TMI Blog2017 (4) TMI 475X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Special Judge has opined that it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the scheduled offence. This prima-facie finding of the learned Special Judge on a reading of the allegations made against the petitioner herein in the FIR/ RC registered by the CBI, as well as on a perusal of the complaint preferred under the PMLA, appears to be justified and there is no reason to take a different view of the matter at this stage. - BAIL APPLN. 2241/2016 - - - Dated:- 10-4-2017 - MR. VIPIN SANGHI J. Petitioner Through: Mr. Vikas Pahwa, Sr. Adv. along with Mr. Madhur Jain, Mr. Parmatma Singh, Mr. Mayank Jain, Ms. Kinnori Ghosh, Mr. Tushar Sharma and Mr. Zakir Husain, Advocates. Respondent Through: Mr. Amit Mahajan, CGSC and Mr. Nitya Sharma, Advocate for ED/UOI. J U D G M E N T VIPIN SANGHI, J. 1. The petitioner herein, Anand Chauhan has preferred the present bail application seeking regular bail under section 439 of the Code of Criminal Procedure (Cr.P.C) read with Section 45 of The Prevention of Money Laundering Act, 2002(PMLA) in RC No. ECIR/HQ/02/HIU/2015. 2. Case of the prosecution is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2015 and 17.03.2016 for the recording of statement under section 50(2) and (3) of the PMLA, 2002 which were duly recorded. He was further called on 08.07.2016 at Chandigarh Zonal Office for recording his statement and thereafter he was arrested vide arrest order dated 08.07.2016 under section 19 of PMLA Act, 2002. He was produced before Ld. Chief Metropolitan Magistrate, Patiala House Court on 09.07.2016, who remanded him to the custody of Enforcement Directorate for four days. Thereafter he was remanded to judicial custody on 13.07.2016. Since then, the petitioner is in judicial custody. 6. The Petitioner's first bail application dated 13.07.2016 filed before learned Special Judge, Patiala House Courts got rejected vide order dated 20.8.2016. The learned Special Judge considered two factors while deciding the bail application. First, whether substantial evidence against the petitioner is available and, secondly, whether he will be in position to tamper with the evidence or win over the witnesses. Learned Special Judge observed that since evidences against the petitioner are mostly documentary and he is also not arrested in the regular case of disproportionate assets, so it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Division Bench left it open to the petitioner to move his bail application during pendency of the said Writ Petition. Consequently the present bail application has been preferred. 11. The petitioner submits that he is just a victim of political rivalry, and is being harassed and illegally detained by the respondent for no reason. He further submits that the arrest of the petitioner is unconstitutional and illegal, as the mandatory procedure was not followed. The grounds of arrest were not communicated to the petitioner, which is a violation of natural justice and due process of law. He further submits that the main accused, Shri Virbhadra Singh got protection against arrest in regular case RC AC 1 2015 A-004 under 13(2) r/w 13(1)(e) of the PC Act and Section 109 IPC vide order dated 01.10.2015 passed by the Himachal Pradesh High Court. Petitioner further submits that the complaint dated 05.09.2016 was registered only against the applicant and not against the main accused. He further submits that whilst in the custody of the respondent, he was subjected to physical torture to record statement on various dates. 12. The petitioner further submits that the arrest of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed, the rights of the petitioner under Article 21 of the Constitution stand violated. 16. Respondent has contested the petition. Mr. Mahajan, the Ld. ASC submits that the petitioner s arrest was duly made under section 19 of PMLA as the petitioner has committed offence of money laundering. Learned counsel submits that Section 19 of PMLA, 2002 provides that if, on the basis of material in his possession, the authorised officer has reason to believe that a person is guilty of offence punishable under PMLA, he may arrest such person. Learned Counsel relies on the observation made in the order dated 20.08.2016 by the learned Special Judge that the petitioner is, prima facie, guilty of committing an offence under Section 3 of the Act. 17. Learned counsel pressed into service the mandatory provision of Section 45 of the PMLA, which puts stringent conditions for the release of an accused charged under Part A of the schedule on bail. He submits that the conditions laid down in section 45 have overriding effect over the general provisions of CrPC. Therefore the mandatory conditions for grant of bail to accused under PMLA have to be complied with, even while considering an applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence 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: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other 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. (emphasis supplied) 22. The submission of the petitioner, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udice to the appellant in projecting his defence. He, on such error committed by the High Court, has rightly earned his acquittal..... (emphasis supplied) 24. At this stage, I cannot accept the submission of the petitioner that as he has been charged with abatement of the scheduled offence, the PMLA cannot be invoked against him, or that the rigours of Section 45(1)(ii) would not apply to him. Pertinently, the offence of criminal misconduct is defined in Section 13 of the P.C. Act to mean, inter alia, the possession of the public servant or any person on his behalf at any time during the period of his office of pecuniary resources or property disproportionate to the known sources of income of the public servant, which the public servant cannot specifically account for. Thus, even a person who is not a public servant has been noticed in the said definition of criminal misconduct as defined in Section 13(1)(e) of the PC Act. No doubt, the offence of criminal misconduct is committed by the public servant, but the offence under Section 13(1)(e) of the PC Act may also rope in-as an abettor, any person who is in possession of such unexplained pecuniary resourc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s through which the proceeds of crime may be generated. Thus, the submission of the petitioner that he cannot be charged under the PMLA, does not appear to have any merit. 29. The learned Special Judge has opined that it cannot be said that there are reasonable grounds for believing that the petitioner is not guilty of the scheduled offence. This prima-facie finding of the learned Special Judge on a reading of the allegations made against the petitioner herein in the FIR/ RC registered by the CBI, as well as on a perusal of the complaint preferred under the PMLA, appears to be justified and there is no reason to take a different view of the matter at this stage. 30. In Gautam Kundu (supra), the Supreme Court has categorically held that the conditions specified in Section 45 of the PMLA are mandatory and needs to be complied with. In this regard, the Supreme Court places reliance on Sections 65 and 71 of PMLA. Section 65 provides that the provisions of the Code shall apply insofar as they are not inconsistent with the provisions of the PMLA and Section 71 provides that the provisions of PMLA shall have over-riding effect, notwithstanding anything inconsistent therewith con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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