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2025 (11) TMI 1447
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.... 420, 465, 467, 468 and 471 of the Indian Penal Code, pending in the court of learned Special Judge CBI- cum- PML Act, Ranchi. Factual Matrix of the Case 2. An ECIR bearing No. ECIR/RZNO/18/2024 was recorded on 23.09.2024 based on the Complaint Case Nos.678 of 2024, 1280 of 2024 and 1281 of 2024 before the learned Court of Economic Offences, Jamshedpur against the petitioner and other persons. Subsequently, the prosecuting agency, i.e., the Directorate of Enforcement while observing that Sections 420, 467 and 471 of the Indian Penal Code are scheduled offences under Part-A, Paragraph 1 of the PML Act, 2002 initiated the investigation under Prevention of the Money Laundering Act, 2002 by registering Enforcement Case Information Report having ECIR bearing No. ECIR/RZNO/18/2024 dated 23.09.2024. 3. The petitioner was arrested on 08.04.2024, by the officers of the Directorate General of GST Intelligence (hereinafter referred as DGGSTI) from the residential house at Kolkata and was produced before the learned Additional Chief Judicial Magistrate, Alipore at Kolkata and a transit remand was sought for, from the learned Trial Court at Kolkata for alleged offences of inadmissible/....
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....fore the learned Court of Chief Judicial Magistrate, Calcutta by filing Remand Petition, seeking transit remand of the petitioner and vide order dated 08.05.2025, the same was allowed by the learned Chief Judicial Magistrate, Calcutta. 10. The learned Advocate of the petitioner, objected to the manner in which the petitioner was arrested, sent an E-mail dated 09.05.2025, to the Enforcement Directorate, Delhi, regarding the manner in which the petitioner was arrested. 11. Thereafter, on 10.05.2025, the petitioner was produced before the learned Trial Court by filing an application under Section 187 of the Bharatiya Nagarik Suraksha Sanhita, 2023, read with Section 65 and 19(3) of the Prevention of Money Laundering Act, 2002, for remanding the petitioner to the Judicial Custody and vide order dated 10.05.2025, the same was allowed by the learned Trial Court. 12. Being aggrieved, the petitioner approached the learned Trial Court in M.C.A. No. 1074 of 2025, for grant of regular bail and vide order dated 02.07.2025, the said regular bail application of the petitioner was rejected by the Special Court, PML Act, Ranchi. 13. Thereafter, the prosecuting agency filed the Prosecut....
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....d and in order to fortify this limb of argument reliance has been placed upon the judgment rendered by Hon'ble Apex Court in the case of V. Senthil Balaji Vs. State Represented by Deputy Director & Ors. [(2024) 3 SCC 51; Prabir Purkayastha Vs. State (NCT of Delhi) [2024 SCC OnLine 934; and recently in the case of Arvind Kejriwal Vs. Directorate of Enforcement [2024 SCC OnLine SC 1703] and in addition thereto the judgment rendered in the case of Vihaan Kumar v. State of Haryana, 2025 SCC OnLine SC 269 has also been relied upon. VIII. Submission has also been made that the statutory provision, as contained under Section 19(1) of the PML Act, has been clarified by the Hon'ble Apex Court while dealing with PML Act, 2002 in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., [(2022) SCC On Line SC 929]. IX. Further submission has been made that subsequent to the judgment passed by Hon'ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) again on the issue consideration has been given by Hon'ble Apex Court in the case of Pankaj Bansal vs. Union of India and Ors., (supra) followed by ju....
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....that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever. III. It is incorrect on the part of the petitioner to take a ground that the grounds of arrest and reason to believe has not been supplied to his near relatives or friends, rather each and every document has been supplied, i.e., the grounds of arrest and reason to believe which would be evident from the documents as appended as Annexure-4 series showing the acknowledgement of receipt of the petitioner on 08.05.2025 at 7:15 PM. (running page no.245 of the petition) IV. The ground of arrest has also been supplied to the friends of the petitioner to whom it was asked to supply as per the reference of the name of Rajat Bhandari, who was said to be friends of the petitioner, has been communicated over telephone bearing no xxxxx87799 the reason for the same is that his friend has not agreed to come. V. The fact about the grounds....
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.... the case based upon the ground of arrest and reason to believe as has been supplied to him by the Enforcement Directorate and in his presence the detail order was passed on 08.05.2025, hence, it cannot be said on behalf of the petitioner that the ground of arrest and reason to believe has not been supplied and prejudice has been caused. XII. The question of prejudice is not available the moment the petitioner was represented by the learned counsel, i.e., on the basis of the communication given by the Enforcement Directorate to his friend namely, Rajat Bhandari. XIII. The learned counsel appearing for the O.P-ED has further submitted that since all the parameters of arrest, i.e., supply of grounds of arrest and reason to believe has already been communicated and information regarding arrest of the petitioner has been given to the friend of the petitioner and thereafter producing the petitioner forthwith before the learned Chief Judicial Magistrate, Calcutta seeking for transit remand wherein the prayer for bail has also been made on behalf of the petitioner being represented by the learned counsel, hence, in the facts of the present case, the ratio laid down by th....
