https://www.taxtmi.com/css/info/rss_sitemap/rss_feed.css?v=1746094055 https://www.taxtmi.com Business/Tax/Law/GST/India/Taxation/Policies/Legal/Corporate Tax/Personal Tax/Vat Law/Legal Information/Tax Information/Legal Services/Tax Services Tax Management India. Com / MS Knowledge Processing Pvt. Ltd. All rights reserved. One stop solution for Direct Taxes and Indirect Taxes https://www.taxtmi.com/caselaws?id=753361 https://www.taxtmi.com/caselaws?id=753361 Second bail application filed for grant of regular bail - Money Laundering - scheduled offences - proceeds of crime - conspiracy with certain other persons started obtaining an illegal levy of Rs. 25 per ton of coal for issuance of delivery order for coal transportation - insufficient reason in remand order - reasons to believe - fulfillment of twin conditions of Section 45 of the PMLA, 2002. Whether disclosure of insufficient reason in remand order, alleged illegal custody entitled the applicant to be released on bail under the PMLA, 2002? - HELD THAT:- From bare perusal of the Section 19 of the PMLA, 2002, it is quite vivid that for arresting any person, any officer authorized has on the basis of material on his possession and through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002, then only, he is at liberty to arrest. This Section further provides that the said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any non-compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself. Under sub-section (2), the Authorised Officer shall immediately, after the arrest, forward a copy of the order as mandated under sub-section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub-section (2) is also a solemn function of the arresting authority which brooks no exception. From bare perusal of the order dated 13.10.2022 passed by the learned Special Judge granting remand of the applicant along with other accused has given reason wherein it has specifically stated that the present applicant has purchased coal washeries from M/s KJSL Coas Power Ltd. to M/s Maa Madwarani Coal Benefaction Pvt. Ltd. at the cost of Rs. 35 crores and other two coal washeries have been purchased and the investigation within 24 hours is not possible, therefore, the custodial remand was ordered. Whereas in the present case, the learned Special Judge has categorically recorded its reason and satisfaction while granting the remand of the applicant to the Enforcement Directorate. Thus, there is compliance of Section 19 of the PMLA, 2002 and the order dated 13.10.2022 passed by the learned Special Judge is inconformity with the law laid down by Hon ble the Supreme Court in case of PANKAJ BANSAL VERSUS UNION OF INDIA ORS. [ 2023 (10) TMI 175 - SUPREME COURT] . Therefore, the contention raised by learned Senior counsel for the applicant that there is non-compliance of Section 19 of the PMLA, 2002 vitiating the entire proceedings, applicant is entitled to be released on bail, deserves to be rejected. The submission of the learned counsel for the applicant that his summon for 12.10.2022 and he remained in custody upto 5.30 a.m. cannot be considered as it is a matter of evidence which can be very well taken during the trial. Even the trial Court while granting remand has recorded its finding that within 24 hours of arrest, the applicant has been produced before the Court and there is no material to rebut the said finding recorded by the learned trial Court, as such the contention that the accused was remained in illegal custody from 12 a.m. to 5.30 a.m. deserves to be rejected and accordingly, it is rejected - the question answered against the applicant. Whether the applicant fulfills twin conditions of Section 45 of the PMLA, 2002 for grant of bail? - HELD THAT:- From bare perusal of ECIR with regard to the allegations leveled against the present applicant, it is quite vivid that the the present applicant has played specific role and he is kingpin of the offence and is promoter of M/s Indermani Group having a close relationship with Suryakant Tiwari. Investigation revealed that the applicant had helped Surykant Tiwari in acquiring coal washeries from M/s Indus Udyog Infrastructure Pvt. Ltd. and M/s Satya Power and Ispat Ltd. These coal washeries were acquired for an amount of Rs. 96 crore, out of which Rs. 34 crore was the registered value and was paid through banking channel and rest of the amount was to be paid in cash. Thus, large amount of illegally acquired cash was layered in these transactions. After the Income Tax raids, he made sham paper transactions to show that he was the owner of these two washeries - He has only blocked his capital in these assets and the remaining entire cash transactions were still done by Suryakant Tiwari only. The record would further reflect that several properties in the names of companies of the applicant herein viz., M/s Indermani Minerals Pvt. Ltd. M/s KJSL Coal Power Pvt. Ltd. which were acquired using proceeds of crime have been attached under Section 5(1) of the PMLA, 2002 on 09.12.2022 and 29.01.2023 and the same were subsequently confirmed by the learned Adjudicating Authority (PMLA), vide orders dated 01.06.2023 17.07.2023. Thus, the applicant is unable to fulfill the twin condition of Section 45 of the PMLA, 2002. Considering the factual legal matrix, it is quite vivid that the applicant is unable to fulfill twin conditions for grant of bail as per Section 45 of the PMLA, 2002 and also considering the submission that the applicant has not prima facie reversed the burden of proof and dislodged the prosecution case which is mandatory requirement to get bail - considering the judgment of Hon ble the Supreme Court in case of SAUMYA CHAURASIA VERSUS DIRECTORATE OF ENFORCEMENT [ 2023 (12) TMI 685 - SUPREME COURT] SATYENDAR KUMAR JAIN VERSUS DIRECTORATE OF ENFORCEMENT, ANKUSH JAIN VERSUS DIRECTORATE OF ENFORCEMENT AND VAIBHAV JAIN VERSUS DIRECTORATE OF ENFORCEMENT [ 2024 (3) TMI 862 - SUPREME COURT] , it is quite vivid that the applicant is unable to fulfill the twin conditions for grant of bail as provided under Section 45 of the PMLA, 2002. Thus, question is answered against the applicant. The role played by the applicant, prima facie, the remand and arrest order are in accordance with the provisions of the PMLA, 2002 and also considering the gravity of offence, it is not inclined to enlarge the applicant on bail - the second bail application filed under Section 439 of the Cr.P.C. is also liable to be and is hereby rejected. Case-Laws Money Laundering Mon, 08 Apr 2024 00:00:00 +0530