TaxTMI 
TaxTMI 
TaxTMI 
2015 (5) TMI 1080
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....lian Federal Police (hereinafter referred to as AFP) had conducted an investigation code named 'Operation Zanella' relating to the activities of global money laundering networks who found that certain persons namely Gulshan Kumar, Mandeep Singh, Sanjeev Kumar Sahni and Ravender Pal Singh based in Australia, were providing their services to Australian Organized Crime Groups and were having extensive contacts with their Indian based counterparts who were identified as Gangandeep Singh, Paramdeep Singh and Gaurav Gupta. The AFP identified an extensive Alternate Remittance services network operating from India with significant influence of money laundering activities in Australia and further stated that the transactions were structured in a way that each deposit of money in Australian bank accounts was for a sum less than Australian $10,000/- to avoid any reporting requirement, who had also identified the money laundering networks and their operational structure. ii) On the basis of Mutual Assistant Request (MAR) Note Verbal No.458/2014 dated 27th August, 2014 (Letter of request) was issued by the Austrian Competent Authority regarding involvement of the petitioners in crimin....
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....ew documents from Australia in the form of Bank statements and other documents which established the involvement of above accused persons. Based on the investigation conducted and the documents received by Enforcement Directorate, a Criminal Complaint had been filed in the Special Court for money laundering and the court had already taken the cognizance of the offence of money laundering and the case had been listed for framing of charges on 14th March, 2015. vi) During the course of investigations it was found that Ms Amandeep Kaur, sister of the petitioners i.e. Gagandeep Singh and Paramdeep Singh has NRI/NRO accounts which are being operated by the Paramdeep Singh. In these NRO/NRI accounts an amount of more than Rs. 3 crore had been deposited which has been frozen under Section 17(1 A) of the Act and thereafter, the Adjudicating Authority has found after hearing the representatives of the petitioners under Section 8(3) as frozen properties were involved in money laundering and liable for confiscation. The Enforcement Directorate summoned Ms Amandeep Singh Kaur through diplomatic channel but she failed to appear or depute someone on her behalf to appear before the IO for the i....
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.... any laundering of money or facilitating the other accused persons in laundering of money. 4. The allegations against Gaurav Gupta in Bail Application No.484/2015 are : a) That he was involved in an international syndicate of laundering the money generated out of drug trafficking in Australia and other countries. It is also alleged that the proceed of crimes were laundered by the Associates in Australia and were sent to them through an account in Australia to their Bank Account in Hong Kong and made available to the organized crime group in different countries. b) That he was in contact with one Bunty Sharma of Germany for money laundering activities. One Ravinder Pal Singh and Gaurav Gupta were in constant contact since April, 2013 with regard to giving money to people in Australia in their Bank Account and collection from OCG members. Mr. Gaurav Gupta was having regular cash/foreign exchange transaction with Gagandeep Singh and Paramdeep Singh for approx. Rs. 50 to Rs. 60 lacs per month and had arranged substantial amount of foreign currency being proceeds of crime from Bunty Sharma through Billion Trend Forex Pvt. Ltd., Australia and he is running a Jai Durga Forex Pvt. Ltd....
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....done by the accused persons and it being 'proceeds of crime' may be nebulous, but this in itself cannot be a ground for ignoring the huge amounts of transactions that have been taking place through the accounts of the accused persons." 8. Mr. Kirpal argues that in the present complaint, there is no reference or details given about any underlying scheduled offence. A mere reference has been made to certain alleged offences in Australia, but no details are provided about the same. There is no averment, let alone evidence, linking the petitioners to the scheduled offence or the petitioner alleged generating money from drug trafficking or dealing with the proceeds of crime. Earlier, the petitioners were granted bail for the charge under Section 21/25/29 of NDPS Act and Section 420/467/471 read with Section 120B IPC. He submits that even there is no prima facie direct evidence that the petitioners have any nexus with any person or party in Australia who is involved in drug trafficking or they are facilitating money for that purpose in laundering of money. 9. Mr. Kirpal argues that otherwise even if the prosecution case at this stage is taken as gospel truth the petitioner is i....
