TMI Blog2016 (10) TMI 1030X X X X Extracts X X X X X X X X Extracts X X X X ..... the other investigating material of PMLA cases, and as there are no criminal antecedents as to PMLA cases, discretion is required to be exercised in favour of the applicants by passing the following order: The present applications are allowed. The applicants are ordered to be released on regular bail in connection with the offences registered with Directorate of Enforcement, Ahmedabad as well as PMLA Complaint on executing a personal bond of ₹ 2,00,000/- (Rupees Two Lacs Only) each with two sureties each of ₹ 50,000/- to the satisfaction of the learned Trial Court and the applicants without prejudice to their rights and contentions shall deposit a sum of ₹ 25,00,000/- each separately before the designated Special Court within one month from the date of their release, and the release of the applicants shall not take undue advantage of liberty or misuse liberty;not act in a manner injurious to the interest of the prosecution;surrender passport, if any, to the lower court forthwith, if not already deposited;shall not enter into Vadodara, Mehsana, Kheda and Gandhinagar Districts and not leave the State of Gujarat without prior permission of the Designated Special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forcement Directorate requested the Police Department to register second First Information Report being C.R.No.I- 85/2015 under Sections 418, 419, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code, 1860, which was also lodged with Kishanwadi Police Station, Vadodara on 25.3.2015. The investigating officer concerning the above referred First Information Report filed charge sheet on 19.6.2015. 2.3 The charge sheet in connection with First Information Report being C.R.No.II-222/2015 was filed against as many as 16 accused, including the applicants, for the offences under Sections 4 and 5 of the Gambling Act and under Sections 65, 66 and 66C of the Information Technology Act, alleging that a total transaction of ₹ 116,80,87,500/- of gambling was done during the three World Cup matches between 15.3.2015 to 19.3.2015. Under the charge sheet filed for the First Information Report being C.R. No.I-85/2015 for the offences punishable under Section 418, 419, 420, 465, 467, 468, 471 and 120B of the Indian Penal Code, 1860, it is alleged that the accused have committed criminal breach of trust and cheating to obtain sim-cards from mobile companies on the basis of forged documen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on record to show that any bet on cricket matches was being received or placed on record by the applicants or M/s. Maruti, Ahmedabad, except the bald statements, that too without any corroborative evidence. In other words, there is nothing on record, except the statements of the co-accused, to show that the applicants were involved in cricket betting, and are guilty of the offences punishable under the provisions of PML Act. It is also submitted that neither the ground of arrest nor the criminal complaint being PMLA Case No.8/15 satisfy the continuation of the applicants in judicial custody. 3.2 That the endeavour of the respondent No.2 and its officers appears to be anyhow implicate the applicants for the reasons best known to them by way of powers conferred under PML Act even though no evidence is available against the applicants. The officers of respondent No.2 exceeded their powers and had become instrumental to register the F.I.R. for the offences under the provisions of Indian Penal Code and to register a ECIR complaint. In other words, it is the officers of respondent No.2, who initiated the investigation, which is against the scheme of PML Act, as F.I.R. is a pre-requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , accused No.8 by order dated 17.12.2015 passed in Cr.M.A. No.20433 of 2015, accused No. 3 and 4 by order dated 08.01.2016 passed in Cr.M.A. No.17326 of 2015 and 17420 of 2015, accused No.8 and 10 by orders dated 03.02.2016 passed in Cr.M.A. No.24111 of 2015 and No.21652 of 2015 respectively. 3.6 That the charge-sheet filed for the gambling offences under the F.I.R. being C.R. No.II-222/2015 suggests that the money was earned through gambling, whereas the charge sheet filed for the offences under the Indian Penal Code (scheduled offences) under the F.I.R. being C.R.No.I-85/2015 does not denote anything about earnings, therefore, any proceeds of crime being derived from the alleged forgery of sim cards is a debatable issue. He submits that both the F.I.Rs. for offences of gambling and scheduled offences were registered at the instance of the Enforcement Directorate. Thus, the Enforcement Directorate chose to force the police officials to register another case so as to take over the investigation under PML Act. It is submitted that admittedly the offences under the Gambling Act and the Information Technology Act do not fall in the schedule to the PML Act, and therefore, the Enforc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C., i.e. seeking prior permission of the Magistrate to commence investigation and to obtain warrant of arrest prior to effecting any arrest. It was further held that even if the offences are taken as cognizable, respondent was bound to follow the procedure under Chapter XII, Cr.P.C. i.e. Sections 154, 156, 157, 167, 172, etc. which contemplates registration of F.I.R., sending copy thereof to the concerned Court within 24 hours, maintenance of case diary, etc. which was mandatory. 