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....ted 23.09.2024. XIX. Submission has been made that ground which has been advanced that neither the statement of other co-accused persons is to be taken into consideration since it is recorded while they were in custody but the law is otherwise as has been held by Hon'ble Apex Court in the case of Rohit Tandon vs. Directorate of Enforcement (2018) 11 SCC 46 wherein the statement if recorded of the co-accused persons in custody under Section 50 of the PML Act will also have the impact in implicating a person under Section 3 of the PML Act and exactly the case herein. 18. Learned counsel for the O.P-Enforcement Directorate, based upon the aforesaid grounds, has submitted that it is not a fit case where the prayer for bail is to be allowed taking into consideration his involvement in directly acquiring the proceeds of crime. Discussion: 19. This Court has heard the learned counsel for the parties, gone across the pleading available on record as also the finding recorded by learned trial court. 20. This Court, before appreciating the argument advanced on behalf of the parties, deems it fit and proper to discuss herein some of the provision of law as contained un....
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....s a result of any criminal activity relatable to the scheduled offence. 26. The "property" has been defined under Section 2(1)(v) which means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located. 27. The schedule has been defined under Section 2(1)(x) which means schedule to the Prevention of Money Laundering Act, 2002. 28. It is evident that the "scheduled offence" means the offences specified under Part A of the Schedule; or the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or the offences specified under Part C of the Schedule. 29. The offence of money laundering has been defined under Section 3 of the PML Act, 2002 wherein it has been stipulated that whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or....
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.... object and intent of the Act, 2002, as would appear from paragraph 128, 129 and 130. For ready reference, relevant paragraph is being referred as under: "128. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression "including", which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provision (as also the Explanation) predicates that if a person is found to be directly or indirectly involved in any process or activity connected with the proceeds of crime must be held guilty of offence of money laundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word "and" preceding the expression "projecting or claiming" therein. 129.This Court in Pratap Singh v. State of Jharkhand, enunciated that the in....
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....respect of acts of commission and omission by the banking companies, financial institutions and intermediaries. From the setting in which Section 50 has been placed and the expanse of empowering the Director with same powers as are vested in a civil Court for the purposes of imposing fine under Section 13, is obviously very specific and not otherwise. 331. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression "proceeding" in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evide....
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....e", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court roo....
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...., the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. 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. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence. 342. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government." 37. It is e....
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....ng in force on granting of bail. 41. The explanation is also there as under sub-section (2) thereof which is for the purpose of removal of doubts. A clarification has been inserted that the expression "Offences to be cognizable and non- bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section. 42. The fact about the implication of Section 45 has been interpreted by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) at paragraphs-268-270. For ready reference, the said paragraphs are being referred as under: "268. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub-sect....
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.... offence and he is not likely to commit any offence while on bail. It has further been observed that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. 44.The Hon'ble Apex Court in the said judgment has further laid down that the twin conditions as to fulfil the requirement of Section 45 of the Act, 2002 before granting the benefit of bail is to be adhered to which has been dealt with by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) wherein it has been observed that the accused is not guilty of the offence and is not likely to ....
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....ovisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. 48. Therefore, the conditions enumerated in Section 45 of PML Act, 2002 will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money- laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. 49. It requires to refer herein that the Hon'ble Apex Court in Satender Kumar Antil vs. CBI and Anr., (2022) 10 SCC 51 has passed the order that if the investigation has been completed and if there is full cooperation of the accused persons, there may not be any arrest. The Hon'ble Apex Court categorised the offences in different group for purpose of bail. The reference may be taken from Paragraph -2 of the aforesaid judgment which reads as under: "2. After allowing the application for intervention, an appropriate order was passed on 7-10-2021 [Satender Kumar Antil v. CBI, (2021) 10 SCC 773 : (2022) 1 SCC (Cri) 153] .....
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.... (e) Bail applications of such accused on appearance may be decided without the accused being taken in physical custody or by granting interim bail till the bail application is decided. CATEGORIES B/D On appearance of the accused in court pursuant to process issued bail application to be decided on merits. CATEGORY C Same as Categories B and D with the additional condition of compliance of the provisions of Bail under NDPS (Section 37), Section 45 of the PMLA, Section 212(6) of the Companies Act, Section 43-D(5) of the UAPA, POSCO, etc. 50. However, the Hon'ble Apex Court recently in the case of Gurwinder Singh vs. State of Punjab and Anr., 2024 SCC OnLine SC 109, in the matter of UAP Act 1967 has observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the 'exercise' of the general power to grant bail under the UAP Act is severely restrictive ....
