TaxTMI 
TaxTMI 
2021 (6) TMI 558
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt Director, Directorate of Enforcement both of which have been filed for the grant of regular bail in case bearing No.ECIR/01/HIU/2019 dated 25.01.2019 registered under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (for short - the PMLA), arising out of FIR No.291 dated 13.12.2018 registered under Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short - the 1975 Act) and Section 420 IPC at Police Station Bajghera, District Gurugram. Briefly stated, the case of the prosecution is that on 31.03.2007, Chintels India Limited (for short - Chintels), which owned 149.093 acres of land in Gurugram, applied to the Director, Town and Country Planning, Haryana (for short - DTCP) for the grant of a licence under the 1975 Act for developing a residential colony. Thereafter, on 28.03.2008, Chintels and QVC Realty Company Limited (for short - QVC), the assignors of the aforesaid land, entered into an agreement with Sobha Limited (for short - Sobha) for developing the aforesaid land on a salable area sharing basis and in support of the aforesaid application for the grant of licence, filed such agreement before the DTCP. On favourable conside....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Section 10 of the 1975 Act was registered at Police Station Bajghera, District Gurugram and after going through the aforesaid FIR, since the Enforcement Directorate (for short - ED) believed that an offence for laundering of money had also been committed, on 25.01.2019, the ED lodged Enforcement Case Information Report No.ECIR/01/HIU/2019 (for short - ECIR) under Sections 3 and 4 of the PMLA and started its own investigations. Investigations conducted by the Haryana Police in the FIR lodged by them revealed that the accused therein were guilty of breach of the terms of the agreement/ licence but had not committed any offence under Section 420 IPC. Accordingly, the Haryana Police filed a report under Section 173 Cr.P.C. seeking therein to prosecute the accused only under Section 10 of the 1975 Act. Since the accused in the FIR lodged by the Haryana police were no longer being prosecuted under Section 420 IPC, which was the only scheduled offence under the PMLA of which the petitioners were accused of, Chintels knocked the doors of the Delhi High Court through WP (CRL) 979-2020 - M/s Chintels India Limited vs. Union of India seeking therein quashing of the ECIR. Such petition w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al category and in this manner they had generated over Rs. 50 crores and Rs. 60 crores respectively. When the purchaser of such Villas came to Chintels and QVC for documentation, such purchaser was first asked to sign a document which would show that at an earlier point of time he/ she had been allotted a NPNL plot at the rate determined by the DTCP and that thereafter he/ she had sought construction of a Villa thereupon through Sobha. After the purchaser had been made to sign such document(s) the petitioners then incorporated in the sale/ conveyance deed the price of the land at the rate so determined by the DTCP and correspondingly inflated the cost of the construction to reach at the final sale price which was equivalent to or even higher than the price of Villas sold under the general category. During the search operations conducted by the ED on the premises of Sobha, Chintels and QVC several incriminating documents are alleged to have been found which include documents showing payment of over Rs. 220 crores by Sobha to Chintels/ QVC including Rs. 120 crores (approximately) as non-refundable deposit paid by Sobha to Chintels/ QVC much before the issuance of the licence. I....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... person/ authority; there is no complainant, including the DTCP, who/ which even alleges that the petitioners have played any fraud; the prayer made by the ED seeking police remand has been repeatedly rejected by the Trial Court and that in any case violation of the terms of the agreement/ licence with regard to selling of NPNL plots at a rate higher than the rates so determined by the DTCP is compoundable under Section 3(7) of the 1975 Act at the time of completion of the project which stage is yet to reach. The petitioners, who are both senior citizens, aged 61 and 75 years respectively, further seek bail in view of the emergent situation being faced in the country due to rising cases under the Covid-19 pandemic. In addition petitioner in CRM-M-12459-2021 claims to be suffering from heart ailments and his wife from cancer. Learned Additional Solicitor General of India sought dismissal of the present petitions and submitted that since he was opposing the grant of bail to the petitioners, in terms of the twin conditions prescribed in Section 45 of the PMLA, this Court could grant bail to the petitioners only after recording