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2024 (4) TMI 718
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....ion, as discerned from the impugned order and the ECIR No. DLZO-I/35/2022, is that a case was registered against the applicant i.e., Amanatullah Khan, a Member of Legislative Assembly ('MLA') of Delhi, from Aam Aadmi Party, as well as Mr. Mahboob Alam, the then CEO of Delhi Waqf Board ('DWB') and other unknown persons, in relation to the predicate offence's case registered against the accused persons i.e. FIR No. 9(A) dated 23.11.2016, registered by the Central Bureau of Investigation ('CBI'), AC-III, New Delhi for offences punishable under Section 120B of Indian Penal Code, 1860 ('IPC') and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 ('PC Act'). Thereafter, the following cases were also clubbed in the present ECIR: i. FIR No. 05/2020, dated 28.01.2020, registered at Police Station Anti Corruption Branch ('ACB'), Delhi, for offence punishable under Section 7 of the PC Act read with Section 120B of IPC; ii. FIR No. 378, dated 16.09.2022, registered as Police Station Jamia Nagar, Delhi for offence punishable under Sections 25/54 & 59 of the Arms Act, 1959; and iii. FI....
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....B. However, to make their appointments legal, an advertisement had been published on 24.04.2016 in Urdu newspapers. 4. The summary of the allegations, in FIR No. 05/2020, registered at Police Station ACB, Delhi, for offence punishable under Section 7 of the PC Act read with Section 120B of IPC; registered on the complaint dated 25.06.2019 of Mr. Hafiz Irshad Qureshi, investigation in which is pending, are as under: i. The Chairman of DWB had given advertisement in the daily, 'Inquilab' dated 26.02.2019 for various posts, and as a result, walk-in interviews had been held in the office of DWB, Daryaganj, Delhi on 01.03.2019 and 02.03.2019, without the prior approval of the Revenue Secretary, Delhi Administration, Secretary (Services), Delhi Administration and the concerned Minister for DWB. ii. The applicant/accused i.e. Amanatullah Khan had purchased a fogging machine for Rs. 7,00,000/-, for use in Okhla area, whereas payment for the same had been made by DWB. Further, tents worth Rs. 25,00,000/-, had been purchased by the earlier committee, and the same had been lying abandoned in Fatehpuri Masjid, Delhi. The original value of the said tents was not mor....
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....ereunder: i. As alleged, the present applicant Amanatullah Khan, MLA and Chairman of DWB had accumulated proceeds of crime out of illegal gratification in lieu of giving favours to the bidders by leasing out the Waqf properties to them, illegally giving jobs to various persons in DWB and misappropriating DWB funds. ii. The applicant herein, in conspiracy with accused namely Zeeshan Haider, Daud Nasir, Jawed Imam Siddiqui, Kausar Imam Siddiqui and M/s. Sky Powers had laundered the proceeds of crime by utilizing the same for purchasing properties i.e. Plot nos. 275 and 276, Tikona Park, Jamia Nagar, Delhi from Jawed Imam Siddiqui, in the name of M/s. Sky Powers as well as Sarah Construction Company i.e. a proprietorship of Daud Nasir, vide Sale Agreement dated 17.09.2021. As per the evidence recovered by the investigating agencies including one white colour diary, an amount of approximately Rs. 36 crores had been paid, for purchasing the properties in question, to Jawed Ahmed Siddiqui and his wife Ms. Ayesha Quamar. Out of Rs. 36 crores, an amount of Rs. 27 crores had been paid in cash and Rs. 9 crores through bank. iii. Further, Zeeshan Haider had allegedl....
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....OF THE APPLICANT 7. Sh. Kapil Sibal, Senior Counsel appearing on behalf of the applicant/accused argues that the present applicant is an MLA from Okhla constituency in Delhi and has been falsely implicated in the present case. Learned Senior counsel further argues that as far as the predicate offence cases of the present applicant are concerned, he has been granted bail by the learned Trial Court in FIR bearing No. 09(A) registered by the CBI, vide order dated 01.03.2023. It is further submitted that the applicant has also been granted bail by the learned Trial Court in FIR bearing No. 05/2020 registered by the ACB, vide order dated 28.09.2022. 8. Sh. Kapil Sibal, Senior Counsel for the applicant/accused further argues that after the registration of the present ECIR on 16.09.2022, searches were conducted at the residential premises of the present applicant/accused on 10.10.2023 and nothing incriminating was found against him. It is also contended that FIR bearing No. 5A, registered by Police Station ACB, Delhi, for offences punishable under Section 7 of the PC Act and Section 120B of IPC, contains the same allegations as in FIR bearing No. 9A, registered by CBI, for offences ....
