminal Application No.4247/2015 and in the case of Afroz Fatta (supra) wherein it is held specifically that if a person is facing charge of schedule offence under PMLA, the rigors would be applicable and otherwise such case can be considered according to the Criminal Procedure Code. Hon'ble Supreme Court has decided case of Sanjay Chandra Versus CBI reported in (2012) I SCC page 40 and Gurucharan Singh and Ors Versus State reporte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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