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....er contra, the learned counsel for the O.P-ED has submitted that it is incorrect on the part of the petitioner to take the ground that the reason for arrest has not been communicated rather the reason for arrest has been communicated along with the exhaustive grounds, the day when the petitioner was arrested, which would be evident from running page 245 of the petition wherein annexure -4 has been appended in which the entire details has been furnished regarding the the reason to believe for arrest of the present petitioner. 55.In the aforesaid context, it needs to refer herein the core of the Section 19 the Act 2002, for ready reference the same is being quoted as under: 19. power to arrest .- (1) if the director, deputy director, assistant director or any other officer authorised in this behalf by the central government by general or special order, has on the basis of material in his possession, reason to believe (the reason for such belief to be recorded in writing) that any person has been guilty of an offence punishable under this act, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. (2) the direct....
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....rson is guilty of money laundering offence, if revealed before the inquiry/investigation required to proceed against the property being proceeds of crime including to the person involved in the process or activity connected therewith, may have deleterious impact on the final outcome of the inquiry/investigation. So long as the person has been informed about grounds of his arrest that is sufficient compliance of mandate of Article 22(1) of the Constitution. Moreover, the arrested person before being produced before the Special Court within twenty-four hours or for that purposes of remand on each occasion, the court is free to look into the relevant records made available by the authority about the involvement of the arrested person in the offence of money laundering. In any case, upon filing of the complaint before the statutory period provided in the 1973 Code, after arrest, the person would get all relevant materials forming part of the complaint filed by the authority under Section 44(1)(b) of the 2002 Act before the Special Court. 372. Viewed thus, supply of ECIR in every case to the person concerned is not mandatory. From the submissions made across the Bar, it is noti....
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.... Pankaj Bansal has taken into custody, which would be evident from discussion of the factual aspect, which would be evident from following paragraphs of the judgment, which reads as under: "2. The genesis of these appeals is traceable to FIR No. 0006 dated 17-4 2023 registered by the Anti-Corruption Bureau, Panchkula, Haryana, under Sections 7, 8, 11 and 13 of the Prevention of Corruption Act, 1988, read with Section 120- BIPC for the offences of corruption and bribery along with criminal conspiracy. The names of the accused in this FIR are: "(i) Mr Sudhir Parmar (the then Special Judge, CBI and ED, Panchkula); (ii) Mr Ajay Parmar [nephew of Mr Sudhir Parmar and Deputy Manager (Legal) in M3M Group]; (iii) Mr Roop Bansal (promotor of M3M Group); and (iv) other unknown persons. " 3. Significantly, prior to this FIR, between the years 2018 and 2020, 13 FIRs were gotten registered by allottees of two residential projects of the IREO Group, alleging illegalities on the part of its management. On the strength of these FIRs, ED recorded Enforcement Case Information Report No. GNZO/10/2021 dated 15-6-2021 (hereinafter "the first ECIR") in connection with the money launder....
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....Crl.) Nos. 7384 and 7396 of 2023 were filed by ED assailing the orders dated 9- 6 2023 [Basant Bansal v. State (NCT of Delhi), (2023) 2 HCC (Del) 700], [Pankaj Bansal v. State (NCT of Delhi), 2023 SCC OnLine Del 3590], [Basant Bansal v. State (NCT of Delhi), (2023) 2 HCC (Del) 700] before this Court and the same are stated to be pending. 5. In the meanwhile, on the basis of FIR No. 0006 dated 17-4-2023, ED recorded another ECIR viz.ECIR/GNZO/17/2023, on 13-6-2023 (hereinafter "the second ECIR") against: (i) Mr Sudhir Parmar; (ii) Mr Ajay Parmar; (iii) Mr Roop Bansal; and (iv) others who are named in the FIR/unknown persons. 6. However, summons were issued by ED to Pankaj Bansal and Basant Bansal on 13-6-2023 at 6.15 p.m. in relation to the first ECIR, requiring them to appear before ED on 14-6-2023 at 11.00 a.m. Though the copy of the summons placed before this Court pertains to Pankaj Bansal alone, the email dated 13-6-2023 of the Assistant Director of ED, bearing the time 6.15 p.m., was addressed to both Pankaj Bansal and Basant Bansal and required their compliance with the summons on 14-6-2023 at 11 a.m. While Pankaj Bansal and Basant Bansal were at the office of ED at Rajokri, ....
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....nder Section 4 PMLA; (ii) The word "guilt" occurring therein would qualify a higher yardstick than a mere suspicion and the learned Court at the stage of remand is required to apply its judicial mind to the grounds as well as necessity for arrest as, inter alia, held in Arnesh Kumar v. State of Bihar [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449] and as accorded imprimatur in Satender Kumar Antil v. CBI [Satender Kumar Antil v. CBI, (2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1] ; (iii) The expression "communicate" occurring therein would definitely entail physical communication and furnishing the grounds of arrest to the arrestee in the context of the obligation for "reason for such belief to be recorded in writing" read with Rules 2(1)(g) and 2(1)(h) of the PMLA Rules, 2005 (the Arrest Rules) which postulates the meaning of the word "order" to include the grounds of such arrest." 61. The Hon'ble Apex Court in the aforesaid pretext has laid down the proposition to communicate the reasons for arrest in writing by making reference of word 'henceforth'. The Hon'ble Apex Court while considering the particular case of said Pankaj Bansal has con....
