TaxTMI 
TaxTMI 
2024 (6) TMI 1118
X X X X Extracts X X X X
X X X X Extracts X X X X
....n brief, is that the investigation under the Prevention of Money Laundering Act, 2002 was initiated by recording the ECIR/RNSZO/16/2020 dated-17.09.2020 against the accused persons on the basis of information received from FIR No. 13/2019 dated-13.11.2019 registered by the ACB, Jamshedpur. 3. Subsequently the Final Report has been filed by the investigating agency bearing no. 01/2020 dated- 11.01.2020 under Section 120-B and 201 IPC and under Section 7 (b) of the P.C. Act, 1988 against the accused persons, namely, Alok Ranjan and Suresh Prasad Verma. 4. Further, in course of search proceeding conducted in relation to the instant case at different places under Section 17 PML Act to investigate the role of the accused persons and their close associates, it is found that part of the proceeds of crime acquired in the form of commission/bribe in lieu of allotment of tenders by the accused Veerendra Kumar Ram, a public servant. The said bribe money was getting routed to the bank accounts of family members of Veerendra Kumar Ram with the help of bank accounts of Delhi based CA Mukesh Mittal 's employees/relatives. 5. It is also ascertained that Veerendra Kumar Ram used to giv....
X X X X Extracts X X X X
X X X X Extracts X X X X
....il petition no. 1551 of 2023 and 1549 of 2023 for grant of pre-arrest bail but the same was rejected vide order dated 22.07.2023 passed by the court of, learned Additional Judicial Commissioner-XVIII-cum-Special Judge, PML Act, Ranchi. 12. Hence the present applications have been filed. Argument advanced by learned counsel for the petitioners: 13. Mr. Jitendra S. Singh, learned counsel for the petitioners has argued inter alia on the following grounds: I. The petitioners are quite innocent and have falsely been implicated in this case with oblique motive and mala fide intention to harass the petitioners. II. There is no allegation said to be committed so as to attract the offence under Section under Section 3 of the PML Act since there is no allegation of laundering of money against the petitioners. III. In alternate, submission has been made that even if the allegations leveled against petitioners are accepted then also it would not constitute offence under Section 3/ 4 of the PML Act inasmuch as the allegations fall short of the essential ingredients for offence of money laundering. IV. That the Enforcement Directorate has exceeded its....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rest bail. Argument advanced by learned counsel for the opposite party-Enforcement Directorate: 15. While on the other hand, Mr. Amit Kumar Das, learned counsel for the opposite party - Enforcement Directorate has seriously opposed the said submission/ground both based upon the fact and the law as referred hereinabove. (I) So far as subsequent FIR is concerned, submission has been made that it is incorrect on the part of the petitioner to take the ground that since the first FIR is dated 13.11.2019 and subsequent thereto it was found that the money was being routed in Delhi then the second FIR was instituted on 03.03.2023. Hence, there is no illegality since as per the allegation made in the complaint that the first FIR which is against Alok Ranjan who has informed to be the custodian of the money which was being illegally given by the co-accused Veerendra Kumar Ram. While the second FIR being FIR No. 22/2023 is for investigating the routing of the said money illegally procured by the said Veerendra Kumar Ram. Then in such circumstances, the complaint has been instituted by the Enforcement Directorate, which cannot be said to suffer from any illegality. (II)....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y of Form No. BA as well as the notices that were issued to her by the Income Tax Department. However, in the said petition itself, she has not disclosed the source of funds/income used in investment in shares and securities as well as investment in jewelry, gold and silver bullion and in business which clearly established that the said credits were acquired out of Proceeds of Crime generated through commission of criminal activities. (VIII) Further, without prejudice to the arguments raised above, it is submitted that merely declaring income and paying tax without providing a source does not absolve the charges of money laundering. It is an admitted fact that the Petitioner's husband is involved in huge corruption which is base of all the properties acquired by the Petitioner or family members. (IX) Petitioner namely Rajkumari, during her statement u/s 50 of PMLA, has inter alia stated that source of all the funds received in her bank accounts would be explained by husband Veerendra Kumar Ram, and Veerendra Kumar Ram in his statement u/s 50 of PMLA has stated that aforesaid credits are out of the entries received in the said accounts against cash, the source ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nvestigation and in Sanjay Chandra v. CBI (2012) 1 SCC 40, Hon'ble Supreme Court has observed that the seriousness of charges shall be considered before considering the bail of the accused. 16. Learned counsel for the respondent-Enforcement Directorate, based upon the aforesaid grounds, has submitted that it is not a fit case where the prayer for pre- arrest bail is to be allowed taking into consideration their involvement in directly acquiring the proceeds of crime. Analysis of the submissions made on behalf of parties: 17. This Court has heard the learned counsel for the parties, gone across the pleading available on record as also the finding recorded by learned court. 