TaxTMI 
TaxTMI 
2024 (12) TMI 613
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....on process for assistant teachers in primary schools. The petitioner was not named either in the FIR, or in the charge sheet and supplementary charge sheet submitted by the CBI in the said matter, despite investigation being continued for more than two years. Therefore the petitioner had no role in respect of the predicate offence. On the basis of the predicate offence, the Enforcement Directorate (hereinafter referred to as the E.D.) registered ECIR no. KLZO/19/2022 dated 24th June, 2022 under The Prevention of Money Laundering Act, 2002 (henceforth referred to as the PMLA). The petitioner was not named in the prosecution complaint filed by the E.D. on 19th September, 2022 or the three supplementary complaints filed on 7th December 2022, 21st March 2023 and 8th May 2023 respectively. He was arraigned as an accused in the fourth supplementary prosecution complaint filed on 28th July, 2023. 4. The petitioner is in custody for about one year and six months. The E.D. has relied upon 180 witnesses and 438 documents in the complaints and charge is yet to be framed. There is no possibility of commencement of trial in near future. 5. The petitioner is not a Government employee and h....
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....s firm M/s. S.D. Consultancy obtained consultancy services from M/s. Leaps and bounds since his firm did not have adequate man power for installation of aluminium products for Bengal Merlin Projects in terms of a commercial contract entered into between the petitioner's company and M/s. Bengal Merlin Housing Limited. Payment of Rs. 2,32,47,552/- was made to the petitioner's company by Bengal Merlin out of which the petitioners' company paid Rs. 53,10,000/- to Leaps and Bounds in terms of work order dated 3rd January, 2020. The said money cannot qualify as proceeds of crime or tainted money. 10. The petitioner is in custody for considerable period of time and his further detention is not required, moreso, since incriminating material has not transpired against him and the allegations are based solely upon the statement of the co-accused recorded under section 50 of the Act. The case is based on documentary evidence which is in custody of the E.D. There is no scope for the petitioner to tamper with the same. The petitioner has deep roots in the society and there is no chance of his abscondence. The petitioner undertakes to appear before the trial Court on every date of hearing, no....
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.... valued at Rs. 8.1 crores has been seized from the petitioner. The petitioner was closely associated with Partha Chatterjee, Kuntal Ghosh, Manik Bhattacharyya and Santanu Banerjee. The seized mobile phone of Manik Bhattacharyya indicates several communications made between Manik Bhattacharyya and the petitioner with regard to appointment of ineligible candidates in TET- 2014 and receipt of huge amount of money in lieu thereof. The petitioner raised funds to the tune of more than rupees ten crores by issuing shares from his company M/s. Wealth Wizards Private Limited at a huge premium and siphoned them by purchasing shares of other companies. The said company as well as M/s. Arhieve Consultancy Private Limited and M/s. Nimbus Club Private Limited are under control of the petitioner. The Directors of the company acted on instructions of the petitioner. Huge amount of money was infused in the accounts of M/s. Wealth Wizards through issuance of preference shares at huge premium. The petitioner was involved in financial transactions with Santanu Banerjee and Kuntal Ghosh in the garb of business transactions. Several incriminating documents and electronic devices have been recovered purs....
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.... 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. In reply, it is submitted on behalf of the petitioner that there has been no custodial interrogation of the petitioner for the last eleven months. He is not named in the predicate offence and was only named by Tapas Kumar Mondal on the seventh occasion of his interrogation. The petitioner is not a director of Wealth Wizards and the alleged layering of money has to be substantiated by the E.D. during trial. Referring to section 70 of the PMLA, learned counsel has submitted that the company Wealth Wizards is not an accused in the present proceeding. The petitioner is entitled to be released on bail in view of Article 21 of the Constitution as well as Section 479 of The Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as....
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.... the Hon'ble Supreme Court in Vijay Madanlal Choudhary (supra) "the authority of the Authorised Officer under the 2002 Act to prosecute any person for offence of money-laundering gets triggered only if there exists proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act and further it is involved in any process or activity. Not even in a case of existence of undisclosed income and irrespective of its volume, the definition of "proceeds of crime" under Section 2(1)(u) will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence............ Even though, the 2002 Act is a complete Code in itself, it is only in respect of matters connected with offence of money-laundering, and for that, existence of proceeds of crime within the meaning of Section 2(1)(u) of the Act is quintessential. Absent existence of proceeds of crime, as aforesaid, the authorities under the 2002 Act cannot step in or initiate any prosecution." 23. The case essentially hinges on the statement of the petitioner and the co-accused and recovery made pursuant to the same. The prosecution has in fact commenced with the statement o....
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....k Bhattacharyya, Kuntal Ghosh and Santanu Banerjee, all of whom are on bail in the PMLA cases. The petitioner is similarly circumstanced. 30. The E.D. has placed reliance on a voice recording of the petitioner. Whether the said recording is relevant to the present proceeding shall be decided at the appropriate stage of trial. 31. True, the conditions laid down in section 45 of the PMLA are the guiding factors for grant of bail to an accused under the Act and the accused has to satisfy the said condition for earning an order of bail in his favour. 32. In the judgment in Manish Sisodia (supra), the Hon'ble Supreme Court has held that the right to bail in cases of delay coupled with incarceration for a long period should be read into section 439 of The Code of Criminal Procedure and section 45 of the 2002 Act. The Hon'ble Court has referred to 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 2....
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.... to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. 35. Since the case primarily depends on documentary evidence which is in custody of the E.D, there is no scope for the petitioner to tamper with the same. With regard to the apprehension that the petitioner shall influence witnesses or may abscond if released on bail, stringent conditions may be imposed upon him to address the concern. 36. Though the E.D. has stated that out of the entire period of detention of the petitioner, he was in judicial custody only for 266 days and remained in the hospital for the rest of the period, the hospitalisation of the petitioner during his incarceration is also deemed to be judicial custody. 37. Upon consideration of the facts and circumstances of the case, submission made on behalf of the parties as well as material on record, this Court is inclined to release the petitioner on bail subject to stringent conditions keeping in mind his right to speedy trial under section 21 of the Constitution as well as his prolonged incarceration without trial. 38. Accordingly, the application for bail being C.R.M. (S.B) 227 of 2023 is allowed. 39. C....