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....Akhtar Qureshi v. Union of India, 2017 SCC OnLine Del 12108] and the Bombay High Court in Chhagan Chandrakant Bhujbal [Chhagan Chandrakant Bhujbal v. Union of India, 2016 SCC OnLine Bom 9938 : (2017) 1 AIR Bom R (Cri) 929], which hold to the contrary, do not lay down the correct law. In the case on hand, the admitted position is that ED's investigating officer merely read out or permitted reading of the grounds of arrest of the appellants and left it at that, which is also disputed by the appellants. As this form of communication is not found to be adequate to fulfil compliance with the mandate of Article 22(1) of the Constitution and Section 19(1) PMLA, we have no hesitation in holding that their arrest was not in keeping with the provisions of Section 19(1) PMLA. Further, as already noted supra, the clandestine conduct of ED in proceeding against the appellants, by recording the second ECIR immediately after they secured interim protection in relation to the first ECIR, does not commend acceptance as it reeks of arbitrary exercise of power. In effect, the arrest of the appellants and, in consequence, their remand to the custody of ED and, thereafter, to judicial custody, cann....
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....nded by the Constitution Benches in cases referred above. The three-Judge Bench in Vijay Madanlal Choudhary [Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1 : 2022 SCC OnLine SC 929] having already examined in detail the constitutional validity of Section 19 PMLA on the touchstone of Article 22(1) and upheld the same, it holds the field as on the date. 63. Further, The Hon'ble Apex Court in the aforesaid judgment while taking in to consideration the judgment passed in the case of Pankaj Bansal Vs. Union of India & Ors (supra), come out with a view that since by way of safeguard a duty is cast upon the officer concerned to forward a copy of the order along with the material in his possession to the adjudicating authority immediately after the arrest of the person, and to take the person arrested to the court concerned within 24 hours of the arrest, in our opinion, the reasonably convenient or reasonably requisite time to inform the arrestee about the grounds of his arrest would be twenty-four hours of the arrest. However, the Hon'ble Apex Court refused to invalidate the arrest of said Ram Kishor Arora. For ready reference, the relevant paragraph of the judgmen....
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.... arrest was not mandatory or obligatory till the date of the said judgment. The submission of the learned Senior Counsel Mr Singhvi for the appellant that the said judgment was required to be given effect retrospectively cannot be accepted when the judgment itself states that it would be necessary "henceforth" that a copy of such written grounds of arrest is furnished to the arrested person as a matter of course and without exception. Hence, non-furnishing of grounds of arrest in writing till the date of pronouncement of judgment in Pankaj Bansal case [Pankaj Bansal v. Union of India, (2024) 7 SCC 576] could neither be held to be illegal nor the action of the officer concerned in not furnishing the same in writing could be faulted with. As such, the action of informing the person arrested about the grounds of his arrest is a sufficient compliance of Section 19 PMLA as also Article 22(1) of the Constitution of India, as held in Vijay Madanlal [Vijay Madanlal Choudhary v. Union of India, (2023) 12 SCC 1 : 2022 SCC OnLine SC 929] . 64. Thereafter, the Hon'ble Apex Court has considered the issue of Section 19(1) in the case of Prabir Purkayastha Vs. State (NCT of Delhi) (supra) ....
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....nd of arrest of the appellant has not been furnished but the Hon'ble Apex Court has passed the order that merely because the judgment in the case of Pankaj Bansal Vs. Union of India & Ors (supra) has been uploaded on 04.10.2023 but the said Prabir Purkayastha was arrested on 04.10.2023 while the judgment passed in the case of Pankaj Bansal Vs. Union of India & Ors (supra) was delivered on 03.10.2023 and as such the case of Prabir Purkayastha has come within the ratio of judgment rendered in the case of Pankaj Bansal Vs. Union of India & Ors (supra) and since the written communication was not there, hence, he was directed to be released on bail, for ready reference the relevant paragraph is being quoted as under :: 29. Hence, we have no hesitation in reiterating that the requirement to communicate the grounds of arrest or the grounds of detention in writing to a person arrested in connection with an offence or a person placed under preventive detention as provided under Articles 22(1) and 22(5) of the Constitution of India is sacrosanct and cannot be breached under any situation. Non-compliance of this constitutional requirement and statutory mandate would lead to the c....
