TaxTMI 
TaxTMI 
2025 (4) TMI 573
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....ari & other persons on the basis of complaint filed by Deputy Director of Income Tax, Foreign Assets Investigation Unit-I Bengaluru alleging that as part of conspiracy, during course of search by Income Tax department on 30.06.2022, Suryakant Tiwari had obstructed the officials from carrying their official duties and destroyed crucial incriminating documents and digital evidence about the alleged illegal extortion on Coal Transportation, payments collected by Suryakant Tiwari and his associates. 3. It is also case of the prosecution that on 13.09.2022, OM in F. No. 22-IT was forwarded by Central Board of Direct Taxes (for short "CBDT") to the Directorate of Enforcement containing the FIR No. 129/2022 Police Station-Kadugodi along with a report on the investigation conducted by the Income Tax Department on M/s Jay Ambey Group of Raipur (Suryakant Tiwari Group). In the report, it has been mentioned that during search operations on 30.06.2023 by Income Tax Department on the premises of Suryakant Tiwari and his associates, evidence was gathered related to a syndicated being operated and coordinated by Suryakant Tiwari whereby additional unauthorized cash to the tune of Rs. 25 per to....
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....earance of DO from the DO holder and only then he used to issue the NOC. Rahul Singh confirmed the modus operandi told by the applicant regarding collection of cash @ Rs. 25/ tonne. Rahul Singh in his statement inter-alia disclosed that when any coal transporter used to visit Mining Office, Surajpur regarding clearance of DO, he was informed by the applicant to contact with Rahul Singh and the DO will be cleared only after making payment @ Rs. 25/per ton to Rahul Singh and contact number of Rahul Singh was also provided by the applicant to the coal transporter/businessmen. When the payment @ Rs. 25/ton against the coal transportation was received, message was passed to the applicant by Roshan Singh for clearance of DOs. From the above, it is clear that the DOs were cleared by the applicant only after receipt of message from Rahul Singh, who used to send message for clearance of DO only after receipt of illegal levy on coal transportation. Thus, the applicant has knowingly and willingly assisted the extortion syndicate in committing the predicate crime of extortion and also in generation of proceeds of crime. 5. The record of the case would show that the applicant filed an applic....
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....me, the definition of "proceeds of crime" under Section 2 (1) (u) of the PMLA, 2002 will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence. 8. He would further submit that applicant is a public servant working as Assistant Mining Officer and Section 65 of the PMLA, 2002 clearly mandates that all the provisions of the Cr.P.C. shall be applicable under this Act unless it is inconsistent with the provisions of the PMLA, 2002. Thus, the provisions contained under Section 197 of the Cr.P.C. are salutary in nature whereas the Directorate of Enforcement has never obtained any sanction order for prosecuting the applicant by obtaining sanction for prosecution under Section 197 of the Cr.P.C. He would further submit that Hon'ble the Supreme Court in case of Directorate of Enforcement Vs. Bibhu Prasad Acharya [Criminal Appeal Nos. 4314-4316 of 2024 (order dated 06.11.2024] has categorically held that sanction to prosecute petitioner as public servant was mandatory and prerequisite to take cognizance and thus allowed the petition. In the instant case, the Directorate of Enforcement has never obtained any sanction....
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....for the Enforcement Directorate referring to the ECIR would submit that the role of the present applicant is that applicant who was posted as Assistant Mining Officer at Surajpur from 2019 to 2022 through Rahul Singh extorted money in Surajpur for coal transportation on behalf of Suryakant Tiwari who had received money @ Rs. 25/tonne from the companies whose DOs were to be cleared. Rahul Singh in his statement inter-alia disclosed that when any coal transporter used to visit Mining Office, Surajpur regarding clearance of DOs, he was informed by the applicant to contact with Rahul Singh and the DOs will be cleared only after making payment @ Rs. 25 per ton to Rahul Singh and contact number of Rahul Singh was also provided by the applicant to the coal transporter/businessmen. He has further stated that DOs were cleared by the applicant only after receipt of message from Rahul Singh, who used to send message for clearance of DO only after receipt of illegal levy on coal transportation. Thus, the applicant has knowingly and willingly assisted the extortion syndicate in committing the predicate crime of extortion and also in generation of proceeds of crime. 11. He would further submi....