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....that there is no material on record to show that any of the recruited employees had paid bribe to the accused in securing the employment or that these employees had withdrawn their salaries from the Waqf Fund without doing any work or that they were not qualified for the job and that it has also come on record that previously, DWB had recruited employees without there being any rules and regulations. It was also held that tenancies have been created at a higher rent than the rent being taken from the earlier tenants. Therefore, prima facie, no loss to the exchequer has been caused concerning the said tenancies. 10. Thus, it has been asserted by learned Senior Counsel that considering the aforementioned points, it is noteworthy that the precise amount of purported proceeds of crime remains undisclosed, and there are no allegations concerning the generation of such proceeds in the predicate offences case. The trail of money has not been traced. Moreover, there exists no evidence implicating the present applicant in any acts involving the placement, layering, or integration of proceeds of crime. 11. Sh. Kapil Sibal, learned Senior Counsel appearing for the present applicant/accu....
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....ent applicant had received another summon under Section 50 of the PMLA from the Directorate of Enforcement directing him to appear before them on 09.02.2024 at 11:00 AM for extraction and examination of the data of the phone seized during the search conducted on 10.10.2023. Pursuant to the same the present applicant on 09.02.2024, had informed the Assistant Director, Directorate of Enforcement, via email that he had authorized a person to appear on his behalf and on 09.02.2024, the authorized person had appeared before the Directorate of Enforcement and had complied with the summon by assisting Directorate of Enforcement in extracting and examining the phone data. Further, on 16.02.2024, the present applicant had again received a summons under Section 50 of the PMLA from Directorate of Enforcement, directing him to appear before Directorate of Enforcement on 19.02.2024 at 11:00 AM. However, on 19.02.2024 the present applicant via email had informed the Assistant Director, Directorate of Enforcement, that the anticipatory bail application of the present applicant is pending for adjudication before the learned Trial Court and that the learned Trial Court was pleased to issue notice f....
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....bsence of any substantive grounds, there is no reason to believe that custodial interrogation of the present applicant is required in this case. Therefore, it is submitted that the present applicant is ready to join the investigation and cooperate with Directorate of Enforcement and therefore, the present applicant be enlarged on anticipatory bail pursuant to any stringent conditions imposed by this Court to which the present applicant shall adhere. SUBMISSIONS ON BEHALF OF THE RESPONDENT 14. Per contra, Sh. Zoheb Hossain, Special Counsel appearing on behalf of the Directorate of Enforcement opposes the present anticipatory bail application filed by the applicant/accused and further argues that the anticipatory bail application deserves to be dismissed as the rigors of the mandatory twin conditions under Section 45 of the PMLA are equally applicable in case of anticipatory bail. Reliance for the same has been placed on the judgment of the Hon'ble Supreme Court in Vijay Madanlal Choudhary & Ors. vs Union of India & Ors 2022 SCC OnLine SC 929 wherein the Hon'ble Apex Court has upheld the constitutional validity of the twin conditions of bail, as prescribed in Section 45....
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....es, stating that he had witnessed it during the sale of the property belonging to Ayesha Quamar, wife of Jawed Imam Siddiqui. He had also admitted that properties no. 275 and 276 in Tikona Park, Jamia Nagar, Delhi, were sold by Jawed Imam Siddiqui to Zeeshan Haider and Daud Nasir upon the instructions of the present applicant/accused. 16. Furthermore, Sh. Zoheb Hossain appearing for Directorate of Enforcement further contends that despite the issuance of numerous summons to the applicant, he has intentionally evaded them and has not cooperated with the investigation in person thus far. Based on the conduct of the present applicant, it is evident that the same demonstrates a lack of honesty, and it is apparent that he has no intention of participating in the investigation. It is further argued that the present applicant/accused has deliberately evaded the summons under Section 50 of the PMLA. It is further emphasized that as per the catena of judgments of the Hon'ble Apex Court that during the bail application stage, the court should avoid delving into the merits of the case to determine whether an offense has been committed by the accused. Rather, the focus should solely be ....
