TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 1069
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....ted (IPL), the share holders of those entities and the Government of India by fraudulently importing fertilizers and other materials for fertilizer production at inflated prices and claimed higher subsidy from Government of India causing loss of several crores of rupees. They allegedly siphoned off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies owned by the accused persons, registered outside India in order to camouflage the fraudulent transactions. It is claimed that IFFCO set up its 100% subsidiary namely M/s. Kisan International Trading FZE in Dubai for importing fertilizers and other raw materials from foreign companies. Bills were raised by the suppliers in favour of M/s. Kisan International Trading at inflated rates to cover up the bribe money to be paid to the accused persons and similar modus was adopted in respect of other manufacturers/suppliers. Money was paid through hawala operators and intermediaries. Group companies of co accused Rajeev Saxena, who is an accused in Augusta Westland Case also, were used for receipt of commission from supplier of fertilizers and other products to IFFCO and IPL....
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....r of Nikesh Tarachand Shah Vs. Union of India and another, (2018) 11 SCC 1 wherein it was held that "twin conditions mentioned in Section 45 of PMLA are arbitrary and hence, held to be unconstitutional and were struck down". 8. It was further submitted that thereafter, Section 45 of PMLA was amended and the twin conditions were again revived in amended Section 45 of PMLA. It was further submitted that the twin conditions mentioned in the amended Section 45 of PMLA came into consideration before the various Hon'ble High Courts and they have taken a consistent view that twin conditions as mentioned in amended Section 45 of PMLA do not stand revived pursuant to the amendment and hence, are not applicable while deciding the bail application. In support of his submission, Ld. Senior Counsel for accused has relied upon the following judgments: (1) Sai Chandrasekhar Vs. Directorate of Enforcement; (2) Upendra Rai Vs. Directorate of Enforcement; (3) Dr. Vinod Bhandari Vs. Assistant Director; and (4) Chhagan Chandrakant Bhujbal Vs. Assistant Director, Directorate of Enforcement and Ors. 9. It was further submitted that if twin conditions mentioned in amended Section 45 of PMLA are not....
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....t was further submitted that accused's sister and brother in law are very much settled in India. Therefore, there is no question of accused making himself not available to stand trial in the present case. 15. It was further submitted that gravity of allegations is not a ground to deny bail. In support of his submission, Ld. Senior Counsel for accused has relied upon the following judgments: (1) Prabhakar Tiwari Vs. State of Uttar Pradesh and Anr., (2020) 11 SC 648; (2) Anil Mahajan Vs. Commissioner of Customs and Anr., (2000) 53 DRJ 501; and (3) H.B. Chaturvedi Vs. CBI. 16. It was submitted that in the present case, first complaint was made to the CBI in 2013 and the case has been registered in 2021 only i.e. after eight years of the alleged offence. It was further submitted that in economic offences, evidence is generally of documentary nature and there is no chance of same being tempered with. 17. It was further submitted that two main accused in the CBI case, who are public servants, have approached the Hon'ble High Court of Delhi for quashing of FIR registered against them under the PC Act and their arrest has been stayed till further orders. Therefore, there is no r....
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....ction 45 of PMLA. Therefore, he cannot take the plea that the same are not applicable. 24. It was further submitted that twin conditions in amended Section 45 of PMLA are not declared to be constitutionally invalid till date by any court. Therefore, Section 45 of PMLA will be applicable to the present bail application. 25. Secondly, it was submitted that even as per proviso to Section 45 of PMLA, accused does not deserve the discretionary relief of bail on the ground of he being sick and infirm. It was submitted that accused is not suffering from any disease which is life threatening and as per his own admission made in the interim application for house arrest, the malignancy of lymphatic cancer is controlled and he has to visit U.S.A. for a regular follow up only. 26. It was further submitted that even with regard to heart ailment, no medical document has been filed on record to show that any kind of medical intervention is required or heart ailment is of serious concern. It was further submitted that whatever ailments accused is suffering from are manageable and by his incarceration his health will not further deteriorate. 27. It was further submitted that as per the submissi....
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....ge and if accused is released on bail, then it might hamper the investigation. Accordingly, a prayer was made to dismiss the bail application. In support of his submission, Ld. Special Counsel for ED has relied upon the following judgments: (1) State of Gujarat Vs. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364; (2) State of Bihar Vs. Amit Kumar, (2017) 13 SCC 751; (3) Nimmagadda Prasad Vs. CBI, (2013) 7 SCC 466; (4) Central Bureau of Investigation Vs. Ramendu Chattopadhyay, Criminal Appeal No. 1711 Of 2019; (5) Serious Fraud Investigation Office Vs. Nittin Johari, (2019) 9 SCC 165; (6) Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439; (7) Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129; (8) Kalyan Chandra Sarkar Vs. Rajesh Ranjan, (2004) 7 SCC 528,; (9) Gautam Kundu Vs. Directorate of Enforcement (Prevention of Money-Laundering Act), (2015) 16 SCC 1; (10) Sunil Dahiya Vs. State (Govt. of NCT of Delhi); and (11) Rohit Tandon Vs. Directorate of Enforcement, (2018) 11 SCC 46. 35. In rebuttal, Ld. Senior Counsel for accused has submitted that mere grant of stay by the Hon'ble Supreme Court of India regarding the judgments delivered by the Hon'ble High Court of Delhi i....
