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2023 (1) TMI 596
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....R No. ECIR/JLZO/21/2021 dated 30.11.2021 for the offence under Section 3, punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (for short 'PMLA'), District Jalandhar. Learned senior counsel, appearing for the petitioner, has submitted that the petitioner is not involved in any other case; he is in custody for the last about 05 months, that is w.e.f. 03.02.2022, and the investigation in all respect is complete; a formal complaint is already filed before the competent Court of law, therefore, the petitioner is no more required for any further custodial investigation. Brief facts of the case are that on 20.05.2017, in an E-Auction conducted by the Mining Department, one Kudratdeep Singh was the successful bidder for Rs. 4.04 crores and was allotted a sand mine measuring 4.41 hectares in village Malikpur, District S. B. S. Nagar. Later on, finding that the location of the land is not clear, he got the same demarcated through Halqa Patwari on 16.08.2017 and found that the location of the land is on southern side of Satluj river and there is no proper passage from village Malikpur, where he was allotted the land and some illegal occupants in the village Dhulewal....
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....se of the ED that this amount was given by the petitioner to Sandeep Kumar. It is further submitted that this recovery is effected on 18.01.2022, therefore, the same does not relate to the offence under FIR No. 26, which was registered on 07.03.2018. Learned senior counsel has next argued that during investigation, even Sandeep Kumar has been let off by the ED and the disclosure statement of the petitioner was recorded in custody that the money recovered from Sandeep Kumar in fact belongs to the petitioner and a total of Rs. 9,97,52,700/- is shown to have been recovered from the petitioner. It is further submitted that the investigation of the ED further suggests that there were total 09 partners, who had obtained Malikpur sand mine contract along with Kudratdeep Singh, however, petitioner Bhupinder Singh @ Honey was not one of the partners in the said firm. Learned senior counsel further argued that in order to connect the petitioner with the said offence, ED recorded the statement of Kudratdeep Singh that the petitioner used to help him whenever there was a dispute between the partners and would also help in supervising the mining activities as a common friend. It is furthe....
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....ry and Mohan Pal Singh for facilitating them in their mining related works and remaining Rs.3/4 crores were received by him for arranging transfer of the employees of the Punjab Govt. through his political connections. Learned senior counsel submitted that the petitioner has already filed an appeal before the adjudicating authority under the Act and the matter is subjudice and, therefore, at this stage, it cannot be held that the amount recovered was proceeds of crime. Learned senior counsel has next argued that if the statement of the petitioner, which was recorded while in custody and is yet to be proved during trial, is taken to be correct on the face of it, the same contradicts the version of ED that it relates to FIR No. 26, registered on 07.03.2018, whereas the statement of the petitioner was recorded on 18.01.2022 and there was no FIR of illegal mining against the petitioner or against aforesaid two persons from the year 2019 to 2022, therefore, ED could not investigate the crime, for which no FIR regarding predicate offence has been registered. Learned senior counsel further argued that in fact the petitioner has been roped in by ED, which has even tried to add provisio....
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....ned senior counsel further argued that the petitioner has properly explained that the money recovered from him was in fact earned by providing different type of machineries to mining sites and he never obtained any money for the transfer of any employee of the Govt. of Punjab. Further submitted that in fact in a statement dated 06.02.2022, the petitioner has also explained that Rakesh Chaudhary and his friend Mohan Pal Singh wanted some favour from Chief Minister but the Chief Minister, instead of giving favour, reduced the price of sand and due to this, both of them got annoyed. Learned senior counsel further argued that ED could not found any evidence to connect the then Chief Minister of Punjab, therefore, on 31.03.2022, ED filed a formal complaint before the competent Court of law only against the petitioner and Kudratdeep Singh only. It is further submitted that in para 3.1 of this complaint, again there is a reference of FIR No. 26 dated 07.03.2018 as well as three weighment slips dated 16.03.2018, which were allegedly found to be fake. It is further submitted that though in the FIR No. 26, challan was presented against 56 persons, however, in the complaint, only Kudratde....
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....rdinate/liaison with various government departments, used to assist in illegal sand mining activities by obtaining early raid alerts. Aplicant was found to be in possession of fake weighment slips pertaining to Malikpur mining site and was in possession of illegitimate cash suspected to be proceeds of crime which is relatable to illegal mining activities in relation to scheduled offence. 6.15 Thus, Applicant was found actually involved in the offence of money laundering and has committed offence of money laundering defined under section 3 of the Prevention of Money Laundering Act, 2002, which is punishable under section 4 of the Prevention of Money Laundering Act, 2002." Learned senior counsel has referred to (2020) 13 Supreme Court Cases 791, P. Chidambaram vs. Directorate of Enforcement to submit that Hon'ble Supreme Court has granted bail in a complaint filed by ED by observing as under: "23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the excep....
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....ragraphs 17, 20 and 24 of the counter affidavit has been incorporated as if, it is the findings of the Court. The learned Solicitor General while seeking to controvert such contention would however contend that in addition to the counter affidavit the respondent had also furnished the documents in a sealed cover which was taken note by the learned Judge and conclusion has been reached." Learned senior counsel has lastly argued that the petitioner is not maintaining good health as he is suffering from heart problems and even in custody, he was examined by the jail doctor and he needs urgent medical treatment and has relied upon the medical prescription issued by the Medical Officer, Central Jail, Kapurthala. Learned counsel, appearing for the respondent-ED, has filed the custody certificate, according to which, the petitioner is in judicial custody for the last 04 months and 18 days. Learned counsel for the respondent-ED has referred to Section 2(u) of the PMLA, which reads as under: "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 ....
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....case under the NDPS Act, it is easy for an accused, who has been released on bail to repeat such offence, however, in a case under the PMLA like the present case, it is not easy for an accused to commit the offence again as he will always be in radar of E.D. (b) It is the admitted case of ED that after registration of the aforesaid FIR in 2018, a complaint has been filed by ED in 2022 i.e. after a period of about 04 years and in the intervening period, there was no further complaint or FIR regarding illegal mining to suggest that the petitioner is a habitual offender and is involved in any other case even prior to registration of the aforesaid FIR, especially when he is not named either in FIR No. 26 or report submitted under Section 173(2) Cr.P.C. (c) As per own investigation of ED, the petitioner was helping Kudratdeep Singh @ Lovie, who was allotted the lease license, in his mining work and there is no direct allegation against him that he was looking into the finance of the Kudratdeep Singh @ Lovie, therefore, the Court is convinced that the petitioner qualify the triple test laid down under Section 45 of PMLA as the Court has nothing to presume adverse to the conduct of th....
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....ourt, and a period of about 05 months has lapsed, therefore, the petitioner cannot be kept in judicial custody for unlimited period in the light of judgment in P. Chidambaram's case (supra). Accordingly, it is held that the petitioner qualifies the triple test under Section 45 of the Act and, therefore, the present petition is allowed. The petitioner is ordered to be released on regular bail, subject to following conditions:- (i) The petitioner will furnish bail and two sureties to the satisfaction of the trial Court/Illaqa Magistrate, out of which, one surety will be a local surety. (ii) The passport of the petitioner will remain in the custody of the prosecuting agency or the trial Court and the petitioner will not leave India without prior permission of this Court. (iii) The petitioner will furnish an undertaking that he will appear before the Investigating Agency as well as the trial Court as and when he is required and in case, he defaults in appearance, it will be open for the prosecution to apply for cancellation of his bail." Counsel for the respondent - ED has filed a reply by way of affidavit today in the Court, which is taken on record. The objection taken in t....