TaxTMI 
TaxTMI 
2025 (2) TMI 1019
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....d vide ECIR/DLZO-II/05/20 I 9 by Directorate of Enforcement, Delhi Zone- II, the same was transmitted to Delhi Zone-II for further necessary action. 5.2 On 17.06.2021, Aditi Singh was summoned and her statement was recorded u/s 50 of PMLA in ECIR/DLZO-II/05/2019 and during her statement she tendered her Iphone X, which was sent to DFS, Gandhinagar for forensic analysis on 18. 06.2021. On analysis of call data records (CDR), it was revealed that CDR contained multiple calls from various numbers belonging to Union Government offices and Ministries of the Government of India. It was intriguing to see that multiple calls were received from landlines of various Government offices, which on verification revealed that these calls were not made from the said landlines. 5.3 That investigation revealed that the said calls were spoofed calls which meant that the calls had been made through an' App' which enables the caller to hide its real number and choose the number that the caller intends to reflect on the screen of the recipient of the call. The Respondent in order to identify the caller who had masked himself with the use of technology, decided to use technology....
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....un Muthu has been an accomplice of Sukash Chandrashekhar and Leena. He has been instrumental in receiving the proceeds of crime in Chennai from Hawala operators and also ensuring that the proceeds of crime were brought into formal financial channels by getting the cash deposited through accommodation entry providers and also routing it through his personal and company accounts to accord legitimacy and lent his name to assets created and for various transactions. ii. He had ensured that the proceeds of crime received in cash were transferred to the accounts of Nail Artistry through getting credit cards swiped for a lesser commission as compared to B. Mohanraj which resulted in inflated sales credited into the accounts of Nail Artistry. He has himself admitted that he was sent to Dubai to avoid being present in case any law enforcement agency land at Chennai to search/ any action so that details of transactions are not divulged which itself show how crucial is he in these money laundering activities. Further, he has lent his name as business partner of Leena Paulose and has received and given cash which is proceed of crime. iii. Therefore, Arun Muthu knowingly assis....
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....t applicant. It is submitted that the alleged role of the present applicant was that he was associated with co- accused Leena Paulose, who is the wife of co-accused Sukash Chandrasekhar. It is pointed out that the evidence against the present applicant is in the form of confessional statements by the other co-accused persons which cannot be relied upon with respect to the prosecution of the present applicant. It is further submitted that the accused did not receive any money from co-accused Sukash Chandrasekhar or Leena Paulose. It was submitted that the applicant is a young person in his twenties and had directed a web-series along with the co-accused Leena Paulose and out of the earning from the said series a major chunk was remitted to co-accused Leena Paulose and the present applicant had retained his commission. 6. Learned counsel vehemently argued that the applicant has been in custody since 21.10.2021 and 4 supplementary complaints have been filed, the trial has not commenced as charges have still not been framed. The maximum sentence provided for the offence under Section 4 of the PMLA is 7 years, with a minimum sentence of 3 years. A total of 300 prosecution witnesses h....
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....ught to have given due weightage to this factor. 51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra6 wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, Shri Gurbaksh Singh Sibbia v. State of Punjab, Hussainara Khatoon (I) v. Home Secretary, State of Bihar, Union of India v. K.A. Najeeb and Satender Kumar Antil v. Central Bureau of Investigation. The Court observed thus: "19. 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 of the nature of the crime." 52. The Court also reproduced the observations made in....
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....o secure the attendance of the prisoner at trial. 56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State. 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant. .............................................." (emphasis added) 24. There are a few penal statutes that make a departure from the provisions of Sections 437, 438, and 439 of the Code of Criminal Procedure, 1973. A higher threshold is provided in these statutes for the grant of bail. By way of illustration, we may refer to Section 45 (1) (ii) of PMLA, proviso to Section 43D ....
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....tute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb2, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation 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 conc....
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....can still deny the relief owing to the ground such as where the trial was delayed at the instance of the accused. As stated earlier, here there is no occasion for the appellant to cause the delay in trial, as even charge has not been framed. Moreover, there is no other circumstance brought on record which will compel us to deny the benefit of Section 436A of the CRPC to the appellant. 4. The learned Additional Solicitor General submitted that the power under Section 436A of the CRPC has to be exercised by the Court of first instance. 5. In the facts of the case, we find that there is no prospect of even the trial commencing, as the charge has not been framed. In these facts, we find that the appellant will be entitled to be enlarged on bail under section 436A of the CRPC on 27th May, 2024. Hence, there is no need to have multiplicity of proceedings. 6. Hence, we allow these appeals and direct that the appellant shall be enlarged on bail under Section 436A of the CRPC on 27th May, 2024." iii. Veerendra Kumar Ram v. Union of India Vide order dated 18.11.2024 in Criminal Appeal No. 4615/2024 (Para 1). "1. The appellant was arrested on 23rd ....
