TaxTMI 
TaxTMI 
2024 (12) TMI 90
X X X X Extracts X X X X
X X X X Extracts X X X X
....etitioner has canvassed the following argument:- 4) The petitioner is in custody since 20th March, 2023. He is not named in the FIR or the charge sheet of the predicate offence and was named only in the third complaint filed by the Enforcement Directorate (in short the E.D.). No predicate offence is made out against the petitioner and there is no evidence to suggest that he is involved in concealment of any proceeds of crime or laundering of money. In absence of a scheduled offence against the petitioner, the PMLA offence cannot survive and prolonged detention of the petitioner cannot be sustained. 5) Learned counsel draws the attention of the Court to the fact that after conclusion of argument on behalf of the petitioner on 10th September, 2024 the predicate offence agency sought issuance of production warrant against the petitioner and showed him as arrested in the predicate offence on 4th October, 2024. 6) Co-accused similarly circumstanced with the petitioner has been granted bail by this Court. The E.D. has filed at least five prosecution complaints and intends to rely upon evidence which includes 182 statements, 210 documents spanning over 20,000 pages and examine 16....
X X X X Extracts X X X X
X X X X Extracts X X X X
....section 25 of the Indian Evidence Act and is inadmissible. 10) The onus to rebut the presumption laid down under section 24 of the PMLA shifts upon the petitioner only when the E.D. establishes three foundational facts:- (i) that a criminal activity relating to a scheduled offence has been committed; (ii) that the property in question has been directly or indirectly obtained as a result of such criminal activity; and (iii) that the person concerned is directly or indirectly involved in any process or activity connected with the said property which constitutes proceeds of crime. The E.D. has failed to establish these foundational facts. 11) The E.D. has made out a new case that the candidates were given a nine digit roll number in TET-2012 and a fourteen digit roll number in TET-2014. The candidates who were unsuccessful in TET-2012 were allowed to reappear in TET-2014 with their earlier roll numbers of TET-2012. This argument not being a part of the complaints, affidavit-in-opposition or written submission made by the E.D., cannot be considered at this stage. No mens rea of the petitioner being made out in the predicate offence, the petitioner is....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 22. CBI v/s. V.C. Shukla reported in 1998 (3) Supreme Court Cases 410; 23. Arvind Kejriwal v/s. Directorate of Enforcement reported in 2024 Supreme Court Cases OnLine SC 1703; 13) Vehemently opposing the prayer, learned counsel for the E.D. has submitted that the modus operandi of the petitioner was to take huge money from the aspiring candidates in lieu of appointment which were never given. Five complaints were filed by the E.D. and the petitioner was named in the third supplementary complaint. Movable and immovable properties worth Rs. 11.96 crores belonging to the petitioner were attached. Interrogation of Kuntal Ghosh and Santanu Banerjee during E.D. custody reveals that the petitioner collected huge amount of money from candidates with the assurance of providing appointment to the post of teachers in TET-2012 and TET-2014 and made over the collected amount to Kuntal Ghosh and other agents for getting them appointed through Partha Chatterjee. One such candidate Tanay Kumar Dana stated in his statement recorded under section 50 of the PMLA that on his failure to qualify in TET-2012, he appeared in TET-2014 and gave a copy of his admit card and an amount of Rs. 4.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 1. 13. State of Bihar vs. Amit Kumar reported in (2017) 13 SCC 751. 14. Anil Kumar Yadav vs. State (NCT of Delhi) reported in (2018) 12 SCC 129. 15. Tofan Singh vs. State of T.N. reported in (2021) 4 SCC 1. 16. Subires Bhattacharyya vs. C.B.I. reported in 2022 SCC OnLine Cal 4307. 17. Anubrata Mondal vs. C.B.I, reported in 2023 SCC OnLine Cal 23. 18. Ranjitsing Brahmajeetsing Sharma vs. State of Maharashtra reported in (2005) 5 SCC 294. 19. Union of India vs. Varinder Singh reported in (2018) 15 SCC 248. 20. Directorate of Enforcement vs. Aditya Tripathi reported in 2023 SCC OnLine SC 619. 21. Saumya Chaurasia vs. Enforcement Directorate reported in 2023 SCC OnLine SC 1674. 22. Pavana Dibbur vs. Enforcement Directorate reported in 2023 SCC OnLine SC 1586. 16) I have considered the rival contention of both the parties and material on record. 17) The Hon'ble Supreme Court, in the authority in Vijay Madanlal Choudhary (supra) has held as follows:- "388. ... The successive decisions of this Court dealing with analogous provision have stated that the Court at the stage of considerin....
X X X X Extracts X X X X
X X X X Extracts X X X X
....portunity before the learned Trial Court to substantiate the same and also rebut the presumption under section 24 of the Act. 22) It is not in dispute that the petitioner was not initially named in the predicate offence and has been shown as arrested therein only after conclusion of argument on his behalf in the present case. The CBI owes an explanation as to why the petitioner was required in the earlier case after more than two years of registration of the case, when his bail petition is being considered by this Court. 23) The case essentially hinges on statements of the petitioner and the co-accused and recovery made pursuant to the same. The Hon'ble Court has held in a catena of judgments that statement of the co-accused cannot be considered against the petitioner and is not substantive piece of evidence. Its evidentiary value has to be tested at the time of trial and not at the stage of granting bail. The statement cannot be taken as gospel truth and only broad probabilities have to be seen. The Hon'ble Court has also held that prosecution cannot commence with the statement of a co-accused under section 50 of the PMLA. 24) It is pointed out that most of the documents ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the authority in Javed Gulam Nabi Shaikh v/s. State of Maharashtra and another reported in 2024 Supreme Court Cases OnLine SC 1693 wherein the Hon'ble Court has dealt with the law laid down in the judgments in Gudikanti Narasimhulu and others v/s. Public Prosecutor, High Court of Andhra Pradesh reported in (1978) 1 Supreme Court Cases 240, Shri Gurbaksh Singh Sibbia and Others v/s. State of Punjab reported in (1980) 2 Supreme Court Cases 565, Hussainara Khatoon and Others (I) v/s. Home Secretary, State of Bihar reported in (1980) 1 Supreme Court Cases 81, Union of India v/s. K.A. Najeeb reported in (2021) 3 Supreme Court Cases 713 and Satender Kumar Antil v/s. Central Bureau of Investigation and Another reported in (2022) 10 Supreme Court Cases 51 and observed as follows:- "If the State or any prosecuting agency including the Court concerned has no wherewithal to provide or protect the fundamental right of an 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 for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective ....