TaxTMI 
TaxTMI 
2026 (4) TMI 1911
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....n Report (ECIR) 03/2022 was recorded on the basis of the Barharwa P.S. Case No. 85/2020 dated 22.06.2020, under section 147, 149, 341, 342, 323, 379, 1208, 504, 506 of IPC against Pankaj Mishra and others that the informant Shambhu Nandan Kumar was threatened and obstructed on 22.06.2020 by the named persons to participate in tender for Barharwa Toll. It is alleged by the informant that he was ordered by Pankaj Mishra over phone, not to participate in the tender, on refusal of which, he was attacked by mob, on the behest of Pankaj Mishra. After investigation, charge sheet has been filed. 3. During the investigation of ECIR 03/2022, other FIRs were also identified to be lodged against the accused persons which has been merged in the instant ECIR and taken into the ambit of investigation to conduct a comprehensive investigation. In addition to section 120B of IPC invoked in the FIRs, which is scheduled offence, offences u/s 307/120B of IPC along with section 27 of Arms Act were identified and merged in the investigation under ECIR/RNZO 03/22 for a comprehensive investigation. 4. The prosecution complaint reveals that the main reason for not allowing the complainant to participa....
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.... Sahibganj. 6. It has also been revealed that stone chips are loaded and carried through railways by declaring them as stone boulders which is causing loss to the government in terms of royalty. Further he is involved in illegal mining on a large scale and he is being assisted by his accomplices. The scrutiny of the bank accounts of Pankaj Mishra and his associates reveals that huge amount of cash is being deposited frequently in the bank accounts under their control and occupation which are nothing but the proceeds of crime derived out of the illegal mining activities. The proceeds of crime is acquired by them is laundered by him and his associates. 7. Thus, it has been alleged that Pankaj Mishra, along with his close associates including present petitioner Rajesh Yadav @ Dahu Yadav, had established dominance over the area and were exercising control over illegal mining and transportation activities and Rajesh Yadav @ Dahu Yadav was an active participant in facilitating the illegal transportation network. 8. Further it has been alleged that the accused persons were predominantly dealing in cash. Scrutiny of bank accounts of Rajesh Yadav @Dahu Yadav and related entities re....
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.... about any generation of proceeds of crime. (iii) It has also been submitted that no cash whatsoever has been recovered from the petitioner and all the money which has been seized in his company, Rayadav Transportation Pvt. Ltd., is filly accounted for and derived from the legitimate business transactions without any trail of money or communication with the main accused. (iv) It has also been submitted that the petitioner is involved in the business of operating ferries and has no connection, either direct or indirect, with the main accused Pankaj Mishra. There is no evidence to support that the petitioner fraudulently acquired the tender, furthermore, Hulash Choudhary who was a member of the said samiti has also nowhere stated that the said tender was illegally obtained by the petitioner. (v) It has been submitted that entire case of the Respondent against the petitioner/Applicant hinges on his and the statements of co-accused persons recorded under Section 50 of the PMLA and it is only on the basis of statement under Section 50 of the Applicant and other co-accused persons that he has been linked with the syndicate and his role in transportation of truc....
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....on of illegally mined minerals as there is no evidence on record to directly or indirectly establish a link between the miners and the Applicant or that he had knowledge of the trucks carrying any illegally mined minerals. The only so-called corroborative piece of evidence used against the Applicant are registers seized from his residence which have entries regarding trucks transported in his ferry. These registers in the absence of authentication, authorship, or supporting material, are akin to loose papers and cannot prove that the Applicant had any knowledge regarding the trucks containing any illegally mined minerals. (xi) It has been submitted that the main accused and the Applicant's family members, including his father, son, and brother Sunil Yadav, have all been released on bail. On the grounds of parity, the Applicant also deserves the protection of anticipatory bail. (xii) It has further been submitted that the prosecution complaint has already been filed, and all evidence is documentary. The purpose of arrest is to secure presence, which the Applicant has demonstrated a willingness to comply with. Therefore, no custodial interrogation is required or....
