TMI Blog2024 (3) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... iven by TNFSL. In any case, this Court cannot come to a conclusion that the differences pointed out is as a result of manipulation. That would tantamount to an extreme presumption which is not warranted at this stage. It must be borne in mind that these materials and reports were collected by the investigation agency, who investigated the predicate offences and the respondent is merely relying upon the same in order to prosecute the petitioner for offence under Section 3 of PMLA. It is not necessary for the respondent to rely upon all the materials collected in the predicate offence and it is always left open to the respondent to select the relevant materials to make out a case under Section 3 of PMLA. The seized digital evidence is in the custody of the Special Court dealing with MP/MLA cases and what the respondent has done is that they have obtained a copy of the digital evidence in printout form which has been certified by the Court. It must be borne in mind that this Court cannot conduct a roving enquiry or a mini trial to test the probative value of the electronic record relied upon by the respondent. What is required is to see as to whether there is prima facie genuineness i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner. None of the other persons from whom statements have been recorded under Section 50 of PMLA are shown as accused or suspects. The petitioner resigned from the post of Minister without a portfolio just one day prior to the hearing of this bail petition. The fact that the petitioner continued to hold the position as a Minister for nearly eight months and that to without a portfolio when he was inside the jail, shows the tremendous influence of the petitioner and the importance that is given to him by the State Government. Even if the petitioner had resigned from his position as a Minister, he continues as a MLA belonging to the same party which is running the Government in the State of Tamil Nadu and therefore, without any hesitation, this Court holds that the petitioner continues to wield a lot of influence on the Government. When such is the position, the witnesses who are mostly the officials belonging to the MTC and the prospective job seekers who had paid the money, will be influenced/tampered with - This Court is also taking into consideration the larger interest of the Public/State since the petitioner was involved in a cash for job scam by misusing his position as a Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner was arrested and remanded to judicial custody on 14/06/2023. The petitioner had earlier filed a bail petition before the learned Principal Sessions Judge in Crl.M.P.No.22608 of 2023 and this petition was dismissed by an Order dated 20/09/2023. Thereafter, the petitioner filed Crl.OP.No.23629 of 2023, before this Court seeking for bail and this petition was also dismissed by an Order dated 19/10/2023. 2.4 . The petitioner has once again filed a bail application before the Court below in Crl.MP.No.81 of 2024 and the same was dismissed by an Order dated 12/01/2024. Thereafter, the present bail application has been moved before this Court. 3. SUBMISSIONS: 3.1 . The learned Senior Counsel appearing on behalf of the petitioner submitted that there are change in circumstances in the present bail application and there have been many developments that had taken place after the dismissal of the earlier bail petitions filed before the Court below as well as this Court. The learned Senior Counsel further submitted that the triple test under Section 439 of Cr.PC., and the twin conditions under Section 45 of PMLA has been satisfied by the petitioner in this bail application. 3.2 . The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns that had also taken place to the pen drive after the seizure. The learned Senior Counsel further submitted that insofar as CF-116 is concerned, it was a Hard disk relied upon by the respondent. However, what was seized was a HP Hard disk and what has been submitted to analysis is Seagate Hard disk. Therefore, there is a discrepancy with respect to the very Hard disk that has been relied upon and there is nothing on record to show that Seagate Hard disk was seized during the investigation. That apart, there is inherent discrepancy even in the report that has been filed after analysing the Seagate Hard disk. In view of the same, since the probative value of these three electronic records is a suspect, the petitioner has raised more than a reasonable doubt about the probative value of these materials and hence, it was contended that with the available materials, the petitioner cannot be held to be guilty. 3.5 . The learned Senior Counsel further submitted that the respondent has relied upon the statements that were recorded under Section 50 of the PMLA from the co-accused in the predicate offence and also the suspect in the ECIR registered by the respondent. The same cannot be take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pertains to the period prior to the check period starting from 2014 onwards. Those materials in which the petitioner has absolutely no connection, has also been relied upon by the respondent. 3.9. In the light of the above submissions, the learned Senior Counsel concluded his arguments with a plea that the petitioner has spent nearly eight months in the jail and he is entitled for being enlarged on bail subject to any conditions imposed by this Court. 3.10 . The learned Senior Counsel in order to substantiate his submissions relied upon the following judgments: (i) Avtar Singh Kocchar @ Dolly Vs. Enforcement Directorate (Bail Appln.1814 of 2023) Del High Court. (ii) Chandra Prakash Khandelwal Vs. Directorate of Enforcement reported in (2023 SCC Online Del 1094) (iii) Bhupinder Singh @ Honey Vs. Enforcement of Directorate (CRMM- 27871-2022) Punjab Haryana High Court. (iv) Pankaj Bansal Vs. Union of India Others reported in (2023 SCC Online SC 1244). (v) P.Chidambaram Vs. Central Bureau Investigation reported in (2020 13 SCC 337). (vi) Union of India v. K.A.Najeeb reported in (2021) 3 SCC 713. (vii) Mohd.Muslim @ Hussain v. State (NCL of Delhi) reported in 2023 SCC Online SC 352. (vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a separate prosecution that is going on in that regard. In view of the same, it was contended that the grounds that were put against the petitioner under Section 439 of Cr.PC, continues and there is no change in circumstances. 