TaxTMI 
TaxTMI 
2024 (8) TMI 100
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.... 2. Status report has been filed on behalf of ED. Case of the prosecution is that Central Bureau of Investigation ('CBI'), Kolkata registered an FIR No. RC0102020A0019 dated 21.09.2020 against Satish Kumar, the then Commandant, 36 Battalion, BSF and Md. Enamul Haque (applicant herein), Md. Anarul SK, Md. Golam Mustafa and other unknown officials of the Border Security Forces (hereinafter referred to as "BSF") and Indian Customs Department and some unknown private persons, for commission of offences under Section 120B IPC and Sections 7, 11 and 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "PC Act") at PS: ACB, Kolkata. FIR disclosed commission of scheduled offence and generation of Proceeds of Crime ('PoC') and thus, present ECIR was registered by Kolkata Zonal Office of ED on 25.09.2020 to trace the PoC and investigate possible money laundering by the applicant and others under provisions of PMLA. ECIR was later transferred to the Headquarter Investigation Unit ('HIU') of ED with the approval of Director, ED on 09.12.2020. Subsequently, prosecution complaint was filed in the Court of Special Judge, PMLA, Rouse Avenue Courts, against the applicant and ....
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.... and Sanjay Jaiswal revealed that Manoj Sana was a cash handler of the applicant and his three nephews, who were promoters of JHM Group of Companies and Manoj Sana was working on their directions. 6. It is stated that applicant and promoters of JHM Group of Companies initially worked together and were engaged in the trade of import and export of rice, stone chips, agro-commodities etc. and the business was carried on in the same building i.e. MK Point, 27-Bentinek Street, Kolkata. Applicant and his nephew Jehangir Alam were involved in cattle auction by the customs. As per statement of Sanjay Jaiswal, Biswajit Malakar, Accountant and Director of JHM Group used to seek accommodation entries on behalf of both JHM Group and Hoque Group. Documents seized during FEMA raid established that both the Groups and the applicant were involved in hawala transactions and were part of the same parcel though showing themselves to be different. Cash deposit slips collected from Axis Bank, A/c. No. 916010061149024, pertaining to joint account of Badal Krishna Sanyal and Tania Sanyal with regard to Income Tax Declaration Scheme, 2016 made by Badal Krishna Sanyal regarding his undisclosed income, f....
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....17 from Manoj Sana on different dates. M/s. Hoque Mercantile Pvt. Ltd. ('HMPL'), one of the group companies, controlled and managed by the applicant, incorporated on 07.10.2015, with an initial capital of Rs.1 lac showed exponential growth in turnover from Nil in Financial Year 2015-16 to Rs. 18.58 Crores in Financial Year 2016-17 and Rs. 173.75 Crores in Financial Year 2017-18, which was only possible with huge cash generation from cattle smuggling. The company attempted to show the source and growth in its turnover on account of export of agri-products but statements of Sanjay Jaiswal and Shreeprakash Jaiswal revealed that they provided bogus bills for purchase of export products like rice. During further investigation, it came to light that during Financial Year 2016-17, HMPL and JHM Group exported fabrics to Dubai, which was investigated into by Customs Department on account of claim of bogus duty drawback by the said companies. Analysis of the documents collected from HMPL and Commissioner of Customs, revealed that HMPL had received Rs. 6.1 Crores as remittances for export of fabrics to Dubai, however, the documents showed that value of export declared at Dubai Customs was les....
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....tute an offence under Section 3 of PMLA, two steps are required to be proved by the prosecution. Firstly, there must be generation of PoC and secondly, there must be an effort to conceal PoC as untainted money. 'PoC' as defined under Section 2(u) of the PMLA means money/property, which is directly/indirectly generated from the commission of a scheduled offence. A bare perusal of the complaint makes it apparent that PoC are not identified against the applicant by the ED and further, ED has failed to disclose how the money belonging to the applicant is generated from the scheduled offence. 13. Prosecution complaint as a whole is based on a mere presumption under Section 23 of PMLA that money of the applicant is PoC/tainted money, without first establishing that the money constitutes PoC and/or showcasing how the applicant has committed the scheduled offence. ED has skipped the essential first stage of establishing PoC under Section 3 of PMLA and simply jumped to the second stage to investigate in what manner PoC is untainted money. Investigating Agency cannot give up its statutory obligation to investigate by taking recourse to Section 24 of PMLA as held in by the Supreme Court in....
