TaxTMI 
TaxTMI 
2015 (10) TMI 2582
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....on, the said complaint has been given number as PMLA Complaint No.8 of 2015. 3. Pursuant to the notice issued by this Court, the respondent No.1 has filed his affidavit dated 24.9.2015 and opposed this application by producing relevant documents collected by the authority before filing of the above referred case. 4. The brief facts arose from the record are as under :- 4.1 During the investigation, the present applicant was examined under the provisions of PMLA on 14.7.2015 under Section 17(i)(f) of PMLA i.e. during the course of search of his residential premises on 14.7.2015. He disclosed before the Investigating Agency that he is running a cricket betting in the name of Aman and using 8 different Mobiles for the said activities. He further disclosed that he is carrying out his operation from his residence through his Laptop and Computers, having two different login IDs of 'BETFAIR.com'. Some amount was exchanged to another person, namely, Arun Gupta in the said transaction. He has disclosed the manner and method in which he was carrying on the illegal activities of betting. However, he has denied that he has made any bookings at Hotel Le-Meridian, Delhi in respe....
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....vides that a person can be held guilty of offence of money laundering who is directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and also projecting or claiming it as untainted property. 5.3 He would further submit that the word "proceeds of crime" is defined under Section 2 (u) of the PMLA. As per the said definition, an amount alleged to have been derived by the applicant through cricket betting would not fall under the proceeds of crime since betting is not a Scheduled offence. He would submit that betting of cricket is not a Scheduled offence since the scheduled offence is defined under Section 2 (y) of PMLA. He would submit that search operation was carried out by the Officers of the respondent No.1 on 14.7.2015 and on 15.7.2015, he was formally arrested. He would submit that the applicant is maximum can be said to have been involved in betting which is not 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 w....
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....int are untainted property. She, therefore, would submit that provisions of Section 45 of the PMLA would be applicable and, therefore, unless the Court concludes that the applicant is innocent, he may not be released on bail. In support of her contention, she has relied upon the Division Bench decision 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 the PMLA. She, therefore, would submit that the application be rejected. 6.3 Ms. Patel has relied upon 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, wherein this Court has refused to grant bail of similar nature. ....
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.... imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted." 10. Section 3 provides that a person shall be guilty of offence of money laundering when he is directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including the concealment, possession, acquisition or use and projecting or claiming it as untainted property. The definition of "proceeds of crime: provided in Section 2 (u) reads as under :- "2 (u) "proceeds of crime" means any 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;" 11. The "scheduled offence" defin....
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....73 (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." 14. Section 24 of PMLA reads as under :- "24. Burden of Proof - When a person is accused of having committed the offence under section 3, the burden of proving that proceeds of crime are untainted property shall be on the accused." 15. The burden of proof as referred to herein above relates to proceeds of crime. As stated herein above, since the applicant is not facing any charge for any offence under Part A of Schedule, Section 45 (1) of the PMLA would not be prima facie applicable and, therefore, it is not required that the applicant is to be declared as not guilty of such offence at the time of dealing with an application for bail. 16. As stated herein above, since the appli....
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....ove aspect, considering the decisions of the Hon'ble Supreme Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40, Gurcharan Singh and others v. State (Delhi Administration), reported in (1978) 1 SCC 118, Arnesh Kumar v. State of Bihar and another, (2014) 8 SCC 273, Ranjeetsing Bhramajeetsing Sharma v. State of Maharashtra and another, (2005) 5 SCC 294, I am of the opinion that the present application requires consideration. 22. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with ECIR No. - ECIR/03/AMZO/2015 [NOW PMLA Complaint No.8 of 2015], on executing a bond of Rs. 1,00,000/- (Rupees One Lac only) with two local sureties of Rs. 50,000/- each to the satisfaction of the trial Court and subject to the conditions that he shall; [a] not take undue advantage of liberty or misuse liberty; [b] not act in a manner injuries to the interest of the prosecution; [c] surrender passport, if any, to the lower court within a week; [d] not leave the State of Gujarat and union territory of Delhi without prior permission of the Sessions Judge concerned; ....