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TMI Blog2024 (3) TMI 644X X X X Extracts X X X X X X X X Extracts X X X X ..... n incriminating materials are said to have been found, based upon which a complaint was lodged by the Income Tax Department at the Kadugodi, Police Station Bengaluru alleging offences under Sections 186, 204 and 353 read with Section 120B of the IPC which led to the registration of the FIR. Based upon the further investigation the Enforcement Directorate registered ECIR No. RPZO/09/2022 and further investigation was conducted. In the course of the investigation, main accused-Suryakant Tiwari was summoned and was arrested on 13.10.2022. 3. It is further case of the prosecution that the prosecution has recovered diaries from the possession of Smt. Soumya Chourasiya and the main accused-Suryakant Tiwari, from which it would reveal transaction of cash money between Smt. Soumya Chourasiya and the main accused-Suryakant Tiwari. It is also case of the prosecution that object of Suryakant Tiwari to tamper and destroy the important documents as well as electronic gadgets and Suryakant Tiwari along with his brother, Rajnikant Tiwari and his associates Hemant Jaiswal, Jogendra Singh, Moinuddin Quaraishi, Nikhil Chandrakar, Roshan Singh and others were involved in criminal conspiracy to run a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the investigation is over and the entire record is in possession of the learned trial Court and nothing is required to be recovered or collected any more and the applicant will attend the trial and will not interfere in the process of trial. He would further submit that the applicant is fulfilling the twin conditions of the bail as provided in Section 45 of the PMLA, 2002. He would further submit that since the charge-sheet has been filed, as such, he may be granted anticipatory bail. 6. To butress his submission, learned counsel for the applicant would refer to the judgment rendered by Hon'ble the Supreme Court and High Courts in case of Susheela Agrawal Vs. State (NCT of Delhi) reported in (2020) 5 SCC 1, Vijay Madanlal Choudhary Vs. Union of India & others, reported in (2022) SCC OnLine SC 929, Sumedh Singh Saini Vs. State of Punjab & another [Crl. Appeal No. 827/2020, SLP (Crl.) No. 4336/2020) (decided on 07.05.2019)], Pawan Kumar Agrawal & another Vs. Enforcement Directorate [ SLP(Crl.) No. 2106/2022) (decided on 01.02.2023)], Sangeeta Agrawal Vs. Enforcement Directorate [MCRCA No. 1162/2023) (decided on 04.10.2023)], Vimal Agrawal & another Vs. Enforcement Directorate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... maintain date of coal delivery order and payment of illegal levy of Rs. 25 per tonne on coal and after collection of levy, they used to hand over such cash amount along with collection date to Rajnikant Tiwari, Nikhil Chandrakar and Roshan Kumar Singh at the house of Suryakant Tiwari i.e. I-34, Anupam Nagar, Raipur. At, I-34, Rajnikant Tiwari, Nikhil Chandrakar and Roshan Kumar Singh used to maintain consolidated data of this illegal levy collection, to collect the cash and kept here and thereafter, from there, this illegal cash was being used for making bribes to Saumya Chaurasia, other senior bureaucrats and politicians, for incurring Misc. Political Expenses & Election campaign, purchasing immovable properties and coal washeries by Suryakant Tiwari & other members of coal syndicate, Misc. expenses of Suryakant Tiwari and other syndicate members etc. It has also been stated in the reply that part of collected illegal cash was also being transferred to house of Suryakant Tiwari and Laxmikant Tiwari in Mahasamund for safe keeping. It has also been contended that Laxmikant Tiwari, elder brother of Suryakant Tiwari is the main associate and confidant of Suryakant Tiwari. As per the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... app chat dated 09.04.2022 has been collected by the Enforcement Directorate and in the diary of the same day, shows that the present applicant has received an amount of Rs. 35 lacs from Suryakant Tiwari. The whatsapp chat dated 05.04.2022 further shows that the present applicant has asked Suryakant Tiwari for arranging a programme of Dr. Kumar Biswas on Ram Navami and further asked Mr. Tiwari to arrange @ Rs. 25 lacs excluding tax which had to be made from genuine income only. The further case of the Enforcement Directorate is that Nikhil Chandrakar who is close associate of Suryakant Tiwari, whose statement has been recorded under Section 50 of the PMLA, 2002 on 26.12.2022 & 27.12.2022 has stated that the entry in the name of D. Yadav pertains to Mr. Devendra Yadav, MLA of Bhilai present applicant and this cash was handed over to him through a person namely Nawaz near the house of minister Mohammad Akbar. 10. It is further contended that applicant's custodial interrogation may be required for questioning during the course of further investigation, as such, the grant of bail at this stage may impede the investigation being conducted by the Directorate and it will be detrimental ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l.A No.2779/2023 (DD 29.11.2023)], the Hon'ble Supreme Court interpreted Section 3 of the PMLA, 2002 establishing that the offence under Section 3 can occur subsequent to the commission of a schedule offence. It was elucidated that an individual, regardless of his connection to the scheduled offence, is deemed guilty under Section 3 of PMLA, 2002, if he is knowingly assisting in concealing the proceeds of the crime or facilitating the use of proceeds. Hon'ble the Supreme Court has held as under:- "15. Coming back to Section 3 of the PMLA, on its plain reading, an offence under Section 3 can be committed after a scheduled offence is committed. For example, let us take the case of a person who is unconnected with the scheduled offence, knowingly assists the concealment of the proceeds of crime or knowingly assists the use of proceeds of crime. In that case, he can be held guilty of committing an offence under Section 3 of the PMLA. To give a concrete example, the offences under Sections 384 to 389 of the IPC relating to "extortion" are scheduled offences included in Paragraph 1 of the Schedule to the PMLA. An accused may commit a crime of extortion covered by Sections 384 to 38 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pacity with the proceeds of such crime renders him liable under Section 3 of the PMLA, 2002. 