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.... made in the ordinary course of applicant's legitimate business and the purchases and sales were duly reflected in the income tax returns filed for the Assessment Year 2016-17. Likewise, in the Financial Year 2016-17, applicant purchased 9,735 cattle in open auctions and the sales/purchases were reflected in the income tax returns filed for the Assessment Year 2017-18. Balance-sheets placed on record and the IT returns seized by the CBI during search and seizure operation, substantiate the aforesaid stance of the applicant. 17. As per the case of ED, applicant along with JHM Group arranged to deposit Rs. 12.8 Crores in cash, in the joint bank account of Badal Krishna Sanyal and Tania Sanyal through his employee Manoj Sana. This money was allegedly given as bribe to Satish Kumar for providing protection and patronage in the predicate offence of cattle smuggling. It is also alleged that applicant through his staff gave Rs. 6.1 Crores to Vinay Mishra and Vikas Mishra as bribe for providing ease in cattle smuggling as Vinay Mishra was allegedly closely associated with the political regime of West Bengal. It is also alleged that applicant along with his nephews and other hawala opera....
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....ch is essential for the determination of these funds to be 'proceeds of crime' warranting prosecution under PMLA. The only basis for ED to link the turnover of HMPL to the predicate offence is the huge turnover of the company in the same period as the period of alleged offence and there is no independent material to indicate that the turnover/profits of HMPL had any connection, direct or indirect with the alleged cattle smuggling and the stand of the applicant is vindicated by CBI's own forensic audit where no suspicious transactions are shown in these accounts. The Kerala High Court directed de-freezing of all 26 bank accounts of the applicant. Statements of Sanjay Jaiswal and Shreeprakash Jaiswal recorded under Section 50 of PMLA relied upon by the prosecution in this regard, cannot be looked into at this stage while considering an application for grant of bail and can only be tested during trial. To support, heavy reliance was placed on the judgment of the Supreme Court in Vijay Madanlal Choudhary and Others v. Union of India and Others, 2022 SCC OnLine SC 929, more particularly, the following paragraph:- "31. The "proceeds of crime" being the core of the ingredients co....
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....en the revenue of Rs. 6.1 Crores and alleged cattle smuggling. Commissioner of Customs, Chennai had passed an order imposing penalties on HMPL for claiming duty drawback on bogus export of fabrics to Dubai but the allegation did not even remotely suggest that export revenue was generated from alleged cattle smuggling. 20. Bhuvan Bhaskar, son of Satish Kumar, was employed at HIPL from May, 2017 but applicant was unaware that he was the son of Satish Kumar. Moreover, the period of employment commenced from May, 2017 whereas the period of alleged offence ended in April, 2017. Statement of Bhuvan Bhaskar in this context is relevant that he had applied for a job in the company basis an open advertisement and his selection was on merit after successfully clearing the interview. 21. The Supreme Court in Vijay Madanlal (supra) has laid down that primary consideration at the stage of bail under PMLA is whether there is any material to indicate that the accused possessed the requisite mens rea and the Court need not meticulously examine evidence but only record a finding on the basis of broad probabilities. Section 19 of PMLA provides higher threshold in comparison to Section 41A Cr.P.....
