TMI Blog2023 (11) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be denied in every case. It is a also settled proposition that merely levelling the allegation of 'flight risk' is not sufficient to deny the bail in the absence of any substantive material. The court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. Here is the case where the petitioner is 69 years of age with several ailments and is in custody for the last more than 2 years. If the case of the petitioner is seen on broad probabilities, he seems to be entitled to be admitted to bail. The offence alleged against the accused is punishable with imprisonment for a term which shall not be less than three years and may extend to seven years and shall also be liable to fine. The case of the petitioner does not fall under Paragraph 2 of para 2 A of the Schedule. The Applicant shall furnish a personal bail bond in the sum of Rs. 5,00,000/-with two sureties of the like amount subject to the satisfaction of the learned Trial Court/CMM/Duty MM - petitioner is admitted to bail subject to fulfilment of conditions imposed - bail application allowed. - HON'BLE MR. JUSTICE DINESH KUMAR SHARMA For the Appellant : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... showed that the calls on the number of Aditi Singh were not made from the above mentioned numbers. This means that even though the above mentioned numbers were figuring in the CDRs. of Aditi Singh but the outgoing calls from these numbers to Aditi Singh were not found in their respective CDRs. ii. That upon further investigation, it was revealed that these were the spoofed calls made through some application which enable the caller to hide his real number and choose the number that the caller intends to reflect on the screen of the recipient. Further investigation of call log retrieval showed certain telegram calls saved as 111LD on various dates. During investigation, screenshot of a message exchanged between 111LD and Aditi Singh was found, which was a conversation between Aditi Singh and one Abhinav. The number associated with 111LD was +16692594162. Thereafter, during investigation, Aditi Singh was confronted with phone data and other evidences on which she revealed that she was receiving calls from various Government offices including Law Ministry. It was further revealed that one person Anup Kumar, Union Law Secretary had called her and expressed his intention to resolve the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the cell tower location was around Apollo Hospital. As the caller had south Indian accent and based on the conversation regarding his family and events in the past including death of his father and the fact that he knew alot about the jail and location of mobile around the jail, investigation was conducted. Further, investigation revealed that the events described by Abhinav matched with the facts recorded in the bail/parole application of Sukash Chandra Shekhar which led to the belief that he was involved. Thereafter, Aditi Singh gave complaint of extortion thus, Delhi Police registered the FIR and consequent ECIR. vi. After the investigation by the ED, first prosecution complaint was filed on 04.12. 2021 before the Ld. ASJ, Patiala House Court. In the prosecution complaint, ED has relied upon on 192 documents which include statements u/s 50 of PMLA, Bank account statements, confrontation statements and other documents related to the proceeds of crime. In the first prosecution complaint, eight individuals were arrayed as accused persons including the present applicant. After this, three more supplementary prosecution complaint, were filed and the total number of accused perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struction of Sukesh Chandra Shekhar on various occasions from different locations in Delhi. He also admitted that he had delivered part of the said cash amount to accused Avtar Singh Kochar @ Dolly (Accused no.5) for further hawala transactions. The complicity of Deepak Ramnani in the crime is evident from the fact that he was fully aware that Sukesh Chandra Shekhar is in jail and despite that he undertook these transactions. The fact that money was sent to Avtar Sinah Kochar by Deepak Ramnani is also substantiated through the CDR of Deepak Ramnani's number 9311074841. It was also admitted by accused Deepak Ramnani that he had sent US dollar 83,000 into the bank account of G.J Walker in USA (sister of Jacqueline Fernandez) on the instructions of Sukesh Chandra Shekhar through accused Avtar Singh Kochar. It was also admitted by Deepak Ramnani that he had received Rs. 12-15 Crores in India from Dubai through Avtar Singh Kochar on the instruction of Sukesh Chandra Shekhar. Further, a telegram number +16692594162 was found in the contact list of accused Deepak Ramnani and the names of accused Leena and her mother were found mentioned in his phones which shows knowledge of Sukesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umber after registering of a Police case against him. 3. The applicant/accused had preferred a bail application which was dismissed vide order dated 04.05.2023 by Ld. Trial Court, wherein the Ld. ASJ observe that the accused cannot claim absolute bail when the twin conditions of section 45 of PMLA are not satisfied. Moreover, as per the complaint applicant/accused was absconding and was avoiding the judicial process. Therefore, the bail application of the applicant/ accused was dismissed. SUBMISSION ON BEHALF OF THE PETITIONER 4. Mr. Vikas Pahwa, learned senior counsel for the petitioner has submitted that the learned