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....on is factually untenable. 21. It has been contended that the offence under Section 3 of the PMLA is independent in nature and covers any person who is directly or indirectly involved in any process or activity connected with proceeds of crime. The statute does not require that a person must be named in the predicate FIR or charge-sheet before action can be taken against him under the PMLA. The Hon'ble Supreme Court in Pavana Dibbur vs. Directorate of Enforcement (Criminal Appeal No. 2779/2023) reaffirmed that an accused under PMLA need not necessarily be named in the scheduled offence if they are involved in laundering proceeds of crime. The decision clarifies that the offence of money laundering is independent of the predicate offence. The law focuses on the act of concealing or converting proceeds of crime, and those who facilitate this process, even if they were not involved in the original criminal activity, can still be prosecuted for money laundering. 22. It has been submitted that FIR No. 85/2020, on the basis of which ECIR/RNZO/03/2022 was recorded, continues to subsist and a chargesheet has already been filed. The ECIR is based on multiple scheduled offences ide....
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....d counsel is wholly misconceived and untenable in the facts and circumstances of the present case because grant of bail to certain co-accused does not automatically entitle another accused to anticipatory bail. The principle of parity applies only when the role, nature of allegations, stage of proceedings, material collected and surrounding circumstances are identical and each application is required to be examined independently on its own factual matrix. 29. Learned counsel for the respondent-Enforcement Directorate, based upon the aforesaid ground, has submitted that it is not a fit case where the prayer for pre-arrest bail is to be granted. Response of the learned counsel for the applicant: 30. In response to the maintainability the present application for grant of anticipatory bail it has been contended by the learned counsel for the petitioner that the mere issuance of process or culmination of proclamation proceedings does not create an absolute bar to the consideration of an application under Section 438 CrPC, once the accused submits himself to the jurisdiction of the Court. In order to substantiate this limb of argument the learned counsel for the petitioner/appli....
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....nder Section 82 and 83 Cr.P.C./Section 84 and 85 BNSS. 37. For ready reference Section 438 Cr.P.C/ 482 of BNSS is being referred herein which reads as under: "438. Direction for grant of bail to person apprehending arrest- (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter alia, the following factors, namely:- (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail: Provided that, where the High Cou....
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.... sub-section (1). (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under subsection (3) of Section 376 or Section 376-AB or Section 376-DA or Section 376-DB of the Penal Code, 1860." 482. Direction for grant of bail to person apprehending arrest - (1) When any person has reason to believe that he may be arrested on an accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section; and that Court may, if it thinks fit, direct that in the event of such arrest, he shall be released on bail." (2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may think fit, including- (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the ....
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....nce the relevant paragraph of the aforesaid order is being quoted as under: 17. In the case on hand, a perusal of the materials i.e. confessional statements of Sanjay Namdev, Pawan Kumar alias Ravi and Vijay alias Monu Brahambhatt reveals that the respondents administered poisonous substance to the deceased. Further, the statements of the witnesses that were recorded and the report of the Department of Forensic Medicine and Toxicology, Government Medical College and Hospital, Nagpur dated 21-3-2012 have confirmed the existence of poison in milk rabri. Further, it is brought to our notice that warrants were issued on 21-11-2012 for the arrest of the respondents herein. Since they were not available/traceable, a proclamation under Section 82 of the Code was issued on 29-11-2012. The documents (Annexure P-13) produced by the State clearly show that the CJM, Chhindwara, M.P. issued a proclamation requiring the appearance of both the respondent-accused under Section 82 of the Code to answer the complaint on 29-12-2012. All these materials were neither adverted to nor considered by the High Court while granting anticipatory bail and the High Court, without indicating any reason ....
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....hat the appellant shall cooperate with the further investigation. However, liberty is also given to the respondents to seek cancellation of bail that has been granted, in the event of a violation of the conditions which are to be imposed by the Trial Court or if there are any perceived threats against the witnesses." 43. Thus, it is apparent that the Hon'ble Apex Court has observed there will not be a total embargo on considering the application for the grant of anticipatory bail and the Court will have to see the circumstances of the case, nature of the offence and the background based on which such a proclamation was issued. Thus, from the aforesaid judgment it is evident that the Hon'ble Apex Court has talked about the circumstances and the entitlement of pre-arrest bail of the accused/petitioner specifically in the case where against the said accused/petitioner proclamation has been issued. 44. Further in the case of Pradeep Sharma (supra), it is evident from paragraph 17 which has been quoted and referred hereinabove that the Hon'ble Apex Court has discussed therein about the circumstances and entitlement to the pre-arrest bail to the accused petitioner and has observed ....