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..... Applicant has deep roots in the society and his family permanently resides in India. Applicant has businesses in Kolkata for the last several years and there is no possibility of his escaping the rigours of law or not being available for trial. [Ref. Ashok Sagar v. State (NCT of Delhi), 2018 SCC OnLine Del 9548.] 23. It is imperative that applicant is released on bail so that he is able to properly and effectively prepare his defence, which is a step towards fair trial. While in custody, applicant will not be able to effectively instruct his counsel and judicial custody will prejudice his defence in the trial. [Ref. Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, (1980) 2 SCC 565]. 24. Applicant is suffering from various medical ailments such as diabetes, hemorrhoids, lower back ache, painful defecation, and hyperlipidemia, which is fortified by the Jail Medical Report dated 05.07.2023 and is thus entitled to the benefit of Proviso to Section 45 of PMLA, which carves out an exception to the applicability of the twin conditions for a person who is sick, infirm or a woman. Reliance is placed on the judgments of this Court in Devki Nandan Garg v. Directorate of Enfor....
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....brought forth that: - (a) Applicant alongwith his nephews Md. Jehangir Alam, Md. Humayun Kabir and Md. Mehedi Hassan deposited around Rs. 12.8 Crores in cash into the joint bank account of Badal Krishna Sanyal and Mrs. Tania Sanyal through his staff mainly Manoj Sana as a bribe to Satish Kumar, the then Commandant, 36 Battalion, BSF for providing protection and patronage in the predicate offence of cattle smuggling. The primary evidence in the case are the cash deposit slips signed by Manoj Sana and the diary entries are corroborated by the cash deposit slips, which reflect deposit of a sum of Rs. 3.45 Crores, in the name of Satish Kumar by Manoj Sana in the joint bank account of Badal Krishna Sanyal and Tania Sanyal. Furthermore, in view of Section 23 of PMLA it can be presumed that all deposits are inter-connected and the amounts so deposited totalling to Rs. 12.8 Crores are PoC. (b) Investigation revealed that during May 2017, Vinay Mishra along with Vikas Mishra and other family members purchased residential premises at 1-Dharamdas Row, Kolkata by acquiring the shareholding of M/s Anant Tradecom Pvt. Ltd. through laundering of Rs. 6.1 Crores through various sh....
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....hase of export products such as rice. (d) Applicant purchased CR Park Property in the name of one of his companies HIPL, which is beneficially owned by him and his family members. The fund for acquiring this property was routed in the bank accounts of HIPL from various other bank accounts of HIPL and HMPL (another group company of the applicant and his close family members). It was revealed that these funds were PoC generated from illegal cattle smuggling, which have been routed back in the guise of fake remittance received from Dubai on account of export of fabrics. Investigation further revealed that the PoC travelled to New Delhi, which was used to purchase the CR Park Property. The entire payment of Rs.5.19 Crores for purchase of the CR Park Property in the name of HIPL has been made from ICICI Bank A/c No. 000605031638. On perusal of the bank statement of HIPL, it was further revealed that Rs.5.7 Crores were received from another account of HIPL (Bank of Baroda, A/c No. 00260200001751) between the period from 18.09.2018 to 15.10.2018 and this account was opened on 23.04.2018, few months before purchase of the above-mentioned property. Further cash deposits worth Rs.1.....
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....tes at the Haat by the applicant from 2016 onwards. Plea of the applicant that the sales and the proceeds were reflected in the income tax returns does not aid him inasmuch as the Income Tax Authorities are not concerned with the source of income and are only to ascertain whether or not tax has been paid on the income generated. In essence, in the tax regime, legality of transactions generating profit or loss is inconsequential and this view is reiterated by the Supreme Court in Puneet Sabharwal v. CBI, 2024 SCC OnLine SC 324; Vishwanath Chaturvedi v. Union of India and Others, AIR 2007 SC (Supp) 163; and State of Karnataka v. J. Jayalalitha and Others, (2017) 6 SCC 263. In any case, declaration in the IT returns does not extricate the applicant from absence of legitimacy of the source of said funds. 28. Much has been argued on behalf of the applicant that the allegations pertaining to deposit of Rs. 12.8 Crores and Rs. 6.1 Crores in respect of Mishra family rest on the alleged handwritten diary entries of Manoj Sana, which are not corroborated by any independent evidence, which is wholly incorrect. Out of Rs. 12.8 Crores, a sum of Rs. 12 Crores was deposited by Manoj Sana in th....