a satisfaction that there were reasonable grounds fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rs that Section 420 IPC was not attracted to the present case, the learned ASG contended that in the supplementary charge sheet filed by the State police the petitioners are sought to be prosecuted under Section 420 IPC; such charge sheet has not been challenged by the petitioners; in any case, the petitioners have acted dishonestly and fraudulently by not abiding by the terms of the contract between Chintels and the DTCP as they did not reserve NPNL plots for allocation; rather, the petitioners got constructed Villas on the NPNL plots and sold these Villas at the same or higher rates than the Villas sold under the general category; at the time of execution of the conveyance deed in favour of the purchaser of the Villas built on NPNL plots the petitioners made the purchaser to sign documents to show that he had, on an earlier point of time, been allotted a NPNL plot and after such allotment he had wanted such plot to be developed by the developer of the choice of the petitioners; thereafter, in the conveyance deed the petitioners wrote in the column pertaining to the sale price of the land the price so determined by the DTCP for the NPNL plots and to adjust the lower price of the l....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government." The afore quoted provision imposed two conditions before bail could be granted to a person accused of an offence punishable for a term of imprisonment for more than three years under Part A of the Schedule attached to the PMLA. These conditions were that before grant of bail the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under Section 45(1) of the PMLA as are now sought to be pressed into service by the ED cannot be considered to have revived or resurrected only on the prospective substitution of the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" with the words "under this Act" especially without there being any amendment with regard to the twin conditions for grant of bail which had specifically been declared to be unconstitutional as also in the absence of any validating law in this regard with retrospective effect. Through an order dated 06.06.2018 passed by the Bombay High Court in Bail Application No.286 of 2018 - Sameer M. Bhujbal vs. Assistant Director Directorate of Enforcement and another, a similar objection raised on behalf of the ED was considered and repelled through th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 45(1) (ii) has to be inferred and treated as it still exists on the statute book and holds the field even as of today for deciding application for bail by an accused under PMLA. It was further argued that by inserting words "under this Act", the Judgment delivered by Supreme Court in Nikesh Shah (supra) has become in effective. The Court held that the Apex Court in Nikesh Shah (supra) has declared Section 45(1) of PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Articles 14 and 21 of Constitution of India. After effecting amendment to Section 45 (1) of PMLA. The words "under this Act" are added to sub- Section (1) of Section 45 of PMLA. However, the original Section 45(1) (ii) has not been revived or resurrected by Amending Act. Even notification dated 29.03.2018 amending Section 45(1) of PMLA whichcame into effect from 19.04.2018 is silent about its retrospective applicability. Hence, contention of respondent cannot be accepted. The Original sub-Section 45 (1) (ii) has neither revived nor resurrected by amending Act and therefore there is no rigour of twin conditions. This decision is still in the field. Although it ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f this judgment. In the supplementary charge sheet filed by the Haryana Police in FIR No.291 dated 13.12.2018 registered under Section 10 of the 1975 Act and Section 420 IPC at Police Station Bajghera, District Gurugram the petitioners are sought to be prosecuted both under Section 420 IPC as also Section 10 of the 1975 Act. The complaint filed by the ED also contains specific allegations with regard to the petitioners having played fraud and acting dishonestly. There is no challenge by the petitioners to either the supplementary charge sheet filed by the Haryana Police or the complaint filed by the ED. Therefore, the weighty claims/ counter claims raised by both sides, which contain elaborate reference to documents and applicable law on the subject, with regard to the applicability of Section 420 IPC to the present proceedings are better left to be considered on a specific challenge, if any, to be made in this regard or by the Trial Court at the appropriate stage. In the facts of the present case, at this stage, this Court is not inclined to hold a mini trial on this crucial aspect especially when such consideration and any finding thereupon may prejudice either party's rig....