TMI Blog2024 (5) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... uch time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. The present petitioner directly looks transportation of over the illegal stone chips through inland vessels. These inland vessels are indirectly operated by Pankaj Mishra through his accomplices Rajesh Yadav, Rahul Yadav, Bachhu Yadav and present petitioner. Several trucks laden with stone chips/aggregates are crossed through these inland vessels without mining challans - Thus, the investigation has revealed that there is connivance of the petitioner with Pankaj Mishra and Rajesh Yadav Dahu Yadav in the illegal activities connected with the proceeds of crime derived out of illegal mining activities and the said petitioner is facilitating the accused person Pankaj Mishra to run the business of extortion illegal mining and transportation activities in Sahebganj. Besides this, heavy levy is extorted forcefully from transport vehicles operating in these mining areas, for allowing them to transport the mined stones and other items. The offence of money launde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is difference in between the facts then the principle of parity is not to be applied - It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. The Hon ble Apex Court in TARUN KUMAR VERSUS ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT [ 2023 (11) TMI 904 - SUPREME COURT] wherein at paragraph-18, it has been held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. T he main allegation against the Pashupati Yadav @ Pashupat Yadav with whom parity is claimed, was hand in glove and working as a close associate with the other co-accused persons who were running and trading of mining of stone chips illegally without paying any royalty amount. The crime proceeds to tune of Rs.1.23 Crores was deposited in the account of the said Singhvahani Transport Pvt. Ltd. from 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt over the phone not to participate in the tender of Barharwa Toll, and on the refusal of which the complainant was attacked by a mob, on the behest of the accused persons. Subsequently, the charge sheet no. 231/2020 dated 30.11.2020 was filed in the court at Rajmahal, Distt Sahebganj. Further, the agency took several other FIRs related to the matter along with the above case to investigate the instant case. It was revealed during the investigation that the vehicles carrying the mined items (Mainly stone chips) had to cross Barharwa Toll before reaching the main roads. It was also revealed that apart from mining under valid licenses, a vast quantity of mining is being carried out illegally in Sahibganj District and adjoining areas. It also revealed that the accused person, Pankaj Mishra, is involved in the illegal collection of levies from the trucks carrying stone chips through his accomplices and also has control over the mining of stone chips and boulders as well as installation and operations of several crushers, set up across various mining sites in Sahebganj district. He has a fixed share in almost all the mines and transportation by several persons, including his associates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowingly acquired and possessed the proceeds of crime in such a manner as if it was untainted money; they also trying to project the said ill-gotten money/proceeds of crime as untainted. Further, it has been alleged that the accused petitioner has not only received the huge amount in illegal way earned through illegal mining, trade and transportation of stone chips etc. but also came in possession of such proceeds of crime and now claiming the same as untainted. The present petitioner had been arrested and accordingly the petitioner had preferred the Misc. Cri. Application No.2813 of 2023 for grant of his bail but the same was dismissed vide order dated 07.10.2023 by the learned Spl. Judge, PML Act, Ranchi. Hence the present petition has been preferred for the grant of bail. Argument on behalf of the learned counsel for the petitioner : 3. Mr. S. Nagamuthu, learned senior counsel for the petitioner has argued inter alia on the following grounds: i. The petitioner has not been shown as an accused in the scheduled offence so merely by inserting penal offence under Section 120-B of IPC, the offence said to be committed under Section 3 of the PML Act, 2002 will not be attracted. ii. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as submitted that the learned court while considering the prayer for bail ought to have taken into consideration all these aspects of the matter both legal and factual but having not done so, serious error has been committed. 5. Further submission has been made in the aforesaid view of the matter as per the ground agitated, it is a fit case where the petitioner is to be given the privilege of bail. Argument on behalf of the learned counsel for the respondent-ED: 6. While on the other hand, Mr. Anil Kumar, learned Additional Solicitor General of India for the opposite party-Enforcement Directorate has vehemently opposed the prayer for grant of regular bail by taking the following grounds: (i) It is incorrect on the part of the petitioner to take the ground that the case is of illegal mining only rather if the entire complaint will be taken into consideration, then various FIRs have also been made subject matter of the enquiry. The FIRs were also instituted on the basis of the direction of the National Green Tribunal which were under investigation. (ii) The ground which has been taken that the instant case is not under scheduled offence, cannot be said to be correct argument reason b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pankaj Mishra is the person who is in the helms of the affairs of illegal mining and the present petitioner is his close associate. Further, the complicity has also been shown against the Prem Prakash whose bail application has already been rejected. 