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....under Section 50 of PMLA can be considered by the Court at this stage of bail in view of the law laid down by the Supreme Court in Rohit Tandon v. Directorate of Enforcement, (2018) 11 SCC 46; Vijay Madanlal (supra); and recently reaffirmed in Satyendar Kumar Jain v. Directorate of Enforcement, 2024 SCC OnLine SC 317. 31. Significantly, Bhuvan Bhaskar who is the son of Satish Kumar was employed by the applicant and was subsequently appointed as a Director of HIPL, without any experience and was paid between Rs. 30,000/- to Rs.40,000/- per month, as an indirect method to bribe Satish Kumar. A feeble attempt is made by the applicant to distance himself from Satish Kumar but unsuccessfully. There is overwhelming evidence to establish the nexus and proximity between the applicant, co-accused Satish Kumar and his family members. Prior to his employment with the applicant, Bhuvan Bhaskar used to check the work of loading and unloading in fuel tanks in Reliance Industries and suddenly without any experience, he was appointed as Director within one month of his employment with the applicant. There is evidence to show a close link between the applicant, Satish Kumar and Tania Sanyal and ....
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....SCC (Cri) 1960 (2)] (SCC p. 31, para 18), Prahlad Singh Bhati v. NCT of Delhi [(2001) 4 SCC 280 : 2001 SCC (Cri) 674] , and Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598 : 2002 SCC (Cri) 688].]" 34. It would be apposite to refer to the judgment of the Supreme Court in Masroor v. State of Uttar Pradesh and Another, 2009 SCC OnLine SC 903, where the Supreme Court observed that while deciding the question of bail, Courts must strike a balance between the valuable right of liberty of an individual and the larger interest of the society. Relevant passage is as follows:- "15. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Co....
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....tion will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. 36. Taking note of all these facts and the huge magnitude of the case and also the request of CBI asking for further time for completion of the investigation in filing the charge-sheet(s), without expressing any opinion on the merits, we are of the opinion that the release of the appellant at this stage may hamper the investigation. However, we direct CBI to complete the investigation and file the charge-sheet(s) within a period of 4 months from today. Thereafter, as observed in the earlier order dated 5-10-2012 [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 450. For text of the order see also para 17, below.], the appellant is free to renew his prayer for bail before the trial court and if any such petition is filed, the trial court is free to consider the prayer for bail independently on its own merits without being influenced by dismissal of the present appeal." 3....
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....f the damage done to the National Economy and National Interest... 23. With the advancement of technology and Artificial Intelligence, the economic offences like money laundering have become a real threat to the functioning of the financial system of the country and have become a great challenge for the investigating agencies to detect and comprehend the intricate nature of transactions, as also the role of the persons involved therein. Lot of minute exercise is expected to be undertaken by the Investigating Agency to see that no innocent person is wrongly booked and that no culprit escapes from the clutches of the law. When the detention of the accused is continued by the Court, the courts are also expected to conclude the trials within a reasonable time, further ensuring the right of speedy trial guaranteed by Article 21 of the Constitution." 39. Before adverting to the facts, it would be important to refer to Section 45 of PMLA, the provision which requires examination for deciding the present application and the same is as follows:- "45. Offences to be cognizable and non-bailable. - (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973....
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.... 1674, the Supreme Court highlighted the object of PMLA, enacted to prevent money laundering and to provide for confiscation of property derived from or involved in money laundering and for matters connected therewith and incidental thereto. Plain reading of Section 45 (1) of PMLA shows that the accused is required to cross the threshold of the twin conditions mentioned therein: (a) public prosecutor shall be given an opportunity to oppose the application for release of the accused; and (b) the Court should be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and is not likely to commit any offence while on bail at the time of seeking bail. It is no longer res integra that the twin conditions are mandatory and the limitations imposed are in addition to those under Section 439 Cr.P.C. In Gautam Kundu (supra), the Supreme Court highlighted that the conditions postulated under Section 45 of PMLA are mandatory and need to be complied with and that provisions of the Section 45 will have an overriding effect on the general provisions of the Criminal Procedure Code in case of conflict between them. For ready referenc....
