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TMI Blog2023 (8) TMI 476X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Satarupa Bhattacharya and Sri Manik Bhattacharya in conspiracy with themselves and other induced their family members and relatives and pursuant to that conspiracy opened a number of joint bank accounts with those induced persons without informing them the purpose of opening the such joint bank accounts in her control, occupation and operation. Investigation further revealed that one of the joint bank accounts opened with Late Shri Mrityunjay Chatterjee who passed away in the year 2016 itself but Shri Satarupa Bhattacharya updated the KYC of the said bank accounts by showing the said expired Late Shri Mrityunjay Chatterjee as out of station. Further, she also infused huge sum in that bank accounts recently after the death of the said Mrityunjay Chatterjee and from there the same were used for making FD jointly in the name of herself and her relative Shri Pannalal Bhattacharya. Further, Shri Satarupa Bhattacharya operated those accounts by showing herself as secondary holder but the said bank accounts was completely under her control and use. That the investigation conducted under PMLA revealed that she is a housewife and totally dependent on her husband Shri Manik Bhattacha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s who are in custody, there is no question of issuing any process against them, but in respect of other 11 accused who are companies necessary order for issuance of summons will be issued at a later stage. However, there is nothing reflected in the order sheet to show that summons were issued against the petitioner, the petitioner was served with a summon signed by the learned Judge, Special Court CBI No.1, Calcutta and Special Court under PMLA Act wherein she was required to appear on 07.01.2023. In response to the said summons, the present petitioner appeared on 07.01.2023 and she prayed for bail after physically appearing in court. On behalf of the Enforcement Directorate a submission was advanced that they should be permitted to file written objection and for that, time be granted to them. Accordingly, the learned Special Court granted time to the E.D. and further observed that the objection should be filed and counter affidavit be exchanged by 07.02.2023 and she was allowed to return back to her home, pursuant to the order passed by the learned Special Court. On 07.02.2023, an accommodation was sought for on behalf of the petitioner as it was submitted that in the morning hour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en legal advice it remains that the petitioner is in custody till date. Learned advocate has relied upon the judgment of this Court in the case of Enforcement Directorate Vs. Shri Debabrata Halder reported in 2022 SCC OnLine Cal 409 and drawn the attention of this Court to paragraph 23 which is set out as follows: "23. Be that as it may, there is difference with regard to releasing a person on bail who has appeared in response to summons and a person who was arrested in course of investigation under the PMLA, 2022 by the Investigating Authorities invoking their powers under Section 19 of the Act. The accused Nos. 2 to 11 appeared before the learned Special Court pursuant to the summons which were issued to them as such taking into account the provisions of Section 65 of the PMLA, 2002 it can be held that if the learned Special Court intended to exercise its option under Section 88 of the Code of Criminal Procedure the same cannot be interfered with until and unless supervening circumstances are brought on record." Learned advocate appearing for the ED has taken a preliminary objection regarding the maintainability of the bail application in view of the order which has been cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cruitments were granted by people, who held high offices. Learned Advocate tried to emphasise on the particular word "supervening" in paragraph 23 in Debabrata Halder (supra) to stress that the rural youth of West Bengal have been deprived of their rightful employment, wherein people in power have sold the employment. In order to substantiate his argument, learned advocate relied upon the following judgments: 1. Y.S. Jagan Mohan Reddy -Vs. CBI (2013) 7 SCC 439; 2. Rohit Tandon Vs. Directorate of Enforcement (2018) 11 SCC 46; 3. Anil Kumar Yadav Vs. State (NCT of Delhi), (2018) 12 SCC 129; 4. Gautam Kundu Vs. Directorate of Enforcement (Prevention of Money-Laundering Act), (2015) 16 SCC 1; 5. Ranjitsing Brahmajeetsing Sharma V. State of Maharashtra (2005) 5 SCC 294; 6. Subires Bhattacharyya, in re, 2022 SCC OnLine Cal 4307; 7. Anubrata Mondal V. CBI, 2023 SCC OnLine Cal 23; 8. AIR 2018 SCC 1155 Pankaj Jain vs. Union of India and another; 9. Satender Kuman Antil Vs. CBI, (2022) 10 SCC 51; 10. Directorate of Enforcement Vs. Debabrata Halder, 2022 SCC OnLine Cal 4095. Another argument which has been lastly canvassed by Mr. Edulji was that the petitioner m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case is regarding the exercise of powers under Section 19 of the PMLA Act, 2002. The issue relating to the constitutional validity of Section 19 of the PMLA Act, 2002 was called in question so far the power relating to arrest is concerned before the Hon'ble Supreme Court in Vijay Madanlal Choudhary and Others -Vs.