TaxTMI 
TaxTMI 
2024 (3) TMI 1233
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.... under Sections 406, 420, 467, 468, 447, 504, 506, 341, 323 & 34 of the Indian Penal Code since offences under Section 420 and 467 of IPC are Scheduled Offences under Part A of the Schedule of PMLA, 2002. Purportedly, another FIR number 137 of 2023 dated 10.05.2023 under Sections 120B, 465, 467, 468 & 471 of the Indian Penal Code was also registered at Hare Street PS, Kolkata on the basis of the report of the fact finding committee of the Registrar of Assurances, Kolkata which has also been made a part of the investigation as the FIR has been registered for three different forged deeds which were manufactured to acquire different landed properties including the property measuring 1 acre at Cheshire Home Road, Plot No 28, Khata No. 37, Mouza Gari, Ranchi, Jharkhand. 3. It has been stated that the FIR being Sadar P.S. Case No. 399 of 2022 was registered on the directions of the Ld. Court of Chief Judicial Magistrate, Ranchi in Complaint Case No. 3111 of 2021 passed vide order dated 28.06.2022. A complaint case was also filed by Umesh Kumar Gope against Rajesh Rai, Imtiaz Ahmad, Bharat Prasad, Lakhan Singh, Punit Bhargav and Bishnu Kumar Agarwal for fraudulently acquiring one acre ....
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....ectorate of Enforcement registered ECIR Case No. 05 of 2023 in ECIR/RNZO/10/2023 dated 07.03.2023 and the Prosecution Complaint was filed on 01.09.2023. 8. Meanwhile, the present petitioner was taken into custody on 11.08.2023, accordingly, he, preferred Miscellaneous Criminal Application (MCA No. 2810 of 2023) but the same was rejected on 20.09.2023, hence, the instant bail application. Argument on behalf of the learned counsel for the petitioner 9. Mr. Indrajit Sinha, learned counsel appearing for the petitioner has taken the following grounds that: - (i) Even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002. (ii) The allegation against the petitioner is that he, being the influential person, has cooperated in the illegal transfer of the land pertaining to the land in question, i.e., measuring 1 acre at Cheshire Home Road, Plot No. 28, Khata No. 37, Mouza Gari, Ranchi, Jharkhand, save and except the said allegation, there is no allegation against the petitioner. (iii) The ECIR has been directed to be initiated by proceeding of ....
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....on 50 of the P.M.L. Act has been taken which provides the jurisdiction to the authorities and as per which, since the complaint of ECIR, is based upon the criminal case instituted at Kolkata, hence, the authorities sitting in the State of Jharkhand, will have no jurisdiction to initiate an inquiry by issuance of summon the Act, 2002. (vii) The ground of mens rea has also been taken by making reference that there was no intention of the petitioner to commit an offence said to attract the money laundering. (viii) The ground of parity has also been taken, since, once Bishnu Kumar Agarwala has been granted bail by the coordinate bench of this Court vide order dated 12.01.2024 passed in B.A. No. 10166 of 2023. According to the petitioner, the case of the said Bishnu Kumar Agarwala is exactly similar to that of the present petitioner and hence, applying the principle of parity, the petitioner of the present case is also fit to be released on bail. (ix) The reliance of some of the paragraphs of the judgment of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., reported in (2022) SCC OnLine SC 929 has been made as under paragraphs-235, 239, 243, 252, ....
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.....05.2023 being Hare Street P.S. Case No. 137 of 2023, by making submission that in Sadar P.S. Case No. 399 of 2022 dated 08.09.2022, the investigation is still going on and in course thereof, when it was detected in the aforesaid Sadar P.S. Case No. 399 of 2022 of illegal transfer of land based upon the forged documents, then on investigation of the said case, when the Police has conducted an investigation, then it was found that the documents pertaining to the land in question has been fabricated by commission of forgery and in consequence thereof, an FIR was instituted being Hare Street P.S. Case No. 137 of 2023, therefore, the inquiry which is the subject matter of the present criminal prosecution, is based upon the allegation, as available in Sadar P.S. Case No. 399 of 2022. 14. The land since is situated in the territorial jurisdiction of the State of Jharkhand, hence, the authority as defined under Section 49/51 of the P.M.L. Act, 2002 having jurisdiction to initiate a proceeding in case of any predicate/schedule offence within the territory of the State of Jharkhand is competent enough to initiate inquiry and accordingly, the inquiry has been initiated by Assistant Direct....