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....er the age of 16 years or is a woman or is sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45-A of PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure." 41. In Vijay Madanlal (supra), a three Judge Bench of the Supreme Court upheld the validity of Section 45 of PMLA and observed as under:- "387. Having said thus, we must now address the challenge to the twin conditions as applicable post amendment of 2018. That challenge will have to be tested on its own merits and not in reference to the reasons weighed with this Court in declaring the provision, (as it existed at the relevant time), applicable only to offences punishable for a term of imprisonment of more than three years under Part A of the Schedule to the 2002 Act. Now, the provision (Section 45) including twin conditions would apply to the offence(s) under the 2002 Act itself.....
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.... does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the Legislature. Section 21 (4) of the MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have commit....
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....of this judgment that the offence of money-laundering is one wherein a person, directly or indirectly, attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime. The fact that the proceeds of crime have been generated as a result of criminal activity relating to a scheduled offence, which incidentally happens to be a non-cognizable offence, would make no difference. The person is not prosecuted for the scheduled offence by invoking provisions of the 2002 Act, but only when he has derived or obtained property as a result of criminal activity relating to or in relation to a scheduled offence and then indulges in process or activity connected with such proceeds of crime. Suffice it to observe that the argument under consideration is completely misplaced and needs to be rejected." 42. In this context, it would be useful to allude to the following observations of the Supreme Court in Tarun Kumar (supra):- "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 reasonabl....
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....me 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.]" 45. Expression 'proceeds of crime' is defined under Section 2(u) of PMLA as follows:- "2. Definitions.-(1) In this Act, unless the context otherwise requires,- xxx xxx xxx (u) "proceeds of crime" means any 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, then the property equivalent in value held within the country] [or abroad];" 46. The scope and ambit of Section 3 of PMLA came up for consideration before the Supreme Court in Vijay Madanlal (supra) and the Supreme Court held as under:- "263. Coming to section 3 of the 2002 Act, the same defines the offence of money-laundering. The expression "money-laundering", ordinarily, means the process or activity of placement, layering and finally integrating the tainted property in the formal econom....
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....he 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 of Jharkhand, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the courts having regard to the fact that India is a party to the said treaties. This court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the....
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....erpretation put forth by the respondent will further the purposes and objectives behind the 2002 Act and also adequately address the recommendations and doubts of the international body whilst keeping in mind the constitutional limits. It would, therefore, be just to sustain the argument that the amendment by way of the Explanation has been brought about only to clarify the already present words, "any" and "including" which manifests the true meaning of the definition and clarifies the mist around its true nature." 47. From a conspectus of the aforesaid judgements, it is clear that the present bail application will have to be considered on the touchstone and anvil of the twin conditions under Section 45 of PMLA and Court will have to arrive at a prima facie satisfaction that the applicant crosses the threshold. With this in the backdrop, I may advert briefly to the chronology of events relating to registration of present ECIR against the applicant under Section 3 of PMLA, punishable under Section 4 of PMLA. On 31.01.2018, CBI, Cochin registered an RC under Sections 7, 13 (2) read with 13 (1) (a) and (d) of PC Act against one J.D. Mathew. Applicant was arrested on 04.03.2018 in t....
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....rbhum and he largely managed the business of procurement and transportation of cattle from Birbhum District to Sonar Bangla Office, Omarpur, Murshidabad. Cattle procured from each market were loaded in trucks and sent to 'Sonar Bangla Office' of the applicant and JHM brothers. Sonar Bangla was a hotel owned by JHM brothers and investigation revealed that under the cover of a marble shop this was the main hub of cattle smuggling activities. All truck drivers transporting the cattle of this syndicate were given a PAD (Token), which was an identification so that there was no hindrance by local administration or police authorities during transportation. Cross-border movement was facilitated by Satish Kumar and most cattle crossed between 11.00 PM to 3.00 AM in night. Applicant and Abdul Latif were in direct contact with one Sehegal Hossain, a Constable in the West Bengal Police, who was working as personal security guard to one of the political leaders since 2011. He facilitated the cattle smuggling business by providing protection and patronage to the applicant and his associates. 49. Based on the evidence disclosed in the predicate offence, present ECIR was registered against the ....
