TMI Blog2016 (3) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... agents of the accused company to secret the proceeds of crime and assiduously wanted to create an opinion that such assets constituted 'untainted money' in the hands of the accused company or its agents - It is not possible for a reasonable man of ordinary prudence to come to a conclusion at this stage that the petitioner is not guilty of the aforesaid offence. In the absence of such a conclusion, the limitations of Section 45 applies with full force restricting my discretion to grant bail under Section 439 of the Code of Criminal Procedure. It is true that the petitioner is in custody for 268 days, but in view of the materials on record prima facie connecting him with the commission of offence punishable under Section 3 of the P.M.L. Act read with Section 70(1) of the said Act and bearing in mind the restrictions engrafting in Section 45 thereof, I am unable to accede to the prayer for bail of the petitioner at this stage - Bail application rejected. - C.R.M. 1209 of 2016 - - - Dated:- 10-3-2016 - Mr. Joymalya Bagchi, J. For the petitioner: Mr. Milon Mukherjee, Sr. Adv. And Mr. Suman De For the Enforcement Directorate :Mr. Kaushik Chanda, Addl. Solicitor General A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly or indirectly connected with the proceeds of crime of any scheduled offence. Accordingly, no case has been made out against the petitioner in respect of the offences under PML Act. He further submitted that the powers of this Court under Section 439 Cr.P.C. are not trammeled by the restrictions engrafted in Section 45 of the PML Act and, therefore, there is no embargo in granting bail to the petitioner in view of the period of detention and the extent of his complicity in the alleged crime. He further criticized the procedure followed by the directorate in filing a supplementary complaint and the Special Court taking cognizance thereon. He vehemently argued that there cannot be a second cognizance of the self-same offence and cognizance of an offender is alien in criminal law. He further submitted that in view of the fact that the second complaint does not disclose the involvement of the petitioner in respect of any scheduled offence or as no proceeds of crime were attached in his hands. There is no embargo in granting of bail to the petitioner bearing in mind the fact that the investigation is complete and there is hardly any prospect of commencement of the trial in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) - [(a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed : Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or] (b) a Special Court may, upon a complaint made by an authority authorized in this behalf under this Act take [cognizance of offence under section 3, without the accused being committed to it for trial]. [(c) If the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money laundering under sub-clause (b), it shall, on an application by the authority authorized to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed.] [(d) a Special Court while trying the scheduled offence or the offence of money laundering shall hold trial in accordance with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law would prevail over the general powers provided under the Code of Criminal Procedure. However, Mr. Mukherjee has urged that in view of sub section 2 of Section 44, which opens with a non obstante clause, the powers relating to bail under Section 439 are protected and not restriction by the pre-requisites as engrafted in Section 45 of the PML Act. I am unable to accept such contention on the premise that the words used in the non obstante clause are of restrictive nature and clearly indicative of its scope of operation. The non obstante clause in sub-section (2) of Section 44 of PML Act saves the power of the High Court under Section 439 Cr.P.C. from the operation that section, that is Section 44 and not other provisions of the Act including Section 45 thereof, in fact, obviates the applicability of the provisions of Section 44 of the said Act of 2002 and not the other provisions thereof including Section 45 therein. That apart, the aforesaid provisions under the Act of 2002 are in pari materia to the provisions of Section 36A(3) and section 37 of the NDPS Act. While dealing with the aforesaid provisions, the Apex Court in Narcotics Control Bureau vs. Kishan lal Ors. repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA : (i) That the prosecutor must be given an opportunity to oppose the application for bail ; and (ii) That the Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. 30. The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in any process or activity connected with proceeds of crime including its concealment, possession, acquisition, use and projecting or claiming as untainted property would be guilty of the offence. There is no whisper in the said provision that an offender under Section 3 of the P.M.L. Act must be prosecuted in respect of a scheduled offence. It is true that in view of the definition of 'proceeds of crime' under Section 2(u) of the Act, such properties, which are directly or indirectly derived or obtained through activities, which amount to a 'scheduled offence' would constitute 'proceeds of crime', however, subsequent action of an individual pursuant to the acquisition of such 'proceeds of crime' in concealing or dealing with the same or portraying the same as 'untainted property' with requisite mens rea can definitely fall within the penal ambit of Section 3 of the said Act. Therefore, in view of the wide amplitude of the penal measure envisaged under Section 3, I am unable to accept the contention that the petitioner must be prosecuted in respect of a scheduled offence or must be in physical possession of proceeds of crime so as to be l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... queries, but knowingly Sri Kundu put him into this, as he is not the employee of the company. Sri Kundu knows that agents and investor will listen to him. So, whenever any query comes from any corner of media or from any other agencies Sri Banerjee used to answer. Sri Banerjee also confessed that he used to receive collection from investors in cash or in cheque and he does not keep any record of money collected by him. He further evaded and stated that the money collected from an investor was deposited in Company's branch office and keeping the record is not his duty and that is the duty of the Company to pay to the investors. On being asked about the commission Sri Banerjee stated that in last 6 years he had received Commission of approx. ₹ 1 Crores including himself and chain since 2009. From the uncontroverted accusations it appears that the petitioner as a senior field officer knowingly monitored the activities of the agents of the accused company to secret the proceeds of crime and assiduously wanted to create an opinion that such assets constituted 'untainted money' in the hands of the accused company or its agents. It is, therefore, not possible ..... X X X X Extracts X X X X X X X X Extracts X X X X
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