TaxTMI 
TaxTMI 
2024 (9) TMI 621
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....120 B IPC and Section 7 of the PC Act are scheduled offences under PMLA, 2002. The Directorate of Enforcement ('ED' hereinafter) initiated the investigation in the matter by recording an ECIR No. ECIR/HIU-II/14/2022 on 22.08.2022. In the interim, the CBI filed the Chargesheet in its RC on 25.11.2022 and thereafter to Supplementary Charge Sheets on 25.04.2023 and 08.07.2023 respectively. The petitioner was arrested by the CBI on 15.05.2023 and was eventually granted Bail on 22.07.2023. 4. While the petitioner was in custody in the CBI case, the ED moved an Application before the Learned Court seeking his interrogation and his statement was recorded on 12.06.2023 while he was in Judicial Custody. Thereafter, the petitioner moved an Application for surrender before the ED in the ECIR case. Though, the Bail was granted in the CBI matter on 22.07.2023, his Application for Surrender remained pending, which was eventually disposed off by the learned Special Judge vide Order dated 24.07.2023. 5. As per the investigation conducted by the ED, the Excise Policy Scheme comprised of kickbacks/proceeds of crimes of Rs. 100 Cr. Paid to the AAP leaders in lieu of making favorable policy chan....
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.... there can be no credibility attached to their statements. 11. The witness Manishwani Prahune has retracted her Statements, which is reflected in the Order dated 05.01.2023 passed by the Learned Special Judge. It is submitted that the entire case of the ED is based on the Statements of witnesses who are seniors of the petitioner by virtue of their age as well in professional capacity and their statements cannot be considered reliable unless they are tested during the trial. The petitioner has relied upon Chandra Prakash Khandelwal v. Directorate of Enforcement 2023 SCC OnLine Del 1094 in his support. 12. It is stated that while granting the Bail in the CBI case vide Order dated 22.07.2023, it has been observed by the learned Special Judge that the CBI case is weak in nature against the petitioner. He further submits that the predicate offence is weak and no schedule offence exists and it has to be taken that ipso facto the petitioner shall be acquitted for the proceedings under the PMLA. Reliance has been placed on Sanjay Pandey v. Directorate of Enforcement 2022 SCC Online Del 4279. 13. It is further submitted that the Supreme Court in Vijay Madanlal Choudhary v. Union of....
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....ess (TMC) etc. 19. ED for the reasons best known to them, have connected him to the Aam Aadmi Party stating that he has received a salary from this party but has failed to consider that even if their averments are taken to be true on the face value, no political party pays salary to the volunteers and further there is nothing to show that the petitioner has any sort of membership, primary or secondary, with the Aam Aadmi Party (AAP). 20. While denying the petitioner Bail, the learned Special Judge failed to take into consideration the statement of Mr. Deepak Singhal recorded under Section 50 of the PMLA, 2002 dated 05.04.2024 wherein he stated that he knows the petitioner and met him in Goa in 2021 at some of the AAP candidate's campaign sabha and he was introduced as a freelancer for BJP and TMC. Thereafter, he has remained in touch with him over the phone to get the feedback. 21. The Learned Special Judge also did not consider the statement of Mr. N.D. Gupta in toto where he specifically stated that if an individual person made any expenditure in regard to the expense incurred by him on behalf of the AAP, they would directly have made payment to such volunteer, freelance....
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....ce has been placed on Vijay Madan Lal Vs. Union of India 2022 SCC Online SC 929 wherein it was observed that the discretion vests in the Court under Section 45 PMLA is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the PMLA, 2002. 25. It is submitted that cognizance on the complaint dated 26.11.2022 has been taken by the Special Court on 20.12.2022. The fact of taking cognizance prima facie established that the offence of money laundering has taken place. It is claimed that the petitioner has suppressed that the Production Warrant dated 29.05.2024 in the sixth Supplementary Charge Sheet had been issued against him, which again establishes that a case has been made out against him as has been observed b the Apex Court in the case of Manharibhai Muljhibhai Kakdia & Anr Vs. Shaileshbhai Mohanbhai Patal & Ors. 2012 10 SCC 517. 26. Reliance is also placed on Tarun Kumar Vs. Enforcement Directorate 2023 SCC OnLine SC 1486 and Gautam Kundu vs. Directorate of Enforcement, (2015) 16 SCC 1. 27. It is further contended that the satisfactions contemplated under Section 45 PMLA regarding the accused being guilty, has to be base....