7. Learned ASGI for the opposite party-ED, based upon the aforesaid grounds, has submitted that since the nature of allegation committed by the present petitioner is identical to that of Pankaj Mishra to the extent that he has been found to be a close associate while against Pashupati Yadav no such allegation is there, as such, the instant bail application is fit to be rejected. Analysis 8. This Court, before appreciating the argument advanced on behalf of the parties, deems it fit and proper to discuss herein some of the provision of law as contained under the Act, 2002 with its object and intent. 9. The Act was enacted to address the urgent need to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof including vesting of it in the Central Government, setting up of agencies and mechanisms for coordinating measures for combating money-launder ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the problem of money-laundering. (c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material forcomprehensive legislation to combat the problem of money-laundering. The recommendations were classified under various heads. Some of the important heads are (i) declaration of laundering of monies carried through serious crimes a criminal offence; (ii) to work out modalities of disclosure by financial institutions regarding reportable transactions; (iii) confiscation of the proceeds of crime; (iv) declaring money-laundering to be an extraditable offence; and (v) promoting international co-operation in investigation of money-laundering. (d) the Political Declaration and Global Programme of Action adopted by United Nations General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia, calls upon the member States to develop mechanism to prevent financial institutions from being used for laundering of drug related money and enactment of legislation to prevent such laundering. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antive provision of Section 2(1)(u), the property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country but by way of explanation the proceeds of crime has been given broader implication by including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. 15. The property has been defined under Section 2(1)(v) which means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. 16. The schedule has been defined under Section 2(1)(x) which means schedule to the Prevention of Money Laundering Act, 2002. The scheduled offence has been defined under Section 2(1)(y) which reads as under: 2(y) scheduled offence means (i) the offences specified under Part A of the Schedule; or (ii) the offenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 21. The punishment for money laundering has been provided under Section 4 of the Act, 2002. 30. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready reference, Section 50 of the Act, 2002 is quoted as under : 50. Powers of authorities regarding summons, production of documents and to give evidence, etc. (1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely: (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a [reporting entity] and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ust be held guilty of offence of moneylaundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word and preceding the expression projecting or claiming therein. This Court in Pratap Singh v. State of Jharkhand, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceeding under this Act. We have already highlighted the width of expression proceeding in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of subsection (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is to be a witness and not to appear as a witness . It follows that the protection afforded to an accused in so far as it is related to the phrase to be a witness is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case. (emphasis supplied) 431. 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 offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be a matter of rule of evidence. 434. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government. 25. It is evident from the observation so made as above that the purposes and objects of the 2002 Act for which it has been enacted, is not limited to punishment for offence of money-laundering, but also to provide measures for prevention of money-laundering. It is also to provide for attachment of proceeds of crime, which are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceeding relating to confiscation of such proceeds under the 2002 Act. This Act is also to compel the banking companies, financial institutions and intermediaries to maintain records of the transactions, to furnish information of such transactions within the prescribed time in terms of Chapter IV of the 2002 Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Hon ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) at paragraphs-372-374. For ready reference, the said paragraphs are being referred as under: 372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub-section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are: (i) that there are reasonable grounds for believing that he is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail. 373. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur. 374. The first issue to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder : 17. 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 as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of 17 A.B.A. No. 10671 of 2023 crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. 31. The Hon ble Apex Court in the said judgment has further laid down that the twin conditions as to fulfil the requirement of Section 45 of the Act, 2002 before granting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. 34. