TaxTMI 
TaxTMI 
2024 (5) TMI 1411
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....r: 2. The above complaint has been filed by 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, th....
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....ation illegally. Thus, he had acquired amount totaling to Rs. 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.....
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....neys from 1999 to 2008. He submits that the respondent established a network into 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 year....
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....lso stated to have changed his place of birth from Paturnadurbar in Akola District, Maharashtra 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....
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....judgments of the Supreme Court: i) Jaibunisha v. Meharban & Anr., (2022) 5 SCC 465; ii) Neeru Yadav v. State 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 regist....
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....so places reliance on the judgment of the Supreme Court in Aman Preet Singh v. Central Bureau of Investigation, (2022) 13 SCC 764. 42. He further submits that had the respondent been taken 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 an....
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.... been granted on untenable grounds. 33.5. Where serious discrepancies are found in the order granting bail thereby causing prejudice to justice. 33.6. Where the grant of bail was not appropriate in the first place given the very serious nature of the charges against the accused which 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 th....
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....egistered in the year 2017. The Directorate of Enforcement took more than four and half years to investigate the case. The IO consciously did not arrest applicant/accused Amit Kumar Raut during investigation but attached his property i.e. Villa No. 49, Tatvam Villa, Vipul World, Sector-48, Gurugram, as well as his bank account maintained in PNB, Dehradun. The present complaint 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 ....
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....r converted into a bailable warrant/summons without insisting physical appearance of the accused, if such an application is moved on behalf of the accused before execution of the NBW on an undertaking of the accused to appear physically on the next date/s of hearing. (e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided. Category B/D On appearance of the accused in court pursuant to 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....
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....the Magistrate under Section 170 of the Code. There is not even a need for filing a bail application, as the accused is merely forwarded to the court for the framing of charges and issuance of process for trial. If the court is of the view that there is no need for any remand, then the court can fall back upon Section 88 of the Code and complete the formalities required to secure the presence of the accused for the commencement of the trial. Of course, there may be a situation where a remand may be required, it is only in such cases that the accused will have to be heard. Therefore, in such a situation, an 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....
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....he existence of a pari materia or a similar provision like Section 167(2) of the Code available under the Special Act would have the same effect entitling the accused for a default bail. Even here the court will have to consider the satisfaction under Section 440 of the Code." 51. It is, therefore, clear that the general directions given in the judgment of Satinder Kumar Antil (supra-2022) in relation to the process to be followed on production of the accused, who has not been arrested during the period of investigation, on filing of the Charge-Sheet/Complaint post the completion of investigation, remain the same and is also applicable to 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 sh....
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....he Special Court on summons issued on the complaint, and offers to submit bonds in terms of Section 88 of the Cr. P.C., therefore, there is no reason for the Special Court to refuse or decline to accept the bonds. The Supreme Court further held that if an accused appears pursuant to a summon issued on the complaint, he is not in custody and, therefore, there is no question of granting him Bail, and an order accepting bonds under Section 88 of the Cr. P.C. from the accused does not amount to a grant of Bail. 56. The Supreme Court denounced the practice of some of the Special Courts under the PMLA of taking the accused into custody after they appear pursuant to the 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 eve....
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....Section 204 of the CrPC on taking cognizance of the offence punishable under Section 4 of the PMLA on a complaint, if the accused appears before the Special Court pursuant to the summons, he shall not be treated as if he is in custody. Therefore, it is not necessary for him to apply for bail. However, the Special Court can direct the accused to furnish bond in terms of Section 88 of the CrPC; d) In a case where the accused appears pursuant to a summons before the Special Court, on a sufficient cause being shown, the Special Court can grant exemption from personal appearance to the accused by exercising power under Section 205 of the CrPC; e) If the accused does not appear after a summons is served 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 ....
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.... accused, the Special Court must pass an order on the application by recording brief reasons. While hearing such an application, the Court may permit custody only if it is satisfied that custodial interrogation at that stage is required, even though the accused was never arrested under Section 19. However, when the ED wants to conduct a further investigation concerning the same offence, it may arrest a person not shown as an accused in the complaint already filed under Section 44 (1) (b), provided the requirements of Section 19 are fulfilled. 24. We are making it clear that we are dealing with a fact situation where the accused shown in the complaint under Section 44 (1) (b) of the PMLA was not arrested by the ED by the exercise of power under Section 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 ....