TaxTMI 
TaxTMI 
2024 (9) TMI 704
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....hs. The Central Bureau of Intelligence ('CBI') had registered an FIR No. RC0032022A0053 dated 17.08.2022 P.S. CBI, ACB under Sections 120-B read with 477-A of Indian Penal Code, 1860 ('IPC') and Section 7 of Prevention of Corruption Act, 1988 ('PC' Act). 3. Thereafter, the present ECIR was registered on 22.08.2022 and the Applicant has been illegally arrested on 28.09.2022 in total derogation of the procedure established under Section 19 PMLA. The ED had filed an incomplete prosecution complaint before the Trial Court on 26.11.2022 arraying Applicant as accused No.1. 4. The Applicant moved an Application on 22.12.2022 before the learned Trial Court, to seek Regular Bail. However, the same along with the four other accused persons who had moved separate Bail Applications, have been rejected vide common Order dated 16.02.2023. 5. The Applicant moved second bail Application before the learned Trial Court, in view of the various changes in the circumstances and elapse of substantial period of time, but the same was also dismissed vide Order dated 24.02.2024. The Applicant had sought regular bail on the following grounds: i. that he has been granted regular bail on 28.02.203 in the....
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....ich cognizance was taken on 20.12.2022. Five supplementary Complaints have been filed between 06.01.2023 till 02.12.2023against 26 additional accused persons. 8. It is further contended that firstly, the core ingredient constituting the offence of money-laundering i.e. "proceeds of crime" needs to be construed strictly. Secondly, the "proceeds of crime" must be derived or obtained directly or indirectly as a result of criminal activity relating to the scheduled offences. Thirdly, the ED cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed. Fourthly, the offence under Section 3 of PMLA is dependent on illegal gain of property as a result of criminal activity relating to scheduled offences. However, in the present case, none of the aforesaid requirements have been fulfilled by the ED and the Applicant deserves to be admitted to bail. 9. The Applicant has further contended that there are no allegations or material against him to demonstrate that he was involved in framing of Excise Policy or influencing it, in any manner. No meeting of mind or any....
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....whatsoever can even remotely been used to attribute any role of the Applicant in the conspiracy for formulating the Excise Policy. The said draft of alleged Policy was in wide circulation on the said date on various WhatsApp groups of Liquor Traders and the Applicant was not the only one who had circulated the draft Excise Policy. 12. Pertinently, the co-accused No.27 Sh. Amandeep Singh Dhall owner of Brindco Sales Pvt. Ltd., admitted in his statement that the Policy Draft was forwarded to him by various people on 31.05.2021 including one Mr. Ajay Malhotra and that the alleged Policy had also been forwarded on the L31 Wholesalers/Retailers WhatsApp group by once Sh. Naresh Goyal who had in turn, forwarded it to several people including Sh. Manoj Rai, Pernod Ricard India. Furthermore, the then Hon'ble LG had already officially approved the Excise Policy Draft on 24.05.201 and correspondingly the Delhi Excise Rules, 2021 had been amended vide Gazette Notification dated 25.05.2021, which was almost a week before the alleged policy draft was circulated. 13. Even if it is admitted that the Applicant was the fourth one in chronology to send the draft Policy by way of WhatsApp Group to ....
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....up in Indo Spirits firm, with an intent of giving 6% alleged profit margin out of the total 12% profit margin to be earned by the Firm, as kickback to the alleged members of South Group. These allegations are completely unfounded and dehors any rationale or merit and have been made without any application of mind. 17. It is explained that these averments in its very existence, is completely flawed as the net profit of the firm was only between 3.5-4.0% during the time when the business was ongoing. As per the audited financial as on 31.03.2023, the net profit stands at just 1%. The net profit margin from the wholesale business of the Firm Indo Spirits used to be around 3.5% during the relevant time when the business was ongoing; as on 31.03.2023 it stood at just 1.0%. In such a situation, it was not even possible for L1 to give 6% further to anyone as it itself was not earning any amount of net profit, as has been wrongly alleged by ED. The ED has unreasonably exaggerated and blown the figures out of proportion by stating in its Complaint that the Applicant has generated proceeds of crime to the tune of Rs.294.45 crores. 18. The Applicant has claimed that ED has alleged the role ....
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.... Spirits a total of approx. Rs.160+ crores of the Firm is still outstanding from the various L-7Z Retailers who have defaulted in making their payment of outstanding dues against whom various legal actions have already been initiated by the Firm. 20. The Applicant has explained that ED has made an absolutely meritless allegation against the Applicant of destroying used mobile phones four times during the time period from 26.06.2022 to 12.09.2022. It is explained that instead of 4, only 3 mobiles have been changed by the Applicant and that too because of the compulsion essentially of seizing of the mobile phones by the CBI on various dates. 21. The ED has further made an allegation that the Applicant flouted para 3.1.1 of policy by forming a cartel of manufacturing, wholesalers and retailers. He allegedly created a facade of independent Companies by bringing dummy Shareholders/Directors to create a corporate veil. He used a web of entities, investment and proxies to form a cartel. It is explained that neither of these activities are scheduled offences. Admittedly, the Applicant was neither a Director nor a shareholder in any of the Companies owning retail zones, which were alleged....
