TMI Blog2023 (10) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... rrest in writing had been supplied to the accused persons in compliance of judgment of the Hon ble Apex Court in case of Pankaj Bansal. After perusing the records of the case, the learned Sessions Court has categorically recorded that prima facie there was no violation of Section 19 of PMLA since the investigating officer, from the material and investigation conducted so far, had formed an opinion that the accused persons were guilty of offence of money laundering and had affected their arrest accordingly. The impugned order also mentions that the custody of the accused persons was sought not only due to their non-cooperation and evasive replies, but also due to the deliberate attempts to evade/mislead investigation and to find out the deep rooted conspiracy for the commission of offence under PMLA. Only after considering the abovementioned facts, the remand order impugned before this Court was passed. This Court notes that the present remand order is clearly distinguishable from the remand order which was challenged before the Hon ble Apex Court in case of Pankaj Bansal in which the concerned Sessions Judge had failed to even record a finding that he had perused the groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 021 was registered under Sections 417/420/468/471/120B of IPC, against one M/s. Grand Prospect International Communication Pvt. Ltd. ( GPICPL ) on the basis of a complaint lodged by the Ministry of Corporate Affairs ( MCA ). 3. In brief, the allegations in the said FIR are that certain Chinese shareholders of GPICPL had used forged identification documents and falsified addresses, while projecting itself to be a subsidiary company of Vivo, China. It is alleged that the company GPICPL had been incorporated by Zhengshen Ou and Zhang Jie, both Chinese nationals, with the help of one Chartered Accountant namely Nitin Garg who had facilitated the incorporation of the company by witnessing their signatures and their documents. During enquiry conducted by MCA, it was found that the said company had been incorporated to conduct fraudulent businesses. It is also alleged that the certifying professionals who had certified and filed e-forms knew that the same contained false information and false documents about the directors namely Zhengshen Ou and Zhang Jie. During inquiry, it was found that Zhengshen Ou and Zhang Jie were the shareholders of company, Zhengshen Ou and Bin Luo were direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igation only on 09.10.2023 when he had duly appeared before the agency, however, he was interrogated only for half an hour by asking routine questions, and he was arrested immediately. It is stated that he was arrested on 09.10.2023 itself whereas his arrest memo was prepared showing his arrest at 2:40 AM on 10.10.2023. 7. Learned Senior Counsel for the petitioner argues that the arrest of the petitioner has been carried out in a malafide manner and against the mandate of Section 19 of PMLA and such arrest is illegal and in violation of rights and protections available to the petitioner under law. It is stated that as per Section 19, it is necessary that the investigating officer should have a belief that the person being so arrested has been guilty of an offence punishable under this Act, and it is argued by learned Senior Counsel that the said ingredient of Section 19 is missing in the present case since the investigating officer has not recorded any such satisfaction. It is also argued that the mandatory nature of compliance of the provisions of Section 19 is affirmed from the Explanation to Section 45(2) of PMLA which says that the officers under PMLA are empowered to arrest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the answer received was affirmative. It is also argued that the learned Sessions Court had categorically recorded a finding that there was no prima facie violation of Section 19 of PMLA and that the investigating officer had reason to believe that the petitioner and other accused persons were guilty of commission of offence under PMLA. It is also argued that the present petition is an abuse of process of law and that the petitioner has neither challenged the ground of arrest nor challenged the arrest order or arrest memo, rather has only challenged the consequential proceeding post arrest i.e. the remand order. It is stated that the judgment in case of Pankaj Bansal (supra) relates to setting aside of arrest orders and memos and the consequential proceedings arising therefrom vide which the accused therein had been remanded to the custody of Directorate of Enforcement. It is therefore argued that there are no grounds warranting any interference with the impugned order dated 10.10.2023. 9. This Court has heard arguments addressed by the learned Senior Counsel for the petitioner as well as learned Special counsel for the respondent, and has perused the material placed on record. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ious Chinese applications and despite them operating in India, their data was not maintained in India, rather maintained in the servers in China. Further, investigation was also conducted on the aspects of commission of scheduled offences by Vivo India and its state distributor companies by way of using forged and fabricated driving licenses on the basis of which the directors had obtained the DIN and had opened accounts with HDFC Bank. 12. Investigation was also conducted to unearth the criminal conspiracy qua the real ownership of the companies and it was found that Coinmen Consultants LLP had carried out incorporation work for 18 entities of Vivo Group apart from the main company, including GPICPL, and all these companies were centrally controlled from China by Vivo Mobile Communication Company Limited, China through its employees namely Andrew Kuang i.e. the petitioner, Ray Xu, Ye Liao, etc. and all these employees had been sent by Vivo, China to incorporate Vivo, India and state distributor companies without disclosing true and correct information before the government authorities. It was also discovered that to give effect to this, invitation letters to the employees of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... email-id of the present petitioner in the FC-GPR filings before RBI which proves that he was well-aware about the mesh of companies being incorporated throughout the country. h. He was a part of larger criminal conspiracy and was therefore prima facie connected with the proceeds of crime acquired by Vivo Mobile India Private Limited and its state distributor companies through commission of various schedule offences. 14. This Court has also examined the contents of the grounds of arrest supplied to the petitioner herein at the time of his arrest which also contains the details of the investigation conducted under PMLA in respect of the FIR as well as the role of the present petitioner. It is significant to note that under the heading Role of Andrew Kuang , investigating officer had given details of as to how the present petitioner was one of the main conspirators who, in collusion with other Chinese individuals, had helped in creating a web of companies all over the country; as to how he had monitored and supervised the whole process and communicated with other entities; as to how his email-id was used in FC-GPR filings before RBI and that being an active part of conspirac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used persons in the FIR as well as the investigation conducted so far by Directorate of Enforcement. The learned Sessions Court had also perused the written grounds of arrest placed on record and had also taken note of the fact that the grounds of arrest in writing had been supplied to the accused persons in compliance of judgment of the Hon ble Apex Court in case of Pankaj Bansal (supra). After perusing the records of the case, the learned Sessions Court has categorically recorded that prima facie there was no violation of Section 19 of PMLA since the investigating officer, from the material and investigation conducted so far, had formed an opinion that the accused persons were guilty of offence of money laundering and had affected their arrest accordingly. 18. The impugned order also mentions that the custody of the accused persons was sought not only due to their non-cooperation and evasive replies, but also due to the deliberate attempts to evade/mislead investigation and to find out the deep rooted conspiracy for the commission of offence under PMLA. Only after considering the abovementioned facts, the remand order impugned before this Court was passed. Therefore, the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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