3.12. The learned ASG submitted that insofar as the twin conditions under Section 45 of the PMLA, both the conditions have not been satisfied by the petitioner. The learned ASG submitted that the words used under Section 45 of the PMLA 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 doubts at the stage of considering the bail petition. 3.13. The learned ASG further submitted that the so called discrepancies that were pointed out by the learned Senior Counsel with respect to CF-29/20, CF-27/21 and CF-116 are totally misconceived and there is no such discrepancy as has been attempted to be projected by the petitioner. Insofar CF-116 is concerned, it does not pertain to the HP hard disk drive seized from the house of the petitioner. It actually pertains to the Seagate hard disk which was seized from the MTC, Pall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n only be proved at the time of the trial. At this stage, the Court must only see if the final report in the predicate offence is genuine, the complaint in the PMLA case is genuine and this is not an occasion for conducting a mini-trial. 3.15. The learned ASG further submitted that in the complaint that was filed before the Court below, the materials that are relied upon by the petitioner is explained in detail. That apart, the statements that were recorded during the course of investigation has also been explained in the complaint which clearly shows that the entire predicate offence was committed in a very organized manner and money to the tune of Rs. 67.74 Crores has been collected. The manner in which it was collected has also been clearly explained in the complaint filed before the Court below. Out of this amount, the Directorate of Enforcement was able to lay its hands only insofar as Rs. 1.34 Crores is concerned and a huge amount in this case has been concealed by the petitioner and other accused persons. The learned ASG submitted that the predicate offence is for the offence under the Prevention of Corruption Act and the bribe that has been received constitutes the proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PMLA and as on today, there are no reasonable grounds to believe that the petitioner is not guilty of such offence. That apart, the petitioner is repeatedly indulging in criminal activities which is evident from nearly 30 FIRs that have been registered against the petitioner. This prima facie establishes that going by the past conduct of the petitioner, he has the proclivity to commit offences. The second limb of Section 45 of PMLA talks about the likelihood of committing any offence and that offence need not necessarily confine itself to the offence under the PMLA and it is relatable to any act that is categorised as an offence in any law for the time being in force. In view of the same, the twin conditions which are mandatory under the PMLA has not been satisfied by the petitioner and hence, he is not entitled to be released on bail. 3.19 . The learned ASG submitted that the complaint has been filed before the Court below as early as in August 2023 itself and the petitioner is not willing to go ahead with the case even though the respondent is always ready to get on with the case. Hence, if there is any delay in progressing with the pending complaint, it can be attributed only as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 67.74 crores, is totally unbelievable. 3.21. The learned Senior Counsel further submitted that he is not alleging that the additions/modifications/interpolations were done by the respondent. It is also not relevant as to who had committed these acts at this point of time and what is relevant is that, it affects the very probative value of the electronic record that is sought to be relied upon by the respondent. 3.22. The learned Senior Counsel further submitted that there is a lot of doubt insofar as CF-29/20 and CF-27/21 and if these two materials are disregarded, there is no evidence available against the petitioner. Insofar the statements recorded by the respondent under Section 50 of PMLA, except for six witnesses, all the other statements that were recorded pertains to the co-accused/accomplice. In the absence of any other evidence available against the petitioner, the mere statements of the co-accused/accomplice/suspects cannot be put against the petitioner. Even insofar as the so called statements that were given by six other witnesses, there is nothing to show that those statements anywhere incriminated the petitioner in committing the offence. 3.23. The learned Seni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exception on its head. Under the PMLA regime jail is the rule and bail is the exception. The power of the Court to grant bail is further conditioned upon the satisfaction of the twin conditions prescribed under Section 45(1) (i) and (ii) PMLA. While undertaking this exercise, the Court is required to take a prima facie view on the basis of materials collected during investigation. The expression used in Section 45 of PMLA are reasonable grounds for believing which means that the Court has to find, from a prima facie view of the materials collected during investigation that there are reasonable grounds to believe that the accused has not committed the offence and that there is no likelihood of him committing an offence while on bail. Recently, in Tarun Kumar v Assistant Directorate of Enforcement, 2023 SCC Online SC 1486, the Supreme Court has held as under: As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains to CF-116. It came to light that this electronic record is a Seagate Hard disk that was seized from Metropolitan Transport Corporation Office at Pallavan Salai. Even though substantial submissions were made on this electronic record by pointing out to certain contradictions etc, it was made clear by the learned ASG that this electronic record will have no relevance in this case and it has not been relied upon by the respondent to substantiate their case against the petitioner for offence under Section 3 of PMLA. In view of this categoric stand taken by the respondent, it is not necessary for this Court to discuss anything further regarding CF-116. 