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....mprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation 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. 23. 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 ....
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....investigation of money-laundering. (d) the Political Declaration and Global Programme of Action adopted by United Nations 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." 24. 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. 25. 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: ....
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....corporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. 31. 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." 32. 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. 33. 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....
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....authorities regarding summons, production of documents and to give evidence, etc.-(1) The Director shall, for the purposes of section 13, have the 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 resp....
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.... 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word "and" preceding the expression "projecting 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 inconsiste....
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....icials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant 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 sub-section (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....
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....is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a 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 desi....
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....the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government." 41. 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. 42. 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 Secti....
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.... "371. The relevant provisions regarding bail in the 2002 Act can be traced to Sections 44(2), 45 and 46 in Chapter VII concerning the offence under this Act. The 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 ....
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.... 373. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. 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 Chan....
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....ng effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act." 47. The Hon'ble Apex Court in the said judgment 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. 48. 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 b....
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....er Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant." 51. 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-18 read as under: ".18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to fo....
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....ted 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 the words used in proviso to Section 43D (5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' - suggests the intention of the Legislature to make bail, the exception and jail, the rule." 53. The reason for making reference of this judgment is that in the Satender Kumar Antil vs. CBI and Anr., the UAPA has also been brought under the purview of category 'c' wherein while laying observing that in the UAPA Act, it comes under the category 'c' which also includes money laundering offence wherein the bail has been directed to be granted if the investigation is complete but the Hon'ble Apex Court in Gurwinder Singh vs. State of Punjab and Anr. (supra) has taken the view by making note that the penal offences as enshrined under the provision of UAPA are also under category 'c' making reference that jail is the rule and bail is the ex....
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....Gope against Rajesh Rai, Imtiyaz Ahmad, Bharat Prasad, Lakhan Singh, Punit Bhargav and Bishnu Kumar Agarwal for fraudulently acquiring one acre of land situated at Plot no. 28, Khata No. 37, situated at village Gari, Cheshire Home Road, PS Sadar, Ranchi. 3.2 The FIR alleged that Rajesh Rai, S/o Jagdish Rai, illegally and fraudulently made a power of attorney in the name of Imtiyaz Ahmed and Bharat Prasad. On the strength of the said power of attorney, they prepared a forged sale deed and sold the above-mentioned parcel of land admeasuring 1 acres to Punit Bhargav for an amount of Rs. 1,78,55,800/-. Punit Bhargava further sold the said land to Bishnu Kumar Agarwal, vide two sale deeds for the total amount of Rs. 1,80,00,000/- (Vide two sale deeds, both dated 01.04.2021, for an amount of Rs. 1,02,60,000/- and Rs. 77,40,000/-). 3.5 Investigation reveals that Rajesh Rai in connivance with Bharat Prasad, Md. Saddam Hussain, Afshar Ali, Imtiaz Ahmed and others prepared one forged deed of 1948 was prepared by the accused persons and on the basis of that a power of attorney was given in favour of Imtiaz Ahmed and Bharat Prasad. The other accomplice namely Lakhan Singh bec....
