TMI Blog2023 (12) TMI 1170X X X X Extracts X X X X X X X X Extracts X X X X ..... l s case [ 2023 (4) TMI 874 - SUPREME COURT] , lodging of the prosecution complaint is sequel to the registration of the FIR in the predicate offence way back in the year 2021. In the present case on hand also, no charge sheet has been filed in the predicate offence for the last more than 15 months. The petitioner has been in jail from 04.03.2023. It is the first offence insofar as the petitioner is concerned. There are no other complaints registered as against him. The said argument gives room to say that second condition in clause (2) of sub-section (1) of Section 45 of the PMLA would be satisfied. In the aforesaid circumstances, continued incarceration of the petitioner, is not justified. In respect of a query raised by the investigating agency, the petitioner herein gave response to each and every question that has been asked for. Prosecution complaint was also filed on 01.05.2023. The petitioner was arrested on 04.03.2023 and since then he is in judicial custody. Time and again, petitioner is continuously attending before the investigating agency and co-operating with the investigation. This Court is of the opinion that it is not necessary to detain the petitioner in jail f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntract. As part of the SIEMENS project, 6 clusters at a cost of Rs. 546.84 crores (per cluster) were to be formed in which 90% of the total project cost i.e. Rs. 2951.00 crores was supposed to be borne by M/s. SISW and M/s. DTSPL, and the remaining 10% i.e. Rs. 330.00 crores was supposed to be borne by the Government. The total project cost for establishing 6 SIEMENS clusters amount to Rs. 3281.40 crores. 3. Since Sections 120B, 418, 420, 471 IPC and Section 13 of the Prevention of Corruption Act, 1988 are scheduled offences under the Prevention of Money Laundering Act, 2002 (for short, PMLA ), investigation was initiated under the aforesaid case information report dated 07.01.2022. The petitioner herein is arrayed as A.2 in the said case information report. In the course of investigation, the respondent recorded statements of various persons, collected documents/information from agencies, banks, entities, etc. and analyzed bank accounts, and it revealed many discrepancies including diversion of APSSDC funds through various shell companies; the vendors from whom purchases were shown to have been made were pre-decided in advance; major portion of funds were transferred to Skilla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Inweb Services Private Limited, Patric Info Services Private Limited, IT Smith Solutions Private Limited, Provestment Services Limited, Bhartiya Global Infomedia Limited, etc. were used as bogus billing entry to divert funds received directly from SEPL, and so far, diversion of funds of Rs.67.00 crores has been identified. Most of the funds were circulated among the entities either floated by Mukul Chandra Agarwal or the entities which are in some way connected to him, and he floated several entities as per the requirements of the petitioner. Though he was not associated with some of such entities, he was the one in control of these entitles. SEPL was incorporated by him on the directions of the petitioner and one Saurav Garg was made Director of the said company, however, cheque drawing powers were with Mukul Agarwal. He had knowledge that no goods or services were being provided by the shell companies to DTSPL. SEPL was never a supplier of goods or services and was only a conduit created for the purpose of layering of funds originating from APSSDC with a clear intention to divert and siphon off money and the generation of proceedings of crime. An internal investigation wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the petitioner, strenuously contended that Section 19 of the PMLA requires that before arrest of a person, the Authorized Officer must have reason to believe, basing upon the material in his possession, which has to be recorded in writing, that the person is guilty of the offence punishable under the said Act. He submitted that the Authorized Officer placed reliance on oral and hear-say material viz. statement under Section 50 of the PMLA, which is devoid of any corroboration/ tangible evidence, and the investigation has been carried on for more than 15 months, in addition to the investigation already been conducted by multiple other agencies in the said issue. He contended that in a predicate offence/FIR which has been registered by CBCID in crime No. 29 of 2021 of C.I.D. p.s., A.P., Amarvathi, Mangalagiri, the petitioner has been shown as A.8. By an Order dated 17.01.2022 in Criminal Petition No. 31 of 2022, this Court granted bail to the petitioner in the said crime. The petitioner is co-operating with the investigating agency and there is absolutely no accusation as against the petitioner that he is interfering with the investigation or tampering with the prosecution evidenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shell/defunct entities and cash that was generated was withdrawn from the system. It is further submitted that the entire bogus transactions were done on the basis of concocted and fabricated documents and invoices. He further submitted that the companies/entities which provided cash in lieu of receiving accommodated entries were identified, and some of these persons/entities were examined under Section 50 of the PMLA and they admitted that they provided cash against the funds received in their bank accounts. Basing on the aforesaid contentions, the learned D.S.G. prayed to dismiss the bail application since investigation is still pending. 6. Heard and perused the record. 