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....d as has been referred in the paragraph-22 which is being referred as under: 22. After making initial appearances, the petitioner was evading appearance before the investigating agency despite repeated summons being issued against him. It was against this background that non-bailable warrant of arrest and other processes have been issued against the petitioner. In any case a person accused of a serious offence cannot be permitted to dictate and control the pace of investigation by seeking adjournments and then not joining the investigation. 50. It is in this background of the orders passed by this Court and the Hon'ble Apex Court, this Court is of the view that the involvement of the present petitioner in the alleged commission of crime is to be taken into consideration along with the conduct of the petitioner in defiance of the order passed by the Hon'ble Apex Court by not adhering to the liberty which he took of putting appearance before the investigating officer and even the present petitioner has not filed any application for modification of the order dated 18.08.2023 passed by the Hon'ble Apex Court. Issue of culpability of the petitioner: 51. This Court is n....
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....of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property [or where such property is taken or held outside the country, then the property equivalent in value held within the country] [or abroad]; [Explanation.-For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;]" 57. It is evident from the aforesaid provision by which the "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad. 58. In the explanation, it has been referred that for the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only der....
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.... person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) 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.]" 64. It is evident from the aforesaid provision that "offence of money-laundering" means 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 claiming it as untainted proper....
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....houdhary and Ors. Vs. Union of India and Ors., (supra) wherein the Bench comprising of Three Hon'ble Judges of the Hon'ble Supreme Court have decided the issue by taking into consideration the 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 c....
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....der the 1908 Code while trying a suit in respect of matters specified in sub-section (1). This is in reference to Section 13 of the 2002 Act dealing with powers of Director to impose fine in 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 t....
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....oducing documents or making intelligible gestures as in the case of a dumb witness (See section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", 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 ....
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....ses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, 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 there....
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....of conditions under section 19 and subject to the conditions enshrined under this section 77. 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-285, 286 and 316. For ready reference, the said paragraphs are being referred as under:- "285 The provision post the 2018 Amendment, is in the nature of no bail in relation to the offence of money laundering unless the twin conditions are fulfilled. The twin conditions are that there are reasonable grounds for believing that the accused is not guilty of offence of money laundering and that he is not likely to commit any offence while on bail. 286. Considering the purposes and objects of the legislation in the form of the 2002 Act and the background in which it had been enacted owing to the commitment made to the international bodies and on their recommendations, it is plainly clear that it is a special legislation to deal with the subject of money laundering activities having transnational impact on the financial systems including sovereignty and integrity of the countries. This is not an ordi....
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....lieving that he is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail. 269. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur. 270. The first issue to be answered by us is: whether the twin conditions, in law, continued to remain on the statute book post decision of this Court in Nikesh Tarachand Shah and if yes, in view of the amendment effected to Section 45(1) of the 2002 Act vide Act 13 of 2018, the declaration by this Court will be of no consequence. This argument need not detain us for long. We say so because the observation in State of Manipur in paragraph of the judgment that owing to the declaration by a Court that the statute is unconstitutional obliterates the statute entirely as though it had never been passed, is contextual. In this case, the Court was dealing with the efficacy of the repealing Act. While doing so, the Court had adverted to the repealing Act and made the stated observation in the context of lack of l....
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.... 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." 81. 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 commit any offence while on bail. 82. In the judgment rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) it has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money-laundering only if it has reason to believe, which is required to be recorded in writing that the person is in possession of "proceeds of crime". Only if that belief is further supported by tangible and credible evidence indicative of involvement of the person concerne....