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.... Office, Baragai, Ranchi and as his commission. Later, he came to know that the land was under vigilance by the police as this land had certain disputes. Later, he met with Prem Prakash with one of his associates and Prem Prakash was informed about the dispute and the vigilance of the police. He further stated that Prem Prakash took the stock of the status of the land arid called the then D.C, Chhavi Ranjan and told him that the registry of the above stated Cheshire Home property was to be done after removing the vigilance observed by the police. After this, the consideration amount of Rs. 1.5 crores was fixed by Prem Prakash for this land. Afshar Ali accepted the offer as he was made to understand that Prem Prakash was a very influential person who could be very useful in any kind of work in Jharkhand. Afshar Ali further stated that he accepted the consideration amount and further requested Prem Prakash to arrange for unblocking two plots of land, plot no. 891 and 893 measuring 1 acre 32 decimals (approx.) which were blocked from the D.C office. The said plots were part of a property admeasuring 3.81 acres of which fake deeds were prepared by Afshar Ali. Afshar Ali furthe....
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...., the purported owner of the property. On the directions of Prem Prakash, he gave Rs. 25 lacs to Rajesh Rai through cheque after which the registration and the mutation of the property was done in his name. He further stated that six postdated cheques were given for encashing the balance amount later. On being asked as to why the rest of the payment was not made even after the registration and mutation was done in his name, he could not answer it and stated that Prem Prakash could give a reply in this regard. He was further asked what was the reason for purchasing this property in his name when it was sold within two months to Bishnu Agarwal, on this, he stated that it was only done on the instructions of Prem Prakash. 8.23 Prem Prakash In his statement dated 04.08.2023 (RUD No. 41) recorded in judicial custody at Birsa Munda Central Jail, Hotwar, Ranchi, he stated that he knows Bishnu Kumar Agarwal as a businessman and sometimes, he has met him during marriage events. He further stated that Punit Bhargava is like his younger brother and he is from his native place, so he knows him since childhood. From his statement dated 03.08.2023, (RUD No. 40....
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.... of the said power of attorney, they prepared a forged sale deed and sold the above-mentioned parcel of land measuring 1 acres to Punit Bhargav for an amount of Rs. 1,78,55,800/-. Punit Bhargava further sold the said land to Bishnu Kumar Agarwal, vide two sale deeds for the total amount of Rs. 1,80,00,000/-. (Vide two sale deeds, both dated 01.04.2021, for an amount of Rs. 1,02,60,000/- and Rs. 77,40,000/-). 9.5 Thus, the FIR stated that the land admeasuring 1 acres, situated at Gari, Cheshire Home Road, PS Sadar, Ranchi was acquired in a fraudulent manner by the above persons who indulged in fabricating documents and forging records, on the basis of which a power of attorney was fraudulently executed and subsequently the land was transferred to Punit Bhargava, who Immediately sold this land to Bishnu Agarwal, a businessman having interests in several avenues including real estate business. 9.6 Investigation reveals that Rajesh Rai in connivance with Bharat Prasad, Md. Saddam Hussain, Afshar Ali, Imtiaz Ahmed and others prepared one forged deed of 1948 was prepared by the accused persons and on the basis of that a power of attorney was given in favour of Imtiaz Ah....
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....ery and tempering in the above stated registers. 9.10 During further investigation, it revealed that the accused persons namely Afshar All, Md. Saddam Hussain, Imtiaz Ahmed, Bishnu Kumar Agarwal, Chhavi Ranjan, Prem Prakash, Rajesh Rai, Lakhan Singh and Bharat Prasad are habitual offenders and they are involved in mass forgery. It is also established that Bishnu Kumar Agarwal has acquired other lands in frivolous manner with the help of government officials. 9.11 As stated above, investigation has established that the property situated at Khata no. 93, Plot no. 543, 544, 546 and 547, total area 9.30 acres acquired by Bishnu Kumar Agarwal was a government property (Khasmahal Land). And the said property has been acquired by the accused Bishnu Kumar Agarwal by influencing the government officials including the Ex-DC Chhavi Ranjan who helped him by suppressing and shelving all the official records and documents which established that the above property acquired by Bishnu Kumar Agarwal was a government property (Khasmahal Land). Further, this property has been in possession of Nazarat Hussain & his families without any grounds and has been in their occupation. Later, ....
