TaxTMI 
TaxTMI 
2022 (12) TMI 143
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.... listed on that day at 02:15 p.m. under Fresh Filing as Fresh Filing matters were being listed at 02:15 p.m. at that time. On 21.10.2022, Mr. Kishroe Dutta, learned senior Advocate from Kolkata along with Mr. Pandey Neeraj Rai had appeared before this Court at 10:30 a.m. and requested to take up the matter. As the matters listed at 02:15 p.m. were not being allowed to be argued at 10:30 a.m., even the mention prayer was not accepted and there after from 22.10.2022, there were Deepawali vacation and as per the practice, left over matters are being listed on the same day in the next week and therefore the matter was listed on 04.11.2022. On that day, Mr. Raju Ramchandran, learned senior counsel has argued the case on behalf of the petitioner and after seeing the argument of Mr. Raju Ramchandran, the Court has called upon the respondent-Directorate of Enforcement to file counter affidavit and posted the matter for today i.e. 30.11.2022 with consent of Mr. Raju Ramchandran, who appeared on that day. 3. Today, the Court has heard at length Mr. Arvind K. Nigam, learned senior counsel appearing for the petitioner and Mr. Amit Kumar Das, learned counsel appearing for the respondent-Dire....
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....tention of the Court to the contents of the said ECIR case and submits that this petitioner, namely, Amit Kumar Agarwal was complainant of Hare Street P.S. Case No.222 of 2022. He further submits that when predicate offence is not against the petitioner, the registration of the said ECIR case against the petitioner is without jurisdiction. He further elaborates his argument by way of submitting and inviting attention of the Court to the judgment passed by the Hon'ble Supreme Court in Vijay Madanlal Choudhary and others v. Union of India and others; [2022 SCC OnLine SC 929] and he refers paragraphs 69, 281, 282, 283, 467 (v)(d) of the said judgment, which are quoted herein below: "69.Mr. Mahesh Jethmalani, learned senior counsel was next in line to advance submissions on behalf of the private parties. He submitted that Section 44(1)(a) of the PMLA is unconstitutional and violative of Articles 14 and 21 of the Constitution. He contends that there is no nexus of the said Section with the object of the PMLA. This section does not contemplate a joint trial of the offence under Section 3 and the scheduled offence. Further, he interprets Section 44(1)(a) to mean that the Spec....
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....al activity relating to a scheduled offence. Nevertheless, it is concerning the process or activity connected with such property, which constitutes offence of money-laundering. The property must qualify the definition of "proceeds of crime" under Section 2(1)(u) of the 2002 Act. As observed earlier, all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of "proceeds of crime" under Section 2(1)(u) will necessarily be crime properties. Indeed, in the event of acquittal of the person concerned or being absolved from allegation of criminal activity relating to scheduled offence, and if it is established in the court of law that the crime property in the concerned case has been rightfully owned and possessed by him, such a property by no stretch of imagination can be termed as crime property and ex-consequenti proceeds of crime within the meaning of Section 2(1)(u) as it stands today. On the other hand, in the trial in connection with the scheduled offence, the Court would be obliged to direct return of such property as belonging to him. It would be then paradoxical to still regard such prop....
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....ion that a scheduled offence has been committed, unless it is so registered with the jurisdictional police and/or pending enquiry/trial including by way of criminal complaint before the competent forum. If the person is finally discharged/acquitted of the scheduled offence or the criminal case against him is quashed by the Court of competent jurisdiction, there can be no offence of money-laundering against him or any one claiming such property being the property linked to stated scheduled offence through him." 7. By way of referring this judgment, Mr. Nigam, learned senior counsel appearing for the petitioner submits that registration of the said ECIR case is condition precedent and commission of scheduled offence and the petitioner is not coming within the purview of that and in that view of the matter, the entire proceeding is without jurisdiction. 8. Learned senior counsel appearing for the petitioner also submits that identical was the issue before the Hon'ble Supreme Court in Parvathi Kollur & anr. v. State by Directorate of Enforcement in Criminal Appeal No.1254 of 2022 and considering the judgment passed in Vijay Madanlal Choudhary (supra) , the discharge order rev....
