TMI Blog2022 (11) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... OF ENFORCEMENT [ 2019 (12) TMI 186 - SUPREME COURT] , but at the same time the consideration will have to be on case to case basis on the facts involved therein and seeking the presence of the accused to stand trial. The bail are being granted on certain conditions in appropriate cases and the object of putting such conditions should be to avoid possibility by the person hampering the investigation Section 45 of the Act is no more res integra. The conditions as embodied under section 45 of the Act will have to be complied even in respect of application for bail made under section 439 of the Cr. P.C. There are allegations against this petitioner of laundering a huge amount of money which has come in the investigation and it has been elaborately discussed - The modus operandi as adopted by the petitioner disclosed that she first open bank accounts for short duration, then deposited huge cash into it, then converted those cash into dem and drafts to purchase insurance policies of longer durations and prematurely closed those policies to bring back liquidity in her accounts for further investment. She used to invest the same either in the form of capital infusion by her brother ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooth functioning from beginning i.e. allocation of work to till end i.e. payment of final instalment. It is alleged that in the prosecution case that the petitioner being the principal authority for sanctioning of fund for different development projects, in connivance with co accused Jai Kishore Chaudhary,. Executive Engineer, Special Division, Shashi Prakash, Executive Engineer, District Board, Rajendra Kumar Jain, Assistant Engineer, and Ram Binod Prasad Sinha, Junior Engineer, managed to do defalcation of funds in different development projects. In lieu of the same, she used to obtain the illegal commission from Ram Binod Prasad Sinha in cash and ignored all the irregularities and misdeeds by him. Her successor in the office constituted various inspection teams to assess the value of different works executed by Ram Binod Prasad Sinha, during his tenure as Junior Engineer in Special Division, Rural Works Department and as Junior Engineer in District Board, Khunti, Jharkhand. The reports submitted by the inspection teams constituted by the successor Deputy Commissioner, Khunti, established that there were huge differences in the quantum of funds released to Ram Binod Prasad Sinha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eized. Some movable properties in the form of high end vehicles were also found during the course of search from the premises of Suman Kumar who is a C.A. by profession and associated with the petitioner and her husband. The legitimate source of such income/money could not be explained by the accused Suman Kumar, the same were seized. He disclosed in his statement before E.D that most of the cash seized from his premises belongs to Pooja Singhal (petitioner), which was kept in his house and office, on her behalf. Further, the accused Suman Kumar was also beneficiary of closure proceeds received by the petitioner Pooja Singhal, which were purchased from the cash deposited in her account during her tenure as Deputy Commissioner in Khunti district. They also utilized the proceeds of crime to purchase on land in the name of Radhey Shyam Fireworks LLP where Pawan Kumar, who is brother of the accused C.A and the petitioner s mother Kamlesh Singhal were partners and Rs.1.33 crore was given in cash for it which was part of proceeds of crime collected and accumulated on behalf of the petitioner. The co accused Suman Kumar was filing IT returns of petitioner, since 2012 and managing her fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thers, 2022 SCC OnLine SC 929, particularly, the conclusion paragraph 187(d) of the said judgment that the Authorities under the 2002 Act cannot prosecute any person on notional basis or on the assumption that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. He submits that there are sixteen FIRs against four Engineers in the district of Khunti. He submits that this petitioner was posted as Deputy Commissioner, Khunti in the year 2009 2010. According to him, on the basis of these sixteen FIRs, the E.D has implicated the petitioner and no case has been lodged against this petitioner. He submits that the petitioner is a responsible I.A.S officer and was topper in her batch and she is having the highest integrity towards public service. He submits that the offence was of the year 2009 2010 and now the E.D has arrested this petitioner and she is languishing in jail with effect from 11.05.2022. By way of referring to Annexure 2 he submits that the petitioner was also departmentally proceeded on various charges by way of issuing Prapatra K and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court, unfortunately, the High Court took a view Prabhu Saran Rajya v. State of Bihar, Criminal Miscellaneous No. 5212 of 1992, order dated 3 8 1993 (Pat)] that the issues raised had to be gone into in the final proceedings and the report of the Central Vigilance Commission, exonerating the appellant of the same charge in departmental proceedings would not conclude the criminal case against the appellant. We have already held that for the reasons given, on the peculiar facts of this case, the criminal proceedings initiated against the appellant cannot be pursued. Therefore, we do not agree with the view taken by the High Court as stated above. These are the reasons for our order dated 27 3 1996 for allowing the appeal and quashing the impugned criminal proceedings and giving consequential reliefs. 