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....assed by the Hon'ble Apex Court on the issue of various provisions of the Act, 2002, this Court, is proceeding to answer the legal grounds as has been raised on behalf of the learned counsel for the petitioner. 88. We are dealing herein with the petition of pre-arrest bail which is to be granted in exercise of power conferred under Section 438 of Cr.P.C. The law is well settled so far as the consideration of the prayer of the pre-arrest bail is concerned, what is the requirement to be looked into for the purpose of granting the said benefit. 89. It has been settled by Hon'ble Apex Court time and again in its various pronouncements that the powers under Section 438 Cr.P.C., is in extra-ordinary character and must be exercised sparingly in exceptional cases only and therefore, the anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been implicated in the crime, as grant of anticipatory bail to some extent, is interference in the sphere of investigation of an offence and hence, the court must be cautious while exercising such powers. 90. It is also settled connotation of law that the gran....
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.... (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of ther....
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.... and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so when the allegations are grave in nature." 94. It is, evident by taking into consideration the provision of Section 45(1), 45(2), the conditions which are required to be considered while granting the benefit of regular bail in exercise of power conferred under Section 438 or 439 of Cr.P.C., i.e., pre-arrest bail apart from the twin conditions which has been provided under Section 45(1) of the Act, 2002, the conditions or the requirement which has been followed while granting the bail under Section 439 or 438, as the case may be. Further after going through the provision of Section 45(1), is of the view that there is no reference to that effect that once the ECIR has been submitted the public prosecu....
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....ef, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty. (See D.K. Ganesh Babu v. P.T. Manokaran, State of Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain and Union of India v. Padam Narain Aggarwal) Economic Offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain, it was held that in economic offences, the accused is not entitled to anticipatory bail. 83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting the useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic ....
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....stitutions to conceal origin" and "interrogation i.e. funds used to acquire various assets", it requires systematic and analysed investigation which would be of great advantage. 99. Section 438 CrPC is to be invoked only in exceptional cases where the case alleged is frivolous or groundless. Reference may be made to the paragraphs-83 and 84 of the judgment rendered in P. Chidambaram vs. Directorate of Enforcement (supra) as quoted and referred above. 100. This Court, in order to come to a conclusive finding as to whether the petitioner is fulfilling these criteria/grounds, needs to refer herein the evidence collected in course of preparation of Vth supplementary prosecution complaint which are as followed: 9. BRIEF SUMMARY OF RESULT OF INVESTIGATION UNDER PMLA 9.5 It is established that Rajesh Yadav @ Dahu Yadav (A-12), a habitual offender with an extensive criminal history, acted as the key henchman and on-ground commander for Pankaj Mishra. The investigation revealed that Rajesh Yadav, in connivance with Pankaj Mishra and others, fraudulently acquired the tender for the Sahibganj-Manihari ferry services for 28.52 Crore by using a front entity, Nav Yatayat ....
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.... was instrumental in enforcing the syndicate's control over the illegal stone mining and transportation racket in Sahibganj. A primary area of his control was the interstate ferry service on the fiver Ganga, a critical artery for transporting illegally mined stone from Tharkhand to Bihar. 10.42 The investigation reveals that Rajesh Yadav, in connivance with Pankaj Mishra and others, fraudulently acquired the tender for the Sahibganj-Manihari ferry services for 28.52 Crore. This was achieved by using a front entity, Nav Yatayat Sahyog Samiti. In his statement dated 31.08.2022, Shri Hulash Choudhary, the overseer of the ferry ghat, confirmed that Rajesh Yadav and Sunil Yadav provided the funds for the tender. This is corroborated by bank records showing transfers from M/s Singhwahini Transport & Logistics to Hulash Choudhary's account for the tender payment. He further stated that in return for this financing, the Samiti received a nominal fixed amount of 210 lakh per year, while the entire operations and earnings of the ferry services were managed by Rajesh Yadav's team. [RUD No. 8 in Prosecution Complaint dated 20.102023] 10.4.3 This statement is corro....
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....h between October 2015 and January 2017, heavily concentrated in October November 2016. He could not provide a satisfactory explanation for these deposits, claiming a lapse of memory. Following his initial statements in July 2022, Rajesh Yadav became non-compliant, repeatedly ignored summons issued by the Directorate, and subsequently absconded. While he initially appeared and gave statements in July 2022, his cooperation ceased thereafter. He repeatedly ignored subsequent summonses issued by the Directorate, leading this Hon'ble Court to issue a Non-Bailable Warrant against him. The accused challenged this action, and the matter eventually reached the Hon'ble Supreme Court of India. In its order dated 18.08.2023 in SLP (CrL.) No. 6322/2023, the Hon'ble Supreme Court, while dismissing his petition, gave the petitioner, Rajesh Yadav, a final opportunity, directing him to "appear before the Investigating Officer" within "two weeks' time". His failure to comply with this clear and specific direction from the apex court and his continued evasion of the investigation since that date, unequivocally establishes him as a fugitive from justice, demonstrating a guilty mind an....