3.10 That in the view of the decision of the Honourable Supreme Court in the case of Gurucharan Singh and others vs. State (Delhi Administration) reported in (1978) 1 SCC 118 and also in the recent decision of the Honourable Supreme Court in the matter of Arnesh Kumar Vs. State of Bihar and another reported in (2014) 8 SCC 273, the applicant is required to be released on regular bail as the offence is maximum punishable with 7 years imprisonment. 3.11 In Gurucharan Singh vs. Union of India and others in W.P. (Cri.) 307 of 2016 and Rakesh Kothari (supra), this Court and Delhi High Court have directed the respective detenues to be released on bail. While concluding the submissions, learned Senior Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion for issuance of non-bailable warrant against the aforementioned persons was filed before the Special Court (PMLA) and warrant was issued by the learned Special Court. Thereafter, on 11.4.2015, Girish Parshottam Patel @ Tommy Patel and Kiran Jayantilal Mala were arrested in connection with F.I.R. being C.R.No.I-85/2015 registered by Kishanwadi Police Station, Vadodara, and the accused were remanded to police custody by the concerned Special Judge, specifically to be executed by the investigating officer of the case. On 17.4.2015, Girish Parshottam Patel and Kiran Jayantilal Mala were arrested by the investigating officer, i.e. Assistant Director, PMLA, under Section 19(1) of the PML Act at Vodadara. On 18.4.2015, both Girish Parshottam Patel and Kiran Jayantilal Mala surrendered before the learned Judicial Magistrate First Class, Vadodara, and were remanded to police custody by the concerned trial court. On 15.6.2015, prosecution complaint in the matter has been filed for offences of money laundering against the initially identified accused, i.e. Girish Parshottam Patel, Kiran Jayantilal Mala, Chirag H. Parikh, Dharmendrasinh V. Chauhan, Ritesh Bansal and Mukesh Kumar vide PMLA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relied upon. The statement recorded under Sections 17 and 50 of PML Act can be not only relied upon at the interim stage of bail, but even the same can be made a basis for conviction of any co-accused. It is submitted that Sections 24 and 25 of the Evidence Act excludes the statements made before the police officer by the accused or co-accused, whereas, officers of the Enforcement Directorate are not police officers. According to learned advocate for respondent No.2, the language of Sections 17 and 50(1) makes it clear that the officer of Enforcement Directorate is vested with some of the powers of a civil court, which a police officer is not vested with. Thus, the officer of Enforcement Directorate is not a police officer, and hence, the statements have evidential value. It is also submitted that Section 50(2) and (3) says that the person who gives the statement under the provisions of this Act has to say the truth and the proceeding of recording the statement, etc. is considered as judicial proceeding within the meaning of Section 193 and 228 of the Indian Penal Code. So far as release of the co-accused by interim order in Special Criminal Application NO.4247 of 2015 is concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication No.8919 of 2011 Jharkhand High Court), Nimmagadda Prasad vs. CBI (2013) 7 SCC 466. 5. Respondent No.1-State is a formal party. However, learned Additional Public Prosecutors appearing for the respondent-State have also adopted the arguments advanced by the learned counsel representing the respondent No.2 and submits that looking to the role attributed to the applicants as also considering the gravity of offence, the applicants may not be enlarged on bail. 6. As the learned advocates on behalf of the applicants and the respondents presented the factual scenario it appears that in the present case the applicants and other co-accused were arrested in connection with the alleged offences punishable under the Gambling Act, Information Technology Act and Indian Penal Code. Thereafter, a non-bailable warrant was issued by a designated Special Court in connection with a complaint under PMLA Case No.8/2015 arising out of ECIR/03/AMZO/2015. It also appears that apart from PMLA Case No.8/2015, the applicants have been enlarged on regular bail by the coordinate Bench of this Court. It also appears that the applicants are in judicial custody since last about 1 year and six mont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y) scheduled offence means - i) the offences specified under Part A - of the Schedule; or ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or iii) the offences specified under Part C of the Schedule; Section 23 reads as under. 23. Presumption in interconnected transactions.-Where money laundering involves two or more interconnected transactions and one or more such transactions is or are proved to be involved in moneylaundering, 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 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 Proof In any proceeding relating to proceeds of crime under this Act - (a) In the case of a person charged with the offence of moneylaundering under Section 3, the authority or court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned through gambling, whereas the charge sheet filed for offences punishable under the provisions of Indian Penal Code (scheduled offences) in C.R. No.I- 85/2015 prima facie does not say anything about earning of money. Therefore, prima facie, any proceeds of crime being derived from the alleged forgery of sim card is a debatable issue. 