TaxTMI 
TaxTMI 
2022 (7) TMI 1185
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....and 120B of Indian Penal Code (hereinafter referred to as "IPC) vide Crime No. 109/2018, dated 19/07/2018 against the present applicant and 18 others, on a report of Assistant Police Inspector, Nanded Police, who had received secrete information that essential commodities of Wheat and Rice is being illegally transported from the godown of Food Corporation of India (FCI) Jawahar Nagar, Tuppa to the company Baheti Group, M/s. India Mega Agro Anaj Limited (hereinafter referred to as "IMAAL"). Thereupon raid was conducted in the premises of IMAAL on 18/07/2018. 3. In further investigation, it was revealed that total 192 trucks of various registrations were constantly ferried to IMAAL during the period 01/01/2018 to 18/07/2018. 4. Thus, it is alleged that the applicant conspired and was involved in illegal transportation of essential commodities of Wheat and Rice from godowns of FCI Jawahar Nagar, Tuppa to the company Baheti Group Mega Agro Anaj Limited. Accordingly the aforementioned crime was registered. 5. Since, Section 420 and 120(B) of IPC being the scheduled offence, under PMLA 2002, inquiry was initiated under PMLA 2002 against the accused persons. After scrutinizing the F.I.....
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....nd again the Hon'ble Apex Court has held that grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. He submits that the applicant is in jail for more than one year and there is no material to show that the alleged proceeds of crime derived or obtained by the applicant directly or indirectly as a result of criminal activity, relating to scheduled offence. He, therefore, submits that Section 3 of the PMLA 2002 will not attract to the case of the applicant. 14. Shri Manohar, learned Senior Advocate submits that the allegations in the ECIR refers to the transactions between the period from January 2018 to July 2018. Whereas, the alleged scheduled offence was registered on 19/07/2018. He, therefore, submits that the alleged proceeds of crime Rs.55,27,43,000/- cannot be said to be the proceeds of crime derived or obtained by the accused as a result of criminal activity relating to the aforesaid scheduled offence. 15. He further submits that all the allegations are against the company namely M/s. India Mega Agro Anaj Limited (IMAAL) and therefore it is obligatory on the part of the complainant to make requisit....
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....companies that have entered into the illegal transactions with IMAAL between January 2018 and July 2018. The report takes into consideration exhaustive material to identify and establish all legal transactions that have taken place between the accused and various shell companies. 23. The learned ASGI further points out the observations of the Forensic Audit Report, wherein the instances of withdrawal of amount in cash are referred in relation to M/s. Om Sai Satya Sai Traders, M/s. Kapil Trading Company, M/s. Balaji Traders, M/s. Sumeet Traders, M/s. Sanjay Traders, M/s. Shree Laxmi Trading Company, M/s. Dayanand Trading Company and M/s. Vijay Kumar Ganeshlal Pokarna. Thus, he submits that there is direct evidence of illegitimate transactions between January 2018 and July 2018, which is the period when the predicate crime was registered. 24. Shri Deshpande, learned ASGI while opposing the present application has placed reliance on the following judgments of the Hon'ble Supreme Court of India: a) Union of India..vs.. Hassan Ali Khan, reported in (2011) 10 SCC 235 b) Rohit Tandon Vs. Directorate of Enforcement, reported in (2018) 11 SCC 46, c) Gautam Kundu ..vs.. Directorate o....
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....2022 in Criminal Appeal No.738 of 2022, has held that in cases of PMLA, the Court cannot proceed on the basis of preponderance of probabilities. It is further observed that on perusal of the statement of objects and reasons specified in PMLA, it is the stringent law brought by Parliament to check money-laundering. Thus, the allegations must be proved beyond reasonable doubt in the Court. Even otherwise, it is incumbent upon the Court to look into the allegations and the material collected in support thereto and to find out whether the prima-facie offence is made out. It is further held that unless the allegations are substantiated by the authorities and proved against a person in the Court of law, the person is innocent. 30. The Delhi High Court in a case of Directorate of Enforcement..vs.. Gagandeep Singh and others, passed in Criminal Revision Petition No. 493 of 2017 has observed thus: "29. The legislation of PMLA had been enacted with the objective to prevent and control money laundering and to confiscate and seize the property obtained from the laundered money. The PMLA is a specific and special enactment to combat the menace of laundering of money, keeping in view the ille....
