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2015 (10) TMI 2579 - GUJARAT HIGH COURT

2015 (10) TMI 2579 - GUJARAT HIGH COURT - TMI - Bail application - nature of offence - Prevention of Money Laundering - Held that:- As far as the allegations levelled against the present applicant are concerned, I have gone through the statement of the applicant himself. It appears that he was assisting his brother who was dealing with the cricket betting though he might be deciding or circulating the bhav (rate). The investigation is almost over and on completion of investigation, the present c .....

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subject to the conditions that he shall; - [a] not take undue advantage of liberty or misuse liberty; - [b] not act in a manner injuries to the interest of the prosecution; - [c] surrender passport, if any, to the lower court within a week; - [d] not leave State of Gujarat and Union territory of Delhi without prior permission of the Sessions Judge concerned; - [e] mark presence with the respondent No.2 every Monday for a period of three months and thereafter on any day of th .....

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issue warrant or take appropriate action in the matter. Bail bond to be executed before the lower court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the trial court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail. - CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO .....

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MLA'), the applicant has prayed to release him on bail during pendency of the bail in connection with ECIR No. - ECIR/03/AMZO/2015 [NOW PMLA Complaint No.8 of 2015] registered at the instance of the respondent No.2 - the authority appointed under the PMLA for the offences punishable under Section 3 read with Section 4 of the PMLA read with Section 120-B of the Indian Penal Code. 2. Pursuant to the notice issued by this Court, the respondent No.2 has filed his affidavit dated 20.8.2015 and op .....

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Chauhan @ Dharmin Chauhan for the offences punishable under Sections 418, 419, 420, 465, 467, 468, 471 and 120-B of Indian Penal Code alleging that the Enforcement department had raided a farm house on 19.3.2015 wherein it was found that 16 persons were indulging in Hawala racket and of cricket betting. An FIR was also lodged against 16 persons for the offences punishable under Sections 4 and 5 of the Public Gambling Act, 1867 read with Sections 65, 66 and 66C of the I.T. Act. The said FIR was r .....

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, other offences were registered for betting at Unjha of District Mehsana as well as Ahmedabad and Mumbai. It was alleged in the FIR that during the raid, different types of electronic gadgets were discovered and about 147 Mobiles were collected which were being used for betting. The Sim Cards which were being used by those persons, found to be forged and the same were collected in bogus names. It was also found that by creating bogus documents and forging signatures in the applications form, di .....

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was raided, the said Ritesh Bansal @ Bharat Delhi and the applicant were found present and were indulging in illegal activities of cricket betting. The applicant - accused was called for by the Investigating Agency on 10.5.2015, 12.5.2015, 23.5.2015 and 24.5.2015 and his statements were recorded. Similarly, other accused were also interrogated. Ultimately, the respondent No.2 filed a complaint in the Court of Principal District and Sessions Judge, Ahmedabad (Rural), the Designated Special Court .....

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y his judgment and order dated 25.7.2015 rejected the application. Hence this application. 4. Mr. S. K. Gupta, learned Senior Counsel assisted by Mr. Soeb R. Bhoharia with Valimohammed Pathan, Advocates appearing for the applicant has vehemently submitted that the complaint has been lodged for the so-called offence under Section 3 of PMLA which is punishable under Section 4 of the PMLA. However, the case of the applicant does not fall under the definition of offence of money laundering. He would .....

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the said definition, an amount alleged to have been derived by the applicant through cricket betting would not fall under the proceeds of crime since betting is not a scheduled offence. He would submit that betting of cricket is not a scheduled offence since the scheduled offence is defined under Section 2 (y) of the PMLA. He would submit that the only allegation made in the complaint against the present applicant who is accused No.6 in the complaint is that he was actively helping his younger .....

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Section 45 of PMLA would not be applicable and other proceedings qua Code with regard to bail would be available. He would submit that he is not involved in any other offence punishable under PMLA in past. However, the offences under Gambling Act have been registered at Delhi in which he had been released on bail. 4.2 He would further submit that the investigation is over qua C.R. No.85 of 2015 registered with Kishanvadi Police Station wherein the applicant has not been made an accused. He woul .....

