TaxTMI 
TaxTMI 
2016 (3) TMI 1283
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....o is a senior field officer of the accused company was arrested and interrogated. In conclusion of further investigation, a supplementary complaint was filed against the petitioner and another accused, namely, Arun Mukherjee in addition to the earlier accused persons. The supplementary complaint was accepted and cognizance was taken thereon by order dated 18.08.2015. Prayer for bail of the petitioner was rejected by the Special Court on 04.02.2016 . Thereafter the petitioner has approached this Court. Mr. Mukherjee, learned senior counsel appearing for the petitioner submits that he is in custody for 268 days and his involvement did not transpire in the course of the initial investigation. Materials collected in the course of subsequent investigation as recorded in the averments of the supplementary complaint also shows that the petitioner was associated with the company on or after 2009 whereas the debentures floated and the investments made by the public with regard thereto were between 2001 to 2008. He also submitted amounts so collected have been subsequently refunded to the depositors. Hence, by no stretch of imagination the petitioner could have played any role in the a....
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....ordingly in view of the restriction imposed in the matter of grant of bail under Section 45 of the Act, prayer for bail ought to be rejected. He relied on various authorities interpreting a pari materia provision namely Section 37 of the NDPS Act, in support of such contention. Mr. Chanda further submitted that the restrictions under Section 45 of the PML Act override the powers of the High Court in granting bail under Section 439 of the Code. He further submitted that self-same issue has been decided by the Apex Court in respect of another co- accused person in the case of Goutam Kundu vs. Manoj Kumar, Assistant Director, Eastern Region, Directorate of Enforcement (Prevention of Money Laundering Act), Govt. of India in Criminal Appeal No. 1706 of 2015. He submitted that in the face of the aforesaid authority there is no escape from the conclusion that the restriction under Section 45 have to be read as a limitation in the power of granting of bail by the High Court. He concluded by submitting that the subsequent complaint is a continuation of the earlier complaint in view of the leave granted by the trial Court vide order dated 21.04.2015 and relied on (2015) 9 SCC 609 (S.R. Sukum....
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....73 (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 directs ; Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by - (i) the Director ; or (ii) any officer of the Central Government or State Government authorized in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any othe....
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....section (1) of Section 37 of the NDPS Act. Apart from giving an opportunity to the Public Prosecutor to oppose the application for such release, the other twin conditions viz. ; (i) the satisfaction of the Court that there are reasonable grounds for believing that the accused is not guilty of the alleged offence ; and (ii) that he is not likely to commit any offence while on bail, have to be satisfied. It is manifest that the conditions are cumulative and not alternative. The satisfaction contemplated regarding the accused being not guilty, has to be based on "reasonable grounds". The expression 'reasonable grounds' has not been defined in the said Act but means something more than prima facie grounds. It connotes substantial probable causes for believing that the accused is not guilty of the offence he is charged with. The reasonable belief contemplated in turn points to existence of such facts and circumstances as are sufficient in themselves to justify satisfaction that the accused is not guilty of the alleged offence. [Vide Union of India v. MANU/SC/7905/2007 : Shiv Shanker Kesari 2008 CriLJ 335 ]. Thus, recording of satisfaction on both the aspects, noted above, is sin....
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....mitations engrafted under Section 45 of the Act. In this perspective, if one examines the materials collected in the course of investigation as reflected in the subsequent complaint, I find that there are sufficient materials on record, which show that the petitioner as a Senior Field Officer had played a role in monitoring the activities of the agents of the company in dealing with the proceeds of crime which had accrued in the credit of the company pursuant to the commission of the scheduled offence for which prosecution has been launched against the said company. It has been vehemently argued that the petitioner had involved himself in the business of the company on or after 2009 while the investments in the company, which constitute the ingredients of the scheduled offence were made between 2001- 2008. Hence, the petitioner cannot be said to be a person had played any role in the inviting the public to make investments in the debentures issued in violation of the provisions of the Companies Act, or allied laws so as to constitute the ingredients of the offence under Section 3 of the PML Act. Section 3 of the PML Act reads as follows : "3. Offence of money-laundering - ....
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....jee in his statements, inter alia stated that he joined Rose Valley Chain Marketing System Ltd. in the year 2009 as an agent and now working as a Senior Field Employee and used to give support for sales and Marketing. Further Sri Banerjee stated that as a Senior Field Agent, he used to plan for Business Development under the Schemes offered by the Company through their brochure and application form. That he has other role in the field for the Rose Valley Group Company that he is a Secretary of Rose Valley Field Employ Union since 2011. Further Sri Amit Banerjee was asked to provide the list of Agents and also the name of the agents who are working under his Chain, Sri Banerje evaded the question and did not answer and regarding the Commission Structure Sri Banerjee stated that Commission structure, is spread from Rank 1 to Rank 18, Lower the Rank higher the Commission and average Commission is 18% to 18.5%. All the Commissions are distributed in two ways i.e. one on the basis of self business and other on the basis of his / her team (chain) business. On being asked about the Pamphlet with the heading "Sottita Janun" (KNOW THE TRUTH), which was published and circulated by the joi....
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....the Code, the said powers would extend to investigation of a crime, cases where investigations are conducted under the special law conducted by any other agency under a special statute, namely PML Act, in view of the fact that 'investigation' as defined in Section 2(h) of the Code is to include investigation conducted by other agencies under special statutes as has been held in Directorate of Enforcement vs. Deepak Mukherjee (1994) 3 SCC 440. It is trite law that if there are more than one offenders who have committed offence or offences in course of same transaction, they are to be tried together (see Section 223 Cr.P.C.). Accordingly, the filing of the subsequent complaint and the prayer of the prosecuting agency to prosecute the offenders including the petitioner herein in the subsequent complaint along with offenders arrayed in the earlier complaint cannot be said to be a procedure which is alien to law or prejudicial to the interest of the complaint. In this regard, reference may be made to the ratio of the Apex Court in S.R. Sukumar (supra) wherein the Court held that there are limited powers to amend a complaint and in order to correct patent exfacie errors, which....