trial court has dismissed the bail application without any basis and the petitioner has been wrongly and maliciously dragged into criminal proceedings. Learned senior counsel has further submitted that the petitioner has been in custody for the last two years whereas punishment provided under Section 4 of the PMLA ranges from 3 to 7 years. It has further been submitted that the case is at an initial stage and the trial may take a long time. Learned senior counsel also submitted that the petitioner is around 69 years of age with multiple ailments and therefore taking i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g run by the main accused person. Learned senior counsel has also submitted that the entire case of the ED is based on three types of disclosure statements i.e. disclosure statement of petitioner, co-accused and employees of the petitioner. Learned senior counsel has further submitted that it is a settled law that the veracity of the statement under Section 50 of PMLA can be tested at the stage of trial. Learned senior counsel for the petitioner has also submitted that in view of the judgment Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929, if the statement under Section 50 of PMLA has been recorded after the arrest, the applicability of Section 25 of the Evidence Act has to be considered on case to case basis being the rule of evidence. In regard to the evidentiary value of the statement under Section 50 of PMLA reliance has been placed upon Chandra Prakash Khandelwal v. Directorate of Enforcement 2023 SCC OnLine Del 1094. 7. Learned senior counsel has further submitted that even in the statement of Deepak Ramnani recorded on 17.10.2021, no knowledge can be attributed to the petitioner. Similarly, it has been stated that the statements of Narendra @ Sonu, Rishi, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to be picked up from his place (RUD 42 page 60). c) That Sh. Deepak Ramnani (A-3) admitted that he transferred USD 83,000 to Ms. Geraldine J. Walker, sister of A-10 Ms. Jacqueline Fernandez on the instructions of Sukesh Chandrashekhar through Avtar Singh Kochhar. (RUD 42 page 61) and the same find support from the transaction dated 11.03. 2021 as contained in Bank account statement of Ms. Geraldine J. Walker (at Page 33 of the Supp. PC RUD 258 at Page no. 9). This fact further gets corroborated by the evidence that a sum of Rs. 2,50,32,516.00/-in cash was collected by Deepak Ramnani @ Rohit on 10.03.2021 at Sagar Apartment (RUD 175 at Page 12). This fact has also been admitted by the Applicant/accused (RUD 44 at Page 8). d) That Sh. Deepak Ramnani (A-3) admitted that the transactions that were done outside India i. e., to Dubai on the instructions of Sukesh Chandrashekhar were done with the help of Avtar Singh Kochhar (RUD 42 page 72). e) That the prosecution witnesses namely, Narendra @ Sonu (Witness No. 48), Paramjeet Singh (witness no. 49), Rishi @ Harish (Witness no.50), Ramesh Kumar (Witness No. 51) admitted that they worked for Avtar Singh Kochhar and on his directions ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the best of his memory on the instruction of Deepak Ramnani. Out of these Rs. 50 crore, he has sent an amount of Rs. 6-7 crore in India and around Rs. 43-44 crore was sent abroad through hawala to mainly Dubai. He stated that money was sent by Deepak Ramnani to Pune (Rs. 1.5 Crore), Mumbai (Rs. 1Crore) Hyderabad (Rs. 2 Crore), and Chennai (Rs. 2 Crore) through various angariyas (entry operators) of Kucha Mahajani of Chandani Chowk, New Delhi within India. On being asked about the hawala transaction abroad, Avtar Singh Kochhar @ Dolly stated that he sent around Rs. 3 crore to Hong Kong through a company named M/s Evernice International Trading Limited for Deepak Ramnani. He further stated that he sent around Rs. 70 lacs to USA and around Rs. 40 Crore to Dubai through his hawala channels. d) It was further stated that his 3-4 office boys who were working for him used to go to collect the cash from Deepak Ramnani's house located at Model Town, New Delhi or several times Deepak Ramnani himself handed over money to his office boys namely Pappu, Ramesh, Harish, Rohit, Sonu either at nearby location of his office situated in Karol Bagh, New Delhi or any other predetermined location. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been placed upon Vijay Madanlal Chaudhary Ors. v. Union of India Ors. SCC OnLine SC 929. It has further been submitted that the present case involves the laundering of a large amount of money and generating proceeds of crime therefrom. The Hon'ble Supreme Court, in its latest landmark judgment in the case of Vijay Madanlal Chaudhary (supra) observed that it is common to experience world over that money-laundering can be a threat to the good functioning of a financial system. However, it is also the most suitable mode for the criminals to deal in such money. It is the means of livelihood of drug dealers, terrorists, white-collar criminals and so on. Tainted money breeds discontent in any society and in turn leads to more crime and civil unrest. It has further been submitted Economic offences have deep-rooted conspiracies and is a grave offence and has to be dealt with strictly. Learned counsel has submitted that therefore the present application is liable to be dismissed. 