18. This Court, before appreciating the argument advanced on behalf of the parties, deems it fit and proper to discuss herein some of the provisions of law as contained under the Act, 2002 with its object and intent. 19. The Act was enacted to address the urgent need to have a comprehensive 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 mec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money- laundering. (c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money-laundering. The recommendations were classified under various heads. Some of the important heads are- (i) declaration of laundering of monies carried through serious crimes a criminal offence; (ii) to work out modalities of disclosure by financial institutions regarding reportable transactions; (iii) confiscation of the proceeds of crime; (iv) declaring money-laundering to be an extraditable offence; and (v) promoting international co-operation in 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion has been inserted in the statute book by way of Act 23 of 2019. 24. It is, thus, evident that the reason for giving explanation under Section 2 (1) (u) is by way of clarification to the effect that whether as per the substantive provision of Section 2 (1) (u), the property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country but by way of explanation the proceeds of crime has been given broader implication by including property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. 25. The "property" has been defined under Section 2(1)(v) which means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. 26. The schedule has been defined under Section 2(1)(x) which means sched....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sists 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. 30. It is further evident that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. 31. The punishment for money laundering has been provided under Section 4 of the Act, 2002. 32. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready reference, Section 50 of the Act, 2002 reads as under: "50. Powers of 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, 19....
X X X X Extracts X X X X
X X X X Extracts X X X X
....illed while arresting the person who said to be involved in the predicate offence has been made as would appear from paragraph-265. For ready reference, relevant paragraphs are being referred as under: "265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression "including", which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provision (as also the Explanation) predicates that if a person is found to be directly or indirectly involved in any process or activity connected with the proceeds of crime must be held guilty of offence of money-laundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 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 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpose fine in respect of acts of commission and omission by the banking companies, financial institutions and intermediaries. From the setting in which Section 50 has been placed and the expanse of empowering the Director with same powers as are vested in a civil Court for the purposes of imposing fine under Section 13, is obviously very specific and not otherwise. 425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression "proceeding" in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials 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 infor....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross- examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20 (3) 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 compulsi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20 (3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20 (3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence. 434. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in 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. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the time being in force on granting of bail. The explanation is also there as under sub-section (2) thereof which is for the purpose of removal of doubts, a clarification has been inserted 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, and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section. 39. The implication of Section 45 has been interpreted by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors .(supra) at paragraphs-371-374. For ready reference, the said paragraphs are being referred as under: "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 Sec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ficers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.]" 372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub-section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45 (1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are: (i) that there are reasonable grounds for believing that he is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail. 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 dic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r ready reference, paragraph-17 of the said judgment reads as under: "17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act." 41. The Hon'ble Apex Court in the said judgment has further laid down that the twin conditions so as to fulfil the requirement....