7. Based on a report lodged by the Chairman of APSSDC, a case in crime No. 29 of 2021of C.I.D. p.s., A.P., Amarvathi, Mangalagiri was registered on 09.12.2021 against one Ghanta Subba Rao, the then Special Secretary to the Government, Skill Development, Entrepreneurship and Innovation Department, M/s. SISW, M/s. DTSPL and others for allegedly swindling of money invested by the Government in a dubious manner. The case was registered for the offences punishable under Sections 166, 167, 418, 420, 465, 468, 471, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount was diverted through a web of shell entities by way of layered transactions. 8. Insofar as role of the petitioner is concerned, it is alleged that he is involved in siphoning of government funds and played an active role in floating shell companies in the said process. The petitioner was examined by the investigating agencies number of times. Investigating agencies searched residential premises of the petitioner on 24.02.2023 and he was arrested on 04.03.2023. It is also pertinent to mention here that the petitioner, who is arrayed as A.8 in the crime registered by CBCID in crime No. 29 of 2021 of C.I.D. p.s., A.P., Amarvathi, Mangalagiri, was granted bail by this Court by an Order dated 17.01.2022, in Criminal Petition No. 31 of 2022. Now, it has to be seen whether arrest of the petitioner would meet up to the requirements of the PMLA or not. 9. Section 19 of the PMLA reads thus: 19. Power to arrest. ( 1) If the Director, Deputy Director, Assistant Director or any other officer authorised in this behalf by the Central Government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. (2) The limitation on granting of bail specified in 5*** sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation . For the removal of doubts, it is clarified that the expression Offences to be cognizable and non-bailable shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non- bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section. A perusal of the abovesaid provision goes to show that the Public Prosecutor has to be give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.03.2023, 02.03.2023 and 03.03.2023 and was examined at length. The petitioner was arrested on 04.03.2023. Despite the fact that for the last more than 15 months, different investigating agencies are conducting investigation, there is absolutely no accusation to the extent of any monies flown into the account of the petitioner. Except stating that the petitioner was instrumental in assisting A.3 in diversion of funds to the shell companies, there is no other material to connect the petitioner to the crime. 13. In pursuance of the agreement, it is borne out of the record that 2,13,000 students were trained, and to that extent, certificates have been issued to all the students that they have been trained. The service certificates issued by the other companies would go to show that the monies are being spent on the training programmes. It is also submitted that 40 skill development units were established for training students at large. In connection with the programme done by the SIEMENS, an appreciation letter has been issued to that extent. 14. It is also submitted that the averments to the extent that monies have been transferred to SEPL and from SEPL to ACI, and from ACI t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n would get enough opportunity in the proceeding before the Authority or the Court, as the case may be. He may be able to discharge his burden by showing that he is not involved in any process or activity connected with the proceeds of crime. In any case, in terms of Section 114 of the Evidence Act, it is open to the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. Considering the above, the provision under consideration [Section 24(a)] by no standards can be said to be unreasonable much less manifestly arbitrary and unconstitutional. 400. It is important to note that the twin conditions provided under Section 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 under Section 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 under Section 45 of the 2002 Act. While dealing with a sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby (emphasis supplied) 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 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 guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad , the words used in Section 45 of the 2002 Act are reasonable grounds for believing which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provide so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case-to-case basis on the facts involved therein and securing the presence of the accused to stand trial. In Sanjay Raghunath Agarwal v. Directorate of Enforcement (3 supra), relied on by the learned senior counsel appearing for the petitioner, it is held thus: (paragr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , petitioner is continuously attending before the investigating agency and co-operating with the investigation. This Court is of the opinion that it is not necessary to detain the petitioner in jail further. In view of the aforesaid facts and circumstances, this Court feels that request of the petitioner for grant of bail can be considered, however, on certain conditions. 18. In the result, the Criminal Petition is allowed. The petitioner shall be enlarged on bail on his executing a personal bond for a sum of Rs. 50,000/- (Rupees fifty thousand only) with two sureties each for the like sum to the satisfaction of the I Additional Sessions Judge-cum- Metropolitan Sessions Judge, Visakhapatnam. On release, the petitioner shall co-operate with the investigating agency and shall attend before the investigating agency once in a week i.e. on every Friday between 10.00 AM and 5.00 PM. It is represented that passport of the petitioner was seized by CBCID in connection with crime No.29 of 2021 of C.I.D. p.s., A.P., Amaravati, Mangalagiri. The petitioner shall not leave the country without prior permission from the competent Court. Miscellaneous Petitions, if any, pending in the Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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