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....ile at my house and have carefully perused the same. 40. The first point which is required to be dealt with while deciding the present bail application is that whether the twin conditions mentioned in Section 45 of PMLA are to be applied or not in the present case? 41. It is true that the Hon'ble Supreme Court of India in the matter of Nikesh Tarachand Shah's case (supra) had held that the twin conditions in the un-amended Section 45 of PMLA were unconstitutional as they were violative of Article 14 of the Constitution of India, being arbitrary. The Hon'ble Supreme Court of India had declared twin conditions to be unconstitutional as Section 45 of PMLA did not make a reasonable classification for applicability of twin conditions while deciding the bail application. As per the un-amended Section 45 of PMLA, the twin conditions were to be applied to those offences mentioned in Schedule A of PMLA which were having more than three years imprisonment. This classification for applicability of twin conditions was found by the Hon'ble Supreme Court of India to be arbitrary and violative of Article 14 of the Constitution of India and hence, was struck down being unconstitu....
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....Court of Patna in the matter of Vidyut Kumar Sarkar's case (supra) holding that twin conditions of Section 45 of PMLA stand revived pursuant to amendment, has neither been stayed nor set aside by the Hon'ble Supreme Court of India. 44. Further, having regard to the fact that twin conditions in the amended Section 45 of the PMLA have not been struck down being unconstitutional till date by any court in India, therefore, twin conditions as mentioned in Section 45 of the PMLA are required to be made applicable to the present bail application. 45. In the present case, allegations in brief as per ECIR are that during the period from 2007 to 2014, 100% subsidiary of IFFCO i.e. M/s. Kisan International Trading Company was set up in Dubai for importing fertilizers and other raw materials from foreign companies/firms. It is alleged that one foreign company by the name of M/s. Uralkali Trading Ltd. has supplied the fertilizers at an exorbitant rate to IFFCO and illegal commission was paid to the group companies of Rajiv Saxena. Sh. Rajiv Saxena, in order to justify the illegal commission, had entered into an agreement of consultancy services with M/s. Uralkali Trading Ltd. and agai....
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.... Summerpark Corporation addressed to Rajiv Saxena confirming the transfer of 9,750,000/- US Dollar (around 10 million) during the period from 16.11.2012 to 21.06.2013. Both these transfers were made from the bank account maintained at Banque Heritage at Geneva. 48. It has also come during the course of investigation that the present accused had formed a Trust by the name of Bonus Capital Trust and he was the first beneficiary of that trust and on his death, second beneficiary was his sister and other family members. The said Trust was also formed in 2014. 49. The accused in his statement made on 03.07.2019 before the Income Tax Authorities had given an evasive reply as to what properties were transferred to the aforementioned trust. 50. The ED has also placed on record statement recorded of Sh. Sushil Kumar Pachisia under the Income Tax Act on 02.07.2019 and in the said statement, he has stated that M/s. Ferrtide DMCC was the company owned by co-accused Pankaj Jain and he joined the said company in the year 2017 as the Chief Operating Officer and prior to that he was working with Rare Earth Commodities from 2006 to 2016 as Manager having its office in Dubai. He further stated th....
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....nt regarding the business while his statement was recorded under Section 50 of PMLA and, therefore, the said entities indulged in sham transactions. 56. Further, as per statement of Rajiv Saxena, two companies by the name of Summerpark Corporation and Lake Village Assets Corp. were also owned by the present accused and from these two companies, around 11 million U.S. Dollars were transferred by accused to Rajiv Saxena. 57. The accused in his statement under Section 50 of PMLA has not been able to give the source of such huge funds received by him in cash or in the entities owned by him. Therefore, there is a prima facie material to hold that accused is involved in the offence of money laundering and since the Ld. Special Counsel for the ED has opposed the grant of bail, therefore, as per Section 45 of PMLA, accused is not entitled to bail. 58. The accused is also not entitled to bail as per proviso to Section 45 of the PMLA on the ground of he being a sick and infirm person as there is nothing on record to suggest that accused is sick to that extent that in case he remains incarcerated, then his health condition will further deteriorate. 59. No doubt that accused was suffering ....
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.... take into consideration certain factors like (1) nature of accusation and severity of punishment; (2) reasonable apprehension of tampering with the witness; (3) prima facie satisfaction of the court in support of the charge; (4) likelihood of the accused fleeing from justice; (5) Character, behavior, means, position and standing of the accused; and (6) likelihood of the offence being repeated. 65. If the aforementioned factors are considered, then the accusation against accused are serious in nature as he is an accused, who is involved in money laundering of around Rs. 685 Crores. Further, the offence of money laundering is a serious economic offence and the view of the Hon'ble Supreme Court of India with regard to economic offences is that they constitute a class apart and need to be visited with a different approach in the matter of bail. The Hon'ble Supreme Court of India has held that "the economic offences have deep rooted conspiracies and involve huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." [Reliance is ....