11. In Radheshyam Kejriwal v. State of W.B. Radheshyam Kejriwal v. State of W.B. B., (2011) 3 SCC 581 : (2011) 2 SCC (Cri) 721], this Court held as follows: (SCC pp. 594 96, paras 26, 29 31) 26. We may observe that the standard of proof in a criminal case is much higher than that of the adjudication proceedings. The Enforcement Directorate has not been able to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ltaneously; ii) Decision in adjudication proceedings is not necessary before initiating criminal prosecution; iii) Adjudication proceedings and criminal proceedings are independent in nature to each other; iv) The finding against the person facing prosecution in the adjudication proceedings is not binding on the proceeding for criminal prosecution; v) Adjudication proceedings by the Enforcement Director ate is not prosecution by a competent court of law to attract the provisions of Article 20(2) of the Constitution or Section 300 of the Code of Criminal Procedure; vi) The finding in the adjudication proceedings in favour of the person facing trial for identical violation will depend upon the nature of finding. If the exoneration in adjudication proceedings is on technical ground and not on merit, prosecution may continue; and vii) In case of exoneration, however, on merits where the allegation is found to be not sustainable at all and the person held innocent, criminal prosecution on the same set of facts and circumstances cannot be allowed to continue, the underlying principle being the higher standard of proof in criminal cases. 13. It finally ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity has been brought to the knowledge of this petitioner. He draws the attention of the Court to section 45 of the Act particularly the proviso to sub section 2 of the Act and by way of referring the proviso he submits that the rigors of section 45 of the Act is not coming in the way of granting bail to the petitioner as the petitioner is a lady and she is suffering from several ailments. He submits that on this ground recently the Delhi High Court granted bail to one Devki Nandan Garg by order dated 26.09.2022 in the case of Devki Nandan Garg v. Directorate of Enforcement, 2022 SCC OnLine Del.3086. He further submits that looking into the ailments of Mr. P. Chidambaram, the Hon ble Supreme Court has also granted bail in the case of P.Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791 and he refers to paragraph no.23 of the said judgment, which is 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 ensur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin further six months time the investigation shall be concluded. He submits that atleast till completion of the investigation she may not be allowed regular bail. Mr. Das, the learned counsel appearing for the respondent E.D. draws the attention of the Court to paragraph no.6.1 of the complaint and submits that brother of her C.A., Suman Kumar, namely Pawan Singh and mother of this petitioner, namely, Kamlesh Singh a l were partners in a firm in which a huge amount of Rs.1.33 crore was invested in cash which has come in the said paragraph. He further draws the attention of the Court to paragraph no.7.3 which is statement of one Vijay Goel who was the contractor of the building for Pulse Hospital which is owned by Abhishek Jha who is the husband of this petitioner. He submits that Alok Sarawgi has disclosed in paragraph no.7.5 that he has received an amount of Rs.3 crores in cash in the year 2016 from Suman Kumar on the instruction of Abhishek Jha for the purpose of selling the land. By way of referring to paragraph no.7.6 he submits that Sidharth Singhal who is brother of this petitioner has also confessed about receiving of cash statement from Suman Kumar accused no.7 on one oc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing on behalf of the petitioner in the case of Ashoo Surendra Nath Tiwary(supra) is not helping this petitioner as in the case in hand the charge s in departmental proceeding and this proceeding are completely different. He submits that the modus operandi was adopted by this petitioner by way of purchasing the insurance policy and to fraudulently close the same, withdrew the amount and invest it to another place. He draws the attention of the Court to paragraph no. 280, 281 and 282 of the case in the matter of Vijay Madanlal Choudhary(supra) and he submits that the Hon ble Supreme Court has also held that if it is established in the court of law that the crime property in the concerned case has been rightfully owned and possessed by him, such a property by no stretch of imagination can be termed as crime property and ex-consequenti proceeds of crime within the meaning of section 2(1)( u ) as it stands today. On the other hand, in the trial in connection with the scheduled offence, the Court would be obliged to direct return of such property as belonging to him. He submits that stage will come once the trial is concluded. He referred to paragraph 282 of the said judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon ble Supreme Court has occasioned to examine paragraph nos.28 to 30, which reads as under: 28. Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. Section 45 of PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. The a llegation prima facie suggest that it has direct link with the proceeds of crime . In that, the property derived or obtained as a result of criminal activity relating to notified offences, termed as scheduled offence, is regarded as tainted property and dealing with such property in any manner is an offence of money laundering The modus operandi as adopted by the petitioner disclosed that she first open bank accounts for short duration, then deposited huge cash into it, then converted those cash into dem and drafts to purchase insurance policies of longer durations and prematurely closed those policies to bring back liquidity in her accounts for further investment. She used to invest the same either in the form of capital infusion by her brother Siddharth Singhal and her husband Abhishek Jha who is also an accused in their company M/s Pulse Sanjeevani Healthcare Private Ltd. Huge amount of cash amounting to Rs.73.81 lakhs was deposited in her various ICICI bank accounts. It has also been submitted that false certificate was tried to be o ..... 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