TaxTMI 
TaxTMI 
2024 (3) TMI 188
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....ecorded on the basis of the FIR bearing No. 141 of 2022 dated 04.06.2022, lodged at Bariatu police station, Ranchi Jharkhand under section 420, 467 and 471 of IPC, 1860, against Pradeep Bagchi on the basis of complaint of one Sri Dilip Sharma, Tax Collector, Ranchi Municipal Corporation for submission of forged papers i.e. Aadhar Card, Electricity Bill and Possession letter for obtaining holding number 0210004194000A1 and 0210004031000A5. Investigation revealed that by submitting the forged documents, a holding number was obtained in name of Pradeep Bagchi for property at Morabadi Mouza, Ward No. 21/19, Ranchi having an area of the plot measuring 455.00 decimals approx. at Ranchi. Investigation further revealed that the above property belonged to Late B.M. Laxman Rao which was given to the Army and had been in the possession of the Defence, in occupation of the Army since independence. Investigation reveals that by way of creating a fake owner (Pradeep Bagchi) of the above said property, it was sold to one company M/s Jagatbandhu Tea Estate Pvt. Ltd for which the consideration amount was shown Rs. 7 crores which was highly under value and out of this amount Rs. 7 crores pa....
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....en into consideration all these aspects of the matter both legal and factual but having not done so, serious error has been committed. 5. Further submission has been made in the aforesaid view of the matter as per the ground agitated, it is a fit case where the petitioner is to be given the privilege of bail. Argument on behalf of the learned counsel for the respondent: 6. While on the other hand, Mr. Anil Kumar, learned Additional Solicitor General of India for the respondent-Enforcement Directorate has vehemently opposed the prayer for grant of regular bail by taking the following grounds: (i) The argument so far as it relates to non-availability of the condition as stipulated under Section 19(1) of the Act, 2002 has already expired the moment the petitioner has been remanded in custody by virtue of an order passed by the order of remand by the competent court of criminal jurisdiction. (ii) The aforesaid order of remand has not been assailed at any time. (iii) Since the remand order is not under challenge, hence, it is not available for the petitioner to take the ground that the condition as stipulated under Section 19(1) of the Act is not avai....
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....tion thereof including vesting of it in the Central Government, setting up of agencies and mechanisms for coordinating measures for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime. The issues were debated threadbare in the United Nation Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basle Statement of Principles enunciated in 1989, the FATF established at the summit of seven major industrial nations held in Paris from 14th to 16th July, 1989, the Political Declaration and Noble Programme of Action adopted by United Nations General Assembly vide its Resolution No. S-17/2 of 23.2.1990, the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998, urging the State parties to enact a comprehensive legislation. This is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act. The same reads thus: "INTRODUCTION Money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity....
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....s General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia, calls upon the member States to develop mechanism to prevent financial institutions from being used for laundering of drug related money and enactment of legislation to prevent such laundering. (e) the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998 has made another declaration regarding the need to combat money- laundering. India is a signatory to this declaration. 9. It is thus evident that the Act 2002 was enacted in order to answer the urgent requirement to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime. 10. It needs to refer herein the definition of "proceeds of crime" as provided under Section 2(1)(u) of the Act, 2002 which reads as under: "2(u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of cri....
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....sets, wherever located. 14. The schedule has been defined under Section 2(1)(x) which means schedule to the Prevention of Money Laundering Act, 2002. The "scheduled offence" has been defined under Section 2(1)(y) which reads as under: "2(y) "scheduled offence" means- (i) the offences specified under Part A of the Schedule; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or (iii) the offences specified under Part C of the Schedule." 15. It is evident that the "scheduled offence" means the offences specified under Part A of the Schedule; or the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or the offences specified under Part C of the Schedule. 16. The offence of money laundering has been defined under Section 3 of the Act, 2002 which reads as under: "3. Offence of money-laundering.-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 i....
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....same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:- (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a [reporting entity] and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections ....
