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2015 (10) TMI 2582 - GUJARAT HIGH COURT

2015 (10) TMI 2582 - GUJARAT HIGH COURT - TMI - Bail in connection with PMLA Case - conditional release - Held that:- The application is allowed and the applicant is ordered to be released on bail 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; - [a] not take undue advantage of liberty or misuse liberty; - [b] not act in a manner injuries to .....

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the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court; - The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to 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 .....

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rdik Modh and Mr. Digant M Popat, Advocates for the Applicants. Ms. Trusha K Patel, Advocate and Mr. J. K. Shah, App for the Respondents. ORDER 1. By way of the present application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') read with Section 45 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA'), the applicant has prayed to release him on bail bail in connection with PMLA Case File No. ECIR/03/ .....

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nt documents collected by the authority before filing of the above referred case. 4. The brief facts arose from the record are as under :- 4.1 During the investigation, the present applicant was examined under the provisions of PMLA on 14.7.2015 under Section 17(i)(f) of PMLA i.e. during the course of search of his residential premises on 14.7.2015. He disclosed before the Investigating Agency that he is running a cricket betting in the name of Aman and using 8 different Mobiles for the said act .....

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ough website he was using. The details given at the Hotel including the mobile number does not belong to him. He has denied that he is Aman who has ever visited the said Hotel for payment of the Hotel charges for the guest Andrew Riddel. In fact, he has stated that he might be some Aman Kapoor whom he knows since he was introduced by the said Arun Gupta. The applicant - accused is shown arrested on 15.7.2015 and since then, he is behind the bar. 5. Mr. Vikram Chaudhary, learned Senior Counsel as .....

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he coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice J. B. Pardiwala), the said petition has been admitted and kept for further hearing. However, this Court has permitted the present applicant to file an application for bail before the appropriate Court. Hence, the present application. 5.1 Mr. Chaudhary has taken me through several provisions of PMLA as well as Code with regard to the powers of an Officer under PMLA and procedure to be followed by such Officers in case of a person .....

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l by imposing suitable conditions. 5.2 Mr. Chaudhary has further submitted that the complaint has been lodged for the so-called offence under Section 3 of PMLA which is punishable under Section 4 of PMLA. However, the case of the applicant does not fall under the definition of offence of money laundering. He would submit that Section 3 of PMLA provides that a person can be held guilty of offence of money laundering who is directly or indirectly attempts to indulge or knowingly assists or knowing .....

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ence. He would submit that betting of cricket is not a Scheduled offence since the scheduled offence is defined under Section 2 (y) of PMLA. He would submit that search operation was carried out by the Officers of the respondent No.1 on 14.7.2015 and on 15.7.2015, he was formally arrested. He would submit that the applicant is maximum can be said to have been involved in betting which is not a scheduled offence and, therefore, the provisions of Section 45 of PMLA would not be applicable and othe .....

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. Since provisions of Section 45 of the PMLA is not applicable, his case can be considered under Section 45 (2) of the PMLA and he can be released by imposing permanent resident of Delhi and shall cooperate with the Investigating Agency and Court till the trial is over and shall abide by all the conditions which may be imposed by this Court and, therefore, he may be released on bail. 6. On the other hand, learned Standing Counsel Ms. Trusha Patel appearing for the respondent No.2 - original comp .....

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ement Act, 1999 for the ongoing ICC World Cup Quarterfinal match between India and Bangladesh. She has, therefore, resisted the application. 6.1 It was further argued by Ms. Patel that unless and until there is conspiracy between the applicant and other co-accused to project and/or claim the untainted property which has been received through cricket betting, false and fabricated Sim Cards could not have been prepared at the instance of those four accused. She would submit that the money found at .....

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t provisions of Section 45 of the PMLA would be applicable and, therefore, unless the Court concludes that the applicant is innocent, he may not be released on bail. In support of her contention, she has relied upon the Division Bench decision of this Court dated 16.1.2015 rendered in Special Criminal Application (Direction) No.4496 of 2014 with Special Criminal Application No.4672 of 2014. She has also relied upon the decision of the coordinate Bench of this Court dated 31.7.2013 rendered in Sp .....

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ty Director and another, Criminal Misc. Application No.17000 of 2014, wherein this Court has refused to grant bail of similar nature. 6.4 Ms. Patel has also relied upon 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 Misc. Application No.3637 of 2015 wherein the coordinate Bench has dealt with similar offence and ha .....

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ive application before this Court being Special Criminal Application No.5014 of 2015 and is entertained by the coordinate Bench of this Court and has been fixed for final hearing and the fact that now the complaint has already been lodged against the present applicant, I would not like to express any opinion on this part. The applicant has placed entire copy of the said Special Criminal Application along with all the annexures including several orders passed by different Courts as well as this C .....

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t are reproduced herein below :- 9. Sections 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 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 punishable with rigor .....

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n 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 property derived or ob .....

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the Schedule; 12. 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 offences. Therefore, there might be some illegal activities committed by the applic .....

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d 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 special court so directs: .....

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, 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. 14. Section 24 of PMLA reads as under :- 24. Burden of Proof - W .....

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guilty of such offence at the time of dealing with an application for bail. 16. As stated herein above, since the applicant is not facing any charge for any of the offence under Part A of Schedule, the rigours of declaring the applicant accused as not guilty of such offence would not come into play at the time of dealing an application for bail. 17. Under Section 45 (2) of the PMLA Act, the other provisions of the Code would be applicable and, therefore, the case is to be dealt with accordingly .....

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Division Bench of this Court and it was declared that he has been illegally detained and the said decision is confirmed by the Hon'ble Supreme Court in Special Leave to Appeal (Criminal) No.13552 of 2015. 19. I have also considered the decision in the case of Rakesh Manekchand Kothari rendered in Special Criminal Application No.4247 of 2015 as well as the decision in the case of Afroz Mohmad Hasanfatta (Supra) wherein it has been specifically held that if the accused is facing charge of a s .....

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case that 8 Mobile phones which were being used by the applicant are collected on some forged material. It is also pertinent to note that there are no antecedents against the present applicant. The investigation is almost over and on completion of investigation, the present complaint has been filed by the authority. I have also considered the fact that the maximum punishment is of 7 years and, therefore, the case of the applicant can be considered by imposing certain conditions. 21. In view of t .....

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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], 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; [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 pas .....

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