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....the arrestee is guilty of the offence, and to furnish the reasons to the arrestee. This ensures an element of fairness and accountability. 16. Recently, in Prabir Purkayastha v. State (NCT of Delhi), this Court reiterated the aforesaid principles expounded in Pankaj Bansal (supra). The said principles were applied to the pari materia provisions of the Unlawful Activities (Prevention) Act, 1967. The Court explained that Section 19(1) of the PML Act is meant to serve a higher purpose, and also to enforce the mandate of Article 22(1) of the Constitution. The right to life and personal liberty is sacrosanct, a fundamental right guaranteed under Article 21 and protected by Articles 20 and 22 of the Constitution. Reference was made to the observations of this Court in Roy V.D. v. State of Kerala17 that the right to be informed about the grounds of arrest flows from Article 22(1) of the Constitution and any infringement of this fundamental right vitiates the process of arrest and remand. The fact that the chargesheet has been filed in the matter would not validate the otherwise illegality and unconstitutionality committed at the time of arrest and grant of remand custody of the a....
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.... of the Penal Code, 1860 has been invoked. 72. These offences are scheduled offences within the meaning of Section 2(y) of the PMLA. Therefore, relying on the final reports filed in aforementioned scheduled offences, for an offence of money laundering under Section 3 of the PMLA punishable under Section 4, the Enforcement Directorate (ED) registered an Enforcement Case Information Report (for short-ECIR‖) bearing ECIR No. MDSZO/21/2021 on 29th July 2021. 73.Consequently, the appellant was arrested on 14th June 2023 in connection with the said ECIR and was remanded to judicial custody. A complaint was filed for the offence under Section 3 of the PMLA Act, which is punishable under Section 4, on 12th August 2023. The appellant is the only accused named in the complaint. Cognizance has been taken based on the complaint by the Special Court under the PMLA. The scheduled offences cases have been transferred to the learned Assistant Sessions Judge, Additional Special Court for Trial of Criminal Cases related to Elected Members of Parliament and Members of Legislative Assembly of Tamil Nadu (Special MPMLA Court), Chennai. 74. The Hon'ble Apex Court while taking note of ....
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....22 of the Constitution of India has held that the requirement of informing the person arrested of the grounds of arrest is not a formality but a mandatory constitutional requirement. Article 22 is included in Part III of the Constitution under the heading of Fundamental Rights. Thus, it is the fundamental right of every person arrested and detained in custody to be informed of the grounds of arrest as soon as possible. The Hon'ble Apex Court has further observed as under: 15. We have already referred to what is held in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal1. This Court has suggested that the proper and ideal course of communicating the grounds of arrest is to provide grounds of arrest in writing. Obviously, before a police officer communicates the grounds of arrest, the grounds of arrest have to be formulated. Therefore, there is no harm if the grounds of arrest are communicated in writing. Although there is no requirement to communicate the grounds of arrest in writing, what is stated in paragraphs 42 and 43 of the decision in the case of Pankaj Bansal1 are suggestions that merit consideration. We are aware that in every case, it may not be....
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....of arrest. 84. Further the order of transit remand dated 08.05.2025 passed by the learned C.J.M, Calcutta has been led before this Court and with consent of both the parties the order became the part of record. It is evident from the aforesaid order that the petitioner was produced before the learned CJM, Calcutta within statutory 24 hour period and the learned Court of CJM after due consideration found the arrest to be proper and granted the transit remand. The relevant part of the aforesaid order is being quoted as under: Perused case record. Heard both sides. Considered. It appears that this is case U/Sec. 201/204/420/465/467/468/471 of IPC. Ld Special Court (PMLA), Ranchi has already taken cognizance of the offence and the matter is pending before that Court, The original case record is lying with that Court only. The allegation against these accused persons are that a syndicate is operational in several parts of India, which is indulged in creation, operation and management of fake companies for passing on ineligible ITC by issuing fake GST Bills without actually delivering the related goods and services and the accused persons are part of such syndicate. ....
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....nformed to communicate to his friend over the telephone as would be evident from column no.5 of the arrest memo which has been annexed as Annexure-4 to the petition. 88. Accordingly, the said friend has been informed but he was not agreed to come to the residence of the petitioner where the petitioner has been taken into custody. 89.This Court is not going to the issue whether the said friend has refused to come to the residence or not, rather this Court is proceeding that even if the friend whose name has been disclosed by the petitioner has not come to the residence of the petitioner whether any prejudice has been caused to the petitioner, if the petitioner has been duly represented by the learned counsel in the Court of the learned Chief Judicial Magistrate, Calcutta on 08.05.2025 at 10:10 PM. 90.This Court has gone through the order dated 08.05.2025 relevant part as referred and quoted hereinabove, although the same has not been brought on record by the petitioner, rather it has been placed for its perusal by the learned counsel appearing for the O.P-ED, copy of which has been handed over to the learned senior counsel appearing for the petitioner and recording his no o....
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....ed position that within 24 hours of the arrest, the arrestee was produced before the learned CJM Court for transit remand therefore the legal requirement of informing the grounds of arrested "as soon as may be" also stood fulfilled as per the statutory requirement under S. 19(1) of the PMLA as well as the constitutional mandate under Article 22(1) of the Constitution of India. Thus as per the of mandate of Hon'ble Supreme Court rendered in the case of Pankaj Bansal (supra) has been complied with by the respondent. So far the "reason to believe" is concerned the same has also been complied with and the acknowledgment to this effect was obtained. Hence, the law as it prevailed on the date of arrest was complied with. 99.This Court is conscious with the fact that the moment a person is being arrested that infringes the fundamental right of personal liberty as provided under Article 21 of the Constitution of India and as such without any valid reason the personal liberty of the person cannot be infringed. 100. This Court, in view of the discussions made hereinabove and taking into consideration the aforesaid fact is of the view that the mandatory provision as contained under ....