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....hews i.e. promoters of JHM Group of Companies. Manoj Sana delivered Rs. 6.1 Crore on four different occasions i.e. Rs.10,00,000/- on 20.12.2016; Rs.50,00,000/- on 29.12.2016; Rs. 2,50,00,000/- on 19.01.2017; and Rs.3,00,00,000/- on 20.03.2017 to Vinay Mishra and his brother, which were part of PoC generated from cattle smuggling, the predicate offence. Investigation revealed that during May, 2017, Vinay Mishra along with Vikas Mishra and other family members acquired their residential premise at 1, Dharamdas Row, Kolkata by acquiring shareholding of M/s. Anant Tradecom Pvt. Ltd. by laundering these Rs. 6.1 Crores through various shell companies namely, M/s. Nu Ruchi Barter Pvt. Ltd. and M/s Manak Estates Pvt. Ltd. arranged by Prateek Diwan and Vikas Aggarwal. Thereafter, in the guise of unsecured loans, an amount of approximately Rs.3.5 Crores was transferred to various individual accounts of Mishra family. Both CBI and ED carried out investigation and found that these were shell companies with no actual business and used solely for booking of accommodation entries. Vikas Kumar Agarwal in his statement under Section 50 of PMLA on 08.04.2021 inter alia stated that both these compani....
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....t they had provided bogus bills for purchase of export products like rice etc. which disproves the legal source of turnover claimed by the company. Investigation also revealed that during Financial Year 2016-17, HMPL, JHM Logistics Pvt. Ltd. and JHM Overseas Pvt. Ltd. had exported fabrics to Dubai. This export was investigated by Custom Department due to claim of bogus duty drawback by the companies and documents collected from HMPL as well as information from Commissioner of Customs, Chennai-IV revealed that HMPL had received Rs. 6.1 Crore as remittance for export of fabrics to Dubai. The documents collected however revealed that the value of export declared at Dubai Customs was less than 2% of the total value of export declared with Indian Customs. Total value of export consideration i.e. Rs. 6.1 Crores declared with Indian Customs was received by HMPL, which was allegedly PoC generated from scheduled offence, laundered in the guise of export remittances by the Company, controlled and managed by the applicant. The evidence relied on by the ED in the aforesaid context is in the form of statements of Sanjay Jaiswal and Shreeprakash Jaiswal. Sanjay Jaiswal stated that he was asked b....
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....uggling and concealed through various transactions, purchases and shell companies formed only for accommodation entries were not from criminal activities relating to scheduled offence. As held in Tarun Kumar (supra), as per the statutory presumption permitted under Section 24 of PMLA, the Court or the Authority is entitled to presume, unless the contrary is proved, that in any proceedings relating to PoC under PMLA, in the case of a person charged with the offence of money laundering under Section 3 of PMLA, such PoC are involved in money laundering. In view of the above, more particularly, the role ascribed to the applicant, he has failed to meet and satisfy the test of twin conditions under Section 45 (1) of PMLA for this Court to come to a prima facie conclusion that there are reasonable grounds for believing that the applicant is not guilty of the alleged offence. 55. Learned Senior Counsel for the applicant emphatically argued that the applicant purchased cattle through legal auction channels facilitated by the Customs Department and then sold the cattle at Mallick Pashu Haat and that the applicant provided bills to the CBI in support of the legitimate transactions and that....
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....f PMLA that the diary belongs to him; the contents of the diary are true and in his handwriting, bearing his signatures. 57. Insofar as admissibility of statements under Section 50 of PMLA is concerned, in Rohit Tandon (supra), the Supreme Court held that Section 50 statements are admissible in evidence and may make out a formidable case about the involvement of the accused in the commission of offence of money laundering and relevant extract from paragraph 31 is as follows:- "31. ....The prosecution is relying on statements of 26 witnesses/ accused already recorded, out of which 7 were considered by the Delhi High Court. These statements are admissible in evidence, in view of Section 50 of the 2002 Act. 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....." 58. In Tarun Kumar (supra), the Supreme Court reiterated that statements under Section 50 of PMLA are admissible at the stage of bail. In a recent judgment in Satyendar Kumar ....