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....e punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail..." (Emphasis supplied) 20. In case of P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24, the Hon'ble Apex Court has made following observations on grant of anticipatory bail and has held that grant of anticipatory bail to some extent, interferes with the course of investigation and thus, Courts must circumspect while exercising such power: "69. Ordinarily, arrest is a part of procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of the pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; possibility of applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipato....
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...., 1973 (2 of 1974) or any other law for the time being in force on granting of bail. Explanation.--For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfillment of conditions under section 19 and subject to the conditions enshrined under this section." (Emphasis Supplied) Judicial Precedents: Mandatory Twin Conditions 22. Section 45(1) of PMLA lists the twin conditions that must be satisfied before an accused can be enlarged on bail in a case of money laundering. In this context, it will be relevant to take note of the observations of Hon'ble Apex Court in case of Vijay Madanlal Choudhary v. Union of India 2022 SCC OnLine SC 929, on the satisfaction of mandatory twin conditions under Section 45 of PMLA, which are extracted hereunder: "....
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....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. *** 401. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Prasad Nimmagadda, the words used in Section 45 of the 2002 Act are "reasonable grounds for bel....
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....y (supra) also, the Hon'ble Apex Court had dealt with the argument of non-application of rigors of Section 45 of PMLA in respect of anticipatory bail filed under Section 438 of Cr.P.C. It was concluded, in the following words, that the twin tests of Section 45 of PMLA will have to be satisfied even in cases of anticipatory bails: "410. Therefore, as noted above, investigation in an economic offence, more so in case of money-laundering, requires a systematic approach. Further, it can never be the intention of the Parliament to exclude the operation of Section 45 of 2002 Act in the case of anticipatory bail, otherwise, it will create an unnecessary dichotomy between bail and anticipatory bail which not only will be irrational but also discriminatory and arbitrary. Thus, it is totally misconceived that the rigors of Section 45 of the 2002 Act will not apply in the case of anticipatory bail. *** 412. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying pr....
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....bail to respondent No. 1 is unsustainable. Adjudication of Anticipatory Bail in cases of Money Laundering 27. In cases under PMLA, which are economic offences in nature, the following crucial observations of Hon'ble Apex Court in P. Chidambaram (supra) in respect of grant or refusal of anticipatory bails are relevant to be considered: "78. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain (1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail. *** 83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective....
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.... 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. *** 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 s....
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.... the falsity of his claim. That would be a matter of rule of evidence." 21. It is apparent from the reading of Section 50 of PMLA as well as decision in Vijay Madanlal Choudhary (supra) that the power conferred upon the authorities by virtue of Section 50 of PMLA empower them to summon 'any person' whose attendance may be crucial either to give some evidence or to produce any records during the course of investigation or proceedings under PMLA. The persons so summoned are also bound to attend in person or through authorised agent and are required to state truth upon any subject concerning which such person is being examined or is expected to make statement and produce documents as may be required in a case." (Emphasis supplied) 29. Recently, the Hon'ble Apex Court in case of Directorate of Enforcement v. State of Tamil Nadu, SLP (Crl.) NO. 1959-1963/2024, explained the power to summon a person under Section 50 of PMLA and consequent duty of the person so summoned to respect and respond to the same. These observations are extracted hereunder: 5. Sub-section (3) of Section 50 thereof being relevant, reads as under:- "(3) All the persons so....
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....t of which 7 were considered by the Delhi High Court. These statements are admissible in evidence, in view of Section 50 of the Act of 2002. The same makes out a formidable case about the involvement of the appellant in commission of a serious offence of money laundering. It is, therefore, not possible for us to record satisfaction that there are reasonable grounds for believing that the appellant is not guilty of such offence..." (Emphasis supplied) 31. Furthermore, the challenge to Section 50 of PMLA was rejected by the Hon'ble Apex Court in case of Vijay Madanlal Choudhary (supra), wherein it was held that the statements recorded under Section 50 of PMLA cannot be compared to statements under Section 67 of NDPS Act, and that such statements were not in violation of Article 20(3) of the Constitution of India. 32. Therefore, at the stage of adjudicating an anticipatory bail application, the statements recorded under Section 50 of PMLA, will be relevant to be considered and appreciated, alongwith other evidence collected by the investigating agency, for the purpose of ascertaining whether the offence of money-laundering is prima facie made out against an accused or not....
