TaxTMI 
TaxTMI 
2021 (9) TMI 50
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....#39;) against all the persons named in F.I.R. No. RC-1(A)/2012-CBI/SC.II/ New Delhi Dated 02.01.2012. The applicant was never named in the predicate offence and no first information report was lodged against him. He has also submitted that the applicant was also not named in the ECIR and no role whatsoever has been assigned in the ECIR. 3. Shri Singh has submitted that the Hon'ble High Court vide order dated 15.11.2011 passed in W.P. No.3611/2011 (PIL), W.P. No.3301/2011 (PIL) and W.P. No.2647/2011 (PIL) directed the Central Bureau of Investigation (for short 'CBI') to conduct a Preliminary Enquiry in the matter of execution and implementation of National Rural Health Mission (for short 'NRHM') and utilization of funds at various levels during such implementation in the entire State of Uttar Pradesh and also directed to register regular cases in respect of the persons against whom prima facie cognizable offence is made out in accordance with law. 4. It is submitted that in pursuance to the aforementioned orders of the Court, five separate preliminary enquiries were registered in different branches of CBI. Preliminary Enquiry No.5(A)/2011/SC.II/CBI/New Delh....
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.... of 2021, which was rejected/dismissed vide order dated 12.07.2021. 8. Shri Singh has submitted that accusations have been made only with ulterior motive and offence under Section 3 of PMLA cannot be made out against the applicant as none of the essentials of Section 3 has been met in the present case in respect of the applicant. It is submitted that Section 3 of PMLA mandates the existence of 'Proceeds of Crime', however, in the present case, there are no 'Proceeds of Crime'. Section 3 of PMLA is reproduced hereinbelow: "3. Offence of money-laundering.- Whosoever 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 projecting or claiming] it as untainted property shall be guilty of offence of money-laundering." 9. It is submitted that in the present case, the properties in question were acquired by the applicant in the year 2002 and 2001 and the alleged year of commission of crime is 2010-11. The properties in question were never owned by the applicant nor the sale considerati....
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....5. Shri Singh has submitted that in view of the aforesaid ratio of the judgments, since the applicant does not have any previous criminal history and he is a respectable citizen, and there is no chance of his fleeing away from the justice, anticipatory bail may be granted to him. 16. Per Contra, Shri S.B. Pandey, learned Senior Advocate/Assistant Solicitor General of India assisted by Shri Shiv P. Shukla, Advocate appearing for respondent/Directorate of Enforcement has sought dismissal of the present anticipatory bail application and submitted that in terms of the twin conditions prescribed in Section 45 of PMLA, this Court could grant anticipatory bail to the applicant only after recording a satisfaction that there were reasonable grounds for believing that the applicant was not guilty of the alleged offence and that while on bail he was not likely to commit any offence. It is further submitted that though in Nikesh Tarachand Shah v. Union of India and Anr. - (2018) 11 SCC 1, Section 45(1) of PMLA, as it then stood, had been declared unconstitutional by the Hon'ble Supreme Court but the defect pointed out by the Hon'ble Supreme Court, which formed the basis to declare S....
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....onceal the "Proceeds of Crime" and has also clandestinely sold off half of the factory property after knowledge of initiation of present proceedings under the PMLA. The written directions given by Naresh Grover to his son Pankaj Grover, which were recovered during the search clearly establish that the said persons in possession or use of the property acquired out of/in lieu of "Proceeds of Crime" in the instant case were prone to encash/sell the same at the earliest opportunity to frustrate the proceedings under this Act and thus, the properties identified in their hands in lieu of "Proceeds of Crime" were attached by PAO No.3/2017 dated 05.04.2017. It is vehemently submitted that in the instant case, the investigation has established that Proceeds of Crime to the tune of Rs. 21,20,87,617/- has been generated. 20. It is submitted that the investigation has further revealed that out of the said "Proceeds of Crime" a sum of nearly Rs. 10 Crore has been paid by way of bribe/commission to various officials and ministers and their associates leaving the balance "Proceeds of Crime" of about Rs. 11 Crore in the hands of M/s Surgicoin Medequip Pvt. Ltd. However, the said sum has been si....
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....l Sub-section (ii) of Section 45(1) which imposes the said twin conditions automatically stands revived and the said condition therefore, remained in the statute book and hold the field even as of today for deciding the application for bail/anticipatory bail by an accused under PMLA and the judgment delivered by the Hon'ble Supreme Court in the case of Nikesh Tarachand Shah (supra) has become ineffective and, therefore, the prayer for anticipatory bail of the applicant has to be considered in view of the amended provision of Section 45(1) of the PMLA. 25. The Hon'ble Supreme Court in the case of Nikesh Tarachand Shah (supra) has in unequivocal terms held in para 44 that 'we have struck down Section 45 of the Act as a whole'. It is further held by the Hon'ble Supreme Court in para 45 that, "we declare Section 45(1) of the 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 the Constitution of India." 26. In the case of Okram Ibobi Singh Vs. The Directorate Enforcement - 2020 SCC OnLine Mani 365, the High Court of Manipur at Imphal has held that it can be easily deciphered, on comparativ....
