TaxTMI 
TaxTMI 
2023 (3) TMI 385
X X X X Extracts X X X X
X X X X Extracts X X X X
....002, currently pending in the Court of learned Special Judge, PMLA, Lucknow. 4. Brief facts of the case are that the present case pertains to the National Rural Health Mission (hereinafter referred to as "NRHM") in the State of U.P., which was floated on the joint efforts of the Central Government and State Government. One M/s. Jagran Solutions was established in the year 2005 as a unit of Jagran Prakashan Ltd. (for short "JPL"). Jagran Solutions is a reputed concern involved in business activities of brand activation, Meetings Incentives Conferences and Events (for short "M.I.C.E"), retail & ISP, Rural Marketing and Activation Consulting. Jagran Solutions has so far executed more than 4500 projects with total turn-over of over Rs.500 Crores and has to its credit, 63 National-level and 76 International-level Awards. 5. The Applicant joined Jagran Solutions in the year 2007 as Senior Accounts Manager and is presently working as the business head of Jagran Solutions. As a part of his official duties, the applicant undertook business development and client servicing for Jagran Solutions. 6. The Director General, Family Welfare, U.P., published an advertisement seeking private bidde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g with its investigation under the Prevention of Money-Laundering Act, 2002 (hereinafter referred to as "PMLA") in furtherance of ECIR, the applicant duly cooperated in the investigation and his statement was recorded by the E.D. under Section 50 of PMLA on 23.12.2016 and 10.06.2019. Since the present applicant was properly cooperating in the investigation, therefore, he was not arrested by the E.D. under Section 19 of the PMLA during the course of the investigation. 10. After more than 10 years from the registration of ECIR, the E.D. on 05.12.2022 filed a prosecution complaint under Section 44 read with Section 45 of the PMLA, inter alia, making the present applicant and JPL as accused no.3 & 4 therein. The Special Judge, PMLA took cognizance of the prosecution complaint on 17.12.2022 and issued summons on 22.12.2022 to the applicant for appearance on 10.01.2023, however, no proper service of summons was effected on the applicant and only a constructive service was effected. Learned Senior Advocate has stated that no property of the applicant or JPL has been attached by the E.D. 11. On 22.12.2022, summons have been issued against the applicant. Learned Senior Advocate has stated....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... file objection, therefore, the applicant pressed ad-interim bail apprising that the present applicant has not been arrested by the E.D. under Section 19 of the PMLA, he cooperated in the investigation, he never flouted the process of law and he further undertakes to cooperate with the proceedings, therefore, in the light of the dictum of the Apex Court in re; Satender Kumar Antil Vs. Central Bureau of Investigation & Another, (2022) 10 SCC 51, he may be given ad-interim bail but his ad-interim bail application was rejected by the learned trial court on 10.01.2023 and the applicant was sent to the judicial custody fixing the date as 18.01.2023. The regular bail application of the present applicant was rejected by the learned trial court on 24.01.2023 by observing that the twin conditions of Section 45 of PMLA are necessary and those conditions are not satisfied, therefore, the applicant is not entitled for bail. 14. Sri Jaideep Narain Mathur, learned Senior Advocate, has submitted that the Apex Court in re; Aman Preet Singh vs. C.B.I. Through Director, 2021 SCC OnLine SC 941, has held that if during investigation, the accused has cooperated in the investigation and has not been ar....
X X X X Extracts X X X X
X X X X Extracts X X X X
....applying the judgment; para-2 reads as under:- "2. After allowing the application for intervention, an appropriate order was passed on 7-10-2021 [Satender Kumar Antil v. CBI, (2021) 10 SCC 773 : (2022) 1 SCC (Cri) 153] . The same is reproduced as under : (Satender Kumar Antil case [Satender Kumar Antil v. CBI, (2021) 10 SCC 773 : (2022) 1 SCC (Cri) 153] , SCC pp. 774-76, paras 2-11) "2. We have been provided assistance both by Mr S.V. Raju, learned Additional Solicitor General and Mr Sidharth Luthra, learned Senior Counsel and there is broad unanimity in terms of the suggestions made by the learned ASG. In terms of the suggestions, the offences have been categorised and guidelines are sought to be laid down for grant of bail, without fettering the discretion of the courts concerned and keeping in mind the statutory provisions. 3. We are inclined to accept the guidelines and make them a part of the order of the Court for the benefit of the courts below. The guidelines are as under: 'Categories/Types of Offences (A) Offences punishable with imprisonment of 7 years or less not falling in Categories B & D. (B) Offences punishable with death, imprisonment for life, or impris....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the aforesaid approach cannot give them benefit, something we agree with. 6. We may also notice an aspect submitted by Mr Luthra that while issuing notice to consider bail, the trial court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warranted arrest. On this aspect also we would give our imprimatur and naturally the bail application to be ultimately considered, would be guided by the statutory provisions. 