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.... not mentioned 0.10 Tota l 26.767 8.63 35.38 Execution of Sale Agreements of properties in Question 37. As regards the properties in question, it is the case of prosecution that the properties i.e. Plot nos. 275 and 276, TTI, Tikona Park, Jamia Nagar, New Delhi were owned by Jawed Imam Siddiqui in the name of his wife Ayesha Quamar and these properties were transferred to Zeeshan Haider and Daud Nasir, close associates of the present applicant, in the year 2021 through an agreement to sell dated 17.09.2021 and Kausar Imam Siddiqui, who was a close associate of the present applicant, had acted as his middleman and fund manager 38. As per prosecution, Zeeshan Haider, Daud Nasir and Jawed Imam Siddiqui in their statements recorded under Section 50 of PMLA have admitted the transactions about the properties in question and had also submitted the details of the agreement. According to the version of the accused persons, agreement dated 17.09.2021 was purportedly executed between the seller Ayesha Quamar and the purchaser i.e. M/s. Sky Powers (accused no. 5 in prosecution complaint), a firm owned by Zeeshan Haider, as well as Sara Constructions....
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....nd was executed at the time of sale of the properties in question, and that he was a witness to the same agreement. 44. Kausar has also admitted the contents mentioned in the white diary, which was seized during the investigation in the present case by the ACB of Delhi Police, and further that the content written in the diary qua the transaction in question was written by him in his own handwriting. It was also disclosed by him that he had noted the financial transactions in the white diary including the transaction qua properties in question, on the direction of the present applicant. 45. He has further stated in his statement recorded under Section 50 of PMLA, that his cousin Jawed Imam Siddiqui had sold the properties in question to Zeeshan Haider, through him, at the behest of the present applicant, wherein Kausar was to receive a total of Rs. 50-55 lacs as commission, however, he had received only Rs. 16-17 lacs till date. Analysis of bank account statements of sellers and buyers of property including the accused persons 46. As regards the bank account statements of the sellers of the property i.e. Jawed Imam Siddiqui and Ayesha Quamar, it was revealed that the amo....
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....ad put his signatures on the entries of the entire transaction of Rs. 36 crores pertaining to the properties in question. 50. As per the diary, one Saquib Islam Khan had paid an amount of Rs. 2.28 crores to Jawed Imam Siddiqui. However, during investigation, Kausar Imam Siddiqui had disclosed that Saquib was either close relative or close associate of the present applicant and Kausar Imam Siddiqui had collected Rs. 2.28 crores in cash from Saquib on the instruction of present applicant and settled the same as per directions of Jawed Imam Siddiqui. 51. As regards the payment made by Yamin Ali Chaudhury of Rs. 1.5 crores in cash and Nawab Ahmed of Rs. 1.53 crore in cash, one WhatsApp chat was recovered by the prosecution between Nawab and Yamin Ali from which it could be inferred that the present applicant was the main person behind purchase of the properties. 52. Therefore, on the basis aforesaid, it is the case of prosecution that the cash amounts which have been paid by Daud Nasir, Zeeshan Haider, Saquib Islam Khan, Yamin Ali Chaudhury and Nawab Ahmed, were in fact the proceeds of crime which came from the present applicant Amanatullah Khan. CAN FILING OR PENDENCY OF A....
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....f anticipatory bail, will result in anarchy as any person who is summoned and asked to join investigation, would take a stand that till anticipatory bail is not granted by a Court of law, he will not join investigation too. 58. The Courts of law cannot allow a legal strategy, commonly used by a person, to obstruct investigation or join investigation as that would amount to stripping the investigating agency of their valuable right to summon a person under the law, to give information about a suspected crime especially under the law, which has been upheld by the Hon'ble Apex Court as constitutional and not illegal. 59. To reiterate, the investigating agencies are involved in investigating offences, as per law, and rather it is the boundened duty of every citizen to join investigation when called for. Needless to say, this Court should not be laying down that a citizen will not have a right to seek anticipatory bail, however, to make that a ground for not appearing before the investigating agency cannot be permitted by Courts. WHETHER NON-COOPERATION WITH THE INVESTIGATION AGENCY WILL COME IN WAY OF GRANT OR REFUSAL OF ANTICIPATORY BAIL 60. The State has a right to su....