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....matter, the petitioner is required to be released on interim bail under Article 226 of the Constitution of India and for that separate I.A. being I.A. No.10240 of 2022 has been filed. These are the submissions of the learned senior counsel appearing for the petitioner on the point of prayer nos.(i) and (ii) of the petition. 9. So far as prayer no.(iii) is concerned, Mr. Nigam, learned senior counsel appearing for the petitioner submits that it is upon the conscience of the Court and if the Court comes to the conclusion that it is required to be handed over to the Special Investigation Team headed by retired Judge of Hon'ble Supreme Court or the High Court, the Court may pass that order. 10. On these grounds, Mr. Nigam, learned senior counsel appearing for the petitioner submits that the entire criminal proceeding, so far as the petitioner is concerned, is bad in law and the entire criminal proceeding is required to be quashed and the petitioner may be enlarged on interim bail. 11. Per contra, Mr. Amit Kumar Das, learned counsel appearing for the respondent-Directorate of Enforcement submits that challenge in this petition is to quash the said ECIR case which is an inte....
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....Mining Secretary, Jharkhand due to her proximity with Amit Kumar Agarwal. He further stated that Prem Prakash is very close to Hemant Soren and Pintu, and has developed good relation with them in last couple of years. Earlier he used to supply eggs in Mid-Day meal program but in last couple of years, he has become a power broker in Jharkhand and a fund manager for bureaucrats and politicians. He further submits that this petitioner was produced before the learned court and he was remanded to judicial custody on 08.10.2022 and on that day, judicial order has been passed by the learned court in which the petitioner has not complained anything. Moreover, the said order of remand is not under challenge. He also submits that I.A. No.10240 of 2022 filed on behalf of the petitioner for interim bail is misconceived one. There are statutory provisions of release on bail and this aspect of the matter has been considered by the Hon'ble Supreme Court in Saurabh Kumar through his father v. Jailor, Koneila Jail and another; [(2014) 13 SCC 436] . 12. Paragraphs 20, 21, 22 and 23 of the said judgment are quoted herein below: "20. Subsequent orders passed in the case show that the a....
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..... We also find it difficult to accept the contention that the other accused persons who all belong to one family have absconded. The nature of the offences alleged to have been committed is also not so serious as to probabilise the version of the respondent that the accused have indeed absconded. Suffice it to say that the petitioner is free to make an application for the grant of bail to the court concerned who shall consider the same no sooner the same is filed and pass appropriate orders thereon expeditiously." 13. Mr. Das, learned counsel for the respondent-Directorate of Enforcement further submits that once the order is not under challenge, the prayer to release on interim bail is misconceived one and to buttress this argument, he relied in State of Maharashtra and others v. Tasneem Rizwan Siddiquee; [(2018) 9 SCC 745] . 14. Paragraph 12 of the said judgment is quoted herein below: "12. Suffice it to observe that since no writ of habeas corpus could be issued in the fact situation of the present case, the High Court should have been loath to enter upon the merits of the arrest in the absence of any challenge to the judicial order passed by the Magistrate granti....
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.... Shiv Shankar Sharma, who is the petitioner in PIL has stated that prior to arrest of Mr. Rajeev Kumar, this petitioner tried to offer him bribe money to settle the PIL matter, however he was not ready for negotiation and settlement. He further submits that in para 7.7 of the complaint, the Whatsapp chat of Sonu Agarwal has come in which he has stated in so many words that Rajeev Kumar has been wrongly trapped by keeping him in dark by this petitioner. He further submits that the complaint was made on 31.07.2022 before the Officer In-Charge in which it has been disclosed that FIR was registered, however same was not verified. He further submits that FIR was registered as Hare Street P.S. Case No.222 of 2022 and the occurrence is shown as dated 13.07.2022 to 31.07.2022. However, at the very first meeting on 13.07.2022, the complaint was not filed before the police by the petitioner which shows that intention of this petitioner was to manage the PIL. He draws attention of the Court to Section 3 of the Prevention of Money Laundering Act and submits that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any proc....
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....ing proceeds of crime. The relevant expressions from Section 3 of the PML Act are thus wide enough to cover the role played by such person." 18. Mr. Das, learned counsel for the respondent-Directorate of Enforcement further submits that so far as third prayer is concerned, it is for the Court to decide as to whether that prayer is required to be entertained by this Court or not . 19. On these grounds, Mr. Das submits that the entire writ petition is misconceived one and this Court may dismiss the same. 20. By way of reply, Mr. Nigam, learned senior counsel appearing for the petitioner again draws attention of the Court to the prayer portion of the writ petition and submits that the case has been instituted prior to the said ECIR case and the prayer for quashing the same has been made in the writ petition and that is why the objection made by the Directorate of Enforcement is not sustainable. He again draws attention of the Court to the complaint and submits that brief summary is disclosed at paragraph 2 and mention of FIR is there, however the petitioner is not accused in the FIR. The entire action on the part of the respondent-Directorate of Enforcement is without jurisdi....