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA 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. For ready reference, paragraph-30 of the said judgment reads as under: "30. The conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....st floor room rented out by Smt. Pushpa Verma at the premises located at Dev Hari Kunj, Anand Vihar Colony, Road No. 11. PS M.G.M., Jamshedpur and the room was furnished by Sh. S.P. Verma including almirah from where the cash of Rs 2.67 crores was seized and Alok Ranjan also claimed that the said cash amount seized belonged to S.P. Verma since he used to visit Alok's rented premises at times and used Almirah with the key in Verma's possession as and when he needed. As per Alok Ranjan, the Almirah was even accessed by SP Verma in Alok absence and on objecting, S.P. Verma used to say that his personal belongings were kept in the said almirah. Alok further claimed that he only used the bed and kept his belongings in the trunk. 2.4 However, S.P. Verma and his family members claimed that the said cash belongs to Veerendra Kumar Ram and alleged that Veerendra Kumar Ram himself and his wife Rajkumari used to visit Alok Ranjan at the rented premises and Alok Ranjan is cousin of Veerendra Kumar Ram. 4.1.2 During the course of investigation, Suresh Prasad Verma had also submitted a call recording vide email dated 31.01.2022 between Kapil Dev Yadav, Pushpa Verma and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ame of Veerendra Kumar Ram (Accused no. 1) maintained with state bank of India was analyzed----- When Alok Ranjan was asked to explain the source of such cash deposited by him, he stated in his statement dated 24.02.2023, that this cash was handed over to him by Veerendra Kumar Ram for depositing in the above- mentioned bank account. When Alok Ranjan was asked how many times and how much cash has been given to him by Veerendra Kumar Ram, he stated in his statement dated 24.02.2023, that he has not received cash from Veerendra Kumar Ram apart from the cash received by him for depositing the above- mentioned account.------- PROCEEDS OF CRIME IN POSSESSION OF ALOK RANJAN 7.1.9 During the course of analysis of mobile phone (iPhone 13 pro max with no 9431117311) of Veerendra Kumar Ram, it was found that he had a chat with one contractor Shri Anup Kumar Rai (9431301759) dated 03.02.2020 wherein Anoop Kumar Rai has sent Veerendra Kumar Ram one message that "3 crore taken away by Bablu Singh by fortuner" and also sent two vehicle detail one of Innova JH 05 CC 1000 and other of Toyota Fortuner bearing Registration no. JH0SCM1000, to Veerendra Kumar Ram th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....unting to Rs 7,82,500 was recovered and seized and when Veerendra Kumar Ram was asked to explain the source of the said cash, he stated in his statement dated 15.04.2023 that the said cash was the commission received by him in lieu of allotment of tenders. 7.2.4 During the course of search on 21.02.2023 at the Government residential premises of Sh. Veerendra Kumar Ram, Bungalow No.CE/1. Road No. 7, CH. Area East, Near Jubilee Park, Bistupur, Jamshedpur 831001, one Toyota Innova Car having registration number JH-05-CC-1000 having registered owner M/s Rajesh Kumar Constructions Pvt. Ltd (Director-Rajesh Kumar, as also discussed above was recovered. Further, during the course of the search at the residential premises of Smt Rajkumarı located at 4th Floor, C-334, Opposite Dabra Park, Block C, Defence Colony, New Delhi, one Toyota Fortuner Car having registration number JHOSCM1000 and registered owner M/s Parmanand Singh Builders Pvt Ltd was recovered. Mr. Rajesh Kumar is the director in both the companies namely M/s Rajesh Kumar Constructions Pvt. Ltd and M/s Parmanand Singh Builders Pvt Ltd. In this regard, Veerendra Kumar Ram in his statement dated 24.02.2023 stated tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing all his financial dealings Rakesh Kumar Kedia further stated that he is not aware about existence of any firm in his name and simply stated that he was paid an amount in lieu of giving consent to operate his account. Vijay Pal, an employee of CA Mukesh Mittal, further stated in his statement dated 29.03.2023 that he helped Rakesh Kumar Kedia to open two bank accounts in his name and also opened a/c in the name of his wife Reena Pal. He also stated that he opened the firm M/s RP Investment and Consultancy and bank account in its name at the instruction of Mukesh Mittal such bank accounts were used by CA Mukesh Mittal and not by the respective account holders. He also stated that he knows Veerendra Kumar Ram as his men used to bring cash to the office of Mukesh Mittal. FUND RECEIVED IN THE BANK ACCOUNTIA/C- 127000628767) OF GENDA RAM (DOB 04.05.1941, PAN ACNPR4525L) 7.4.10 during scrutiny of the bank accounts of Rakesh Kumar Kedia, the aforementioned bank account of Genda Ram (father of Veerendra Kumar Ram and also uncle of accused Alok Ranjan) surfaced which we opened on 12.12.2022 and the account received high valued funds As the bank accounts of Rakesh Kumar ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Department. In his statement recorded u/s 50 of PMLA during custodial interrogation and in judicial custody on different dates wherein he interalia accepted that commission was taken in lieu of allotment of tenders and that the total commission was 3.2% of tender value and that his share of commission was 0.3% of the total tender amount which varies from 0.3% to 1%. He admitted that he acquired two immovable properties in Delhi in the name of his wife Rajkumari and one immovable property in Delhi in the name of his father Genda Ram out of the commission amount against allotment of tenders. He and his family were also found in the possession of jewellery worth Rs. 1,51,60,982/-, expenses incurred on overseas education of his children were Rs. 1.25 crores and cash of Rs. 19,45,100/- which were also acquired from the commission amount. He was also found in the possession of three vehicles in the name of contractors/companies which were under the use of Veerendra Kumar Ram and his family about which he could not explain satisfactorily. He along with his family were having lavish lifestyle and he accepted that all the expenses have been incurred by him through commission amount received....