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....t Special Leave Petition (Crl.) No. 8847/2023, Y.S. Jaganmohan Reddy Vs. CBI [Criminal Appeal No. 730/2013 arising out of SLP (Crl.) No. 3404/2013], State of Gujarat Vs. Mohanlal Jitamalji Porwal & others [(1987) 2 SCC 364] & Neeru Yadav Vs. State of U.P. & another [AIR (SC) (CRI) 2015 (0) 412]. 13. I have heard learned counsel for the parties and perused the documents placed on record including ECIR with utmost satisfaction. 14. From the above discussion, the point to be emerged for determination by this Court is:- "Whether the applicant fulfills twin conditions of Section 45 of the PMLA, 2002 for grant of bail"? 15. From bare perusal of the second prosecution complaint dated 30.01.2023, it is quite vivid that prima facie the Enforcement Directorate has collected evidence of offence of money laundering against the present applicant though its correctness is required to be adjudicated during trial. 16. Further submission of learned counsel for the applicant is that the applicant remained in jail since 25.01.2023 i.e. for about two years, therefore, he should be released on bail on account of long incarceration period. This cannot be considered and deserves to b....
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....e character, position and standing of the accused [see State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21]. 10. At the stage of granting bail the Court is not required to enter into a detailed analysis of the evidence in the case. Such an exercise may be undertaken at the stage of trial. 11. Once bail has been granted, the Appellate Court is usually slow to interfere with the same as it pertains to the liberty of an individual. A Constitution Bench of this Court in Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767 observed as follows: "3. ... It is for this reason that the Apex Court has evolved, as a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petition are filed against orders granting or refusing bail or anticipatory bail....We reiterate this policy principle laid down by the bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter." (emphasis supplied) ....
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......." 14. Recently, a three Judges' Bench of this Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & Anr. in Criminal Appeal No. 632 of 2022, has reiterated the factors that the Court must consider at the time of granting bail under Section 439 CrPC, as well as highlighted the circumstances where this Court may interfere when bail has been granted in violation of the requirements under the abovementioned section. This Court observed as follows: "27. We may, at the outset, clarify that power to grant bail under Section 439 of CrPC, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court of the Sessions Court must grant bail after the application of a judicial mind, following well-established principles, and not in a cryptic or mechanical manner." 17. This Court has already rejected the bail application of other co-accused persons who are also senior Government Officers. This Court while rejecting their bail application has recorde....
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....everity of the punishment prescribed for the alleged offences, the character of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witness being tempered with, the large interest of the public/ state etc. Though the findings recorded by the Court while granting or refusing to grant bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion while granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences." 18. Further contention of learned counsel for the applicant that the applicant is remained in custody for about two years, therefore, he should be released on bail, cannot be considered in view of the gravity of offence and prima facie involvement of the applicant in the commission of offence. Hon'ble the Supreme Court in case of Satyendar Kumar Jain Vs. Directorate of Enforcement [Criminal Appeal No. 1638 of 2024, decided on 18.03.2024] has held at paragraph 28 to 34 as under:- "28. From the above stated facts there rema....
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....spondent ED as alleged in the Prosecution Complaint under the PMLA. 30. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that the appellants have miserably failed to satisfy us that there are reasonable grounds for believing that they are not guilty of the alleged offences. On the contrary, there is sufficient material collected by the respondent-ED to show that they are prima facie guilty of the alleged offences. 31. Though Ms. Arora had faintly sought to submit that the so-called inadvertent mistake committed by the ED with regard to the figures mentioned in the Prosecution Complaint in respect of the role of the appellants Ankush Jain and Vaibhav Jain should not be permitted to be corrected, which otherwise show that the allegations against the appellants were vague in nature, we are not impressed by the said submission. We are satisfied from the explanation put forth in the affidavit filed on behalf of the respondent-ED that it was only an inadvertent mistake in mentioning the figure Rs. 1,53,61,166/- in the bracketed portion, which figure was shown by the CBI in its chargesheet. The said inadvertent mistake has n....
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....Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 20. From bare perusal of ECIR with regard to the allegations leveled against the present applicant, it is quite vivid that the present applicant has played a specific role in commission of offence. Investigation revealed that the applicant ha....
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....likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorized in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub-section (1) is in addition to the limitations ....
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....Court has neither considered the rigour of Section 45 of the PML Act, 2002 nor has considered the seriousness of the offences alleged against accused for the scheduled offences under the PML Act, 2002 and the High Court has not at all considered the fact that the investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is still going on and therefore, the impugned orders passed by the High Court enlarging respective respondent No. 1 on bail are unsustainable and the matters are required to be remitted back to the High Court for afresh decision on the bail applications after taking into consideration the observations made hereinabove." 22. Considering the ECIR and other material placed on record, which prima facie shows involvement of the applicant in crime in question and also considering the judgment of Hon'ble the Supreme Court in case of Saumya Chourasiya (supra) & Satyendar Kumar Jain (supra), it is quite vivid that the applicant is unable to fulfill the twin conditions for grant of bail as provided under Section 45 of the PMLA, 2002. Thus, Point involved in this bail application is answered against the applicant. 23. Further content....