4.10. The next important submission that was made pertains to the pen drive which are identified as CF-29/20 and CF-27/21. The learned Senior Counsel appearing for the petitioner submitted that item no.5 which was the pen drive is heavily relied upon as an incriminating evidence against the petitioner. The seized items were subjected to analysis atleast on four different occasions and finally, what has been relied upon are CF-29/20 and CF-27/21. CF-29/20 and CF-27/21 were analysed at two different points of time. CF-29/20 was sent fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... LA. It is not necessary for the respondent to rely upon all the materials collected in the predicate offence and it is always left open to the respondent to select the relevant materials to make out a case under Section 3 of PMLA. The seized digital evidence is in the custody of the Special Court dealing with MP/MLA cases and what the respondent has done is that they have obtained a copy of the digital evidence in printout form which has been certified by the Court. This material forms part of the complaint filed in C.C.No.9 of 2023. 4.13. The respondent in order to ensure that the relevant materials are specifically identified and relied upon, took the efforts of applying for the certified copies of the documents that were the subject matter of these files. As has been held by the Apex Court in Vijay Madanal Choudhary, what must be seen by the Court is as to whether a genuine case has been instituted against the accused by relying upon materials which are prima facie genuine 4.14. On carefully going through the reports CF-29/20 and CF-27/21, this Court is not able to see any tampering/antedating/overwriting etc. Insofar as CF- 29/20 is concerned, all the files barring Sl.No.275 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... material on which the proceeds of crime was fixed at Rs. 67.74 crores and for proper appreciation, the same is extracted hereunder: 14.5.8 . A file named 'CS AC' found in the CF 27 of 2021 DVD report with path name CF 27-21\FROM ITEM 5/FILES FOR QUESTIONS' includes a sub sheet named 'Sheet 7' - it contains number of posts of Driver, Conductor, Junior Tradesman, Junior Assistant, Junior Engineer, Assistant Engineer etc., in various TNSTCs/MTC. It shows that the driver post is priced and sold at Rs. 1.50 Lakhs, Conductor post at Rs. 2.0 Lakhs, Junior Assistant post at Rs. 5 Lakhs, Junior Tradesman at Rs. 4 Lakhs, Junior Engineer at Rs. 7 Lakhs, Assistant Engineer at Rs. 8 Lakhs respectively. The first page of above excel sheet is pasted as below [BRUD No.771]: Sum-Counta CAT DIV AE CR DCC DR JA JE JTM Total Result (blank) 2 2 4 CBE 6 78 63 15 7 76 245 KUM 8 126 279 45 105 563 MDU 5 55 35 3 21 119 MTC 22 161 181 6 51 421 SETC 1 98 99 SLM 175 182 46 30 433 TNV 3 48 28 5 1 12 97 VPM 429 365 141 935 Total Result 45 1074 98 1133 114 14 438 2916 Grand Total 1133 98 1074 438 114 14 45 2916 1.5 1.5 2 4 5 7 8 1699.5 147 2148 1752 570 98 360 6774.5 4.18. The learned Senior ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e above submission made by the learned Senior Counsel for the petitioner does not hold water. As on date, the petitioner alone has been made as an accused and the complaint has been filed only as against the petitioner. None of the other persons from whom statements have been recorded under Section 50 of PMLA are shown as accused or suspects. The Hon'ble Apex Court in Vijay Madanlal Choudhary case referred supra has made it very clear at paragraph No.431 as follows: In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not police officers and therefore, these statements can be relied upon as admissible piece of evidence before the Court. The summons proceedings and recording of statements under PMLA are given the status of judicial proceedings under Section 50(4) of PMLA. When such is the sweep of Section 50 of PMLA, the statements that have been recorded by the respondent and which has been relied upon in the complaint must be taken to be an important material implicating the petitioner. The co-accused or the suspected persons in the predicate offence cannot automatically be brought within the same status in the PMLA proceedings and it is always left open to the authorities to deal with them as witnesses. The statements that were recorded from the witnesses during the investigation has been dealt with in paragraph 12 of the complaint and many of the statements clearly implicate the petitioner. Therefore, the statements that have been recorded from the witnesses and which has been relied upon, is also a strong material that prima facie establishes the offence of money laundering against the petitioner. 4.24. The above discussion pertaining to CF-29/20 and CF-27/21 considered along with the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this bail petition. The fact that the petitioner continued to hold the position as a Minister for nearly eight months and that to without a portfolio when he was inside the jail, shows the tremendous influence of the petitioner and the importance that is given to him by the State Government. Even if the petitioner had resigned from his position as a Minister, he continues as a MLA belonging to the same party which is running the Government in the State of Tamil Nadu and therefore, without any hesitation, this Court holds that the petitioner continues to wield a lot of influence on the Government. When such is the position, the witnesses who are mostly the officials belonging to the MTC and the prospective job seekers who had paid the money, will be influenced/tampered with. The past conduct of the petitioner shows that in the predicate offence the complainant was made to compromise the dispute and only after the interference of the Hon'ble Apex Court, the predicate offences revived and it resulted in filing of the final reports. This past conduct also has a lot of bearing in this case. This Court is also taking into consideration the larger interest of the Public/State since t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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