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....s. 33. The other legal submissions made on behalf of the ED is that the language used under Section 19 PMLA, 2002 is "reason to believe' and not "evidence in possession". This distinction has been noted by the Apex Court in CBI v. V. Vijay Sai Reddy, (2013) 7 SCC 452 wherein it was observed that the Court dealing with the grant of Bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of its charge. It is not expected at this stage to have the evidence establishing the guilt of the accused beyond reasonable doubt. Reliance has been placed on Nimmagadda Prasad v. CBI, (2013) 7 SCC 466: (2013) 3 SCC (Cri) 575: 2013 SCC OnLine SC 454 and Salim Khan vs. Sanjai Singh (2002) 9 SCC 670. 34. In regard to the role of the petitioner, it has been explained that he is the key person involved in the transfer and use of the proceeds of crime generated out of the Excise Policy Scam. The petitioner was closely associated with the co accused persons and suspects such as Mr. Vijay Nair, Mr. Rajesh Joshi and others and is a cash handler on behalf of the Aam Aadmi Party in the Goa Ele....
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....eived a salary of Rs. 55,000/- in February-March, 2021 from M/s WIZPK Communications and PR Ltd. who were engaged in Department of Information and Publicity of GNCTD for PR work. He also received funds from the OML of Vijay Nair. There are multiple transactions undertaken by the petitioner and AAP directly through their banking channels. Mr. N.D. Gupta has revealed that these payments were made to the petitioner and various functionaries of the AAP during the Goa Election campaign. The petitioner had calls with numerous party functionaries of the Aam Aadmi Party during the campaign. He directly made these bookings for the Stay for AAP leaders and for an event of AAP directly at the Grand Hyatt, Bambolim, Goa in November, 2021 and made the payments from his accounts. He has not been able to explain the reasons for these payments. Moreover, he was never reimbursed by the Aam Aadmi Party for this amount, which shows that this was reimbursed by the AAP from the cash amount of 45 crores which he collected and distributed on behalf of AAP. 41. The National Treasurer of the AAP, Mr. N.D. Gupta had given the details of the expenditure made by AAP in the Goa Elections which reveals that ....
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....lable and willing to participate in the investigations. It is claimed that the arrest of the petitioner was contrary to law and merely because his statements were not to the liking of the Investigating Officers, they termed it as non-cooperation. Little regard was given to the rights against self - incrimination protected under Article 22 of the Constitution of India. Reliance has been placed on Selvi (Supra) which has been reiterated in Santosh (Supra) wherein it was observed that Article 20 (3) enjoys an "exalted status" and is a vital safeguard against coercive methods of investigation. 47. Ld. Senior Advocate has pointed out that the petitioner has joined and cooperated during the investigations. He has been named as an accused in the 6th Supplementary Prosecution Complaint and arrested on 12.04.2024. The 7th Supplementary complaint has also been filed. It is asserted that the petitioner has been implicated falsely and his fundamental right of liberty which is at stake may be considered while deciding the present bail application. 48. Learned Senior Advocate has highlighted that the arrest has been made purely on the basis of the statements recorded during the investigati....
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....ch came in the hands of the petitioner was from the Rs.100 crores which have been termed as proceeds of crime. 52. Furthermore, the investigating agency has found Rs.12 lakhs approximately deposited in his account, which again is being termed as part of the proceeds of crime ignoring the fact that this is the amount which has been earned by the petitioner over a period of time by doing freelance work and odd jobs to earn his livelihood. There is nothing to term the Rs.12 lakhs found in his account, as part of the proceeds of crime. 53. Ld. Senior Advocate has argued on behalf of the petitioner that he was working as a freelancer and had worked with various political parties like BJP, TMC etc, however, he has been randomly and selectively shown associated only with AAP without there being any basis. It has been claimed by the ED that he had arranged for various events with great emphasis on the amount being paid to Hotel Grand Hyatt in the sum of Rs.3,20,287/- for the stay and the conference of the members of AAP during the Goa campaign. The petitioner was in the business of freelancing and the work done for organizing the events for AAP in Goa campaign was only part of his jo....