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.... Punit Bhargava further sold the said land to Bishnu Kumar Agarwal, another suspect of the ECIR, vide two sale deeds, both dated 01.04.2021, registered as document no. 2021/RAN/2784/BK1/2483 in book no. BK1, Vol. no. 316 from page no. 405 to 532 at the office of SRO, Ranchi (for an amount of Rs. 1,02,60,000/-) and document no. 2021/RAN/2783/BK1/2482 in book no. BK1, Vol. no. 316 from page no. 261 to 404 at the office of SRO, Ranchi (for an amount of Rs. 77,40,000). (Part of RUD No. 03) 10.1.5 Thus, the land admeasuring 1 acres, situated at Gari, Cheshire Home Road, PS Sadar, Ranchi was acquired in a deceitful manner by the conspiracy and criminal activities of the above-stated persons who indulged into fabrication of documents and forging records. 101.6 During investigation at the office of the Registrar of Assurances, Kolkata, the forgery in the original records for obtaining the above-said property was observed by the officials of the Directorate of Enforcement as well as the officials of the Registrar of Assurances, Kolkata. Further, an FIR no. 137 of 2023 dated 10.05.2023 under section 120B, 465, 467, 468 and 471 of IPCP-M was also registered at Hare Street P.....
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....her co-accused persons namely Afsar Ali @ Afsu Khan and others in acquisition of proceeds of crime in form of landed property admeasuring 1 acre situated at Plot no. 28. Khata no. 37, village Gari Chesire Home Road, Ranchi in the name of Punit Bhargav and Investigation reveals that Bishnu Kumar Agrawal has paid Rs. 1,78,20,000/- to the accused Punit Bhargav in his firm Shiva Fabcons. The amount was paid into the Bank of Baroda account no. 52580200000085 out of which as amount of Rs. 1,01,57,400/- was transferred to the Bank account of Jamini Enterprises, a whose beneficial owner is petitioner Prem Prakash. 59. Accused persons Afsar Ali and Saddam Hussain connived with Prem Prakash for fraudulent acquisition/registration of this property. Prem Prakash then registered this property in the name of his very close accomplice and confidant namely Punit Bhargava, co accused persons. The sale deed dated 06.02.2021 was executed in favour of Punit Bhargava for an amount of Rs. 1,78,55,800/- which was registered as document no. 2021/RAN/1016/BK1/906 in book no. BK1, Vol. no. 112 from page no. 369 to 506 the office of SRO, Ranchi. 60. The investigation further reveals that though the con....
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....able property Cheshire Home Road, Ranchi having deed value of Rs 1.80 crores including its acquisition, possession, concealment used and projecting and claiming the proceeds of crime as untainted property. 66. It is revealed that Prem Prakash has exerted his influence in order to assist his accomplice Bishnu Kumar Agrawal in acquisition of the land. The name of the accused also surfaced in facilitating Amit Kumar Agrawal acquiring property at M.S. Plot no. 557, Mauza Morabadi. Ranchi. The prosecution complaint has revealed that he has closed proximities with the accused persons namely Chhabi Ranjan and others. 67. Further, it has been submitted in the counter affidavit that the accused/petitioner Prem Prakash is an influential person with criminal antecedents as his active role also surfaced in another case of illegal mining for which he was arrested on 25.08.2022. During searches at his residence, 2 AK 47 assault Rifles were recovered which were in his illegal and unauthorized possession. Further it has come on record that the petitioner's name has also surfaced in the case of fraudulent acquisition of a Defence property at Morabadi, admeasuring 4.55 acres. 68. Thus, ....
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....al Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering. 73. Therefore, the conditions enumerated in Section 45 of P.M.L.A. will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. 74. As discussed above, the "offence of money-laundering" means 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 including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering and the process or activity connected ....