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....criminal activities. 13.4 The specific roles of the accused, which individually and collectively satisfy the ingredients of the offence of money laundering as defined under Section 3 of the PMLA, 2002, are detailed below: 13.5 Rajesh Yadav Dahu Yadav (Accused No. 12) Investigation has established that Rajesh Yadav Dahu Yadav, a habitual offender with numerous criminal cases registered against him, acted as the key henchman and on-ground operator for Pankaj Mishra (A-1). He was instrumental in enforcing the syndicate's control over the illegal stone mining and transportation racket in Sahibganj. His involvement in the offence of money laundering is multifaceted: Acquisition and Use of Proceeds of Crime: He was directly involved in the fraudulent acquisition of the tender for the Sahibganj-Manihari ferry services for 28.52 Crore. He achieved this by using illicit cash and routing funds through his firm, M/s Singhwahini Transport & Logistics, thereby using the proceeds of crime to acquire control over a critical infrastructure asset. He then used this asset as an instrument to further the offence by facilitating the illegal transportation of min....
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....l mining and transportation of stone chips in Sahebganj. Multiple FIRs involving serious offences, including Sections 307 and 120-B of the IPC and Section 27 of the Arms Act, have been registered against him and his associates and merged into the present ECIR for comprehensive investigation. Further, substantial proceeds of crime in the form of large cash seizures, frozen bank balances, vessels and other assets have been identified during investigation, reflecting the organized and large-scale nature of the activities. 102. The investigation has revealed that the Petitioner, in active coordination with co-accused persons, exercised control over ferry operations which were systematically used for transporting trucks loaded with illegally mined stone chips across the river route. The ferry services were not restricted to lawful passenger movement but were utilized as a crucial link in the illegal transportation network connected with the generation and movement of proceeds of crime. The Prosecution Complaint further records that illegal mining and transportation activities were carried out in an organized and coordinated manner, and that inland vessel operations formed an essentia....
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....h supplementary prosecution complaint that the petitioner himself admitted to the modus operandi of the illegal mining operation in Sahibganj under the patronage of Pankaj Mishra. He acknowledged that his firm, Singhwahini Transport, obtained the ferry tenders and operated two large cargo ships (Titan 3 and 4) to transport storie-laden trucks. Critically, he admitted his awareness that a large number of these trucks were carrying stone chips without valid mining challans. In his statement dated 17.07.2022, he quantified the scale, stating that prior to the crackdown, about 2,000 trucks per day were transporting stone, which had reduced to 400-500 trucks after enforcement actions. This admission underscores his knowledge and direct involvement in facilitating the transport of illegally mined minerals. [RUD No. 1]. 107. Further it has come during investigation that during the search of petitioner's premises, registers/logbooks of trucks were seized, which further evidence the massive scale of the illegal transport operations he was managing. Financial scrutiny of Rajesh Yadav's personal bank accounts revealed large, unexplained cash deposits. For example, his HDFC Bank account....
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....heduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence. Clause (u) also clarifies that even the value of any such property will also be the proceeds of crime. Thus, the existence of "proceeds of crime" is sine qua non for the offence under Section 3 of the PMLA. At paragraph-13, it has observed that Clause (x) of subsection (1) of Section 2 of the PMLA defines "schedule". Clause (y) thereof defines "scheduled offence", which have been quoted and referred above. At paragraph-14, it has observed by referring the decision rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.(supra) that the condition precedent for the existence of proceeds of crime is the existence of a scheduled offence. At paragraph-15 the finding has been given therein that on plain reading of Section 3 of the Act, 2002, an offence under Section 3 can be committed after a scheduled offence is committed. By giving an example, it has been clarified that if a person who is unconnected with the scheduled offence, knowingly assists the concealment of th....