7. The suggestions of the learned ASG which we have adopted have categorised a separate set of offences as "economic offences" not covered by the special Acts. In this behalf, suffice to say on the submission of Mr Luthra that this Court in Sanjay Chandra v. CBI [Sanjay Chandra v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC (Cri) 26 : (2012) 2 SCC (L&S) 397] has observed in para 39 that in determining whether to grant bail both aspects have to be taken into account: (a) seriousness of the charge, and (b) severity of punishment. Thus, it is not as if economic offences are completely taken out of the aforesaid guidelines but do form a different nature of offences and thus the seriousness ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rned counsel for the petitioners submit that the petitioners have already suffered pre trial custody for more than four years in respect of the scheduled offence, the investigating agency did not arrest the petitioners under Section 19 PMLA when investigation begins, that they are senior citizens of approximately 66,70, 68 and 67 years of age respectively and properties of petitioners in SLP (Crl.) Nos. 12635/2022 and 12615/2022 have even attached worth Rs. 8,00,000/- and Rs. 5,50,000/- and petitioners in SLP (Crl.) Nos. 12646/2022 and 12919/2022 have deposited the alleged amount of Rs. 11,88,000/- and 50,00,000/- in the respective matters. It is further submitted that the total period of incarceration in case of conviction is only seven years and Section 45 PMLA will not be applicable as it is pre-amendment. Issue notice. In the meantime, the petitioners be not arrested but shall continue to cooperate with further investigation." 18. Sri Mathur has also referred the judgment of the High Court of Delhi in re; Rana Kapoor Vs. Directorate of Enforcement, 2022 SCC OnLine Del 4065, to submit that in more or less in similar facts and circumstances, the Delhi High Court has granted ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rly when neither investigation agency nor prosecution agency sought arrest of accused. 34. The arguments advanced by the learned Special Counsel for the respondent that the applicant has misinterpreted para no 65 of Satinder Kumar Antil is misplaced. There is no force in argument advanced by the learned Special Counsel for the respondent that the applicant before grant of bail required to pass test of 45 of PMLA. The position would have been different, had the applicant arrested during investigation. The investigating agency as mentioned hereinabove consciously preferred not to arrest the applicant during investigation or post filing of charge sheet. The arguments advanced and case law relied on by the Special Counsel for the respondent are considered in right perspective to the given facts and circumstances but they do not provide much legal help to the respondent in opposing present bail application." 19. Therefore, to sum up, Sri Mathur, learned Senior Advocate, has submitted that while granting the bail to the present applicant in the predicate offence, this Court has observed that the applicant has never flouted the process of law and has cooperated in the investigation pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... submitted that a person accused of the offence of money laundering can only be released when the conditions stipulated under Section 45 of the PMLA are satisfied i.e. prosecution/E.D. is given an opportunity to oppose the release/bail of the accused applicant and if the accused is released, reasons have to be recorded that there is a reasonable satisfaction that the accused has not committed the offence of money laundering. In support of his aforesaid submission, he has placed reliance upon paragraphs 398 & 399 of the dictum of the Apex Court in re; Vijay Madanlal Choudhary and Others Vs. Union of India and Others, 2022 SCC OnLine SC 929, which reads as under:- "398. Thus, it is well settled by the various decisions of this Court and policy of the State as also the view of international community that the offence of money-laundering is committed by an individual with a deliberate design with the motive to enhance his gains, disregarding the interests of nation and society as a whole and which by no stretch of imagination can be termed as offence of trivial nature. Thus, it is in the interest of the State that law enforcement agencies should be provided with a proportionate effec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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...." 22. On being confronted Sri Rohit Tripathi as to whether the Investigating Agency has ever thought to arrest the applicant during investigation on the basis of material, evidences and allegations against the applicant, Sri Tripathi has fairly stated that during investigation, the Investigating Agency did not think to arrest the applicant pursuant to the ECIR dated 14.04.2012. He has also submitted that the summons were issued to the applicant to cooperate in the investigation and to record his statement under Section 50 of the PMLA and the applicant duly appeared before the E.D. on 23.12.2016 and 10.06.2019, therefore, Sri Tripathi has submitted that the present applicant has not been arrested under Section 19 of the PMLA. 23. On being further confronted as to why the applicant has not been provided copy of complaint and copies of statements and relevant documents to the applicant in compliance of Section 204 (3) and 208 Cr.P.C., Sri Tripathi has stated that such copies have not been demanded by the appli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....itions of Section 45 of the PMLA are not being satisfied whereas in the present case, the applicant has not been arrested by the Investigating Agency under Section 19 of the PMLA and the counsel for the E.D. was properly heard by the trial court, therefore, rigours of Section 45 of the PMLA should not be made applicable in the present case. 26. Sub-clause (2) of Section 44 of PMLA provides that nothing contained in this section shall be deemed to affect the special power of the High Court regarding bail under Section 439 Cr.P.C. The Apex Court vide para 400 in re; Vijay Madanlal Choudhary (supra) has observed as under:- "400. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the Court which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act...." 27. Notably, the statutory rights of the present applicant defined under Section 204 (3) & 208 Cr.P.C. have been violated by the....