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....ng into 31,000 pages besides voluminous digital data and there are more than 200 witnesses to be examined in the chargesheet filed by CBI. 27. There are 162 cited witnesses and more than 20,000 pages of documents in the 5 prosecution complaints filed by ED aside from voluminous digital data running into lakhs of pages. The arguments on charge are yet to commence and there is no likelihood of trial commencing in the near future. The rigours of provisions like Section 45 PMLA are liable to melt down and the Applicant deserves the benefit of regular bail as there is inordinate delay which is bound to happen in the conclusion of trial. 28. Reliance has been placed on Manish Sisodia vs. Central Bureau of Investigation 2023 SCC OnLine SC 1393; Mohd. Muslim @ Hussain vs. State (NCT of Delhi) Criminal Appeal No.(s) of 2023 [Special Leave Petition (Crl.) No(s).915 of 2023]; Raman Bhuraria vs. Directorate of Enforcement, 2023 SCC OnLine Del 657; Union of India vs. K.A. Najeeb (2021) 2 SCC 713; Satender Kumar Antil vs. Central Bureau of Investigation Misc. Appl. No.1849/2021 in SLP (Crl.) No.5191/2021; Arnesh Kumar vs. State of Bihar (2014) 8 SCC 273; Rajat Sharma vs. State, Sanghian Pandiy....
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....gone five serious medical surgeries. On 09.03.2023, he had his gall bladder removed and Laproscopic Cholecystectomy under General Anesthesia was performed on the Applicant. He has been suffering from various medical ailments and has been taking doses of Caudal Epidural block with Selective Nerve Root Block because of persistent lower back pain and claudication. 34. As per the medical Advice, the Applicant has claimed that in the intervening night of 06.09.2023 and 07.09.2023, while the Applicant was in judicial custody, while he was trying to go to the washroom using his walker, he had a bad fall on the floor of his jail cell due to his fragile medical condition having serious impairments in his back and both his legs. 35. On 14.09.2023, on the Application before the Trial Court vide Order dated 13.09.2023, the MRI of the left knee of the Applicant was conducted by the Jail Authorities and his optimal health was ensured post-surgery along with physiotherapy was ensured. 36. Despite his medical condition, he also has to attend to his ailing wife who is suffering from "acute calculus cholecystitis" in her gall bladder and thus had been advised to undergo a "Laparoscopic Cholecyste....
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....d voluminous evidence on record. Certain facts are in the personal knowledge of the Applicant which the Investigation Agency is yet to unearth and there exists all likelihood of the accused tampering the evidence of the case, if released on Bail. There is also a likelihood of him evading the process of law, the possibilities of which cannot be ruled out. While personal liberty is of paramount importance, the same is not absolute but subject to reasonable restrictions, including the interest of the State and public. 43. Reference has been made to Vijay Madanlal Choudharv & Ors (supra) wherein while considering the twin conditions under Section 45 of the PMLA, the Apex Court observed that the twin conditions are valid being reasonable on having correct nexus with the purposes and objects sought to be achieved by the 2002 Act to combat the menace of money-laundering having transnational consequences including impacting the financial systems and sovereignty and integrity of the country. 44. In State of Kerala v. Rajesh (2020) 12 SCC 122 while interpreting Section 37 of PMLA, the Apex Court had observed that unless the twin conditions are satisfied, no Bail can be granted under Sectio....
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....y and every nature of sickness does not entitle an accused to be released on Bail. in a recent decision pertaining to interim medical bail in a PMLA case, this Court has accepted the principle that if the condition of the accused is not so serious or life threatening, he cannot be enlarged on medical bail. 49. Reliance has been placed on Sanjay Jain vs. Enforcement Directorate 2023 SCC OnLine Del 3519 that the proviso to Section 45 of the PMLA is pari materia with the proviso to Section 437 of CrPC. Reliance has also been placed on Mahendra Manilal Shahand etc. vs. Rashmikant Mansukhai & Anr 2009 SCC OnLine Bom 2095, Fazal Nawaz Jung and Anr v. State of Hyderabad 1951 SCC Online Hyd 60, State v. Galadhar Baral 1988 SCC OnLine Ori 281, Pawan Alias Tamatar v. Ram Prakash Pandey and Anr. (2002)9 SCC 166 and Surinder Kairam & Anr v. State (2002) SCC OnLine Del 920. 50. It is further submitted that the medical condition of the accused has already been considered by this Court in its Order dated 19.10.2023 and vide Order dated 03.10.2023 rejected the medical ground on which the applicant is seeking Bail, which is therefore not tenable. The condition of the wife of the accused cannot be....
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....liberty guaranteed under Article 21 of the Constitution of India is a sacrosanct right which needs to be accepted even in cases where stringent provisions are incorporated in the special enactments. Similar observations have been made in the case of Javed Ghulam Nabi Sheikh v. State of Maharashtra and Anr2023 SCC OnLine SC 1693. where the accused was being prosecuted under Unlawful Activities Prevention Act, 1967. The Court surveyed the entire law from the Judgment of Gudikanti Narasimhulu and Others v. Public Prosecutor, High Court of Andhra Pradesh 1977 INSC 232; Shri Gurbaksh Singh Sibbia and Others v. State of Punjab 1980 INSC 68; Hussainara Khatoon and Others (I) v. Home Secretary, State of Bihar 1979 INSC 34;Union of India v. K.A. Najeeb 2021 INSC 50; and Satender Kumar Antil v. Central Bureau of Investigation and Another 2022 INSC 690, after which the Court observed that if the State or the Prosecuting Agency including the Court concerned, has no wherewithal to provide and protect the fundamental right of the accused, to have a speedy Trial as enshrined under Article 21 of the Constitution, then the State or any other Prosecuting Agency should not oppose the plea of Bail on ....