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. that coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. For ready reference, paragraph-30 of the said judgment reads as under: 30. The conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harge/amount involved under PMLA 3.6 During the course of the investigation, the FIR(s) mentioned in Paragraph No. 1.2 of this Prosecution Complaint were also identified to be lodged against the accused namely Pashupati Yadav (Accused No.4), his associate Rajesh Yadav @ Dahu Yadav Sunil Yadav Bachhu Yadav and others. The same has been merged in the instant ECIR and taken into the ambit of investigation to conduct a comprehensive investigation. 3.8 During the investigation conducted under the Prevention of Money Laundering Act (PMLA), 2002, it was revealed that Accused No.8 1.e Sunil Yadav is one of the close associates of Pankaj Mishra and played a pivotal role in facilitating illegal mining, its transportation, and other related criminal activities. The investigation has revealed that the accused Sunil Yadav, along with his brother Dahu Yadav @ Rajesh Yadav, jointly controlled Naav Yatayat Sahyog Samiti Limited in Sahebganj under the patronage of Pankaj Mishra. They fraudulently secured a tender for ferry services that was floated by the State of Bihar on 14.03.2022, covering the route from Manihari to Sahebganj This was acquired through their substantial influence, dominance and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the investigation, During the investigation the accused Sunil Yadav was also summoned under Section 50 of PMLA, 2002 on 28.07.2022, 16.08.2022 and 01.09.2022 for the purpose of investigation. However, the accused Sunil Yadav deliberately and intentionally avoided his presence before the Investigating Officer and as such NBW dated 29.10.2022 was issued by this Hon'ble court followed by the processes under Section 82 and 83 of Cr.P.C. Brief detail of persons examined u/s 50(2) and 3 of PMLA 8.1 The statement dated 07.06.2022 of Ankush Rajhans, Proprietor of Enterprises recorded u/s 50 of PMLA, (RUD No. 46 and 47 of PC dated 16.09.2022) Infinity reveals that he was given permission by IWAI (Inland Waterways Authority of India) for operating the inland vessels in Sahebganj, but Pankaj Mishra, Dahu Yadav and others did not allow him to operate the same and hindered and stopped the same forcefully. He further stated that Nav Yatayaat Samiti transports the illegally mined stone chips from different places in Sahebganj district to Bihar, in which the accused Sunil Yadav is a partner with Rajesh Yadav Dahu Yadav. The transportation is done from two ghats viz. Samda Ghat and Gara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and one person Ankush Rajhans when they were taking their vessel to participate in auction at Maniharı Ghat, Katihar Bihar. Investigation has revealed that the accused Dahu Yadav and Sunıl Yadav have the illegal business of transportation of Cargo vessels through which they are involved in the transportation of stone-laden trucks. These trucks are transported illegally from Sahebganj to Bihar through Cargo vessels, which operate between Sahebganj Ghats to Maniharı Ghat Bihar. Sunil Yadav brother of Dahu Yadav looks after the transportation business with his Rajesh Yadav @ Dahu Yadav. This transportation business is carried under one firm Singhwahını Transports Logistics. The work of Singhwahini Transports Logistics is collectively looked after by Dahu Yadav, Sunil Yadav and Pashupati Yadav. The accused person in connivance with his son Yadav and others were involved in intimidating Mukesh Yadav and his associates in order to threaten these persons to not participate in the tender Dahu. 8.4 Statement of Hulas Chaudhary dated 31.08.2022 recorded under section 50 of PMLA, 2002 reveals that he had previously worked as a cashier in Naav Yaatayat Sahıyog Sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u Yadav (accused no. 2) and Rajesh Yadav @ Dahu Yadav. His statement under section 50 of PMLA, 2002 also reveals that he was responsible for the cash deposits amounting to Rs 2.80 crores in his bank accounts which were used for obtaining the tender of the ferry services in the name of Sahebganj Naw Yatayat Sahiyog Samiti Limited. Brief summary of evidence to prove that the accused and properties are involved in money laundering along with the finding of the investigation officer under PMLA : 9.2 It is also revealed during the investigation that Accused No. 1, Pankaj Mishra, is receiving assistance from local criminals, including Sunil Yadav, Rajesh Yadav (Dahu Yadav) and Bachhu Yadav (Accused No. 2), in their activities related to illegal mining and the illegal transportation of stone chips from Sahebganj District. Additionally, the criminal backgrounds of the accused persons have been identified during the course of the investigation. Sunil Yadav has multiple criminal cases and is a co-accused with Bachhu Yadav, Rajesh Yadav, and others who also have various criminal cases registered against them. 9.9 Investigation reveals that M/s Singhwahini Transports and Logistics having its p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rsons mentioned above, including Sunil Yadav, enjoy his support to conduct their illegal activities related to the transportation of stone chips through cargo vessels run under his firm Singhwahini Transports Logistics and through trucks, as well as their extortion business. 