17. Hon'ble the Supreme Court in the case of Vijay Madanlal Choudhary Vs. Union of India reported in 2022 SCC OnLine SC 929 has held at paras 251 & 295 as under:- "251. The "proceeds of crime" being the core of the ingredients constituting the offence of money-laundering, that expression needs to be construed strictly. In that, all properties recovered or attached by the investigating agency in connection with the criminal activity relating to a scheduled offence under the general law cannot be regarded as proceeds of crime. There may be cases where the property involved in the commission of scheduled offence attached by the investigating agency dealing with that offence, cannot be wholly or partly regarded as proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act - so long as the whole or some portion of the property has been derived or obtained by any person "as a result of" criminal activity relating to the stated scheduled offence. To be proceeds of crime, therefore, the property must be derived or obtained, directly or indirectly, "as a result of" criminal activity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 3 of the 2002 Act." 18. In the case of Balvir Singh Vs. State of Uttarkhand reported in 2023 SCC OnLine SC 1261, the Apex Court with reference to Section 106 of the Evidence Act has ruled that Section 101 with its illustration (a) lays down the general rule that in a criminal case, the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible or at any rate, disproportionately difficult for the prosecution to establish the facts, which are especially within the knowledge of the accused, and which he can prove without difficulty or inconvenience. As such, it is incumbent for the applicant to prima facie rebut the said allegation that the amount in question is not proceeds of crime. 19. From the above stated discussion and considering the provisions of Sections 3 & 4 of the PMLA, 2002, it is apparent from reading of Section 3, and the legal precedent established by the Court of Law with reference to the said provision is as follows:- (i) An individual, even if not directly involved in the criminal activity that generate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 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 [* * *] 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." 23. Hon'ble the Supreme Court has considered parameters for grant of anticipatory bail in PMLA in case of M. Gopal Reddy Vs. Enforcement Directorate, Criminal Appeal No. 534 of 2023 and has held in paragraph 6.3 & 7, which are as under:- "6.3 From the aforesaid, it can be seen that the High Court has not at all considered the nature of allegations and the seriousness of the offences alleged against respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is the ultimate beneficiary and the prime conspirator in huge monetary transactions. 15. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 16. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 17. Taking note of all these facts and the huge magnitude of the case and also the request of the CBI asking for further time for completion of the investigation in filing the charge sheet(s), without expressing any opinion on the mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations." [underlining added] 80. Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) v. Arun Kumar Bajoria (1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720, while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 81. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant is reflected. The material collected by the Enforcement Directorate has not been rebutted which also prima facie reflects about involvement of the applicant. The record of the case would further demonstrate that the applicant is unable to fulfill the twin conditions which are required for grant of bail under the PMLA, 2002, is equally applicable for grant of anticipatory bail, which has not been satisfied by the present applicant. 29. Considering the above stated facts and law, gravity of offence, possibility of tampering of the witnesses and prima facie considering the fact that the applicant is unable to satisfy twin conditions of Section 45 of PMLA, 2002 for grant of anticipatory bail, I am not inclined to grant the anticipatory bail. Thus, Point No. 2 is also answered against the present applicant. 30. Accordingly, the bail application filed under Section 438 of the Cr.P.C. is liable to be and is hereby rejected. 31. However, it is clarified that the observations made in this judgment, either way, are only for disposal of the present bail application, and these would not influence the trial court on the merits of the case, which would proceed in accordance with law a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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