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....f of the ED have submitted that it is a case of serious gravity and the petitioner was the main money handler and there is enough evidence on record to show that he spent huge amount to organize the events in the Goa Assembly Election for AAP party. There is overwhelming evidence leading to the inference of the guilt of the petitioner. There are statements of the co-accused as well of the Angadiyas/Hawala Operators which clearly clinches the role of the petitioner in this entire scam. He has played an important role in layering of Rs.45 crores which have been received by him through Hawala Operators out of the Rs.100 crores proceeds of crime. At this stage, the statements of various witnesses/accused under Section 50 PMLA cannot be discarded and their evidentiary value is the subject matter of trial. 60. Learned advocate for ED has further argued that economic offences which is sought to be addressed by PMLA, has serious implications on the economy and stability of any nation. Therefore, the stringent twin conditions have been introduced in Section 45 of PMLA which have to be satisfied before the petitioner can claim bail. In addition, the triple test for bail as envisaged under....
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....e is that there has been no reimbursement of the expenditure incurred by the petitioner. No justification has been given by the petitioner from where he has received the money. 64. To counter the arguments on behalf of the petitioner that while granting bail in CBI case it was held to be a weak case against the petitioner, it has been argued that the PMLA case and the predicate offence are two independent offences and the merits of one case does not impact the facts of the other case. The predicate offence is relevant only for the purpose of determining proceeds of crime. Once it is proved in the PMLA case that the money which was in the hand of the petitioner was proceeds of crime and he has done layering it has to be tested on its own merit. Reference has been made to Dr. Manik Bhattacharya vs. Ramesh Malik and Ors, 2022 SCC Online SC 1465 and Vijay Madanlal (Supra). 65. The counsel for respondent has placed reliance on Pavana Dibbur v. the Directorate of Enforcement CRL. Appeal No. 2779 of 2023 and reiterated that offence of money laundering is an independent offence and it is not necessary that an accused of the offence of money laundering shall also be accused of the pre....
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.... proceeds of crime reliance was placed on Vijay Madanlal Choudhary (supra). 71. The learned counsel for ED has thus, opposed the bail. 72. Submissions heard and record as well as written arguments perused. 73. Learned counsel on behalf of the Directorate of Enforcement has vehemently contended that before considering the delay component in the conclusion of the trial, the petitioner has to first satisfy the twin test as laid in Section 45 of PMLA, 2002. He cannot be granted bail unless it is shown that he is not guilty of the alleged offences and that he will not commit the same if released on bail. 74. It may be observed in the context of Section 45 of PMLA, 2002 that the prosecution has filed one main Prosecution Complaint on 26.11.2022 and thereafter, five Supplementary Prosecution Complaints in none of which the petitioner had been cited as an accused. It is the 6th Supplementary Prosecution Complaint in which the petitioner has been arrayed as an accused. The petitioner has filed a flowchart in the bail Application wherein it has explained how the conspiracy started at the first level and trickled down to the seventh level where the petitioner has featured. 75. ....
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....itted that the petitioner has been behind bars since 18.04.2024, there are around 69,000 pages of documents involved in both CBI and ED matters. Moreover, there are 493 witnesses, who have to be examined on behalf of the prosecution. In the same case, the other accused persons, namely, Manish Sisodia, K. Kavitha, and Vijay Nair have already been admitted to bail in similar circumstances. 82. In the case of Manish Sisodia v. Directorate of Enforcement 2024 INSC 595 the Hon'ble Supreme Court observed that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that "bail is the rule and refusal is an exception". The same has been reiterated by the Apex Court in Kalvakuntla Kavitha v. Directorate of Enforcement 2024 INSC 632. 83. Insofar as the role of the petitioner in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail. 84. The Apex Court in Manish Sisodia (supra)....