13. DETAILS OF PERSONS/ENTITIES INVOLVED IN COMMISSIONING THE OFFENCE OF MONEY LAUNDERING- Sunil Kumar Yadav (Accused no 8) a. Accused No 8 is directly involved in the process and activity linked to Proceeds of Crime as mentioned in preceding paras herein above b. The accused, used to transport the illegally mined stone chips/aggregates from the cargo vessels which were plying from Sahebganj to Bihar. The registers containing details of such trucks and proceeds of crime acquired through such activities have also been seized. The accused person had the patronage of Pankaj Mishra for which a fixed Share of money from each truck was given to him. c. The accused was directly involved in the use of proceeds of crime amounting to Rs. 4,28,81,865/- which was deposited in cash with the Nazarat Branch of collectorate, Katihar, for obtaining the tender of ferry Services which was floated on 14.03.2022 by Bihar State on b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The accused person was knowingly a party with accused no 1 namely Pankaj Mishra, accused no 2 namely Bachhu Yadav and the absconded accused person namely Rajesh Yadav Dahu Yadav in transportation of the illegally mined stone chips through inland vessels in heu of which, the above stated proceeds of crime were acquired. The accused Sunil Yadav was directly involved in the use of proceeds of crime amounting to Rs 8.52 crores in cash for obtaining the tender of the Sahebganj-Maniharı Interstate Ferry Services. The said tender was obtained by becoming a party with the accused no. 1 Pankaj Mishra and his brother Rajesh Yadav Dahu Yadav, who is an absconder The accused person directly indulged with other accused persons in transporting trucks and other vehicles laden with stones chips and other aggregates and transported them without mining challan knowing the fact that the said activity was illegal The above-said process or activity connected with proceeds of crime was a continuing activity and continued even before the tender floated by Bihar State on 14.03.2022 Therefore, the accused Sunil Kumar Yadav is directly linked with the process and activity connected with the proceeds o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merged them into the ECIR for a comprehensive investigation. 38. It was revealed in the investigation that the petitioner used to transport illegally mined stone chips/aggregates from cargo vessels that were plying from Sahebganj to Bihar. The accused person had the patronage of Pankaj Mishra, for which a fixed share of money from each truck was given. Further, it is revealed that the operation of the ferries is controlled by Nav Yatayat Samiti, Sahebganj which has taken the tender for an amount of Rs 8.5 crores. Investigation has also revealed that Pankaj Mishra along with Dahu Yadav @ Rajesh Yadav (Brother of Petitioner), Bacchu Yadav, and present petitioner Sunil Yadav all together control Naw Yatayat Sahyog Samiti Limited, Sahebganj and they fraudulently obtained the tender of ferry services, which was floated by Bihar State on 14.03.2022 from Manihari to Sahebganj using their power, clout and influence. Further the petitioner is directly involved in using the proceeds of crime amounting to Rs. 4,28,81,865/- which was deposited in cash with the Nazarat Branch of the collectorate, Katihar, to obtain the tender for ferry services floated on 14.03.2022 by Bihar state on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (S) have scheduled offence as specified under Part A of the Schedule. Investigation has also revealed that in lieu of facilitating and assisting Pankaj Mishra, the petitioner is getting protection in the criminal cases lodged against him. Further statement of Rajesh Yadav @ Dahu Yadav brother of petitioner was recorded under section 50 of PMLA wherein, he has revealed his affiliation with Pankaj Mishra and also disclosed information regarding the operation of ferry services and transportation of stone chips via Inland ferry services. Other witnesses also corroborated to the fact that Rajesh Yadav and Petitioner along with other accomplices are operating illegal transportation business of illegally mined stone as well as collecting levy from truck drivers etc. 39. The present petitioner is a partner in Singhwahini Transport and Logistics and the authorized signatory of its bank accounts. He is directly a party and knowingly involved in the activities linked with proceeds of crime. He is directly linked to the acquisition of proceeds of crime amounting in cash worth Rs. 20,87,80,720/- in the bank accounts linked to him as well as cash amounting to Rs. 4,28,81,865/- which was directly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) those who are knowingly a party; or (iv) those who are actually involved. Insofar as process is concerned, the Section identifies six different activities, namely (i) concealment; (ii) possession; (iii) acquisition; (iv) use; (v) projecting; or (vi) claiming as untainted property, any one of which is sufficient to constitute the offence. Insofar as product is concerned, Section 3 identifies proceeds of crime or the property representing the proceeds of crime as the product of the process or activity. 45. The argument that the mere generation of proceeds of crime is not sufficient to constitute the offence of money laundering, is actually preposterous. It is evident that as per Section 3, there are six processes or activities identified therein. They are, (i) concealment; (ii) possession; (iii) acquisition; (iv) use; (v) projecting as untainted property; and (vi) claiming as untainted property. Even if a person does not retain the money generated as proceeds of crime but uses it, he will be guilty of the offence of money-laundering, since use is one of the six activities mentioned in Section 3. In the instant case the proceeds obtained from illegal mining activities are laundered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse, the authority of the Authorised Officer under the Act to prosecute any person for the offence of money laundering gets triggered only if there exist proceeds of crime within the meaning of Section 2(1)(u) of the Act and further it is involved in any process or activity. Not even in case of existence of undisclosed income and irrespective of its volume, the definition of Proceeds of Crime under Section 2(1)(u) will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence. The property must qualify the definition of Proceeds of Crime under Section 2(1)(u) of the Act. As observed, in all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of Proceeds of Crime under Section 2(1)(u) will necessarily be the crime properties. 