13. In support of the contentions, learned counsel has relied upon Vijay Madanlal Choudhary Ors. vs. Union of India Ors. 2022 SCC OnLine SC 929, Y Balaji vs. Karthik Desari and Anr 2023 SCC OnLine SC 645, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nlal Choudhary and others vs. Union of India (supra) it was inter alia held that offence of money-laundering is an independent offence regarding the process or activity connected with the proceeds of crime which had been derived or obtained as a result of criminal activity relating to or in relation to a scheduled offence. It was further held that the process or activity can be in any form - be it one of concealment, possession, acquisition, use of proceeds of crime as much as projecting it as untainted property or claiming it to be so. Therefore, involvement in any one such process or activity connected with the proceeds of crime would constitute offence of money-laundering. Thus, this offence has nothing to do with the criminal activity relating to a scheduled offence - except that the proceeds of crime derived or obtained as a result of that crime. In Vijay Madanlal Choudhary and others (supra) it was further held that the sweep of Section 5(1) of PMLA is not limited to the accused named in the criminal activity relating to a scheduled offence and it would apply to any person (not necessarily being accused in the scheduled offence), if he is involved in any process or activity c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meticulous examination. It was inter alia held in Vijay Madanlal Chaudhary (supra) 68. The court while determining the issue of bail cannot go into meticulous examination of the facts nor it can examine probative value of the witnesses. The twin conditions under Section 45 of the PMLA provide that bail can be granted only if (i) the Public Prosecutor has been given an opportunity to oppose the application (ii) the court is satisfied that there are reasonable grounds for believing that accused is not guilty of such offence and (iii) the accused is not likely to commit any offence while on bail. Section 45 (ii) of PMLA specifically provides that limitation on granting of bail in sub-section (i) is in addition to the limitations under the Cr.P.C. or any other law for the time being in force on grant of bail. This court is conscious of the fact that though there are limitations on the grant of bail, but it does not mean that in the cases under PMLA, the accused cannot be released on bail. In order to grant bail there has to be substantial probable cause for first believing that accused is not guilty of offence. 17. While discussing about making a balance between statutory embargo and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has held as under: 26. However, we are also concerned about the prolonged period of incarceration suffered by the appellant-Manish Sisodia. In P. Chidambaram v. Directorate of Enforcement, the appellant therein was granted bail after being kept in custody for around 49 days, relying on the Constitution Bench in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, and Sanjay Chandra v. Central Bureau of Investigation, that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation and Another, this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab and Kashmira Singh v. State of Punjab, to emphasise that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence against the petitioner is of his dealing with Deepak Ramnani. Whether the petitioner was acting as an agent of the main accused or was in any way indulging or knowingly assisting or knowingly party in any process or activity connected with the proceeds of crime is to be proved during the trial. The factum of knowledge regarding dealing in proceeds of crime and 'mens rea in the present peculiar facts and circumstances is to be proved during the trial. 21. Though the allegations against the accused are very serious in nature, however, the court at this stage would restrain itself from making any detailed discussion about the merit of the case as it may prejudice the parties. In order to deny the bail to the petitioner, there has to be more than mere allegations. 22. Learned senior counsel for the petitioner has submitted that there has to be a pre-requisite relation between the commission of the scheduled offence under PMLA and the subsequent offence of money laundering. It has further been submitted that there has to be material on record that the accused knowingly dealt with the proceeds of crime. It is also necessary to mention that merely because the accused has not g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f para 2 A of the Schedule. Consider that taking into account the totality of the facts and circumstances of the case, the petitioner is admitted to court bail subject to the following conditions: a) The Applicant shall furnish a personal bail bond in the sum of Rs. 5,00,000/-with two sureties of the like amount subject to the satisfaction of the learned Trial Court/CMM/Duty MM. b) the Applicant shall appear before the court every fortnight as fixed by the concerned court personally or through VC and, as and when directed by the court during inquiry and trial (such appearance shall be independent of the date fixed by the Court). c) The Applicant shall under no circumstances leave NCR without prior permission of the Court concerned; d) the applicant shall not leave India without prior permission of the Court concerned; e) the Applicant shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case; f) the Applicant shall provide his mobile number(s) to the concerned officer of E.D; and g) In case of a change of residential address and/or mobile number, the Petitioner shall intimate the same to the Investigating Officer/ C ..... 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