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....ojecting or claiming" therein. This Court in Pratap Singh v. State of Jharkhand, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created. In Apparel Export Promotion Council v. A.K. Chopra, the Court observed that domestic Courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. This view has been restated in Githa Hariharan, as also in People's Union for Civil Liberties, and N....
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.... to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of subsection (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself. This position is well-established. The Constitution Bench of this Court in M.P. Sharma had dealt with a similar challenge wherein warrants to obtain documents required for investigation were issued by the Magistrate being violative of Article 20(3) of the Constitution. This Court opined that the gua....
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.... witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case." (emphasis supplied) 431. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation o....
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....e property eventually vesting in the Central Government. 24. It is evident from the observation so made as above that the purposes and objects of the 2002 Act for which it has been enacted, is not limited to punishment for offence of money-laundering, but also to provide measures for prevention of money-laundering. It is also to provide for attachment of proceeds of crime, which are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceeding relating to confiscation of such proceeds under the 2002 Act. This Act is also to compel the banking companies, financial institutions and intermediaries to maintain records of the transactions, to furnish information of such transactions within the prescribed time in terms of Chapter IV of the 2002 Act. 25. The predicate offence has been considered in the aforesaid judgment wherein by taking into consideration the explanation as inserted by way of Act 23 of 2019 under the definition of the "proceeds of crime" as contained under Section 2(1)(u), whereby and whereunder, it has been clarified for the purpose of removal of doubts that, the "proceeds of crime" include property not only derive....
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....e principal grievance is about the twin conditions specified in Section 45 of the 2002 Act. Before we elaborate further, it would be apposite to reproduce Section 45, as amended. The same reads thus: "45. Offences to be cognizable and non-bailable.-(1) [Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless'] (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person who is under the age of sixteen years, or is a woman or is sick or infirm, [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under sec....
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....iterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur. 374. The first issue to be answered by us is: whether the twin conditions, in law, continued to remain on the statute book post decision of this Court in Nikesh Tarachand Shah and if yes, in view of the amendment effected to Section 45(1) of the 2002 Act vide Act 13 of 2018, the declaration by this Court will be of no consequence. This argument need not detain us for long. We say so because the observation in State of Manipur in paragraph 29 of the judgment that owing to the declaration by a Court that the statute is unconstitutional obliterates the statute entirely as though it had never been passed, is contextual. In this case, the Court was dealing with the efficacy of the repealing Act. While doing so, the Court had adverted to the repealing Act and made the stated observation in the context of lack of legislative power. In the process of reasoning, it did advert to the exposition in Behram Khurshid Pesikaka and Deep Chand including American jurisprudence expounded in Cooley on Constitutional Limitations and Norton v. Shelby County." 28. Subsequently, the Hon'ble Apex Co....
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.... has further laid down that the twin conditions as to fulfil the requirement of Section 45 of the Act, 2002 before granting the benefit of bail is to be adhered to which has been dealt with by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) wherein it has been observed that the accused is not guilty of the offence and is not likely to commit any offence while on bail. 30. In the judgment rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) as under paragraph- 284, it has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to believe, which is required to be recorded in writing that the person is in possession of "proceeds of crime". Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standal....
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....volved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant." 32. The Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra) has again reiterated the implication of Sections 45 and the principle of parity at paragraphs-17 and 18. The issue of parity has been considered by the Hon'ble Apex Court at paragraph-18 by making observation therein that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. For ready reference, paragraph-17 and 18 read as under: "17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proc....
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....the ground taken that the judgement rendered by the Hon'ble Apex Court in Satender Kumar Antil vs. CBI and Anr., (2022) 10 SCC 51 be also taken into consideration wherein that Hon'ble Apex Court has passed the order that if the investigation has been completed and if there is full cooperation of the accused persons, there may not be any arrest. The hon'ble Apex Court categorised the offences in different group for purpose of bail. The reference may be taken from Paragraph -2 of the aforesaid judgment which 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 sou....
