TaxTMI 
TaxTMI 
2025 (10) TMI 1196
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....ey Laundering Act, 2002 (hereinafter referred to as the "PMLA"), arising out of Enforcement Case Information Report (in short the "ECIR") bearing no. PTZO/04/2024 dated 14.03.2024 and Addendum ECIR dated 20.09.2024. 3. Brief case of the prosecution (i). DoE initiated investigation upon instituting ECIR No. PTZO/04/2024 dated 14.03.2024, on the basis of Rupaspur P.S. Case No. 18/2023 dated 09.01.2023 for offences u/s 323, 341, 376, 376D, 420, 313, 120B, 504, 506 read with 34 of IPC, against accused Sanjeev Hans (I.A.S. Bihar Cadre 1997 Batch), Gulab Yadav (ex M.L.A., RJD, 2015-2020) and Lalit (servant of Gulab Yadav), alleging rape and sexual harassment of one Gayatri Kumari, cheating, criminal conspiracy, misuse of official position and involvement in corruption. In course of investigation of the said police case, DoE came across information disclosing offences, as such, in exercise of power under Section 66(2) of PMLA, shared information vide communication dated 28.08.2024 with Special Vigilance Unit (in short 'SVU') Bihar, Patna, who in turn instituted F.I.R. No. 5/2024 dated 14.09.2024, for offences under Section 61, 318(4) of Bharatiya Nyaya Sanhita, 2023 ('BNS&....
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....proceeding arising from FIR No. 18/2023 was quashed qua Sanjeev Hans by this Hon'ble Court vide its order dated 06.08.2024 passed in Cr.W.J.C. No. 310/2023. 6. Mr. Wadhwa submitted that immediately after 22 days, out of oblique motive, ED exercising power under section 66(2) of the PMLA, sent a letter to the Additional Director General of Police, Special Vigilance Unit, Government of Bihar, alleging corrupt activities of Gulab Yadav and Sanjeev Hans including alleged embezzlement and manipulation of govt. tenders. In the said communication, there was an allegation that Sanjeev Hans received Kickbacks from the vendor/contractor of Water Resources Department (in short the "WRD"), Govt. of Bihar and that the petitioner had purchased certain properties in his own name, which were actually "benami" properties of Sanjeev Hans. It is submitted by Mr. Wadhwa that this is the first instance that any allegation surfaced against this petitioner. 7. Explaining progress of implication, Mr. Wadhwa submitted that on the basis of communication dated 28.08.2024 under section 66(2) of the PMLA, sent by ED, the SVU registered one FIR bearing No. 05/2024 on 14.09.2024 under section 7 r/w 12 r/w,....
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....bribe paid to Sanjeev Hans, who, at that point of time, was the Secretary of Water Resources Department, Govt. of Bihar for grant of a tender allotted to one M/s. Tribeni Construction Ltd. (in short the "Tribeni") for a project near Paimar River in Biharsharif, Bihar which was subsequently sub-contracted to M/s. Matriswa. 12. Further, as per case of ED against petitioner, the said amount of Rs. 50 Lakhs was utilized by Kamal Kant Gupta to purchase an industrial plot worth Rs. 92.5 Lakhs admeasuring 500 sq. yards in Section 101A, IT City, Mohali. According to ED, out of a sum of Rs. 92.5 Lakhs Rs. 50 Lakhs was paid to one Jatinder Kumar Sangari (previous owner) by Kamal Kant Gupta and Rs. 10 Lakhs was paid from the account of Smt. Harloveleen Kaur, who is the wife of Sanjeev Hans. According to the ED, this amount of Rs. 50 Lakhs was also a bribe amount given to Sanjeev Hans. Therefore, based on the amount of Rs. 10 Lakhs borrowed from Smt. Harloveleen Kaur, out of the total consideration amount of Rs. 92.5 Lakhs for purchase of the said plot, the ED alleges that the said plot is nothing but a "Benani" property of Sanjeev Hans. 13. It is submitted that additionally ED has sough....
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....orni village, New Delhi was purchased by Sri Kamal Kant Gupta and fund for said property was arranged by this petitioner. Even assertion of said fact by the ED does not constitute any offence. 16. Arguing further, explaining the allegation against this petitioner, Mr. Wadhwa submitted that petitioner alleged by ED that he had close ties with co-accused Sanjeev Hans, referring various chats extracted from the mobile phone of Sanjeev Hans, which was seized vide panchnama dated 14.08.2024 and 16.08.2024 and secondly, on the ground that some financial transactions were made between Harloveleen Kaur, the wife of co-accused Sanjeev Hans and Kamal Kant Gupta. It is submitted that as it is evident from both prosecution complaints that entire case of the ED against petitioner is based upon confessional statement of Mr. Pawan Kumar Gupta, who is an arrested co-accused. It is pointed out that the statement made in custody is inadmissible and cannot be looked at even while deciding the bail application under Section 45 of the PMLA Act. It is also pointed out that the statement which made in the custody of ED was retracted by co-accused Pawan Kumar, immediately when coercion and force of ED ....