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....o initiate an inquiry by issuance of summon the Act, 2002. 79. It is pertinent to mention here that the inquiry which has been initiated herein which culminated into ECIR, cannot be based upon the subsequent FIR which was instituted on 10.05.2023 being Hare Street P.S. Case No. 137 of 2023, and when it was detected in the Sadar P.S. Case No. 399 of 2022 of illegal transfer of land based upon the forged documents, then on investigation of the said case, when the Police has conducted an investigation, then it was found that the documents pertaining to the land in question has been fabricated by commission of forgery and in consequence thereof, an FIR was instituted being Hare Street P.S. Case No. 137 of 2023 therefore, the inquiry which is the subject matter of the present criminal prosecution, is based upon the allegation, as available in Sadar P.S. Case No. 399 of 2022. 80. Further, the land since is situated in the territorial jurisdiction of the State of Jharkhand, hence, the authority as defined under Section 49/51 of the P.M.L. Act, 2002 having jurisdiction to initiate a proceeding in case of any predicate/schedule offence within the territory of the State of Jharkhand is....
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....powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Apex Court in Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, wherein, it has been held as under: "25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508:], this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the seco....
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.... The Hon'ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement (supra) wherein at paragraph-18, as has been quoted and referred above, it has been held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. 85. It has further been held in the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co-accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. For ready reference, relevant paragraph, i.e., paragraph-19, of the aforesaid judgment reads as under: "19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitu....
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....ecame a party with the accused Chhavi Ranjan and knowingly indulged in the process and activity connected with acquisition of another government property (Khasmahal land) situated at Plot no. 543, 544, 545 and 546, Mauja Pugru, Khata no. 93, Namkum Anchal, Ranchi admeasuring 9.30 acres. In this case also, only an amount of Rs. 2.45 crores were paid but, in the deed, a payment of Rs. 5 crores were fraudulently mentioned to be paid to one Ashish Chandra Ganguly (since deceased). In both cases, the accused persons namely Bishnu Kumar Agarwal and Chhavi Ranjan concealed facts and relevant documents that established the above properties were government properties. Thus, the accused Bishnu Kumar Agarwal was knowingly involved in the acquisition of the above three properties in fraudulent manners which were nothing but proceeds of crime. Hence, the accused person Bishnu Kumar Agarwal is involved in the activities connected with the acquisition, possession, concealment and use of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property. Thus, the accused person Bishnu Kumar Agarwal has committed the offence of money laundering as defin....
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....ived with Prem Prakash for fraudulent acquisition/registration of this property in question and then Prem Prakash registered this property in the name of his very close accomplice and confidant namely Punit Bhargava, co-accused persons and the investigation further reveals that though the consideration amount in the deed between Imtiyaz Ahmed and Bharat Prasad and Punit Bhargava was shown as Rs. 1,78,55,800/-, but only an amount of Ra. 25 lacs was paid into the SBI Account no. 31100122501 of the dummy owner/accused Rajesh Rai on 12.02.2021. 95. Further, in the counter affidavit it has been submitted that the accused/petitioner Prem Prakash is an influential person with criminal antecedents as his active role also surfaced in another case of illegal mining for which he was arrested on 25.08.2022 and during searches at his residence, 2 AK 47 assault Rifles were recovered which were in his illegal and unauthorized possession. Further it has come on record that the petitioner's name has also surfaced in the case of fraudulent acquisition of a Defence property at Morabadi, admeasuring 4.55 acres. 96. Learned counsel for the respondent-Directorate of Enforcement, while referrin....
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.... in the matter of bail as held by the Hon'ble Apex court in the case of Y. S Jagan Mohan Reddy Vs. C. B. I., reported in (2013) 7 SCC 439. For ready reference, the relevant paragraphs of the aforesaid judgments are being quoted as under: "34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be 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." 102. Similarly, the Hon'ble Apex Court in case of Nimgadda Prasad Vs. C.B.I., reported in (2013) 7 SCC 466 has reiterated the same view in paragraphs-23 to 25 which reads as under: "23. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fibre of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 19....