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....under Section 3 of the PMLA. 13. Clause (x) of subsection (1) of Section 2 of the PMLA defines "schedule". Clause (y) thereof defines "scheduled offence", which reads thus: "2. Definition - (1) In this Act, unless the context otherwise requires, .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. . . (y) "scheduled offence" means- (i) the offences specified under Part A of the Schedule; or (ii) the offences specified under Part B of the Schedule if the total value involved in such offences is one crore rupees or more; or (iii) the offences specified under Part-C of the Schedule." 14. The condition precedent for the existence of proceeds of crime is the existence of a scheduled offence. On this aspect, it is necessary to refer to the decision of this Court in the case of Vijay Madanlal Choudhary. In paragraph 253 of the said decision, this Court held thus: "253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot ....
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....g party to the process or activity connected with the proceeds of crime; and such process or activity in a given fact situation may be a continuing offence, irrespective of the date and time of commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, may be liable to be prosecuted for offence of money-laundering under the 2002 Act - for continuing to possess or conceal the proceeds of crime (fully or in part) or retaining possession thereof or uses it in trenches until fully exhausted. The offence of money-laundering is not dependent on or linked to the date on which the scheduled offence or if we may say so the predicate offence has been committed. The relevant date is the date on which the person indulges in the process or activity connected with such proceeds of crime. These ingredients are intrinsic in the original provision (Section 3, a....
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....pon to interpret any entry in the Schedule and, in particular, entry of Section 120B in the Schedule. The challenge to the Schedule is dealt with in paragraphs 453, 454 and 455 of the said decision. The contention before this Court was that even minor offences have been included in the Schedule, and even compoundable offences form part of the Schedule. It was submitted that the offences which do not have cross-border implications have been included in the Schedule. At paragraph-19, definition of "criminal conspiracy" as defined under Section 120-A of IPC has been taken note thereof. At paragraph-20, it has been observed that many of the offences, which may generate proceeds of crime, have not been included in the Schedule and for illustrating the same, some of offences have been referred therein, which are as follows: a. Section 263A of IPC, which deals with the offence of making or possessing fictitious stamps is not a part of the Schedule; b. Though offences punishable under Sections 392 to 402 regarding robbery and dacoity have been included in part A of the Schedule, the offence punishable under Section 379 of committing theft and the offence punishable ....
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....tue of Part C only if they have cross-border implications. Thus, it can be said that many offences capable of generating proceeds of crime do not form a part of the schedule. At paragraph-22, it has been observed on the argument advanced on behalf of the learned Additional Solicitor General that as Section 120B of IPC is included in Part A to the Schedule, even if the allegation is of making a criminal conspiracy to commit an offence which is not a part of the Schedule, the offence becomes a scheduled offence, that many offences under Chapter XVII of IPC are not included in Parts A and B. They become scheduled offences only if the same have cross-border implications. Thus, the offences of dishonest misappropriation of property or criminal breach of trust or theft can become a scheduled offence, provided they have cross-border implications. At paragraph-23, it has been observed that penal statutes are required to strictly construed and penal laws must be construed according to the legislative intent as expressed in the enactment. At paragraph-24, it has been observed that if two reasonable interpretations can be given to a particular provision of a penal statute, the Court ....
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....its wisdom has regarded the property derived or obtained as a result of specified criminal activity, being an offence under the concerned legislation mentioned in the Schedule. The fact that some of the offences may be non-cognizable offences under the concerned legislation or regarded as minor and compoundable offences, yet, the Parliament in its wisdom having perceived the cumulative effect of the process or activity concerning the proceeds of crime generated from such criminal activities as being likely to pose threat to the economic stability, sovereignty and integrity of the country and thus, grouped them together for reckoning it as an offence of money-laundering, is a matter of legislative policy. It is not open to the Court to have a second guess at such a policy. 455. Needless to underscore that the 2002 Act is intended to initiate action in respect of money-laundering activity which necessarily is associated with the property derived or obtained by any person, directly or indirectly, as a result of specified criminal activity. The prosecution under this Act is not in relation to the criminal activity per se but limited to property derived or obtained from specifi....