- Union of India and Others reported in 2002 SCC OnLIne SC 929. The Hon'ble Supreme Court was pleased to observe as follows :- "322. Section 19 of the 2002 Act postulates the manner in which arrest of person involved in money-laundering can be effected. Subsection (1) of Section 19 envisages that the Director, Deputy Director, Assistant Director, or any other officer authorised in this behalf by the Central Government, if has material in his possession giving rise to reason to believe that any person has been guilty of an offence punishable under the 2002 Act, he may arrest such person. Besides the power being invested in high-ranking officials, Section 19 provides for inbuilt safeguards to be adhered to by the authorised officers, such as of recording reasons for the belief regarding the involvement of person in the offence of money-laundering. That has to be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall exclude the time necessary for the journey from the place of arrest to the 531[Special Court or] Magistrate's Court." 324. This argument clearly overlooks the overall scheme of the 2002 Act. As noticed earlier, it is a comprehensive legislation, not limited to provide for prosecution of person involved in the offence of money-laundering, but mainly intended to prevent money-laundering activity and confiscate the proceeds of crime involved in money-laundering. It also provides for prosecuting the person involved in such activity constituting offence of money-laundering. In other words, this legislation is an amalgam of different facets including setting up of agencies and mechanisms for coordinating measures for combating money-laundering. Chapter III is a provision to effectuate these purposes and objectives by attachment, adjudication and confiscation. The adjudication is done by the Adjudicating Authority to confirm the order of provisional attachment in respect of proceeds of crime involved in money-laundering. For accomplishing that objective, the authorities appointed under Chapter VIII have been authorised to make inquiry into all matters by way of survey, search ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 860 nor in any other enactment dealing with offences. This word has been derived from the French word "arrater" meaning "to stop or stay". It signifies a restraint of a person. It is, thus, obliging the person to be obedient to law. Further, arrest may be defined as "the execution of the command of a court of law or of a duly authorised officer". Even, this decision recognises the power of the authorised officer to cause arrest during the inquiry to be conducted under the concerned legislations. While adverting to the safeguards provided under that legislation before effecting such arrest, the Court noted as follows: "Safeguards against abuse of power 36. From the above discussion, it is amply clear that power to arrest a person by a Customs Officer is statutory in character and cannot be interfered with. Such power of arrest can be exercised only in those cases where the Customs Officer has "reason to believe" that a person has been guilty of an offence punishable under Sections 132, 133, 135, 135-A or 136 of the Act. Thus, the power must be exercised on objective facts of commission of an offence enumerated and the Customs Officer has reason to believe that a person sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment or one of the highest officers, it will be presumed that the discretion vested in such highest authority will not be abused. Additionally, the Central Government has framed Rules under Section 73 in 2005, regarding the forms and the manner of forwarding a copy of order of arrest of a person along with the material to the Adjudicating Authority and the period of its retention. In yet another decision in Ahmed Noormohmed Bhatti537, this Court opined that the provision cannot be held to be unreasonable or arbitrary and, therefore, unconstitutional merely because the authority vested with the power may abuse his authority. (Also see Manzoor Ali Khan538)". While upholding such validity of the powers of arrest, it was observed by the Hon'ble Apex Court that the provisions were enacted and they have reasonable nexus with the purposes and object sought to be achieved by 2002 Act for the purposes of money laundering and confiscation of proceeds of crime involved in money laundering including to prosecute persons involved in the process of activity connected with the proceeds of crime. With reference to the observations or findings of the Hon'ble Apex Court wherein it has been held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned court under Section 45 of the PMLA took cognizance of the offence but did not decide the issue of bail and also did not take the petitioner in custody. I am of the opinion impliedly the petitioner was granted bail on 7th January, 2023. The subsequent written objection which was filed is in the nature of an application for cancellation of bail or cancellation of liberty granted to the petitioner on 7th January, 2023 which was considered on 22nd February, 2023 and her bail was cancelled and she was taken into custody. The series of act which happened before the learned special court are very disturbing and the legal steps which were taken subsequently by the petitioner were far more disturbing but even then there is no dispute regarding the fact that the petitioner is in custody till date. The law relating to consideration of bail under Section 439 of the Code of Criminal Procedure has already been considered by the Hon'ble Supreme Court in Sundeep Kumar Bafna vs. State of Maharashtra reported in (2014) 16 SCC 623 which relate to the High Court directly considering the application for bail in certain circumstances. In this case, if the provisions of Section 45 of PMLA Act stric ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not be justify a judgement of conviction. The findings recorded by the Court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial Court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby." The aforesaid observations were approved in Vijay Madan Lal Chowdhury (supra) in paragraph 401 which is set out as follows: "401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing 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 wor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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