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shall abide by all the conditions which may be imposed by this Court and, therefore, he may be released on bail. 5. On the other hand, learned Standing Counsel Ms. Trusha Patel appearing for the respondent No.2 - original complainant has vehemently submitted that huge scam of Hawala to the tune of about ₹ 2500 Crores has come in light in the game of Cricket betting. The investigation till date carried out and record recovered and seized from the Farm house at Vadodara on 19.3.2015 reveals .....

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were actively participating in the illegal activities of betting which has been admitted by the applicant himself in his various statements. She would submit that the applicant is assisting his brother and used to decide rates (bhav) of betting as per the statement of his brother Ritesh Bansal. She, therefore, would submit that the applicant is aware about the betting being done from the place where he was assisting his brother who was directly in contact with the four other accused from whom th .....

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e time of raid where the applicant was working, therefore, is a proceeds of crime and, therefore, the case falls under Section 3 of the PMLA Act. 5.2 She would submit that under Section 24 of PMLA, the burden of proof is upon the accused person to prove that the money received by him is untainted one. She would submit that the applicant - accused has miserably failed in establishing that the money involved in the present complaint are untainted property. She, therefore, would submit that provisi .....

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pplication No.4171 of 2012 with Special Civil Application No.1059 of 2012 wherein while dealing with the provisions of PMLA, this Court has held that certain presumptions are to be drawn as per Section 23 of PMLA. She, therefore, would submit that the application be rejected. 5.3 In alternate, she would submit that even otherwise, considering the gravity of offence and the maximum punishment provided under the PMLA Act, the Court may not use his powers under Section 439 of the Code. 6. I have he .....

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the PMLA Act are reproduced herein below :- 7. Sections 3 and 4 of the PMLA Act 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 any 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 - Whoever commits the offence of money-laundering shall be p .....

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stituted. 8. Section 3 provides that a person shall be guilty of offence of money laundering when he is directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including the concealment, possession, acquisition or use and projecting or claiming it as untainted property. The definition of proceeds of crime: provided in Section 2 (u) reads as under :- 2 (u) proceeds of crime means any pro .....

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ified under Part C of the Schedule; 10. In view of the above, if the Schedules to the Act are perused, the applicant is not charged with any of the offences punishable under PMLA referred in the Schedule. It is pertinent to note that the applicant is facing charge only for the offences punishable under PMLA and is not the accused wherein the allegations of cheating, forgery etc. have been made against other accused which are scheduled offence. Therefore, there might be some illegal activities co .....

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ail or on his own bond unless - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the speci .....

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provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 12. Section 24 of PMLA reads as under :- 24 .....

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to be declared as not guilty of such offence at the time of dealing with an application for bail. 14. Under Section 45 (2) of PMLA, the other provisions of the Code would be applicable and, therefore, the case is to be dealt with accordingly. Therefore, I am dealing with the same. As far as the allegations levelled against the present applicant are concerned, I have gone through the statement of the applicant himself. It appears that he was assisting his brother who was dealing with the cricket .....

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orted decision dated 5.10.2015 passed by the coordinate Bench of this Court (Coram :- Hon'ble Ms. Justice Harsha Devani) in the case of Afroz Mohmad Hasanfatta v. Deputy Director and another, Criminal Misc. Application No.17000 of 2014. I have also gone through another unreported decision dated 31.3.2015 of the coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice Paresh Upadhyay) in the case of Rakesh Manekchand Kothari v. Deputy Director, Enforcement Directorate, in Criminal Mis .....

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above have been considered since the matter of co-accused was subsequently heard. 17. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with ECIR No.- ECIR/03/AMZO/2015 [Now PMLA Complaint No.8 of 2015] registered at the instance of the respondent No.2, on executing a bond of ₹ 1,00,000/- (Rupees One Lac only) with two local sureties of ₹ 50,000/- each to the satisfaction of the trial Court and subject to the conditions that he shall; .....

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