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... his official position. He used to take commission for every tender work allotted thereby directly involved in generation of proceeds of crime. c) He acquired the ill-gotten funds or the proceeds of crime and arranged routing to the bank accounts of his family members and further used those funds in acquiring immovable and movable properties in their name thus projecting untainted money as tainted. d) Veerendra Kumar Ram and his family is also found to be living a luxurious lifestyle which is not possible with the salary income of Veerendra Kumar Ram who was the only the earning member of his family. Although, his father gets pension that is in no way can support even part of the lavish lifestyle their family was having. Therefore, he was directly involved in the use, possession and the acquisition of proceeds of crime generated by the commission. e) During investigation, the claim of Veerendra Kumar Ram as his fixed commission percentage of 0.3% was found misleading and alter in his own statement he admitted that his commission varied from 0.3% to 1% of tender value. A contractor named Mahendra Gope stated that he usually had a percentage of 10%, a contr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng u/s 3 of PMLA, 2002 and punishable under section 4 of PMLA. 11.3 Accused No. 3- Rajkumari (wife of Veerendra Kumar Ram) On perusal bank account statements of Rajkumari bearing account number 2577101052100, it is seen that there is credit of Rs 9.90,000 from M/s RP Investment and Consultancy and Re 4,00,000 from Manoj Kumar Singh. Further, it is also seen from the statement of bank account no 2577257010412 in her name that there are credits of Rs 5,70,49,910.00 from M/s RK Investment and consultancy and Rs 3,59,72,230.00 from M/s RP Investment and Consultancy, Veerendra Kumar Ram has admitted in his statement that these credits are out of the entries received in the sand accounts against cash, the source of which was the commission received by Veerendra Kumar Ram. Out of this sum credit of Rs. 9.3 crores approx. in her bank a/c (2577257010412) Rajkumari purchased immovable properties at Saket, New Delhi and another one in Defence Colony, New Delhi in her name to the tune of Rs 1.72 Crores (additional cash of Rs. 3.2 crores and Rs. 5 crores (additional cash of Rs. 6.3 crores respectively which was actually the proceeds of crime generated by Veerendra Kum....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of PMLA and is, therefore, liable to be punished under section 4 of PMLA, 2002. 46. It is evident from the prosecution complaint that the petitioner namely, Rajkumari, is the wife of prime accused Veerendra Kumar Ram and on perusal bank account statements of the petitioner it is seen that there are huge credits in her bank accounts from M/s RP Investment and Consultancy, Manoj Kumar Singh and M/s RK Investment & Consultancy. The co-accused Veerendra Kumar Ram has admitted in his statement that these credits are out of the entries received in the said accounts against cash, the source of which was the commission received by Veerendra Kumar Ram. The petitioner has purchased immovable properties at Saket and Defence Colony, New Delhi, in her name and the purchase consideration is paid from the proceeds of crime generated by the co-accused Veerendra Kumar Ram. The petitioner knowingly tried to directly conceal the proceeds of crime acquired by her husband and claimed it to be untainted in the guise of taking entries in her bank accounts from the companies providing entries by charging commission. 47. Thus, it prima-facie appears that the petitioner knowingly assisted to her husba....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct huge credits to the tune of Rs 4.525 crores. There are materials against the petitioner regarding his specific role in the offence which is mentioned in Para-11.4 of the prosecution complaint that he committed the offence of money laundering with respect to the proceeds of crime. 50. It is pertinent to mention here that this Court is dealing herein with the petition of pre-arrest bail which is to be granted in exercise of power conferred under Section 438 of Cr.P.C. The law is well settled so far as the consideration of the prayer of the pre-arrest bail is concerned, what is the requirement to be looked into for the purpose of granting the said benefit. 51. It has been settled by Hon'ble Apex Court time and again in its various pronouncements that the powers under Section 438 Cr.P.C., is of extra-ordinary character and must be exercised sparingly in exceptional cases only and therefore, the anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been implicated in the crime, as grant of anticipatory bail to some extent, is interference in the sphere of investigation of an offence and hence....
