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TMI Blog2023 (2) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... Court feels it proper to narrate the allegations appearing against the petitioner in precise which runs as; on 05.03.2010 at about 10 P.M., the petitioner was stated to be terrorizing the local businessman of Barbil market demanding extortion money by showing revolver (Dada Bati), but since no one could muster courage to lodge FIR against the petitioner, the IIC accordingly lodged an FIR vide Barbil P.S. Case No. 58 of 2010 for commission of offences punishable U/Ss. 307/387 of IPC read with Sections 25 & 27 of Arms Act against the petitioner and in the course of search of the house of the petitioner by the IIC and Police staff, the petitioner fired at police but none was injured and the IIC, Barbil recovered and seized cash of Rs.97,15,000/- and gold ornaments of 662 grams from the house of the petitioner and it was ascertained by the police that the petitioner had accumulated such cash and property by smuggling iror ore and demanding extortion as the petitioner had no legal source of income to acquire such huge property and cash. On this incident, immediate after registration of the FIR in the aforesaid case, the S.P., Keonjhar forwarded the copy of the FIR to the Asst. Director ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to refer to the observations of the Hon'ble Apex Court in a very recent decision in Satender Kumar Antil Vrs. Central Bureau of Investigation and another; (2022) SCC Online SC 825 which is extracted as under:- "Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and the essential requirements of a modern man." 5. Besides, in P.Chidambaram Vrs. Directorate of Enforcement; (2020) 77 OCR (SC) 383, the Apex Court in Paragraph-23 has held 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. Kee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner had denied to release the seized gold ornaments and property in favour of him for his failure to establish such property belonged to him and by observing so, the learned trial Court had placed the disposal of the seized cash and gold ornaments with the State Government and complaint having filed in this case claiming such property to be proceeds of crime, the Special Court has already attached the property of the petitioner including the aforesaid seized property. 6.1 In counter to such argument, Mr.M.Kanungo, learned Senior Counsel by filing the certified copy of order passed by learned Sessions Judge, Keonjhar in Criminal Appeal No. 11 of 2012 U/S. 454 of Cr.P.C. against the disposal of property as recorded by learned Additional Sessions Judge in ST Case No. 23/70 of 2011 which arises out of Barbil P.S. Case No. 58 of 2010, submits that the learned Sessions Judge, Keonjhar in an appeal has directed release of the property in favour of the petitioner and hence, the said property cannot be considered as a proceeds of crime and the petitioner having acquitted in the original criminal case for the scheduled offence under IPC and the property having directed to be returned ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Paragraph 467(v)(d) in Vijay Madanlal Choudary (Supra) submits 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 competent forum and if the person is finally discharged or acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money laundering against him or any one claiming such property being the property linked to stated scheduled offence through him. In support of his contention, learned Sr. Counsel also relies upon the order passed on 27.07.2022 in W.P. (c) No. 368 of 2021 (Indrani Patnaik and another Vrs. Enforcement Directorate and others) wherein the Apex Court after taking notes of submission about discharge of the Petitioner therein from the scheduled offences has been pleased to observe as under :- "taking note of the submissions made by the learned Additional Solicitor General and in the interest of justice, we reserve the liberty for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered apposite to fall back upon the law laid down in Paragraph 400 and 401 in Vijay Madanlal Choudary (Supra). "400. It is important to note that the twin conditions provided U/S. 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided U/S. 45 impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational, but judicial, guided by the principles of law as provided U/S 45 of the 2002 Act. xx xx xx xx xx 401. We are in agreement with the observations made by the Court in Ranjitsingh Brahmajeetsingh Sharma. The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the trial Court in recording its finding of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of which five FIRs are prior to the year 2010 and one FIR is of the year 2021, but it is not made clear by the E.D. whether any complaint under PML Act has been filed in respect of six FIRs. Needless to say, E.D. can initiate proceedings under PML Act in respect of those six(6) FIRs, if it is permissible under law and the present complaint in respect of Barbil PS case No. 58 of 2010 being independent of the other cases has to be considered independently and wholly on the facts involved and dependent in this case. Since the proceeding U/S. 3 of the PML Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence, the activity connected with such property constitutes offence of money laundering. In other words, according to Sec. 3 of PML Act, whoever directly or indirectly attempts to indulge or knowingly assist or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering. In this case, of course, the Petitioner is facing a pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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