TMI Blog2022 (3) TMI 1552X X X X Extracts X X X X X X X X Extracts X X X X ..... es are likely to be provisionally attached before filing of final report in the predicate offence, the writ petitions are filed. The above logic squarely applies to the facts of the case in hand and this answers the first limb of the petitioners submission. This Court has no second view on the Principle of Law on precedent, as put forth by the Learned Additional Solicitor General, Section 45(1) of PMLA as it stands today after amendment ought to be applied when bail petition is considered in case of offences involving Proceeds of Crime above Rs.1 crore. This section which impose additional condition for grant of bail apart from the condition contain in the Code of Criminal Procedure or any other law in force. During the investigation, the respondent/complainant has asked the petitioner to furnish bank account statements of the offshore Companies involved in this transaction, original invoices raised by the Indonesian Coal Miners to his Dubai based entities, Books of Accounts of his foreign entities located in Mauritius and British Virgin Islands (BVI). The petitioner reluctant to part away those crucial documents and had given evasive reply. Having refused and reluctant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndonesia etc. During the period 2011-2015, (CEPL) imported coal from Indonesia under several consignments. The said goods were duly assessed by respective customs authorities and cleared for home consumption after due examination/scrutiny of import documents including test certificate, certificate of origin, invoice, contracts etc. 4. While so, the Directorate of Revenue Intelligence, Mumbai Zonal Unit, commenced investigations into the imports of coal with artificial inflation of values by certain Indian traders and actual users. It was suspected that the traders supply such coal to public sector coal based thermal generation companies at artificially inflated import price and the inflated price is remitted from India to the intermediary firms abroad which in turn remit only the actual price to the suppliers of the Indonesian coal and the balance is allegedly syphoned off. 5. After conducting extensive investigations, the petitioner Company was suspected of inflated price to inferior quality coal and involved in money laundering, the Directorate of Revenue Intelligence issued a Show Cause Notice dated 14.2.2017 under the provisions of the Customs Act, 1962 in F.No.DRI/MZU/F/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The statements of the petitioners were recorded in terms of Section 50 of PMLA, 2002. Further, the petitioner has also produced the documents which have been sought for by the investigation at the time of recording of the statement. 11. After initiating investigations and identifying the alleged proceeds of crime as also the properties said to have been acquired from the alleged proceeds of crime they passed a provisional attachment order No.01/2020 in F.No.ECIR/CEZO/I/01/2018 dated 28.2.2020 and under the provisional attachment order for the alleged possession of proceeds of crime as movable and immovable properties to the extent of Rs.557.25 crores properties quantified at Rs.6,730.68 crores being the plant, machinery, buildings, land of the power plant at Mutiara Thermal Power Plant, Tuticorin have been attached. A complaint in O.C.No.1286/2020 dated 19.03.2020 before the office of the Adjudicating Authority is pending. However, no confirmation of the said attachment order passed in terms of Section 5(3) of PMLA, 2002 even after the expiry of 180 days from the date of attachment. Thus, the provisional attachment order has lapsed and the office of the adjudicating authority ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of by suspending the LOC till 30.6.2021 on certain conditions which were also complied. 15. However, due to the raging pandemic in the second wave and closure of international borders. On petition extension of time of suspension of LOC till 30.9.2021 was ordered. The respondent had no serious objections and same was recorded in the order. The petitioner having returned to India, filed further writ petition in W.P.No.27972 of 2021 to lift the LOC from 7.2.2022 till 7.9.2022 to travel abroad. The High Court disposed of the writ petition with a direction that the petitioner would be entitled to travel abroad between the period 20.01.2022 till 07.09.2022 subject to certain conditions. One of the conditions imposed in the said writ petition was that he should appear before the respondent as and when directed by the investigation agency. In the said circumstances, the respondent issued summons dated 03.02.2022 to appear on 04.02.2022. On the request of the petitioner, the same was deferred and the petitioner directed to appear on 5.2.2022. Due to certain pressing engagements, he could not appear on 05.02.2022 and duly requested the Respondent for further deferment of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken up by the respondent. An Enforcement Case Information Report No.ECIR/CEZO-I/01/2018 dated 31.01.2018 was registered and so far, from the investigation conducted under PMLA 2002, it is revealed that there was an overvaluation of consignments of coal supplied to PSUs imported from Indonesia to India by CNO Group entities. The CNO Group entities comprise the Indian Company CEPL, viz., Coastal Energy Private Limited, Chennai which is engaged in trade of imported coal, Coastal Energen Private Limited, Chennai which is having a Coal Fired Power Plant in the name of Mutiara Thermal Power Plant, Coal Oil Group Company DMCC, Dubai (CNO DMCC) and Coal Oil Group Company LLC, Dubai (CNO LLC). All these companies are controlled and run by its promoter, shareholder/owner Mr.Ahmed A.R. Buhari who is the petitioner herein. 21. The modus operandi of the crime adopted by the petitioner is explained as below:- The petitioner herein through his Indian Company CEPL used to bid for supply of coal to the various Public Sector Undertakings (PSUs) like NTPC, APGENCO, MAHAGENCO, APCPL, TNPL. On getting the bids successfully allotted to his company, he will entered into the agreement for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PAO No.01/2020 in OC No.1286 of 2020 pending before the Hon'ble Adjudicating Authority (PMLA) New Delhi. 