X X X X Extracts X X X X
X X X X Extracts X X X X
....cusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is onl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ourt must draw a delicate balance between liberty of an individual as guaranteed under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so when the allegations are grave in nature." 56. Further, it is evident by taking into consideration the provision of Section 19 (1), 45 (1), 45 (2), the conditions which is required to be considered while granting the benefit of bail in exercise of power conferred under Section 438 or 439 of Cr.P.C., apart from the twin conditions which has been provided under Section 45 (1) of the Act, 2002, the conditions or the requirement which has been followed while granting the bail under Section 439 or 438, as the case may be, is required to be considered. 57. The Larger Bench of the Hon'bl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ipatory bail. 84. In a case of money-laundering where it involves many stages of "placement", "layering i.e. funds moved to other institutions to conceal origin" and "interrogation i.e. funds used to acquire various assets", it requires systematic and analysed investigation which would be of great advantage. As held in Anil Sharma, success in such interrogation would elude if the accused knows that he is protected by a pre-arrest bail order. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. In the case in hand, there are allegations of laundering the proceeds of the crime. The Enforcement Directorate claims to have certain specific inputs from various sources, including overseas banks. Letter rogatory is also said to have been issued and some response have been received by the Department. Having regard to the nature of allegations and the stage of the investigation, in our view, the investigating agency has to be given sufficient freedom in the process of investigation. Though we do not endorse the approach of the learned Single Judge in extracting the note produced by the Enforcement Directorate, we do not find ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....etitioner namely Genda Ram is the sick person. 62. In the aforesaid context it will be profitable to discuss the first proviso to Section 45 of the PMLA, which reads as under:- "45. Offences to be cognizable and non-bailable. - (1) ................................ Provided that a person who is under the age of sixteen years or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the special court so directs:" 63. From bare perusal of the aforesaid proviso, it is evident that the use of the expression "may be" in the first proviso to Section 45 clearly indicates that the benefit of the said proviso to the category of persons mentioned therein may be extended at the discretion of the Court after considering the facts and circumstances of each case, and could not be construed as a mandatory or obligatory on the part of the Court to release them. There is no doubt that the courts should be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the o....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the age of sixteen years, women, sick or infirm has been made in Section 437 Cr. P.C. and many other special enactments also, however by no stretch of imagination could such provision be construed as obligatory or mandatory in nature, otherwise all serious offences under such special Acts would be committed involving women and persons of tender age below 16 years. No doubt the courts need to be more sensitive and sympathetic towards the category of persons included in the first proviso to Section 45 and similar provisions in the other Acts, as the persons of tender age and women who are likely to be more vulnerable, may sometimes be misused by the unscrupulous elements and made scapegoats for committing such Crimes, nonetheless, the courts also should not be oblivious to the fact that nowadays the educated and well placed women in the society engage themselves in the commercial ventures and enterprises, and advertently or inadvertently engage themselves in the illegal activities. In essence, the courts should exercise the discretion judiciously using their prudence, while granting the benefit of the first proviso to Section 45 PMLA to the category of persons mentioned therein. The....