TMI Blog2022 (7) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... nce again as he will always be in radar of E.D. It is the admitted case of ED that after registration of the aforesaid FIR in 2018, a complaint has been filed by ED in 2022 i.e. after a period of about 04 years and in the intervening period, there was no further complaint or FIR regarding illegal mining to suggest that the petitioner is a habitual offender and is involved in any other case even prior to registration of the aforesaid FIR, especially when he is not named either in FIR No. 26 or report submitted under Section 173(2) Cr.P.C. - As per own investigation of ED, the petitioner was helping Kudratdeep Singh @ Lovie, who was allotted the lease license, in his mining work and there is no direct allegation against him that he was looking into the finance of the Kudratdeep Singh @ Lovie, therefore, the Court is convinced that the petitioner qualify the triple test laid down under Section 45 of PMLA as the Court has nothing to presume adverse to the conduct of the petitioner and since all the documents are already in the custody of the investigating agency, therefore, there is no possibility for the petitioner to tamper with the same. It is well settled principles of law th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat on 20.05.2017, in an E-Auction conducted by the Mining Department, one Kudratdeep Singh was the successful bidder for Rs. 4.04 crores and was allotted a sand mine measuring 4.41 hectares in village Malikpur, District S. B. S. Nagar. Later on, finding that the location of the land is not clear, he got the same demarcated through Halqa Patwari on 16.08.2017 and found that the location of the land is on southern side of Satluj river and there is no proper passage from village Malikpur, where he was allotted the land and some illegal occupants in the village Dhulewal and Rod Majra in District Ludhiana are doing the illegal mining. On this account, Kudratdeep Singh represented various officials of the Mining and Industry Department as well as other higher authorities, however, his grievances were not redressed and on 06.02.2018, the General Manager-cum-Mining Officer, District Industry Centre, S. B. S. Nagar, Punjab suspended his mining license. Kudratdeep Singh filed a Civil Writ Petition before this Court, which was disposed of on 10.01.2020 by giving certain directions and he again filed a second writ petition praying that he may be permitted to surrender the mining site in villa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the investigation of the ED further suggests that there were total 09 partners, who had obtained Malikpur sand mine contract along with Kudratdeep Singh, however, petitioner Bhupinder Singh @ Honey was not one of the partners in the said firm. Learned senior counsel further argued that in order to connect the petitioner with the said offence, ED recorded the statement of Kudratdeep Singh that the petitioner used to help him whenever there was a dispute between the partners and would also help in supervising the mining activities as a common friend. It is further argued that during investigation, ED ex-aggerated the earning of the petitioner by an imaginary calculation that the slips, issued by the Mining Department for one day, depicted mining of about 902 Metric tons sand per day and by multiplying it with 153 days, the same was taken to be 1,38,113 Metric tons of sand and held that the petitioner has earned Rs. 10,68,34,000/- by illegal mining. It is further submitted that despite the fact that no recovery was effected from Kudratdeep Singh, whom the mining lease/license was allotted, a fictitious figure of Rs. 10 crores from illegal mining has been calculated by the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during trial, is taken to be correct on the face of it, the same contradicts the version of ED that it relates to FIR No. 26, registered on 07.03.2018, whereas the statement of the petitioner was recorded on 18.01.2022 and there was no FIR of illegal mining against the petitioner or against aforesaid two persons from the year 2019 to 2022, therefore, ED could not investigate the crime, for which no FIR regarding predicate offence has been registered. Learned senior counsel further argued that in fact the petitioner has been roped in by ED, which has even tried to add provisions of Prevention of Corruption Act (for short PC Act ), without there being any FIR of predicate offence under the PC Act and the reason for the false implication of the petitioner is that he is the nephew of Mr. Charanjit Singh Channi, the then Chief Minister of the State of Punjab and when during investigation, nothing was found to substantiate the allegations under the PC Act, the same was dropped. It is further argued that even the statement of the petitioner was recorded under Section 50 of the PMLA on 03.02.2022, in which the petitioner has given explanation with regard to his income tax returns fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... senior counsel further argued that ED could not found any evidence to connect the then Chief Minister of Punjab, therefore, on 31.03.2022, ED filed a formal complaint before the competent Court of law only against the petitioner and Kudratdeep Singh only. It is further submitted that in para 3.1 of this complaint, again there is a reference of FIR No. 26 dated 07.03.2018 as well as three weighment slips dated 16.03.2018, which were allegedly found to be fake. It is further submitted that though in the FIR No. 26, challan was presented against 56 persons, however, in the complaint, only Kudratdeep Singh was arraigned as accused despite the fact that he was found innocent by the Punjab Police in 2018 itself and later on, his mining lease/license was also suspended on 06.02.2018 but ED has not taken into consideration all these documents showing that Kudratdeep Singh was innocent and the petitioner was neither named in the FIR nor the challan was presented against him. Learned senior counsel has referred to reply filed by ED before the Court of Sessions, where regular bail application was filed by the petitioner, to submit that the role of the petitioner as given in para 6 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002, which is punishable under section 4 of the Prevention of Money Laundering Act, 2002. Learned senior counsel has referred to ( 2020) 13 Supreme Court Cases 791, P. Chidambaram vs. Directorate of Enforcement to submit that Hon ble Supreme Court has granted bail in a complaint filed by ED by observing as under: 23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offence and in such circumstance while considering the application f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and he needs urgent medical treatment and has relied upon the medical prescription issued by the Medical Officer, Central Jail, Kapurthala. Learned counsel, appearing for the respondent-ED, has filed the custody certificate, according to which, the petitioner is in judicial custody for the last 04 months and 18 days. Learned counsel for the respondent-ED has referred to Section 2(u) of the PMLA, which reads as under: Proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad. Learned counsel for the respondent-ED has further argued that under the provisions of Section 45 of the PMLA, no person accused of any offence under the PMLA shall be released on bail or on his own bonds 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offender and is involved in any other case even prior to registration of the aforesaid FIR, especially when he is not named either in FIR No. 26 or report submitted under Section 173(2) Cr.P.C. (c) As per own investigation of ED, the petitioner was helping Kudratdeep Singh @ Lovie, who was allotted the lease license, in his mining work and there is no direct allegation against him that he was looking into the finance of the Kudratdeep Singh @ Lovie, therefore, the Court is convinced that the petitioner qualify the triple test laid down under Section 45 of PMLA as the Court has nothing to presume adverse to the conduct of the petitioner and since all the documents are already in the custody of the investigating agency, therefore, there is no possibility for the petitioner to tamper with the same. (d) A perusal of the ECIR dated 30.11.2021 reveals that the same is registered under Sections 420, 467 and 471 of the IPC with reference to FIR No. 26 dated 07.03.2018 as scheduled offence, however, nothing could be found regarding the role of the then Chief Minister and the proceedings under the PC Act were dropped. (e) Even there is a force in the arguments raised by learne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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