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....tor 2017 SCC OnLine Guj 2476 (Paras 36-45) SUBMISSIONS ON BEHALF OF THE RESPONDENT. 9. Per contra, learned Special Counsel for the Enforcement Directorate submitted that the applicant is not entitled to bail as he has not satisfied the mandatory requirement of Section 45 of the PMLA. It is submitted that proceeds of crime to the tune of more than Rs. 200 crores have been attributed to the applicant and the various co-accused persons. The present applicant is involved in the offence of money laundering defined as under Section 3 of the PMLA which is proved by the following: i) Applicant Arun Muthu's statement before arrest dated 17.08.2021 which shows his direct connection with co-accused Sukash Chandrasekhar and Leena Paulose. Applicant's statement before the arrest dated 27.08.2021, shows that he assisted accused Sukash Chandrasekhar by collecting and depositing cash in his account and making payment for purchase of car. ii) Statement dated 27.08.2021 and 28.08.2021 by Leena Paulose (Co- accused) showing that the applicant was in direct contact with Sukash Chandrasekhar and assisted him in his transactions. However, after a raid by the CBI, they avoided dir....
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....expressed apprehension on account of conduct and strong association of the applicant with the main accused Sukash Chandrashekhar, that he may commit any such offence and hamper the ongoing investigation in the present case. 12. Reliance is placed on the following judgments: i. Vijay Madanlal Choudhary vs. Union of India & Ors. (2022) SCC OnLine SC 929. ii. Bimal Kumar Jain v. Directorate of Enforcement 2021 SCC OnLine Del 4342. iii. Christian Michel James v. Enforcement Directorate (2022) SCC OnLine (Del) 731. iv. Raj Singh Gehlot v. Directorate of Enforcement 2022 SCC OnLine Del 643. v. Gautam Thapar v. Directorate of Enforcement 2022 SCC OnLine Del 642. vi. Sajjan Kumar vs. Directorate of Enforcement 2022 SCC OnLine Del 1769. vii. Tarun Kumar v. Enforcement Directorate (2023) SCC OnLine SC 1486. viii. Gautam Kundu v. Directorate of Enforcement (2015) 16 SCC 1. ix. Serious Fraud Investigation Office vs. Rahul Modi (2019) 5 SCC 266. x. Pavana Dibbur v. Enforcement Directorate (2023) 15 SCC 91. xi. M/s Jagati Publications Ltd. vs. Directorate of Enforcement 2021 SCC Online TS 3293. ....
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....A cannot be finally decided unless a trial of scheduled offence concludes. In the present case, as pointed out by the learned counsel for the applicant, in the scheduled offence wherein the charge-sheet has also been filed, the trial has not yet commenced and the charges have not been framed so far. Even in the present case it is noted that the stage of the present complaint is still at the point of consideration of charge and 300 prosecution witnesses have been cited by the Enforcement Directorate. In V. Senthil Balaji (supra), the Hon'ble Supreme Court while reiterating the ratio of judgments given by the Hon'ble Supreme Court in Union of India v. K.A. Najeeb (2021) 3 SCC 713 and Manish Sisodia v. Enforcement Directorate 2024 SCC OnLine SC 1920 has held that if the Constitutional Court comes to the conclusion that the trial is not likely to be completed in a reasonable time, the power of granting bail could be exercised on the ground of violation of Part III of the Constitution of India. Such power, it was held, can be exercised even in case of stringent statutory provisions with regard to bail like Section 45 of PMLA. 16. The Hon'ble Supreme Court in Prem Prakash v. Enforceme....
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....is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 PMLA by imposing twin conditions does not re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied. 28. In Vijay Madanlal Choudhary [Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1], addressing the scope of Section 50, following has been held : (SCC p. 276, para 339) "339. ... However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him."" (emphasis supplied) 17. Similarly, in the case of Vijay Nair vs Directorate of Enforcement (supra) it was held as under: "12. Here the accused is lodged in jail for a considerable period and there is little possibility of trial reaching finality in the near future. The liberty g....
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....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." 20. The present applicant as per the nominal roll dated 16.07.2024 has been in custody since 21.10.2021 bringing his custody period to around three years and four months approximately. In Ajay Ajit Peter Kerkar vs. Directorate of Enforcement & Anr., (supra) the Hon'ble Supreme Court while giving benefit to the appellant therein of Section 436A of the Cr.P.C. granted bail. As pointed out hereinabove, the maximum punishment provided in the PMLA is seven years (except in certain category of cases which do not include the present offence), and the applicant has already undergone three years and four months. 21. The role of the present applicant as per the case of the prosecution was for providing entries in order to assist the main accused in laundering the proceeds of crime. The said allegation is sought to be proved by the prosecution on basis of statements made by the othe....
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....llant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation and Another, this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab and Kashmira Singh v. State of Punjab, to emphasise that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. This Court referred to Section 19 of the PML Act, for the in- built safeguards to be adhered to by the authorised officers to ensure fairness, objectivity and accountability. Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Se....
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....raph 2 of para 2 A of the Schedule. (emphasis supplied) 24. It is thus seen that the Coordinate Bench while granting the bail to the co- accused did consider the delay, the period of incarceration as well as the fact that the trial is not likely to be completed in the near future. The said judgement was delivered on 29.11.2023 and pertinently, the trial has still not commenced. The applicant therein, was also ascribed a similar role of assisting the main accused in the movement of proceeds of crime. In the present case as well the requisite mens rea on part of the applicant has to be proved by prosecution which is a matter of trial. 25. In the present case, the applicant was arrested on 12.10.2021 and has been in custody for a period of 3 years and 4 months approximately. The trial in the present complaint as noted hereinbefore, is yet to commence and would take time to conclude. Apart from expressing apprehension of the applicant being a flight risk, no material has been shown to demonstrate the same. The evidence in the present case is primarily documentary in nature which is already in possession of the prosecution. 26. In totality of the facts and circumstance....