50. To constitute any property as proceeds of crime, it must be derived or obtained directly or indirectly by any person as a result of criminal activity relating to a scheduled offence. The explanation clarifies that the proceeds of crime include property, not only derived or obtained from schedul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the offence of money laundering. i.e., use or acquisition, possession, concealment, and projecting or claiming as untainted property. 56. As discussed above, the offence of money-laundering means whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering and the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 57. Further, it is evident from the judicial pronouncement as discussed above that in order to constitute any property as proceeds of crime, it must be derived or obtained directly or indirectly by any person as a result of criminal activity relating to a scheduled offence. The explanation clarifies that the proceeds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... osecution complaint. 61. So far as the argument advanced on behalf of the learned counsel for the petitioner that the ED has already filed a supplementary prosecution complaint against the petitioner and, thus, investigation is complete and therefore, no purpose would be served in keeping the petitioner in judicial custody. 62. In response to the said submission, the learned counsel for ED submitted that the mere fact that investigation is complete does not necessarily confer a right on the accused/petitioner to be released on bail. 63. In the context of aforesaid contention of learned counsel for the petitioner it would be relevant to note here that in the instant case mere filing of the charge-sheet does not cause material change in circumstances. 64. Further, it is settled proposition of law that the filing of charge-sheet is not a circumstance that tilts the scales in favour of the accused for grant of bail and needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. 65. At this juncture it would be apposite to refer the decision of Hon'ble Supreme Court rendered in the case of Virupakshappa Gouda v. State of Karnata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apart from the twin conditions which has been provided under Section 45(1) of the Act, 2002. 71. This Court, based upon the imputation as has been discovered in course of investigation, is of the view that what has been argued on behalf of the petitioner that proceeds cannot be said to be proceeds of crime but as would appear from the preceding paragraphs, money which has been obtained by the accused person has been routed by this petitioner and transferred it into the account of the accused persons. 72. Section 45 of the PMLA turns the principle of bail is the rule and jail are the exception on its head. Under the PMLA regime jail is the rule and bail are 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbaram v. Central Bureau Investigation reported in 2020 13 SCC 337 has come up with triple test under Section 439 of Cr.PC, while dealing with cases involving economic offences. The principles that were summarized in this judgment is extracted hereunder: 21. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail: (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character, behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations. 75. This Court on the basis of aforesaid discussions, factual aspects as also the legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside. 26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iduals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision. 81. Now this court is adverting into facts of instant to decide the issue of parity in the backdrop of aforesaid settled legal ratio and further taken into consideration the aforesaid settled position of law, thinks fit to refer herein distinguishable facts in the case of present petitioner to that the case of Pashupati Yadav who is father of the present petitioner. 82. This Court needs to go through the imputation of allegation against the Pashupati Yadav @ Pashupat Yadav, in the prosecution complaint which has been appended to the instant petition by way of supplementary affidavit. 83. Thus, the main allegation against the Pashupati Yadav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the co-ordinate bench of this Court. 87. Applying the principle of parity, this Court is of the view as per the judgment rendered by the Hon'ble Apex Court rendered in Tarun Kumar (Supra) that the benefit of parity is to be given if the facts/involvement of the petitioner, is identical to the persons with whom parity is being claimed. 88. This Court, on the basis of the discussion of the involvement of the petitioner, vis- -vis, the other co-accused persons, is of the view that the case of the petitioner is quite distinguishable to that of the case of Pashupati Yadav @ Pashupat Yadav as complicity of the petitioner is of being a close associate of Pankaj Mishra. 89. Otherwise also, it needs to refer herein by taking aid of the judgment rendered in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, (supra) that if the benefit of bail has been granted by a Court that appears to be contrary to the material collected in course of investigation then applying the principle that Article 14 does not envisages negative equality, this Court, therefore, is of the view taking into consideration the allegation against Pashupati Yadav @ Pashupat Yadav that it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge done to the national economy and national interest. 24. 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. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 25. 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-ro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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