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.... 212(6) of the Companies Act, Section 43-D(5) of the UAPA, POSCO, etc.... " 34. However, the Hon'ble Apex Court recently in the case of Gurwinder Singh vs. State of Punjab and Anr., 2024 SCC OnLine SC 109, has observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. For ready reference, relevant paragraph of the said judgment is being referred as under: "28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of t....
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....nformed about the grounds for such arrest and so long as the person has been informed about grounds of his arrest that is sufficient compliance of mandate of Article 22(1) of the Constitution. Moreover, the arrested person before being produced before the Special Court within twenty-four hours or for those purposes of remand on each occasion, the Court is free to look into the relevant records made available by the Authority about the involvement of the arrested person in the offence of money-laundering. 39. Further the Hon'ble Apex Court in Pankaj Bansal vs. Union of India and Ors., 2023 SCC OnLine SC 1244 has been pleased to hold that the written communication is to be given prior to arrest which is to be made under Section 19(1) of the Act, 2002 by using the word that henceforth the written communication is to be given to the appellant who is to be arrested under Section 19(1) of the Act, 2002. 40. This Court is making reference of these judgments even though the petitioner has not argued and that is not the case of the petitioner, i.e., there is no communication of communicating the reason of arrest. It is corroborative from the fact that the petitioner, after arrest ....
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....tatement he had stated that the transactions between of Jagatbandhu Tea Estates Pvt Ltd and Rajesh Auto Merchandise Pvt Ltd were borrowing and loans. In his statement dated 11.06.2023 (RUD No. 75), he was asked about any documents which could prove loans or borrowing between the above two companies. He could not produce any such documents. * During investigation it reveal that between period 02.09.2021 to 14.09.2021, Dilip Kumar Ghosh was removed as a director from seven companies belonging to Amit Kumar Agarwal and on 01.10.2021 the property was registered in the name of Jagatbandhu Tea Estates Pvt Ltd. When the accused Amit Kumar Agarwal was asked about the reasons of removing Dilip Kumar Ghosh as director of his companies he concealed the main intention of showing Dilip Kumar Ghosh as a separate entity and furnished misleading answers and stated that he felt that there was no need of Mr. Dilip Kumar Ghosh as director in his companies and as such he removed him. From the above statements of Amit Kumar Agarwal and Dilip Kumar Ghosh it is evident that Dilip Kumar Ghosh is one of the associate and a trusted confident of Amit Kumar Agarwal, who assisted him in his a....
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..... are unified entities and collectively overseen and operated by the Agarwal group of Companies. Dilip Kumar Ghosh used to of be the directors of several companies of the said Agarwal group and he ceased from the director of the above companies of Agarwal group during the period 02.09.2021 to 14.09.2021. Immediately after his cessation, i.e. on 01.10.2021, the defence property was registered in the name of Jagatbandhu Tea Estates Pvt. Ltd. 48. It is alleged that cessation of Dilip Kumar Ghosh from the directorship from the above companies of the Agarwal group was thoughtful move driven by a deliberate and the conspiracy between Amit Kumar Agarwal and Dilip Kumar Ghosh to project Dilip Kumar Ghosh as a separate and detached entity from the Agarwal group of companies and acquire the property in possession of defence Indirectly through Jagatbandhu Tea Estates Pvt. Ltd. 49. The email ID of the directors in the KYC of Jagatbandhu Tea Estates Pvt. Ltd., Dilip Kumar Ghosh has given as [email protected] and that of Mrs. Sutapa Ghosh is [email protected]. In the MCA data email address of Sanayukt Vanijya Pvt. Ltd (Corporate Identification Number (CIN)074999WB2012PTC175051) h....
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....riciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside. 26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-20....
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....dividuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision." 55. This Court in order to come to the conclusion as to whether the case of the petitioner is at par with Dilip Kumar Ghosh who has been granted bail by the co-ordinate Bench of this Court, needs to consider the allegation as has been surfaced in course of interrogation of the witness as accused persons as available in the ECIR for the purpose of clarification regarding the commission of the Act by Dilip Kumar Ghosh and the petitioner. 56. This Court deems it fit and proper to refer herein the following paragraphs so as to come to the conclusion that whether the accountability of Dilip Kumar Ghosh in commission of predicate offenc....
