TaxTMI 
TaxTMI 
2024 (5) TMI 1411
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....y the petitioner under Section 44 read with Section 45 of the Prevention of Money-Laundering Act, 2002 (in short, 'PMLA'), alleging the commission of Offence defined under Section 3 and punishable under Section 4 of the PMLA. 3. In the Complaint, it is alleged that at Police Station: Doivala, Dehradun, Uttarakhand Police registered an FIR No. 223/2017 dated 11.09.2017 (Case Crime No. 256/2017) against the respondent herein and other co-accused for commission of offence punishable under Sections 420/120-B/342/370(i) of the Indian Penal Code, 1860 (in short, 'IPC') and Sections 18, 19, and 20 of the Transplantation of Human Organs and Tissues Act, 1994 (in short, 'TOHO Act'). As Sections 420 and 120-B of the IPC and Sections 18, 19, and 20 of TOHO Act mentioned in the said FIR are Scheduled Offences under the PMLA, ECIR No. ECIR/04/DZ-II/2017 dated 03.10.2017 was recorded to investigate the offence of Money Laundering under Section 3 of the PMLA punishable under Section 4 of the said Act and to trace the proceeds of crime. 4. On 09.12.2017, Police Station: Doivala, Dehradun, Uttarakhand filed the charge-sheet arraying, inter alia, the respondent herein as an accused to face trial f....
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....89 Lacs by the act of illegal kidney transplantation and out of the said amount of Rs. 89 Lacs, he had utilized Rs. 60 Lacs by booking immovable in his name as well as in the name of Pooja Sarin. The payment of Rs. 60 Lacs was made from his aforesaid bank account where the proceeds of crime was acquired by him by criminal activity relating to scheduled offence and projected the aforesaid property as untainted. Therefore, the accused Amit Kumar Raut @ Amish Raval is knowingly and directly involved in acquisition, utilization and projection of proceeds of crime as untainted property and thereby he has committed the offence of money laundering as defined under Section 3 of the PMLA, 2002 and the accused Amit Kumar Raut @ Amish Raval is liable to be prosecuted and punished under Section 4 of the act and aforesaid attached property is liable to be confiscated in terms of Section 8(5) of the PMLA, 2002. Further quantification of proceeds of crime is under progress." Proceedings before the learned Trial Court and this Court: 8. The respondent thereafter, on 18.08.2022, preferred an application under Section 439 of the Cr. P.C. in the subject complaint case before the learned Trial Court....
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....nto India as well as abroad through touts for bringing innocent victims and deceitfully removing their kidneys and transplanting the same to Indians and foreign patients. Since Section 307 of the IPC and Sections 18/19/20 of the TOHO Act, being Scheduled Offences, were invoked, ECIR/7/DZ/2008 dated 12.05.2008 (hereinafter referred to as the '1st PMLA Case') was registered against the respondent. 14. He submits that upon completion of the investigation, a complaint under Section 44 read with Section 45 of the PMLA was filed by the petitioner on 28.01.2011 before the Court of the learned Special Judge, PMLA, Karkardooma Courts, Delhi against the respondent and the same is pending trial. 15. He submits that the respondent has been convicted by the judgment dated 22.03.2013 passed by the learned Additional District Judge (Special Judge CBI), Panchkula District, Haryana in CBI Case No. 07/2008 titled CBI v. Dr. Upender Dubesh & Ors., for Offence under Section 120-B read with Sections 465/471/473/506 of the IPC and Sections 18/19/20 of the TOHO Act and sentenced to undergo Rigorous Imprisonment for 7 years along with a fine of a sum of Rs. 55 lakhs. 16. He submits that on suspension o....
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....a to Delhi. 22. The learned SPP submits that the above criminal antecedents of the respondent were important to be considered by the learned Trial Court before granting Bail to him, however, have not been considered in the Impugned Order. 23. He submits that the respondent had earlier also absconded from the process of law, and on 07.02.2008, was apprehended by the Nepal Police. He submits that the respondent had again absconded and assumed a new identity, before being apprehended by the Dehradun Police. He submits that the respondent has also been threatening and intimidating witnesses. He submits that the respondent has also been shifting his base from Mumbai to Jaipur, then from Jaipur to Delhi, and finally from Delhi to Dehradun. He submits that there is, therefore, a reasonable apprehension that if the respondent is released on Bail, he shall abscond from the process of law. 24. He submits that, in spite of his conviction, the respondent has continued the illegal activities, therefore, there is reasonable apprehension that if the respondent is released on Bail, he shall again continue with the same illegal activities. 25. The learned SPP submits that the learned Trial Cour....