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.... offence of Money Laundering generally comprises of 3 stages i.e. Placement, Layering and Integration, in consonance with the definition of money laundering. The main object of the Act is to punish the person who deals with proceeds of crime as defined under Section 2(1)(u) of the Act. Mr. Jain, learned ASG submits that the offence of money laundering is of a continuous nature. It is not a single time offence and cannot be said that the offence would stop. Therefore, the nature of money laundering is of a continuous one. The onus on the accused is therefore not as same as under the Cr.P.C, it is to show that he is not guilty of the offence at all. The rigorous provisions of Section 45 of the Act do not allow bail in cases where the offence is continuous one even otherwise if the court is satisfied while granting bail of such offence which comes under Section 45(1)(b) of the Act, the Court has to keep in mind that the accused is not likely to commit any offence while on bail. Mr. Jain submits that in the present case incriminating documents have been recovered and admissions have been made on the part of the accused. 12. It is also the case of prosecution that during the course o....
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....gh. In these NRO/NRI accounts an amount of more than Rs. 3 crore had been deposited which has been frozen under Section 17(1A) of the Act and thereafter, the Adjudicating Authority after hearing the representatives of the petitioner, Gagandeep Singh and Paramdeep Singh, under Section 8(3) has found that the frozen properties are bought with proceeds of crime and are liable for confiscation. The Enforcement Directorate summoned Ms. Amandeep Singh Kaur through diplomatic channel but she has failed to appear or depute someone on her behalf to appear before the IO for the investigation. She has been issued a third summon to appear before the IO. 14. In reply, it is submitted by Mr. Kirpal that even if the allegation against the petitioner may be taken as gospel truth, the case of the prosecution falls under the ambit of Section 3 of the Act which is punishable maximum upto 7 years and not less than three years. He has referred the following decisions in support of his submission : i) In the case titled as H.B. Chaturvedi Vs. CBI decided by this Court reported as 2011 I AD (Delhi) 447 has held that "Bail, it has been held in a catena of decisions, is not to be withheld as a punishmen....
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....er Section 17 of the Act for search of the premises and the Enforcement Directorate officers carried out a search of the premises and had recovered 10 kgs of gold from the premises i.e. 10 bars of "1 kilo gold were dug up from the garden of the premises." 17. In reply an affidavit of Parminder Pal Singh S/o Shri Mehar Singh R/o WZ - 87 A, Ram Nagar Choukandi, Tilak Nagar, Delhi was filed in which it was mentioned that the petitioners in bail application No.571/2015 purchased gold bar from M.S. Jewellers, Beadon Pura, Karol Bagh, Delhi on 16th September, 2014 and 18th September, 2014 vide Invoice bearing No. R-010 & R-012 before their arrest as they were arrested on 25th September, 2014 since then they are in custody and after the arrest of the petitioners there was no male member in the family of the petitioners in Amritsar who could take care of the aforementioned gold and the female members were left alone in the family who got panicked and dug up and put the gold in order to protect it from burglars. But this is no ground to deny the bail to the petitioners because all the activities by Enforcement Directorate search and seizure of the aforementioned gold took place when the pe....
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....ction 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering; and (b) In the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering." d) Section 45 of the Act deals with offences to be cognizable and non-bailable, which reads as under: - "45. Offences to be cognizable and non-bailable. - (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 a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so di....
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....s 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. 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. 20. In case, Section 4 of the Act is read in a meaningful manner, it is evident that the punishment of such offence for money laundering is with rigorous imprisonment for a term which shall not be less than three years which may extend to seven years and a fine extend to five years. Under the proviso where the involvement of the accused in money laundering relates to any offence specified under paragraph 2 of Part A of the Schedule then it may extend to ten years. 21. Paragraph 2 of Part A of the Schedule reads as under : PARAGRAPH 2 Offences under the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) Section Description of offence 15 Contravention in relation to poppy straw. 16 Contravention in rela....
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....the laundering money if any has been used for the purpose of drug trafficking or dealing with proceeds of crime of such nature. There is a suspicion that the same might have been used for said purposes. If those allegations are proved no doubt the present case would fall within the meaning of proviso of Section 4 of the Act which is to be read along with Section 45 of the Act wherein it mandates that while considering the application for bail, the Court has to satisfy with the following two conditions:- (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: 27. The matter does not end here. On behalf of respondent it has been informed that the letters of request to Australia, Hong Kong, UK, USA and Canada have been sent under Section 57 of the Act through Special Court on being satisfied, requesting for the details of the accounts and transactions done on behalf of the petitioner, Gagandeep Singh and Paramd....