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TMI Blog2023 (11) TMI 616X X X X Extracts X X X X X X X X Extracts X X X X ..... g heard and decided together by this common order 2. The applicants have preferred these bail applications under Section 439 of the Cr.P.C. for grant of bail as they have been arrested in connection with the complaint filed by the Directorate of Enforcement, Government of India under Section 44 read with Section 45 of the Prevention of Money Laundering Act, 2002 (for brevity 'the PMLA') for the offence under Section 3 and 4 of the PMLA in ECIR/RPZO/11/2022 wherein the present applicants have been named as an accused. MCRC No.5718 of 2023 (Arunpati Tripathi) : 3.(i)The allegation made against Arunpati Tripathi is that he along with Tuteja & Ms Saumya Chaurasia, in collusion with each other took bribes, illegal commissions and unaccounted monies etc. in the State of Chhattisgarh and the bribe collection work was done by Anwar Dhebar and his associates on their behalf. (ii) As per the complaint the further allegation is that the sale of liquor in Chhattisgarh was one of the major sources of illegal earning of the syndicate wherein Anil Tuteja along with Anwar Dhebar, Arunpati Tripathi, MD, CSMCL (Chhattisgarh State Marketing Corporation Limited) and Vikas Agarwal, Arvind Singh, Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . As against Trilok Singh Dhillon, it is alleged that the ED investigation has revealed that from the financial year 2019-20 to 2022-23 illegal earning to the tune of Rs. 2000 crores was generated by the syndicate in different way of commission in Part A, B & C and commission from FL-10A licence holders. According to the ED, this applicant knowingly participated in the criminal acts of the syndicate and is in possession of proceeds of crime. The applicant herein was roped in by the syndicate for safe keeping and concealment of the illegal commission. He received the part A commission from the liquor suppliers in his bank account. Trilok Singh is the Director in Petrosun Buo Refineries Pvt. Ltd. and raised the bills against supply of grains, whereas grains were supplied by their regular supplier only. Similar arrangement was made with AJS Agro Trade Private Limited, which is a company controlled by Anwar Dhebar, therefore, the present applicant is in possession of proceeds of crime through him company Petrosun Bio Refineries Pvt. Ltd., which was utilised by the syndicate to solve the problem of the distillers or arranging cash for payment of part A commission. The statement of Kamle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dhebar and was used by him to earn commission in banking channel and he asked the distillers to purchase grains through AJS Agro Trade Pvt. Ltd. Co-accused Arunpati Tripathi has disclosed the role played by Anwar Dhebar and the statements of Naveen Kedia, Bhupendra Pal Singh Bhatia and Rajendra Jayaswal have disclosed that they were called by Anwar Dhebar in a meeting and asked to give commission of Rs. 75/- per case in sale of country liquor. It was further stated that huge properties were purchased by Anwar Dhebar by the proceeds of crime and invested in different real estate business. 7.(i) Mr. Puneet Bali and Mr. Prafull N. Bharat, learned senior counsel appearing with Mr. Mateen Siddiqui, Advocate, Mr. Aditya Soni, Ms. Mizba Dhibar and Mr. Abhyuday Tripathi, Advocates, learned counsel for the applicants in MCRC No. 4911 of 2023 (Nitesh Purohit) & MCRC No. 5143 of 2023 (Anwar Dhebar), would submit that on a complaint filed by the Income Tax Office at Tis Hazari Court, New Delhi, cognizance under Section 277 of the Income Tax Act and Section 191 of the IPC was taken and the present accused persons have been inculpated by aid of Section 120B IPC. They would submit that since th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior counsel appearing with Mr. A.C. Singh, Mr. Harshwardhan Parganiha, Ms. Saloni Verma, Mr. Harshit Sharma, Mr. Manish Mishra & Mr. Prashant Pandey, learned counsel for the applicant in MCRC No. 5056 of 2023 (Trilok Singh Dhillon), while adopting the arguments advanced on behalf of the applicants namely; Nitesh Purohit & Anwar Dhebar would submit that neither at Tis Hazari Court nor in the FIR at Noida, name of this applicant has not been taken. (ii) Learned counsel would further submit that according to the ED, the income was assessed for the year 2020-21. The applicant has filed his income tax return, which was accepted by the Income Tax Department and no appeal was filed. Therefore, that assessed income has attained finality and no unaccounted cash was found in the hands. Thus, prima facie, the case of the ED is false. Therefore, at a subsequent stage how it can be stated that the amount which was alleged to be in hands of the applicant can be said to be proceeds of crime. (iii) Learned counsel would also submit that the applicant is in custody since 11-5-2023. According to them no further investigation is required as the same has been stayed and hence the applicant may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icials. (III) Part 'C' : Annual commission paid to allow distillers to operate in the State. (IV) FL-10A License : introduction of private wholesaler to earn illegal profit. 13. I have gone through the statements recorded in various cases of Arunpati Tripathi and Vidhu Gupta wherein role of Arunpati Tripathi has been stated and specially in the statement of Vidhu Gupta the role of Arunpathi Tripathi has been elaborated. Likewise in the case of Nitesh Purohit, apart from the statement of Nitesh Purohit under Section 50 of the PMLA, Arvind Singh had stated the modus operandi which shows that for commission of Part A, B & C, the money of the commission was distributed by nine shareholders, which shows that all the persons are influential one, few of them are part of system. 14. In case of Trilok Singh Dhillon statement of Sanjhiv Fatehpuria & Kamlesh Kumar Kesharwani was seen wherein the specific role played by Trilok Singh Dhillon has been explained. 15. In respect of Anwar Dhebar all the witnesses have named him in their respective statements and attributed the role played. 16. Section 45 of the PMLA envisages that when the Public Prosecutor opposes the application and the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly upon projecting or claiming the property in question as untainted property that the offence of Section 3 would be complete, stands rejected. (d) The offence under Section 3 of the 2002 Act is dependent on illegal gain of property as a result of criminal activity relating to a scheduled offence. It is concerning the process or activity connected with such property, which constitutes the offence of money- laundering. 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. If the person is finally discharged/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. xxxxxxxxx (xv) (a) The process envisaged by Section 50 of the 2002 Act is in the nature of an inquiry against the proceeds of crime and is not "investigation" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and after enquiry the complaint has been filed and it is pending before the competent Court. Apart from it is not a case of defence that scheduled offence has not been registered with the jurisdictional police. Applicants have not been finally absolved of their offences by a Court of competent jurisdiction by an order of discharge, acquittal or quashing of a criminal case of a scheduled offence, therefore, the attempt to take a guard pursuant to para 33 of the judgment cited above would be a misinterpretation. 21. Further, the initial filing of the complaint by the Income Tax Department, which includes the predicated offence though cognizance taken in respect of two sections, but the complaint was not dismissed at the threshold. The Income Tax Department was given free hold to file it before the competent jurisdictional Court apart from the fact that the FIR has been registered with respect to hologram at Noida (Uttar Pradesh), which is pending enquiry before the police which includes names of Arunpati Tripathi, Anwar Dhibar and others. 22. There is a legal presumption envisaged under Section 23 of the PMLA, which speaks that where money laundering involves two or more inter-co ..... 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