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.... either assists or is a party, or (c) is 'actually involved' in such activity; and (ii) Secondly, if he also projects or claims it asuntainted property. 38. The first of the two prerequisites to attract Section 3 of PMLA shall thus satisfy any of the following necessary ingredients A. Re : Direct or Indirect Attempt: In State of Maharashtra v. Mohd. Yakub, MANU/SC/ 0239/1980: (1980) 3 SCC 57, [1983 (13) ELT 1637 (S.C.)] the Hon'ble Supreme Court observed that - "13. Well then, what is an "attempt"? .............. In sum, a person commits the offence of "attempt to commit a particular offence" when (i) he intends to commit that particular offence, and (ii) he, having made preparations and with the intention to commit the offence, does an act towards its commission; such an act need not be the penultimate act towards the commission of that offence but must be an act during the course of committing that offence." Thus, an "attempt to indulge" would necessarily require not only a positive "intention" to commit the offence, but also preparation for the same coupled with doing of an act towards commission of such offence with such intention to commit the offence. ....
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....inted nature i.e. the property being 'proceeds of crime' derived or obtained, directly or indirectly, as a result of criminal activity relating to a "scheduled offence", would be utmost necessary, which however is lacking in the instant case. 41. On the basis of the said Section 24 read with Section 3 of PMLA, it was contended on behalf of the respondent that 'knowledge' of the "scheduled offence" or proceeds of crime is not essential under Section 3, and mere assistance in handling proceeds of crime even without knowledge would attract offence of money laundering, and burden would shift on the accused to prove that he is not involved in money laundering. It was submitted that the petitioners are all adults having knowledge of right and wrong. The bank accounts in which they received payments and made further payments were all in their names and they were the signatories having power to operate the accounts. None of them had the slightest hesitation in allowing their account to be used as a transit point for further transfer of the proceeds of crime. It shall thus be presumed that they have thus knowingly allowed the use of their bank accounts and knowingly involv....
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....cannot proceed on the basis of preponderance of probabilities. Unless the allegations are substantiated by the authorities and proved against a person in the Court of law, the person is innocent. 34. Thus, in this case, to consider whether there is any reasonable ground to believe that the applicant is guilty of alleged crime, it is necessary to examine whether the alleged property being proceeds of crime, derived or obtained, directly or indirectly by the applicant as a result of criminal activity relating to a scheduled offence? 35. In this case, the applicant was found involved in illegal acquisition as well as accumulation of food grains from FCI godowns. 10 Trucks filled with food grains amounting to Rs.1.83 Crores were confiscated from the premises of the company IMAAL and thereupon Crime No.109/2018, dated 19/07/2018 came to be registered for the offences punishable under Section 420, 406, 467, 468, 471, 477A and 120B of IPC against the applicant and 18 other accused persons. 36. Since Section 420 and 120B of IPC are the scheduled offences under the PMLA, inquiries were initiated under PMLA against accused persons. 37. In the scheduled offence, the supplementary charge-s....
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....ti has mentioned that he has business relations with M/s Om Shri Satyasai Traders and they used to supply food grains to M/s India Mega Agro Anaj Ltd. However, the forensic audit report clearly mentions that M/s Om Shri Satyasai Traders received amounts from M/s India Mega Agro Anaj Ltd. with some unidentified receipts. These amounts received have been withdrawn in cash. Also, M/s Om Shri Satyasai Traders did not carry any business relations with M/s India Mega Agro Anaj Ltd. The total amount received from M/s India Mega Agro Anaj Ltd. is Rs.Three crores one lakh seventy-two thousand (Rs.3,01,72,000/-) as per the forensic report. 20. In his statement dated 25.06.2021, the accused has mentioned that he has business relations with M/s Kapil Trading Co. and they used to supply food grains to M/s India Mega Agro Anaj Ltd. However, the forensic audit report clearly mentions that M/s Kapil Trading Co. is a commission agent and a general merchant. M/s Kapil Trading Co. has received amounts from M/s India Mega Agro Anaj Ltd. with some unidentified receipts. These amounts received have been withdrawn in cash. M/s Kapil Trading Co. did not carry any business relations with M/s India Mega A....