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....te of UP & Anr., (2016) 15 SCC 422; iii) Brijmani Devi v. Pappu Kumar & Anr., (2022) 4 SCC 497; iv) Bhoopendra Singh v. State of Rajasthan & Anr., (2021) 17 SCC 220; v) Ash Mohammad v. Shiv Raj Singh & Anr., (2012) 9 SCC 446; vi) Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118; and, vii) Pooran v. Rambilas & Anr., (2001) 6 SCC 338 Submissions of the learned counsel for the Respondent: 30. The learned counsel for the respondent submits that there is no infirmity in the Order passed by the learned Trial Court granting bail to the respondent. 31. He submits that as far as the case pending against the respondent in Mumbai, that is, FIR No. 95/1995 registered at Police Station: Khar, Mumbai is concerned, the learned Trial Court therein has not framed charges till now and the respondent has been granted Bail. As far as the case, that is, PW/1900087/1996 is concerned, the same has been disposed of and the respondent has been acquitted in the said case. 32. He submits that as regards the FIR No. 176/2000 registered at Police Station: Nizamuddin Railway Station, Delhi, the trial in the said case is pending, and the charges are yet to be framed, and the respondent has been gra....
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....aken into custody when the ECIR was registered, he would have been entitled to the benefit of Section 436A of the Cr. P.C. The petitioner, therefore, by not arresting the respondent, as the respondent was in custody in another case, cannot deny the benefit of said provision to the respondent. 43. While refuting the submissions made by the learned SPP with regard to the judgment of the Supreme Court in Tarsem Lal (supra), he submits that the said judgment would be clearly applicable to the facts of the present case and therefore, there is no infirmity in the Impugned Order passed by the learned Trial Court. Analysis and Findings: 44. I have considered the submissions made by the learned counsels for the parties. 45. As the present petition seeks cancellation of Bail granted to the accused, it is to be kept in view that the Bail granted to the accused can primarily be challenged and be cancelled on the ground that either the Court granting Bail has failed to consider the relevant facts and law applicable to the grant of Bail, or has taken into account irrelevant facts and considerations, or where while granting Bail to the accused or due to supervening circumstances, the Bail gra....
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....ch disentitles him for bail and thus cannot be justified. 33.7. When the order granting bail is apparently whimsical, capricious and perverse in the facts of the given case. 34. In Neeru Yadav v. State of U.P., (2014) 16 SCC 508, the accused was granted bail by the High Court. In an appeal against the order of the High Court, a two-Judge Bench of this Court examined the precedents on the principles that guide grant of bail and observed as under: "12. ... It is well settled in law that cancellation of bail after it is granted because the accused has misconducted himself or of some supervening circumstances warranting such cancellation have occurred is in a different compartment altogether than an order granting bail which is unjustified, illegal and perverse. If in a case, the relevant factors which should have been taken into consideration while dealing with the application for bail have not been taken note of or it is founded on irrelevant considerations, indisputably the superior court can set aside the order of such a grant of bail. Such a case belongs to a different category and is in a separate realm. While dealing with a case of second nature, the court does not dwell u....
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.... was filed on 14/03/2022 in the Court. 4. The judgment of Hon'ble Supreme Court in Satender Kumar Antil (supra) seems applicable in the facts and circumstances of present case. The rigour of Section 45 of the Act does not seem applicable to this case. The observations of Hon'ble Supreme Court in paragraph no. 65 of the judgment pertaining to procedure under Section 170 CrPC seems equally applicable to the charge sheet filed by police and complaint case filed by ED. 5. In addition, the total laundered amount in this case being less than rupees one crore, the proviso to Section 45 of the Act shall take effect and the Court shall not be required to reach satisfaction mentioned in Section 45 (1) of the Act. 6. The Court observes that applicant/accused Amit Kumar Raut has already spent more than seven years in judicial custody in cases connected to present case. It shall not be fair to the applicant/accused to count his custody afresh in present case, whereas, he could have availed of benefit under Section 436A r/w Section 428 CrPC if he were arrested in this case at the outset, in the year 2017." 47. In Satinder Kumar Antil v. CBI, (2021) 10 SCC 773, the Supreme Court la....
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.... process issued bail application to be decided on merits. Category C Same as Categories B and D with the additional condition of compliance of the provisions of bail under NDPS (Section 37), Section 45 of the PMLA, Section 212(6) of the Companies Act, Section 43-D(5) of the UAPA, Pocso, etc." 4. Needless to say that the Category A deals with both police cases and complaint cases. 5. The trial courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by the learned ASG is that where the accused have not cooperated in the investigation nor appeared before the investigating officers, nor answered summons when the court feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with. 6. We may also notice an aspect submitted by Mr Luthra that while issuing notice to consider bail, the trial court is not precluded from granting interim bail taking into consideration the conduct of the accused during the investigation which has not warr....