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....Hans. 20. In support of his aforesaid submissions, learned counsel has relied upon para 282 of the legal report of Vijay Madanlal Choudhary case (supra), which is as under:- "282. It should be noted that the authority of the Authorized Officer under the 2002 Act to prosecute any person for the offense of money laundering is triggered only if there are proceeds of a 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. It is possible that in a given case after the discovery of huge volume of undisclosed property, the authorized officer may be advised to send information to the jurisdictional police (under Section 66(2) of the 2002 Act) for registration of a scheduled offense contemporaneously, including for further investigation in a pending case, if any. On receipt of such information, the jurisdictional police would be obliged to reg....
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....owered to summon any person for the collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officers under this Act, although couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information and evidence so collated during the inquiry made, may disclose commission of offense of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offense of money-laundering. If the statement made by him reveals the offense of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purp....
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.... 26. It is also submitted that in connection of allegation qua payment of bribe of Rs.67 lacs, the alleged Excel file was said to be retrieved from a pen drive, which was seized form the office premises of "Matriswa", who was not sent for any forensic examination as to ascertain the details as to who is the owner of file, date of its creation, its version and history, therefore, it can be safely said that no real investigation qua allegation as raised against petitioner was ever made by ED, suggesting the implication of petitioner purely on the basis of presumption. It is established principle of law that any document be it even electronics can only be proved by its maker, otherwise the content of such document will considered as hearsay evidence. 27. In support of aforesaid submission, reliance was made on the decision of Hon'ble High Court of Delhi as available in the matter of L.K. Advani vs. Central Bureau of Investigation reported in 1997 SCC Online Del 382. 28. It is pointed out that no adverse interference can be drawn against the petitioner for the payment of Rs. 68.85 lacs made by Pawan Kumar to "Triveni" as to facilitate its participation in tender process while "T....
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.... Hon'ble Supreme Court categorically held as under:- "All that Section 45 of PMLA mentions is that certain conditions must be satisfied. The principle that, 'bail is the rule and jail is the exception' is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which must be a valid and reasonable procedure. Section 45 of PMLA, by imposing twin conditions, does not rewrite 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." 33. Beside aforesaid, it is also pointed out that the present case falls under the explainable clause as proceed of crime is less than one crore in present case, in view of aforesaid submission. ARGUMENT ON BEHALF OF ED: 34. Mr. Zohaib Hossain, learned special counsel appearing for....
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....cting it as untainted property or claiming it to be so." 35. Therefore, the involvement of any of such process of activity connected with the proceed of crime would constitute offence of money laundering. This offence otherwise has nothing to do with the criminal activities relating to the scheduled offence except the proceed of crime derived or obtained as a result of the crime. Petitioner works in close association with co-accused Sanjeev Hans and thus, played an active role in laundering of money. 36. It is further submitted by Mr. Hossain that no doubt statement of co-accused is generally considered weak evidence but, if it found corroborated by other circumstances or independent evidence, same can be relied upon. In support of this submission, reliance was placed on the basis of State vs. Nalini reported in (1999) 5 SCC 253 [Rajeev Gandhi assassination case]. Moreover, there are various judicial precedents which laid down that statement under Section 50 of the PMLA are admissible and can be relied upon to reject bail. In support of this submission, learned counsel relied upon Vijay Madanlal Choudhary case (supra); Tarun Kumar vs. Enforcement Directorate [(2023) SCC OnLin....
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....the cash-intensive nature of their fuel business, which required frequent deposits of collected cash from fuel sales into the bank, the arrangement appeared mutually beneficial for both Shri Pawan Kumar and M/s Pragati Fuel Centre. Therefore, the over-invoices of fuel in the name of "Matriswa" were made and in return, difference amount of the over-invoices of fuel used to be given to Sri Pawan Kumar in cash. Shri Gulshan further stated that the entries reflected in the seized document pertaining to this arrangement only. 40. It is further argued that an amount of Rs. 50 lakhs received from the account of Matriswa had been further transferred to one Jatinder Kumar Sangari, a property dealer of Panchkula. An industrial plot, measuring 500 square yards in sector 101A, IT City, Mohali was purchased by Kamal Kant Gupta jointly with his son-in-law, i.e., Varun Singla, on 31.08.2020 for an amount of Rs. 92.50 lakhs. Investigation revealed that out of Rs. 92.50 lakhs Rs. 10 lakhs had been paid to Sri Jatinder Kumar Sangari from account no. 913010025523731 of Smt. Harloveleen Kaur w/o Sanjeev Hans through cheque number 107782 on 24.08.2020. It is pertinent to mention here that the said t....