TaxTMI 
TaxTMI 
2015 (12) TMI 1601
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....Government Standing Counsel Ms. Trusha Patel appeared before the Court on behalf of respondent No.2 and requested for time to file affidavit-in-reply. Hence, time was granted by this Court upto 23.11.2015. On 23.11.2015, again Ms. Patel asked for time to file affidavit-in-reply. Accordingly, time was granted to file affidavit-in-reply and the matter was kept for hearing on 2.12.2015. On 2.12.2015, she submitted that even though she had sent e-mails to the concerned authority for filing affidavit-in-reply, she has not been contacted by the Officers of the respondent No.2 and, therefore, the affidavit as directed has not been filed. On inquiry, she disclosed that the Investigating Officers are not present before the Court. However, she has submitted that she would assist the Court in deciding the present application since the Court had granted sufficient time to the respondent No.2 for filing affidavit-in-reply who was served way back on 19.10.2015 and accordingly, she has assisted the Court in deciding the present application. 3. The brief facts arose from the record are as under :- 3.1 That on 25.3.2015, one Haresh B. Vohra, Police Inspector, Special Operation Group, Vadodara....
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....espondent No.2 filed a complaint in the Court of Principal District and Sessions Judge, Ahmedabad (Rural), the Designated Special Court established under the PMLA being PMLA Complaint No.8 of 2015. 3.4 Subsequent to his arrest, an application was filed by the applicant before the Special Designated Court at Ahmedabad under Section 439 of the Code read with Section 435 of the PMLA to release him on bail during the pendency of the trial being Criminal Misc. Application No.1058 of 2015. The learned Designated Special Judge by his judgment and order dated 3.10.2015 rejected the said application. Hence this application. 4. Mr. Vikram Chaudhary, learned Senior Counsel assisted by Mr. Chetan K. Pandya, learned advocate appearing for the applicant has vehemently submitted that the complaint has been lodged for the so-called offence under Section 3 of PMLA which is punishable under Section 4 of the PMLA. However, the case of the applicant does not fall under the definition of offence of money laundering. He would submit that Section 3 of the PMLA provides that a person can be held guilty of offence of money laundering who is directly or indirectly attempts to indulge or knowingly assi....
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....t a scheduled offence and, therefore, the provisions of Section 45 of PMLA would not be applicable and other proceedings qua Code with regard to bail would be available. He would submit that he is not involved in any other offence punishable under PMLA in past. However, the offences under Gambling Act have been registered at Delhi in which he had been released on bail. 4.2 He would further submit that the investigation is over qua C.R. No.85 of 2015 registered with Kishanvadi Police Station wherein the applicant has not been made an accused. He would submit that since the applicant is not the accused in the said offence which are scheduled offence as per PMLA, he cannot be charged under Section 3 of the PMLA. Since provisions of Section 45 of the PMLA is not applicable, his case can be considered under Section 45 (2) of the PMLA and he can be released by imposing appropriate conditions. He would submit that the applicant is a permanent resident of Delhi and shall cooperate with the Investigating Agency and Court till the trial is over and shall abide by all the conditions which may be imposed by this Court and, therefore, he may be released on bail. He has also relied on the two....
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....on of this Court dated 16.1.2015 rendered in Special Criminal Application (Direction) No.4496 of 2014 with Special Criminal Application No.4672 of 2014. She has also relied upon the decision of the coordinate Bench of this Court dated 31.7.2013 rendered in Special Civil Application No.4171 of 2012 with Special Civil Application No.1059 of 2012 wherein while dealing with the provisions of PMLA, this Court has held that certain presumptions are to be drawn as per Section 23 of PMLA. She, therefore, would submit that the application be rejected. 5.3 In alternate, she would submit that even otherwise, considering the gravity of offence and the maximum punishment provided under the PMLA Act, the Court may not use his powers under Section 439 of the Code. 6. I have heard learned advocates appearing for the parties. If the complaint is looked into, the present applicant along with other six accused have been charged under Sections 3 and 4 of the PMLA Act. The four accused against whom FIR being C.R. No. I-85 of 2015 was lodged on 25.3.2015 at Kishanvadi Police Station, the present applicant is not implicated as an accused. For the ready reference and for appreciating the arguments a....
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....o note that the applicant is facing charge only for the offences punishable under PMLA and is not the accused wherein the allegations of cheating, forgery etc. have been made against other accused which are scheduled offence. Therefore, there might be some illegal activities committed by the applicant i.e. with regard to cricket betting, but in my prima facie opinion, the said income would not be covered under the definition of proceeds of crime. 11. Section 45 of PMLA reads as under :- "45. Offences to be cognizable and nonbailable - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that....
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....d the fact that the maximum punishment is of 7 years and, therefore, the case of the applicant can be considered by imposing certain conditions. In my view, the judgments relied upon by Ms. Patel would not be applicable to the facts of the present case. 15. I have gone through the unreported decision dated 5.10.2015 passed by the coordinate Bench of this Court (Coram :- Hon'ble Ms. Justice Harsha Devani) in the case of Afroz Mohmad Hasanfatta v. Deputy Director and another, Criminal Misc. Application No.17000 of 2014. I have also gone through another unreported decision dated 31.3.2015 of the coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice Paresh Upadhyay) in the case of Rakesh Manekchand Kothari v. Deputy Director, Enforcement Directorate, in Criminal Misc. Application No.3637 of 2015 wherein the coordinate Bench has dealt with similar offence and has refused to release the applicant on bail on the ground that he is not facing any charge of scheduled offence which order has been confirmed by the Hon'ble Supreme Court. 16. I have also considered the fact that the Hon'ble Supreme Court has released the accused, namely, Afroz Mohmad Hasanfatta on in....