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....ns contemplated in Section 45 namely he has failed to prima facie prove that he is not guilty of the alleged offence and is not likely to commit any offence while on bail. It cannot be gainsaid that the burden of proof lies on the accused for the purpose of the condition set out in the Section 45 that he is not guilty of such offence. Of course, such discharge of burden could be on the probabilities, nonetheless in the instant case there being sufficient material on record adduced by the respondent showing the thick involvement of the appellant in the alleged offence of money laundering under Section 3 of the said Act, the Court is not inclined to grant bail to the appellant. 21. The apprehension of the learned counsel for the appellant that the trial is likely to take long time and the appellant would be incarcerated for indefinite period, is also not well founded in view of the observations made by this Court in case of Vijay Madanlal (supra). On the application of Section 436A of the Criminal Procedure Code, 1973, it has been categorically held therein that:- "419. Section 436A of the 1973 Code, is a wholesome beneficial provision, which is for effectuating the....
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....feiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest..." 60. It was also urged on behalf of the applicant that he has been granted bail by the Supreme Court in the predicate offence on the sole ground that charge sheet has been filed and investigation is complete and therefore there is no reason why his incarceration should continue in the present case, where also charge sheet has been filed. Merely filing of the charge sheet and/or grant of bail in the predicate offence, cannot be the ground to grant bail in the present case where the offence alleged is under PMLA and also because the investigation is on-going. The Supreme Court in Directorate of Enforcement v. Aditya Tripathi, 2023 SCC OnLine SC 619, observed as under:- "15. From the impugned judgment(s) and order(s) passed by the High Court, it appears that what is weighed with the High Court is that chargesheet has been filed against respective respondent No. 1 - accused and therefore, the inves....
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.... i.e. propensity of the applicant to commit crime, if released on bail is concerned, ED has brought forth that applicant has been running the organised syndicate of cattle smuggling to Bangladesh from the very initial days and made attempts to oust those who were involved in individual cattle smuggling and those who protested were implicated in false NDPS cases using his contacts with local police authorities. Applicant is alleged to have been involved in paying regular illegal gratification to custom officials and those who did not accede to his designs, were terrorised. In a nutshell, the applicant is stated to be part of a larger syndicate engaged for years in smuggling from which PoC are generated and therefore, at this stage, it cannot be said that the applicant will not commit the alleged crime if released on bail. Moreover, the stand of the ED that the applicant is well connected politically in the State of West Bengal and has connects at all levels from Administrative Authorities to the Police personnel, Customs Officials, etc. cannot be overlooked and in this background, the chances of the applicant tampering with evidence and/or influencing and intimidating witnesses with....
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....e respondent-accused, considering the nature of his ailment cannot be adequately or efficiently be administrated in the hospital in which he is at present and that he needs a better equipped or a speciality hospital...." 64. In the bail application, applicant has not set out a case that the medical ailments, from which he allegedly suffers, are such that they are not being treated or cannot be treated either in the Jail hospital or the referral hospitals and therefore, benefit of Proviso to Section 45 of PMLA cannot accrue to the applicant on this ground. 65. For all the aforesaid reasons, the bail application is dismissed. Pending applications also stand disposed of. ============= Document 1 POC of Rs. 6.1 crore received from Manoj Sana Various Shell companies such as M/s RTS Construction Pvt. Ltd., M/s Maa Vaishnavi Vanijya, M/s Balaji Traders, M/s Tirupati Enterprises managed and controlled by Shri Prateek Deewan and Shri Vikas Kumar Agarwal Various Shell companies such as M/s Tedium Retails (P) Ltd., M/s Teltrox Retails (P) Ltd., M/s Fanidta Haring (P) Ltd. managed and controlled by Shri Prateck Deewan and Shri Vikas Kumar Agarw....