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....ted goods and services and the persons namely Shiva Kumar Deora, Sumit Kumar Gupta and present petitioner Amit Kumar Gupta are a part of the said syndicate who are knowingly a party with each other and or directly involved in illegal activities of creation of fake companies / firms in the name of various dummy directors/ proprietors in order to avail and pass on ITC to several end beneficiaries in lieu of money, which are proceeds of crime. Further, it has been stated in the complaints that several bogus GST invoices have been generated in Delhi and have traveled to Jharkhand via West Bengal in three to four layers. A portion of these bogus ITCs have also been transferred to other State such as Tamil Nadu, Telangana, Andhra Pradesh, Maharashtra and Odisha and bogus ITC claims have also been taken on the basis of the said fake invoices. As per aforesaid complaint cases Shiva Kumar Deora is the mastermind behind the said fraud committed of availing ITC on the strength of bogus invoices, by way of creation of multiple companies/firms in the name of innocent persons. They hired innocent and needy persons in the name of job at the remuneration of Rs. 10,000/- to 15,000/- per month and t....
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....d for the offence u/s 3 PML Act punishable u/s 4 of the PML Act on 08.05.2025, hence this petition. 106. Now adverting to the contention of the learned counsel for the parties on the point of culpability of the petitioner. 107. The learned senior counsel for the petitioner has submitted that the allegation leveled against the present petitioner cannot be said to attract the ingredient of Section 3 of PML Act, 2002. 108. While on the other hand, the learned counsel appearing for the ED has submitted by referring to various paragraphs of prosecution complaint that the offence is very much available attracting the offence under provisions of PML Act, 2002. 109. This Court, in order to appreciate the rival submission, is of the view that various paragraphs of prosecution complaint upon which the reliance has been placed on behalf of both the parties, needs to be referred herein so as to come to the conclusion as to whether the parameter as fixed under Section 45(ii) of the Act 2002, is being fulfilled in order to reach to the conclusion that it is a fit case where regular bail is to be granted or not. 110. For ready reference the relevant paragraphs of the prosecution co....
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....flimsy explanation of them being re-deposits of his own withdrawals. He also admitted to using the proceeds of crime to acquire assets, including high-value flats in Kolkata and Lucknow, and funding the repayment of loans for these properties from the same illicit earnings. His statements amount to a direct confession to his role in the generation, acquisition, layering, and use of proceeds of crime. 9.3 Statement of Shri Amit Kumar Gupta (Accused-3) (RUD-9 and RUD-21): In his statements recorded on 08.05.2025, 03.06.2025, 04.06.2025, and 05.06.2025, the accused Amit Kumar Gupta confessed to his role as a key mastermind and the primary financial manager of the syndicate. He admitted to establishing and controlling key entities like M/s Tirumala Enterprise and M/s Tirubala Manufacturing & Marketing Pvt. Ltd. He confessed that 30-40% of his business involved generating bogus invoices without any actual supply of goolis. He specifically admitted to providing fake invoices worth crores to other beneficiaries, including Amit Agarwal@ Vicky Bhalotia (Accused-4) (23-5 crores) and Vivek Narsaria (15-7 crores). He detailed his use of various Angadias' for cash transfer....
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..... She vehemently denied any knowledge of the fraudulent activities, including the generation of fake invoices or the illegal passing of ITC. Upon discovering the fraud, she filed a formal complaint with the Kolkata Police, corroborating her claim of being a victim of identity theft. 9.7 Statement of Ms. Nijhum Nag Chowdhury (recorded on 54.06.2025) (RUD-24): Ms. Nijhum Nag Chowdhury stated that she was introduced to Shiva Kumar Deora (Accused-1) and Amit Gupta (Accused-3) in 2019 for a part-time job with a salary of 15,000 per month. She was unaware that she had been made a Director/Proprietor in entities like M/s Sweko Enterprise (OPC) Pvt. Ltd. and M/s Modicum Enterprise (OPC) Pvt. Ltd. until she received summons from tax authorities. She asserted that the accused misused her personal documents and those of her family members. She confessed that Sumi supta frequently contacted her for OTPs for "office related work," which she provided in good faith Crucially, she stated that Shiva Kumar Deora (Accursed-1) threatened her, warning her not to cooperate with the DGGI investigation, which establishes his role in witness intimidation. 12 SPECIFIC ROLE OF THE ....