26. As far as the cause for the arrest on 03.03.2022, the respondent has stated that the Petitioner/Accused vide letter dated 01.02.2022 intimated his intent to go out of India next week implying after 07.02.2022. As his examination was required to move further in the investigation he was summoned vide summon dated 03.02.2022 for his appearance on 04.02.2022. However, he informed vide his letter and email dated 04.02.2022 that he would not be in a position to appear in view of short duration of time and his prior engagement. However, he chose not to appear even on the adjourned date for appearance i.e. 05.02.2022 Instead of appearing in compliance of summons under Section 50 of PMLA, 2002 petitioner preponed his departure and went out of India on 05.02.2022 itself (emphasis added) and intimated the respondent that he would appear in response to summons after his return to India. When he submitted his itinerary about his travel dated 05.02.2022 vide email he was immediately allowed to travel by the office of Respondent for departure to Singapore in compliance of the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U/F/Int.160/2014 was issued and it was proposed to re-determine the import value of the coal in terms of section 14 of the Customs Act, to confiscate the coal in terms of Section 112 (iii) of the Customs Act and to impose penalty in terms of Section 112(a) and (b) r/w 112 (iii) of the said Act. After reply to this show cause notice, DRI has not proceeded with the adjudication and it is still pending. After DRI thought fit not to proceed further, CBI registered FIR in R.C.221/2018/E0003 on 22/01/2018 under Sections 120B r/w 420 I.P.C and Sections 13(2) r/w Section 13(1)(d) of Prevention of Corruption Act 1988. In this case also the petitioner appeared before CBI and gave all the documents sought during investigation by CBI. Till date CBI has not filed final report. While so, when the First Information Report registered by CBI for thepredicate offence not culminated in final report, the Directorate of Enforcement for the very same transaction has registered ECIR in No.CEZO-1/01/2018 dated 31/01/2018 and even after due cooperation for investigation all these years, the petitioner is confined to prison for the reason he is withholding evidence in his possession. At the outset, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o arrest and Section 45 which speaks about granting bail to the person arrested and submitted that, for arrest under PMLA, the person authorised to arrest must prima facie satisfy himself that the accused is guilty of offence under PMLA. Whereas to grant bail, the Court must satisfy itself that the accused is not guilty of offence under PMLA. When the predicate offence itself not made out and no final report filed so far, the prima facie satisfaction of guilt to arrest does not arise. Unlike, Section 41 of Cr.P.C., when police may arrest without warrant , the threshold to arrest under PMLA 2002, is high and in this case, the respondent has failed to ensure the mandate laid in Section 19 of the PMLA 2002. 30. Per contra, the Learned Additional Solicitor General Mr.R.Sankarnarayanan for the respondent submitted that, to proceed under PMLA, the authorities need not wait for the conclusion of the proceedings initiated under the predicate offence. Even the outcome of the proceedings is immaterial. It is sufficient if proceedings initiated under schedule offence. Therefore, there is no bar to simultaneously initiate action under PMLA, 2002 and sustain it independent of the orders pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MANU/TN/0007/2022, questioning the constitutional validity of post amended Section 45 of PMLA, Division Bench of this Court has held that, as long as Section 45 of PML Act as amended is not struck down by the Constitutional Court, legislation duly passed by the Parliament is presumed to be valid and in force. Therefore, judicial propriety and discipline warrants the Bench of lesser strength to follow the dictum laid by the larger Bench of the same High Court. Any judgment of other Hon'ble High Courts contrary to the Division of Bench judgment of this Court may not have even persuasive value and certainly not binding. 34. Heard the arguments of the Learned Senior Counsels representing the petitioner and the respondent. 35. As far as the case in hand is concern, this Court is now called upon to decide whether the arrest of the petitioner under PMLA is uncalled. If not, whether it can exercise its discretion to set the petitioner at liberty on obtaining bail bond. 36. In T.Subramanian and others -vs- The Assistant Director, Directorate of Enforcement reported in MANU/TN/8500/2021, when a similar plea that initiating action under PMLA is premature, when there is no conclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lved in any act of moneylaundering. Instead, under false pretext that the properties are likely to be provisionally attached before filing of final report in the predicate offence, the writ petitions are filed. 37. The above logic squarely applies to the facts of the case in hand and this answers the first limb of the petitioners submission. 38. This Court has no second view on the Principle of Law on precedent, as put forth by the Learned Additional Solicitor General, Section 45(1) of PMLA as it stands today after amendment ought to be applied when bail petition is considered in case of offences involving Proceeds of Crime above Rs.1 crore. This section which impose additional condition for grant of bail apart from the condition contain in the Code of Criminal Procedure or any other law in force. 39. Adverting to the other limb of the petitioner's argument, Bail is the Rule Jail is exception is the philosophy generally followed in the Indian Criminal Jurisprudence. But, then there are certain legislations in India like NDPS Act and PMLA, which says, based on the gravity of offence alleged, Jail is the rule and bail is exception . Whether such classification is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments of the offshore Companies involved in this transaction, original invoices raised by the Indonesian Coal Miners to his Dubai based entities, Books of Accounts of his foreign entities located in Mauritius and British Virgin Islands (BVI). The petitioner reluctant to part away those crucial documents and had given evasive reply. Having refused and reluctant to handover these documents which are essential to ascertain whether the money laundered the manner in which the investigation so far reveals, mere physical presence at Respondent Office will not tantamount to cooperation to investigation. Further, having declared to maintain silence, the investigating agency needs time to collect the documents required, by other means as the petitioner himself have put it in his petition, (i.e.,) Letter of Request (LOR) under Section 57 of PMLA, 2002 or Section 166-A of Cr.P.C., may be resorted. It is the discretion and prerogative of the investigating agency, to choose the mode and they need no advice neither from the Court nor from the accused. To collect those documents, the confinement of the petitioner in prison is inevitable, else he may secret away the documents, taking advantage of h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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