6.6 With respect to confessional statements of the co-accused: It also appears from the material on record that certain incriminating statements of co-accused and the applicants are there. Whether the confessional statement can be looked into in view of the provisions as contained in Sections 24 and 25 of the Evidence Act is also again a question which requires to be considered at the time of appreciation of evidence. 6.7 Whether the confession made before the officer of the Enforcement Directorate can be relied upon or can be made a basis for conviction or not is also a question which requires consideration at the time of appreciation of evidence. 6.8 With respect to whether the offences under the PMLA are cognizable or non-cognizable: Learned Senior counsel for the applicants as well as learned advocates appearing for the respondents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... B of the Schedule under PMLA to Part A which would otherwise be compoundable, non-cognizable and bailable only to overcome the monetary threshold of ₹ 30 lakhs for invocation of PMLA in respect of the offences litsed in part B of the Schedule. It was further urged that the said amendment was unconstitutional; Secondly, it was urged that the respondent was lacking jurisdiction under the Act for effecting arrest under Section 19, due to absence of proper appointment under Section 49 and authorization by the Central Government; Thirdly, the arrest was also sought to be declared as illegal for noncommunication of grounds of arrest to the detenue therein; (ii)Apparently, the issue as to whether the offences under the Act were cognizable or non-cognizable or whether the procedure contemplated under Chapter XII Cr.P.C. was required to be followed, was never raised in the said writ petition. Thus, the said judgment dated 16.1.2015 has nothing to do with the issue raised and decided in the Division Bench order dated 3.8.2015 by another Division Bench releasing Rakesh Manekchand Kothari pertaining to bail; (iii) Even the Division Bench of this Court (Hon'ble Mr. Justice An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Criminal Application (Habeas Corpus) 4247 of 2015 passed the following order:- 7. Because of the two orders of the Supreme court dated 12.2.2015 and 07.07.2015 and in view of the objections raised by respondents regarding maintainability of the petition, prima facie, this Court is of the view that a clarification will be necessary as to whether this Court was competent to decide the present petition of habeas corpus under Article 226 of the Constitution of India. Learned counsel for the petitioner has also agreed to move such application before the Supreme court to obtain necessary clarification/suitable direction in the matter. (viii) It is further a matter of record that in view of the said order, the petitioner therein Rakesh Manekchand Kothari approached the Hon'ble Supreme court for clarification and vide Order dated 31.7.2015 passed in SLP (Cri.) No.6053 of 2015, the Hon'ble Supreme Court clarified as under:- The SLP is disposed of. However, we request the High Court to decide the writ petition [Special Criminal Application (Habeas Corpus)] pending before it, on merits. (ix) Apparently, the order passed by the Division Bench on 3.8.2015 was pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Singh's case. The questions of law framed by another Division Bench are as under:- A. Whether the judgment rendered in Karam Singh's case is not a binding precedent as it does not take into account the ratio laid down by the Hon'ble Supreme Court in Om Parkash's case (supra) regarding the applicability of the procedure to the investigations under a special statute as contemplated under Chapter XII of the Code in the absence of any provision to the contrary in such special statute? B. Whether the offences under Sections 3 and 4 of PMLA are non-cognizable in view of the amendment carried out on 21.5.2005 read with the Lok Sabha debates quoting the then Finance Minister that the said amendment was proposed to make the offences noncognizable ? C. Whether in view of Section 65 PMLA read with Section 4(2) and 5 Cr.P.C. in the absence of any specific procedure to the contrary under PMLA, the provisions of Chapter XII Cr.P.C. would straightway apply? D. Whether the statements recorded under Section 50(2) PMLA are hit by Section 25 of the Evidence Act? 6.11 The legal position as to whether the offence under Section 3 and 4 of the PML Act are cognizable or no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent case are certain sections of the Indian Penal Code, which were falling in part B of the schedule from 1.7.2005 when the Act came into force till 2013, and when the amendment was carried out to PML Act all offences under part B of the schedule were moved to part A thereof. Undisputedly, the offences falling under part B of the schedule did not attract the rigours of Section 45. Now it is no longer res integra that the twin limitations/rigours on grant of bail do not apply to those persons who are accused of scheduled offences