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....into the legitimate economy including payments of his personal expenses/purposes from the credit cards maintained in the name of shell entities. He had admitted to investing the commission earned from the fake invoking scam into acquiring multiple high-value immovable properties worth cez 14.35 crores. He also acquired luxury vehicles, including an Audi, a Volvo, and a Jeep Compass, using the illicit gains from the fraud. B. Conclusion of Role and Liability for Punishment under Section 4 of PMLA Shri Amit Kumar Gupta was a key mastermind who managed the financial lifeblood of the criminal syndicate. His role was not limited to financial management, he was also actively involved in creating the fraudulent infrastructure, and he personally benefited from it. His attempts to destroy evidence and influence witnesses by instructing them to file false FIRs against officials further demonstrate his culpability. In view of the foregoing, as Shri Amit Kumar Gupta has directly indulged, knowingly was a party, and was actually involved in the processes and activities of preparation, concealment, possession, acquisition, layering, use, and projection of proceeds of c....
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.... deep into the merits of the case and only a view of the court based on available material on record is required. For ready reference the relevant paragraph is being quoted as under: 303. We are in agreement with the observation made by the Court in Ranjitsing Brahmajeetsing Sharma [Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC 294 : 2005 SCC (Cri) 1057] . The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the court based on available material on record is required. The court will not weigh the evidence to find the guilt of the accused which is, of course, the work of the trial court. The court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into consideration by the trial court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad [Nimmagadda Prasad v. CBI, (2013) 7 SCC 466 : (2013) 3 SCC (Cri) 575], the words used in Section 45 of the 2002 Act are....
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....ence, it appears that the petitioner is directly indulged and is actually involved in all the activities connected with the offence of money laundering, i.e., use or acquisition, possession, concealment, and projecting or claiming as untainted property, as defined u/s 3 of PML Act, 2002. 120. Further, the role of the petitioner in the laundering of proceeds of crime generated out of the commission of scheduled offence has been discussed in detail in the prosecution complaint as the paragraphs abovementioned. 121. In this context, it is pertinent to mention here that the provisions of the PML Act, 2002 is an independent offence and the investigation conducted by the Enforcement Directorate under the PML Act, 2002 is triggered after committing, the commission of a scheduled offence, out of which proceeds have been generated. During the investigation, there is the active involvement of the petitioner in the layering, transfer and use as well as the petitioner entering into transactions to launder the proceeds of crime generated out of such scheduled offence. 122. Thus, prima-facie, it appears that the petitioner has involved himself in accumulating proceeds of crime and the a....
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....of the co-accused, who were already in custody cannot be used against the present petitioner as per the mandate of judgment rendered by the Hon'ble Apex Court in the case of Prem Prakash Vs. Union of India through the Directorate Of Enforcement(supra) . 126. In the aforesaid context it needs to refer herein that there is no dispute regarding the settled proposition of law that the statements recorded which are merely confessional in nature ought to be ignored while adjudicating upon a case as confessional statement of co-accused cannot be treated as substantive evidence and such statements can only be pressed into service when the Hon'ble Courts are inclined to accept other evidences. Thus, instead of placing reliance solely upon the statements of the petitioner and the other co-accused persons recorded under Section 50 of PMLA, the opposite party ought to have collected and relied upon other evidence in order to prosecute the petitioner. 127. Herein The argument is that the imputation of the petitioner is based upon the statement recorded under section 50 of the PML Act, 2002 of the co-accused person, namely, Shiva Kumar Deora while he was in custody but this Court a....
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.... is, therefore, not possible for us to record satisfaction that there are reasonable grounds for believing that the appellant is not guilty of such offence. Further, the courts below have justly adverted to the antecedents of the appellant for considering the prayer for bail and concluded that it is not possible to hold that the appellant is not likely to commit any offence ascribable to the 2002 Act while on bail. Since the threshold stipulation predicated in Section 45 has not been overcome, the question of considering the efficacy of other points urged by the appellant to persuade the Court to favour the appellant with the relief of regular bail will be of no avail. In other words, the fact that the investigation in the predicate offence instituted in terms of FIR No. 205/2016 or that the investigation qua the appellant in the complaint CC No. 700 of 2017 is completed; and that the proceeds of crime are already in possession of the investigating agency and provisional attachment order in relation thereto passed on 13-2-2017 has been confirmed; or that charge-sheet has been filed in FIR No. 205/2016 against the appellant without his arrest; that the appellant has been lodged in j....
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....nts recorded under the Cr.PC. The Court underscored that such statements, being recorded during an inquiry rather than an investigation, are not subject to the restrictions under Article 20(3) and Article 21 of the Constitution. Instead, they are deemed to be judicial proceedings under Section 50(4) of the PML Act, 2002 and, therefore, admissible as evidence in proceedings under the PML Act, 2002. The Hon'ble Apex Court further clarified that the provisions of Section 50 of the PML Act, 2002 having an overriding effect by virtue of Sections 65 and 71 of the PML Act, 2002 prevail over the procedural safeguards under the CrPC. 133. In the instant case, it has been found that during the course of investigation statement so recorded of the accused persons as also of the statement of various other witnesses. 134. Thus, the petitioner knowingly is as the party and is actually involved in all the activities connected with the offence of money laundering, i.e., use or acquisition, possession, concealment, and projecting or claiming as untainted property. 135. Having examined the admissibility of statements recorded under Section 50 of the PML Act, 2002, this Court shall now pr....