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....dentified. The total amount received from M/s India Mega Agro Anaj Ltd. as per the forensic audit report is Rupees Two Crores forty one lakhs and eighty five thousand ( Rs.2,41,85,000/-). 24. In his statement dated 25.06.2021, the accused has mentioned that he has business relations with M/s Shri Laxmi Trading co. and they used to supply food grains to M/s India Mega Agro Anaj Ltd. However, the forensic audit report clearly mentions that M/s Shri Laxmi Trading co. is a commission agent and M/s Shri Laxmi Trading co. has received amounts from M/s India Mega Agro Anaj Ltd. with some unidentified receipts. These amounts received have been withdrawn in cash. M/s Shri Laxmi Trading co. did not carry any business relations with M/s India Mega Agro Anaj Ltd. and the reasons for such receipts and payments are unidentified. The total amount received from M/s India Mega Agro Anaj Ltd. as per the forensic audit report is Rupees three Crores Seventy Six thousand (Rs.3,00,76,000/-). 25. As per the forensic audit report M/s Dayanand Trading co. has received amounts from M/s India Mega Agro Anaj Ltd. with some unidentified receipts. These amounts received have been withdrawn in cash. The same....
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....e (u) of Section 2(1) of the PMLA which makes it clear that proceeds of crime means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property. 46. In a specific query put to the learned ASGI, to show existence of any direct material to prima facie establish that the alleged property derived or obtained directly or indirectly by the applicant as a result of criminal activity relating to a scheduled offence. 47. In reply to the same, the learned ASGI has fairly stated that, presently there is nothing on record to show that, the alleged property derived or obtained directly or indirectly by the applicant as a result of criminal activity relating to the scheduled offence. 48. He further submits that the further investigation in this regard is going on. 49. The scheduled offence was registered on 19/07/2018. Thereafter, the ECIR was registered by Directorate of Enforcement on 24/05/2021 i.e. after about three years. 50. Thus, till the period of four years from the date of registration of scheduled offence and more than one year after the ECIR, is lapsed. However, even af....
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.... transport contractors namely Lalit Raj Brijlal Khurana and Raju Pralhad Arshewar had supplied food grains to the company of the applicant, pretending that the food grains were his own goods. 56. It is the further case of the prosecution that the applicant had paid Rs.80,10,000/- to Kapil Bajrang Gupta towards supply of food grains. This amount of Rs.80,10,000/- is a part of proceeds of crime i.e. Rs.55,27,43,000/-. 57. If the above referred story of the prosecution is accepted on its face value, it is evident that Kapil Bajrang Gupta created and forged the documents pretending that food grains were his own goods and in return he received Rs.80,10,000/-, in that case, there is no allegation that the applicant had any knowledge that the documents possessed by the driver of Kapil Bajrang Gupta, are forged or created one. There is nothing to prima facie show that the applicant had knowledge about the alleged acts of Kapil Bajrang Gupta and his accomplished. 58. Thus, in absence of any allegation that the applicant had any such knowledge as referred herein above, making the payment of Rs.80,10,000/- by the applicant to Kapil Bajrang Gupta, which amount is the part of proceeds of cri....
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....n the circumstances in a given situation. (See Municipal Corpn. of Greater Mumbai v. Kamla Mills Ltd. 11. The court while considering the application for bail with reference to Section 37 of the Act is not called upon to record a finding of not guilty. It is for the limited purpose essentially confined to the question of releasing the accused on bail that the court is called upon to see if there are reasonable grounds for believing that the accused is not guilty and records its satisfaction about the existence of such grounds. But the court has not to consider the matter as if it is pronouncing a judgment of acquittal and recording a finding of not guilty." 23. Based on the above precedent, the test which the High Court and this Court are required to apply while granting bail is whether there are reasonable grounds to believe that the accused has not committed an offence and whether he is likely to commit any offence while on bail. Given the seriousness of offences punishable under the NDPS Act and in order to curb the menace of drugtrafficking in the country, stringent parameters for the grant of bail under the NDPS Act have been prescribed." 61. In the teeth of above referre....