TaxTMI 
TaxTMI 
TaxTMI 
2024 (11) TMI 670
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....om March 2016 - October 2016 to appoint and engage relatives and other known persons to various posts in the DWB, from which they derived pecuniary benefits. It was further alleged that the tenancies of DWF properties were allotted without inviting bids and leased out only on reserve price. There were also allegations of misuse of DWB funds. The predicate offence was investigated by the CBI which culminated into filing of chargesheet bearing No. 07/2022 dated 31.08.2022. While the appointments of Mr. Mehboob Alam as CEO, four persons under the NAWADCO Scheme, Mr. R.K. Yadav and Mr. Hamid Akhtar were found to have been made illegally, the rest of the allegations were found to be administrative irregularities. Indisputably, the applicant is neither arrayed nor summoned as an accused in the predicate case. 3. In the ECIR, apart from the abovementioned FIR, three more FIRs registered subsequently, have also been clubbed. As per ED's case, the main accused, who had acquired huge cash amounts being the proceeds of crime arising out of his involvement in illegal recruitment in DWB, in order to launder the same, invested the proceeds of crime in immovable properties through his associates....
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....3.70 Crore rupees respectively. It is submitted that on account of some dispute with their neighbour Naseer Mohsin, who had filed a suit for enforcement of easement rights being CS SCJ 698/20, the wife of the applicant, in order to avoid unnecessary litigation agreed to sell the said properties to the builders - M/s. Sky Powers (partnership company through its authorized partner Mr. Zeeshan Haider) and M/s. Sara Construction Company (proprietorship firm through its proprietor - Mr. Daud Nasir) for the amount of Rs. 13,40,00,000/- through agreement to sell dated 17.09.2021. Out of the said amount, the purchasers had paid Rs. 9,14,30,000/- through banking channels and rest of the consideration amount was deposited in the accounts of the applicant and his wife by cash by their property dealer Kauser Imam Siddique @Laddan. 6. It is further submitted that not only the applicant was not named in either the FIR or Chargesheet of the Predicate Offence but also in the investigation conducted by the ACB in relation to FIR No. 05/2020. Prior to his arrest, the applicant had joined investigation on 15 occasions between 15.02.2023 to 10.11.2023. He states that the applicant has been in custody....
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....ned by Zeeshan. Out of the 36 crore rupees, around 9 crore rupees have been given in form of cheques and the remaining amount of Rs. 27 crore is nothing but the proceeds of crime which have been given in cash to the applicant. A copy of an agreement to sell was found in the phone seized from co-accused Zeeshan showing consideration amount to be Rs. 36 Crores. The said agreement is stated to be witnessed by Kauser, who is a co-accused and Waqar, who is not traceable. Kauser in his statement recorded under Section 50 PMLA, when confronted with both the agreements to sell, denied having any knowledge of the Rs 13.40 Crore agreement or of witnessing it, being the middleman. He also confirmed the agreement showing the consideration amount to be Rs. 36 Crores to be genuine and stated that the property was sold by the applicant to Zeeshan and Daud at the behest of the main accused. Kauser also admitted to the contents of the white diaries. 10. Additionally, reference is also made to the applicant's statements recorded under Section 50 of PMLA, 2002 wherein there is some variance on the mode of receiving sale transaction amount. It is contended that the applicant has engaged in forgery fo....
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....be administrative irregularities and nowhere it is stated in the chargesheet that Amanatullah Khan derived any pecuniary benefits on account of this irregularity. Another FIR No. 05/2020 under Section 7 of the Prevention of Corruption Act, 1988 was registered at PS ACB based on similar allegations as stated in the CBI case on 28.01.2020. It was during the investigation of this FIR that a raid was conducted at the premises of Kausar Imam Siddiqui @ Laddan on 16.09.2022 and 3 diaries were recovered. In the ACB investigation, wife of the applicant was summoned once to join investigation and the applicant was also asked to join investigation, which he did telephonically. The main accused was arrested in this case but was released by the Trial Court vide order dated 28.09.2022. In this order, in paragraph 49, it was observed that the tenancies were created at higher rent than reserved price and no loss was caused to the exchequer. In para 53 of the said order, it was observed that the main accused did not have exclusive control over the DWB funds. ECIR/DLZO-I/35/2022 was recorded on 16.09.2022 on the FIR bearing No. 9A dated 23.11.2016 registered by CBI. The respondents case is based ....
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....s that such statements are recorded in a proceeding which is deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Penal Code, 1860 and is admissible in evidence. The said statements are to be meticulously appreciated only by the Trial Court during the course of the trial and there cannot be a mini-trial at the stage of bail. However, when the statements recorded under Section 50 of PMLA are part of the material collected during investigation, such statements can certainly be looked into at the stage of considering bail application albeit for the limited purpose of ascertaining whether there are broad probabilities, or reasons to believe, that the bail applicant is not guilty. Meaning thereby, the statements under Section 50 of the PMLA have to be taken at their face value, but in case any such statement is patently self-contradictory or two separate statements of the same witness are inconsistent with each other on material aspects, then such contradictions and inconsistencies will be one of the factors that will enure to the benefit of the bail applicant whilst ascertaining the broad probabilities, though undoubtedly the probative value of th....
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.... a reasonable period for completion of trial would have to be seen in light of the minimum and maximum sentences provided for the offence, whether there are any stringent conditions which have been provided, etc. It would also have to be seen whether the delay in trial is attributable to the accused. [V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement reported as 2024 INSC 739]. 19. In Senthil (Supra), the Supreme Court while reiterating the ratio enunciated in Union of India v. K.A. Najeeb (Three Judge bench) (2021) 3 SCC 713, also held that if the Constitutional Court comes to the conclusion that the trial would not be able to be completed in a reasonable time, the power of granting bail could be exercised on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. It was held that:- "21. Hence, the existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. A property derived or obtained, directly or indirectly, by a person as a result of the criminal activity relating to a scheduled offence constitutes proceeds of crime. The existence of proceeds of crime at the time of....
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.... of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45 (1) (ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is ev....
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.... long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. 50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor. 21. Prem Prakash v. Union of India through the Directorate of Enforcement Prem Prakash v. Union of India through the Directorate of Enforcement, reported as 2024 SCC OnLine SC 2270, is another recent decision where it has been reiterated that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of the Act and the constitutional mandate being the higher law, the right to speedy trial must be ensured and if the trial is being delayed for reasons not attributable to the accused, his incarceration should not be prolonged on that account. The relevant extract of the said judgement is enacted below for convenience:- "11....All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, "bail is t....
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....tropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years." It is in this background that Section 45 of PMLA needs to be understood and applied. Article 21 being a higher constitutional right, statutory provisions should align themselves to the said higher constitutional edict." (emphasis added) 22. The view taken in the Manish Sisodia and Prem Prakash cases (Supra) was reiterated recently by the Sup....
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....opic Substances Act, 1985 ("the NDPS Act") which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156] , Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of ....
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....penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] being rendered by a three-Judge Bench is binding on a Bench of two Judges like us." (Emphasis added) To a similar extent are the decisions in Mohd. Muslim alias Hussain v State (NCT of Delhi 2023 SCC OnLine SC 352, Jitendra Jain v. Narcotics Control Bureau 2022 SCC OnLine SC 2021, Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109 and Man Mandal and Anr. v. State of West Bengal 2023 SCC OnLine SC 1868, wherein while taking into account the prolonged custody and unlikelihood of completion of trial in immediate future, the accused was granted bail. 25. Examining the present case in the aforenoted backdrop, it is noted that the investigation was initiated in the year ....