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....have succeeded in establishing at least three basic or foundational facts. First, that the criminal activity relating to a scheduled offence has been committed. Second, that the property in question has been derived or obtained, directly or indirectly, by any person as a result of that criminal activity. Third, the person concerned is, directly or indirectly, involved in any process or activity connected with the said property being proceeds of crime. On establishing the fact that there existed proceeds of crime and the person concerned was involved in any process or activity connected therewith, itself, constitutes offence of money-laundering. The nature of process or activity has now been elaborated in the form of Explanation inserted vide Finance (No. 2) Act, 2019. On establishing these foundational facts in terms of Section 24 of the 2002 Act, a legal presumption would arise that such proceeds of crime are involved in money-laundering. The fact that the person concerned had no causal connection with such proceeds of crime and he is able to disprove the fact about his involvement in any process or activity connected therewith, by producing evidence in that regard, the legal pres....
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....ove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden ... On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned; and, if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result, prove him guilty." 144. Thus, in light of the aforesaid principles and the law enunciated by the Hon'ble Supreme Court in Vijay Madanlal Choudhary (Supra), this Court must determine whether the foundational facts necessary to invoke the presumption under Section 24 of the PML Act, 2002 have been established by the O.P-ED. 145. The Hon'ble Supreme Court has categorically held that the prosecution must satisfy three essential ingredients. First, the commission of a scheduled offence must be established. Second, the property in question must be shown to have been derived or obtained, directly or indirectly, a....
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....ed under Section 45(1) (i) and (ii) PML Act, 2002. While undertaking this exercise, the Court is required to take a prima facie view on the basis of materials collected during investigation. The expression used in Section 45 of PML Act, 2002 are "reasonable grounds for believing" which means that the Court has to find, from a prima facie view of the materials collected during investigation that there are reasonable grounds to believe that the accused has not committed the offence and that there is no likelihood of him committing an offence while on bail. Recently, in Tarun Kumar v Assistant Directorate of Enforcement, (supra) the Hon'ble Supreme Court has held as under: "17.As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedin....
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....avit it has been averred that in the present case, substantial portions of the proceeds of crime remain untraced, unrecovered, and potentially in circulation within the financial system. The investigation into the identification of the complete chain of transactions, the full extent of assets acquired from such tainted funds, and the persons/entities involved in their possession and concealment is still I ongoing. During the course of further investigation in the matter, certain properties acquired by the petitioner accused has been identified. It is revealed that the petitioner intentionally transferred/tried to transfer the said properties, acquired out of the proceeds of crime, to his associates without payment of consideration purposefully to frustrate the proceedings under the law therefore, releasing the petitioner at this crucial stage would not only impede and prejudice the ongoing investigation but would also frustrate the statutory objective of tracing, attaching, and ultimately confiscating the property derived from or involved in money laundering, as envisaged under Sections 5 and 8 of the PMLA. 158. Thus, on the basis of the aforesaid discussion and taking into cons....
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....er: "23. Unfortunately, in the last few years, the country has been seeing an alarming rise in white-collar crimes, which has affected the fibre of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364] this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under: (SCC p. 371, para 5) "5. ... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unm....
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....Hence, the need to be extra conscious." 164. It requires to refer herein that the Hon'ble Apex Court in catena of judgments has held that the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. 165. The Hon'ble Apex Court has further observed that with the advancement of technology and Artificial Intelligence, the economic offences like money laundering have become a real threat to the functioning of the financial system of the country and have become a great challenge for the investigating agencies to detect and comprehend the intricate nature of transactions, as also the role of the persons involved therein. Reference in this regard be made to the judgment rendered by the Hon'ble Apex Court in the case of "Tarun Kumar vs. Assistant Director Directorate of Enforcement" (supra). The relevant paragraphs of the aforesaid Judgment are b....
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....ourts are also expected to conclude the trials within a reasonable time, further ensuring the right of speedy trial guaranteed by Article 21 of the Constitution. 24. With the afore-stated observations, the appeal is dismissed." 166. This Court, considering the aforesaid material available against the petitioner in such a grave nature of offence and applying the principle of grant of bail wherein the principle of having prima facie case is to be followed, is of the view that it is not a fit case of grant of bail. 167. Having regard to the entirety of the facts and circumstances of the case, this Court is of the opinion that the petitioner has miserably failed to satisfy this Court that there are reasonable grounds for believing that he is not guilty of the alleged offences. On the contrary, there is sufficient material collected by the O.P-ED to show that he is prima facie guilty of the alleged offences. 168. For the foregoing reasons, having regard to facts and circumstances, as have been analyzed hereinabove, since the petitioner has failed to make out a special case to exercise the power to grant bail and considering the facts and parameters, necessary to be con....