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....रोड़ रूपया) मात्र प्राप्त किये है | जिसकी प्राप्ति विक्रेता स्वीकार व समपुष्ट करते है | अब विक्रय संपति के मूल्य में किसी भी प्रकार कि प्राप्ति विक्रेता को खरीदार से शेष नहीं रहा| Thus, it is evident that the declaration of payment of the full amount of Rs 7 (seven) crores by the purchaser and its receipt by the seller is deliberate, thoughtful....
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....Bagchi and his accomplices meanwhile prepared a fake deed from the office of the Registrar of Assurances, Kolkata. In the name of Prafulla aa Bagchi F/o Pradip Bagchi (RUD No. 108 & 113). It was projected that his father Prafulla Bagchi had given the land orally to the Army and as on day Pradeep Bagchi is the purported rightful claimant of the property. These persons contacted Prem Prakash for selling this land (Accused in illegal mining case and presently in judicial custody). Prem Prakash Is a power broker and a very influential person who was access to highly placed government officials and ministers in Jharkhand. Prem Prakash is also very close to Mr. Chhavi Ranjan, the Ex-D.C Ranchi and Amit Kumar Agarwal who is also a very influential person in Jharkhand. In connivence with Prem Prakash and Amit Kumar Agarwal, Mr. Chavi Ranjan influenced the officials of Circle office and District Sub Registrar, Ranchi and managed to procure & favourable report (RUD No. 27) for Pradeep Bagchi and the property was subsequently acquired in a dishonest manner by Jagatbandhu Tea Estates Pvt. Ltd. Both persons namely Amit Kumar Agarwal and Prem Prakash weré aware that the owner Pradip Bagch....
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....ours to whom the wages are paid in cash. On being asked the reasons of frequent huge cash deposit in the account of IDFC First Bank of the company Jagatbandhu Tea Estate Pvt. Ltd., he stated that the same are the sale proceeds of the raw tea leaves sold by the company at its tea garden. He further provided misleading answers on being asked why the cash is deposited at salt lake, Kolkata while the tea is sold at the company's garden at Jalpaiguri. The accused Dilip Kumar Ghosh stated that since, the company has no bank account at Jalpaiguri and due to covid, the cash was not deposited in the bank, he used to go to Jalpaiguri and transported the cash which was deposited in the bank in Kolkata. He further stated that the cash was deposited in cash through Bikash Jana and Deepak Sah who are the employees of Amit Kumar Agarwal. * In his statement dated 07.06.2023 (RUD No. 79) recorded under section 50 of PMLA, 2002 he stated that work of his companies is done by the employees of Amit Kumar Agarwal and the salaries, P. F and E.SI of those employees are also paid by Amit Kumar Agarwal. He had no employees at his Salt Lake office where he sits with Amit Kumar Agarwal. ....
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....e of the said property is Rs 20,75,84,200/whereas the said property has been sold for an amount of Rs 7,00,00,000 /which is highly undervalued as compared to the declared government rate. 60. In his statement which was recorded under section 50 of PMLA, 2002 he stated that work of his companies is done by the employees of Amit Kumar Agarwal and the salaries, P. F and E.SI of those employees are also paid by Amit Kumar Agarwal. He had no employees at his Salt Lake office where he sits with Amit Kumar Agarwal. He further stated that he had been directors of several companies of Amit Kumar Agarwal and he had obtained the directorship of those companies on the directions of Amit Kumar Agarwal. 61. Now this court is adverting in to facts of instant to decide the issue of parity in the backdrop of aforesaid settled legal ratio and further taken in to consideration the aforesaid settled position of law, thinks fit to refer herein distinguishable facts in the case of present petitioner to that the case of Dilip Kumar Ghosh, who has been granted bail by this Court vide order dated 28.11.2023 in B.A. No. 7233 of 2023. (i) From the record it is evident that property in question....