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....asis of statements of witnesses recorded under Section 50 PMLA which are in nature of judicial proceedings and admissible in law, and on the basis of evidence collected during investigation. 64. As a public servant i.e. a person who is in service of public, especially the one who professes that his whole life is for public service, he should have cooperated with the investigation. Moreso, since the allegations are also of misuse of public funds to his own use by purchasing properties through his associates as well as other irregularities committed by him as Chairman of the Delhi Waqf Board, it becomes crucial that he joins and cooperates with investigation. 65. This Court notes that the Directorate of Enforcement has issued repeated summons to the present applicant, however, he has not joined the investigation till date. The applicant has also failed to provide the investigation agency with documents which were mentioned in 'Annexure-A' which was repeatedly sent to him with the summons on several dates. In case, the applicant had nothing to hide and the investigating agency was calling him for investigation, he could have joined the investigation and clarified his pos....
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....c. which are serious in nature, will amount to trivializing the alleged offence and the attendant message to the public that there is no need to obey the law i.e. responding to the summons and joining investigation which is a requirement of law. 68. To allege institutional bias without any evidence, through the use of words "the applicant is being victimized", "to tarnish the image of applicant", "ED is targeting innocent people on the basis of a concocted story", despite the fact that the accused himself has failed to join investigation repeatedly, without any material in support whereof, does not reveal any form of systematic discrimination or targeting. Non-joining of investigation on this ground therefore, cannot be held in the favour of the applicant/accused since the assessment of evidence gathered by the investigating agency will ultimately be put before the Court of law. 69. Every effort of any individual to avoid compliance with requirements of law will invite legal consequences. As in the present case, effort to avoid compliance with the summons and joining investigative process repeatedly will become a relevant consideration while adjudicating an application for gr....
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.... to prevail regarding investigation qua 'classes' & 'masses' by each time permitting an excuse or request that being a public figure, being an MLA, Chairman of the Waqf Board and being busy with some activities of his constituency, he could not appear before the investigating agency. 75. Being a public figure in politics, he is essentially first and foremost in the public service and it is natural that he would have at all times, something or the other happening in his constituency. It is for the public figure to find time and appear before the investigating agency, when so required as per the law, since the investigating agencies are also working for the State itself and are working towards public service being public servants. 76. Even the lawmakers should know that disobeying the law will get them caught up in legal consequences as envisaged under criminal law as any other common citizen without creating a special class for them as all citizens are equal in the eyes of law. This is more critical when such persons refuse to assist but rather resist the investigative process, especially the process which has not been struck down by a Court of law as illegal. ....
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....conduct investigation fairly, independently, and objectively without any ill-will or enmity towards either the accused or the victim. Obstructing administration of justice, thus, thwarts the lawful authority of an investigating agency and hampers the legitimate investigative process. 83. The law is enacted to serve public interest by promoting accountability of a citizen to the law and in case of accountability of a public servant to the community at large and to the State. The negatively impacting facts on the community at large by holding such conduct to be legitimate despite disobedience of repeated summons by an investigating agency will send a message to public that non-compliance of repeated summons i.e. almost six summons without a valid excuse would not invite ire of law. It will also compromise future investigations by the same agencies as the public opinion and message will be formed that, if any person skips multiple summons of any investigating agency including ED, neither the investigating agency nor the Court of law are able to bring such persons to obey the mandate of law and such a person can be enlarged on anticipatory bail. Conversely, a message may be taken by....
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....cused repeatedly abstains from participation in the investigation, it not only hampers the progress of the investigation but also raises suspicions regarding their intentions. This Court is, therefore, compelled to consider the conduct of the applicant in light of his persistent refusal to engage in the investigative process. 88. Reverting to the merits of the case, this Court has taken note of the material placed by the investigating agency and the investigation conducted so far, which has revealed the following crucial facts, concerning the role of present applicant: A. The seizure of diary by the investigating agency which reveals that the properties in question were purchased for about Rs. 36 crore out of which Rs. 27 crores were paid in cash, and out of the total amount of Rs. 36 crores, an amount of Rs. 8.33 crores was paid by the present applicant; B. Recovery of one Sale Agreement which shows the sale consideration as Rs. 36 crore, as against one alleged false and fabricated agreement which shows the sale consideration as Rs. 13.40 crore which has been allegedly prepared at the behest of present applicant to conceal the proceeds of crime and misguide th....