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....dance of officers of ED. It is also correct to say that there is no such requirement under the 2002 Act or for that matter, that there is nothing like investigation of a crime of money-laundering as per the scheme of 2002 Act. The investigation, however, is to track the property being proceeds of crime and to attach the same for being dealt with under the 2002 Act. Stricto sensu, it is in the nature of an inquiry in respect of civil action of attachment. Nevertheless, since the inquiry in due course ends in identifying the offender who is involved in the process or activity connected with the proceeds of crime and then to prosecute him, it is possible for the department to outline the situations in which that course could be adopted in reference to specific provisions of 2002 Act or the Rules framed thereunder; and in which event, what are the options available to such person before the Authority or the Special Court, as the case may be. Such document may come handy and disseminate information to all concerned. At least the feasibility of placing such document on the official website of ED may be explored." 22. The complaint has been filed and cognizance has been taken. The comp....
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....afia has come. Thus, there are sufficient material, so far as this petitioner is concerned with regard to trapping of Mr. Rajeev Kumar. 23. Looking into Section 3 of Prevention of Money Laundering Act, it is crystal clear that 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 with the proceeds of crime and projecting it as untainted property shall be guilty of offence of money laundering. Admittedly, this petitioner has handed over the sum of Rs.50 Lakhs to Mr. Rajeev Kumar. Section 7A of the Prevention of Corruption Act speaks that giver and taker of bribe, both are liable to be prosecuted, which comes under scheduled offence in light of Section 2(1)(u) of the Prevention of Money Laundering Act. Recently, the Hon'ble Supreme Court in paragraph 16 of Padmanabhan Kishore (supra) held that bribe giver will also come within the purview of the Prevention of Money Laundering Act. The judgment relied by Mr. Nigam, learned senior counsel in the case of Parvathi Kollur (supra) , that was on different facts. In that case, the accused has left for his heavenly abode and his wif....
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....nder challenge and this aspect of the matter has been considered by the Hon'ble Supreme Court in Tasneem Rizwan Siddiquee (supra) . It is well settled that when alternative remedy is there, petition for bail under Article 226 of the Constitution of India is not maintainable, as has been held by the Hon'ble Supreme Court in Saurabh Kumar through his father (supra) . The Court is conscious of the fact that liberty of any person cannot be taken away lightly and at least on two occasions, this Court has rise to rescue the petitioners of those cases finding about the liberty was at stake and granted interim bail under Article 226 of the Constitution of India in Hemant Goyal and another v. The State of Jharkhand and another; (2021 SCC OnLine Jhar 637) and Baby Chatterjee v. The State of Jharkhand & others; (2022 SCC OnLine Jhar 1348) , which has been affirmed by the Hon'ble Supreme Court. Thus, when a case of interference comes under Article 226 of the Constitution of India with regard to liberty of any person, has been brought to record the Court has rise to rescue. If this type of petition where there is serious allegation is being entertained by the constitutional Court, P....
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....nquiry or the investigating agency. In Romila Thapar v. Union of India; [(2018) 10 SCC 753] , the Supreme Court taking a review of the earlier precedents reiterated the principle that the accused does not have a say in the matter of appointment of the investigating agency while referring to the decisions in Narmada Bai v. State of Gujarat and others; [(2011) 5 SCC 79], Sanjiv Rajendra Bhat v. Union of India; [(2016) 1 SCC 1] and Divine Retreat Centre v. State of Kerala; [(2008) 3 SCC 542] . 28. It is well settled that the High Court under Article 226 of the Constitution and the Hon'ble Supreme Court under Article 32 of the Constitution can direct the CBI to investigate into any specific case or to conduct an inquiry against a person. It can do so only when there is sufficient material before the Court to come to a prima facie conclusion that there is a need for such an inquiry. There is no doubt that such inquiry cannot be ordered as a matter of routine or merely because a party makes an allegation and if after considering the materials on record the Court concludes that such materials disclose a prima facie case calling for investigation by the CBI, the Court can pass neces....