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....opportunity will have to be given to the accused persons, if the court is of the prima facie view that the remand would be required. We make it clear that we have not said anything on the cases in which the accused persons are already in custody, for which, the bail application has to be decided on its own merits. Suffice it to state that for due compliance of Section 170 of the Code, there is no need for filing of a bail application." 49. Therefore, where an accused, who had not been arrested during the period of investigation, is brought before the Court on the filing of the Charge-Sheet/Complaint, the Court is to apply its judicial mind on whether the accused is to be remanded into custody; such judicial exercise has to be conducted after considering the relevant factors and on a case-to-case basis, for example, where the accused had not cooperated in the investigation and had not appeared before the Investigating Officer, or where the court feels that judicial custody of the accused is necessary for the completion of the trial, or where further investigation including a possible recovery is needed, the Court may remand the accused to custody. Although, as a general rule such a....
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....o Special Acts, including PMLA, and, therefore, to the facts of the present case. 52. In the same judgment, for the category of Economic Offences, the Supreme Court emphasized that the gravity of the offence, the object of the Special Act, and the attending circumstances would also be taken note of along with the period of sentence involved. I may quote from the judgment as under: - "Economic offences (Category D) 90. What is left for us now to discuss are the economic offences. The question for consideration is whether it should be treated as a class of its own or otherwise. This issue has already been dealt with by this Court in P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail ....
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....he summons issued on the complaint. The Court held that where, before the filing of the complaint, the accused is not arrested, after the filing of the complaint and after he appears in compliance with the summons, he cannot be taken into custody or forced to apply for Bail. If the petitioner wants the custody of such accused, it must apply for the same to the Special Court and the Special Court, after hearing the accused, and on being satisfied that custodial interrogation at that stage is required, may permit custody even though the accused was never arrested under Section 19 of the PMLA. The Supreme Court held as under: "21. We are informed across the Bar by the learned counsel of the appellants that some of the Special Courts under the PMLA are following the practice of taking the accused into custody after they appear pursuant to the summons issued on the complaint. Therefore, the accused are compelled to apply for bail or for anticipatory bail apprehending arrest upon issuance of summons. We cannot countenance a situation where, before the filing of the complaint, the accused is not arrested; after the filing of the complaint, after he appears in compliance with the summons....
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....d or does not appear on a subsequent date, the Special Court will be well within its powers to issue a warrant in terms of Section 70 of the CrPC. Initially, the Special Court should issue a bailable warrant. If it is not possible to effect service of the bailable warrant, then the recourse can be taken to issue a non-bailable warrant; f) A bond furnished according to Section 88 is only an undertaking by an accused who is not in custody to appear before the Court on the date fixed. Thus, an order accepting bonds under Section 88 from the accused does not amount to a grant of bail; g) In a case where the accused has furnished bonds under Section 88 of the CrPC, if he fails to appear on subsequent dates, the Special Court has the powers under Section 89 read with Sections 70 of the CrPC to issue a warrant directing that the accused shall be arrested and produced before the Special Court; If such a warrant is issued, it will always be open for the accused to apply for cancellation of the warrant by giving an undertaking to the Special Court to appear before the said Court on all the dates fixed by it. While cancelling the warrant, the Court can always take an undertaking from the ....
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....ction 19 of the PMLA till the complaint was filed." 58. The Supreme Court in Tarsem Lal (supra) held that the proposition of law propounded in the judgment in Pankaj Jain (supra) is applicable to a case where a warrant of arrest has been issued and proceedings under Section 82 and/or 83 of the Cr. P.C. have been issued against an accused, and therefore, the said accused cannot be let off by taking a bond under Section 88 of the Cr. P.C. The Court further held that, however, the said proposition will not be applicable to a case where an accused in a case under the PMLA is not arrested by the ED till the filing of the complaint. I may quote from the judgment as under: "14. ... Therefore, if a warrant of arrest has been issued and proceedings under Section 82 and/or 83 of the CrPC have been issued against an accused, he cannot be let off by taking a bond under Section 88. Section 88 is indeed discretionary. But this proposition will not apply to a case where an accused in a case under the PMLA is not arrested by the ED till the filing of the complaint. The reason is that, in such cases, as a rule, a summons must be issued while taking cognizance of a complaint. In such a case, the ....