which earlier fell in part B, because the amendment carried out in 2013 was with a sole objective to remove the monetary threshold of ₹ 30 lacs for application of PMLA to those offences. The issue has been accorded a complete quietus by a Division Bench of the Honourable Punjab and Haryana High Court in Gorav Kathuria vs. Union of India CRWP No.595 of 2016 vide order dated 11.5.2016 wherein it has been held as under: 12.16 In our opinion the presumption of the petitioner that rigours in grant of bail contained in Section 45(1) of PMLA extends to all the offences mentioned in such amended Part A is neither logical nor intended by the legislation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is accepted by us, the provision of Section 45(1) would become unreasonable, harsh, oppressive and unconstitutional. We cannot lose sight of the fact that the offences which were in Part B and were shifted in Part A by 2013 amendment also include offences which are compoundable and bailable. The framers of PMLA therefore had placed the offences in two different parts Part A and Part B. We see no legislative intent to apply twin limitations in grant of bail under Section 45(1) of PMLA qua all persons arrested on accusation of commission of even such Scheduled Offices which were earlier listed in Part B. 12.18 Therefore, in our opinion the reference to the offences under Part A of the Schedule in the context of section 45(1) requires to read down to apply only to those scheduled offences, which existed under the Part A of the Schedule prior to the said 2013 amendment in Schedule. Having arrived at the said opinion, we have also given our anxious consideration to the issue whether we can simply fold our hands and blame the draftsman, or whether we are duty bound to work on the constructive task of finding the intention of Parliament and to iron out the creases to harmonise the law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 157 of the Code to the Magistrate nor any complaint for taking cognizance of a Scheduled offence by an officer authorized to investigate such Scheduled offence. 6.14 In view of the said certificate of appeal and questions of law, the petitioner therein, viz. Gorav Kathuria approached the Hon'ble Supreme Court vide Criminal Appeal 737 of 2016. The view taken by the Punjab and Haryana High Court has since been confirmed by the Hon'ble Supreme Court, which vide order dated 12.08.2016 dismissed the appeal while observing as follows: Though the High Court has granted certificate to appeal, we have heard the learned counsel for some time and are of the opinion that the impugned judgment of the High Court is correct. This appeal is accordingly dismissed. 6.15 Thus, from the case law referred herein above, the limitations/rigours of Section 45 of the PML Act have prima facie no application to the present case, and the issue regarding compliance with the procedure as contemplated under Chapter XII of Cr.P.C. is live, germane and open, and the said view taken by the Division Bench in its order dated 3.8.2015 passed in S.Cr.A (HC) No.4247 of 2015 in the case of Rake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certain conditions can be imposed whereby their movement can be restricted to a limited area. So far as the other apprehension expressed by the respondents that in the event of their release chances of tampering with the evidence is concerned, it appears that in both cases of scheduled offences, charge sheets have been filed and all the relevant documents have been seized. There is a detailed panchnama about the attachment of movable and immovable properties belonging to the applicants and seizure of articles and documents. So far as the apprehension with regard to influencing the witnesses is concerned, it can be taken care of by imposing appropriate conditions of bail with regard to marking of presence and regular reporting before the concerned authorities. It appears that most of the witnesses are of Enforcement Directorate, and therefore, chances of influencing the officers of the Enforcement Directorate are bleak. As aforesaid, all the other co-accused facing similar allegations were enlarged on bail by the coordinate Bench, therefore, on the ground of parity also, the case of the present applicants deserves to be considered for grant of bail. 7. Thus, having regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd if the trial is not concluded within the said period, the said Fixed Deposits shall be renewed for a further period as may be deemed fit and proper by the concerned designated court. 9. The Authorities will release the applicants only if they are not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the concerned Judge will be free to issue warrant or take appropriate action in the matter. Bail bonds to be executed before the learned 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, learned 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 applicants on bail. Rule is made absolute to the aforesaid extent. Direct service is permitted. (P.P.BHATT, J.) After pronouncement of this order, learned advocate Ms. Trusha Patel appearing on behalf of the Enforcement Directorate has prayed for staying this order for a period of four weeks enabling her to approach the Honoura ..... X X X X Extracts X X X X X X X X Extracts X X X X
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