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....ontention advanced by Shri Pandey in respect of applicability of Section 45 cannot be accepted. 29. Learned Assistant Solicitor General for respondent to oppose the prayer of pre-arrest bail has laid much emphasis on the fact that since the applicant has been indicted in an economic offence and sufficient materials are there showing his indictment in the aforesaid serious offence, his custodial interrogation is needed to unearth the involvement of any other persons or the larger angle of conspiracy in commission of the offence alleged to have been committed by the applicant. In support of his contention he has placed reliance on a decision of the Hon'ble Supreme Court in the case of P. Chidambaram (supra). 30. The importance and relevance of custodial interrogation of the accused in a case of the present nature and also that the Court should be loathed in grant of bail/pre-arrest bail in respect of persons indicted in economic offences has been elaborated by the Hon'ble Supreme Court in P. Chidambaram's case (supra) as follows: "76. In Siddharam Satlingappa Mhetre v. State of Maharashtra (supra), the Supreme Court laid down the factors and parameters to b....
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....sonal profit regardless to the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364, it was held as under: 5. ....... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest....... 81. Observing that economic offences constitute a class apart and need to be visited with different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, the Supreme Court held as under: 34. Economic offences constitute a class apart and need to be visited ....
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....8 which suggests that Parliament intended to restrict its operation, either as regards the time period, or in terms of the nature of the offences in respect of which, an applicant had to be denied bail, or which special considerations were to apply. In this context, it is relevant to recollect that the court would avoid imposing restrictions or conditions in a provision in the absence of an apparent or manifest absurdity, flowing from the plain and literal interpretation of the statute (Ref Chandra Mohan v. State of Uttar Pradesh). In Reserve Bank of India v. Peerless General Finance and (1967) 1 SCR 77 Investment Co. Ltd., the relevance of text and context was emphasized in the following terms: "33. Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted. With this knowledge, the statute must be read, first as a whole and then Section by section, Clause by clause, p....
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....te demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised, so also did not endorse the view of the High Court that anticipatory bail cannot be granted in respect of offences like criminal breach of trust for the mere reason that the punishment provided therefor is imprisonment for life as circumstances may broadly justify the grant of bail in such cases too, though of course, the Court is free to refuse anticipatory bail in any case if there is material before it justifying such refusal. The Hon'ble Supreme Court has also not held that in case of a person accused of economic offence though non-bailable in nature, cannot invoke the jurisdiction of Section 438 of Cr.P.C. for his release on pre-arrest bail nor the aforesaid is the contention of the learned counsel for the applicant. The Hon'ble Supreme Court in different decisions, however, held that economic offences constitute a class apart, the Court need to visit the same with a different approach in the matter of bail/anticipatory bail and should be loathed while extendin....
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....pel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail "if it thinks fit". The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the Courts by law." 36. In the instant case, during the course of investigation under the PMLA, 2002, searches were conducted under Section 17 of PMLA, 2002 at the office, factory and residential premises of Naresh Grover, Director of M/s Surgicoin Medequip Pvt. Ltd. During these searches several incriminating documents were seized. These documents included letters written by Naresh Grover, who was in judicial custody at that time, to his son Pankaj Grover directing him to manipulate the accounts and records to defeat the allegation of supply of material under NRHM Scheme at astronomical....
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....icularly eye witnesses, crimes were committed to satisfy need and necessity or enmity or jealousy or lust. To deal such crimes simple and general measures of criminal justice was efficient. Simple investigating agency and its investigation procedure; traditional prosecution and prosecution measures were effective, traditional sentencing and its infliction was sufficient to tackle problem of traditional criminality. Crimes are now committed by influential persons belonging to upper class in organised manner after well planning by use of modern gadgets in course of performance of their official, professional, business activities in which they have expertise. Criminal acts committed by professionals, businessmen and public servants, it is very difficult to identify whether sober and civilised activity was committed or criminal act was committed. Such criminals have no criminal self image, further by societal members there is no labelling which affect seriously pursuits to cope with crime and criminality. Economic offenders are only concerned with their personal gain even at the cost of irreparable and serious loss to society which provided socialization and made him a human being, pro....
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....me. When a person has money earned by honesty and labour, they think again in spending the money but when money is obtained by corrupt means, such person may not have any problem spending. A criminal of economic offences has larger amount of proceed of crime, he may use it and affect the investigation and win over witnesses. In Himanshu Chandravadan Desai v. State of Gujrat - AIR 2006 SC 170 the appellant - accused was one of Directors of a Bank and together with other Directors and Managing Director of Bank siphoned off crores and crores rupees fund of the Bank by bogus loans and fictitious letters of credit in the name of their friends, relatives, associates and name-lender companies either without any securities or with wholly inadequate security. The Court of Session and the High Court rejected bail and then the appellant-accused moved the Hon'ble Supreme Court. The accused was remaining in custody for longer period since his surrender on 24.10.2002. The Hon'ble Supreme Court decided that having regard to huge amounts involved in the systematic fraud, there is danger of the appellants absconding, if released on bail, or attempting to tamper with the evidences by pressur....