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.... description for a term not exceeding six months, or with fine or with both." 20. Now, we turn to the Schedule to the PMLA. We find that many offences, which may generate proceeds of crime, have not been included in the Schedule. We are referring to only a few of such offences only by way of illustration: a. Section 263A of IPC, which deals with the offence of making or possessing fictitious stamps is not a part of the Schedule; b. Though offences punishable under Sections 392 to 402 regarding robbery and dacoity have been included in part A of the Schedule, the offence punishable under Section 379 of committing theft and the offence punishable under Section 380 of theft in a dwelling house are not made a part of parts A and B of the Schedule. The theft of both categories can be of a very large amount running into crores. The said two offences become scheduled offences by virtue of clause (3) of part C of the Schedule only if the offences have cross-border implications; c. The offence punishable under Section 403 of dishonest misappropriation of property does not form part of the Schedule. The said offence becomes a scheduled offence by virtue of....
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..... They become scheduled offences only if the same have cross-border implications. Thus, the offences of dishonest misappropriation of property or criminal breach of trust or theft can become a scheduled offence, provided they have cross-border implications. If the argument of the learned Additional Solicitor General is accepted, if there is a conspiracy to commit offences under Section 403 or Section 405, though the same have no cross-border implications, the offence under Section 120B of conspiracy to commit offences under Sections 403 and 405 will become a scheduled offence. Thus, if any offence is not included in Parts A, B and C of the Schedule but if the conspiracy to commit the offence is alleged, the same will become a scheduled offence. A crime punishable under Section 132 of the Customs Act is made a scheduled offence under Part B, provided the value involved in the offence is Rupees One Crore or more. But if Section 120B of IPC is applied, one who commits such an offence having a value of even Rs.1 lac can be brought within the purview of the PMLA. By that logic, a conspiracy to commit any offence under any penal law which is capable of generating proceeds, can be convert....
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....fences have been included in the Schedule. Thus, if the submissions of the learned Additional Solicitor General are accepted, the Schedule will become meaningless or redundant. The reason is that even if an offence registered is not a scheduled offence, the provisions of the PMLA and, in particular, Section 3 will be invoked by simply applying Section 120B. If we look at Section 120B, only because there is a conspiracy to commit an offence, the same does not become an aggravated offence. The object is to punish those involved in conspiracy to commit a crime, though they may not have committed any overt act that constitutes the offence. Conspiracy is an agreement between the accused to commit an offence. If we look at the punishments provided under Section 120B, it becomes evident that it is not an aggravated offence. It only incorporates the principle of vicarious liability. If no specific punishment is provided in the Statute for conspiracy to commit a particular offence, Section 120B treats a conspirator of the main accused as an abettor for the purposes of imposing the punishment. The interpretation suggested by the ED will defeat the legislative object of making only a few sele....
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.... indulged in or facilitated any process or activity connected with such proceeds of crime. 115. At paragraph-15 the finding has been given therein that on plain reading of Section 3 of the Act, 2002, an offence under Section 3 can be committed after a scheduled offence is committed. By giving an example, it has been clarified that if a person who is unconnected with the scheduled offence, knowingly assists the concealment of the proceeds of crime or knowingly assists the use of proceeds of crime, in that case, he can be held guilty of committing an offence under Section 3 of the PMLA. Therefore, it is not necessary that a person against whom the offence under Section 3 of the PMLA is alleged must have been shown as the accused in the scheduled offence. 116. Keeping in mind these essential elements that make up the molecular structure of Section 3, this Court adverts in to facts of the instant case as discussed in preceding paragraph is of view that the contention of the learned counsel for the petitioner has no substance. 117. The learned counsel for the petitioner has further contended that the petitioner has been implicated in the present case on the basis of his self-st....
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....lieving 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 judicial custody since 2-1-2017 and has not been interrogated or examined by the Enforcement Directo....
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....r 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. 123. Further From the bare perusal of Section 24 of the PML Act, 2002, it is evident that once a person is charged with the offence of money laundering under Section 3 of the PML Act, 2002, the law presumes that the proceeds of crime are involved in money laundering unless the contrary is proven by the accused. 124. In the present case, the investigating agency has relied not only on the self-statement of the petitioner under Section 50 of the PML Act, 2002 but also other evidences which indicate the applicant's active role in the alleged money laundering activities. 125. By virtue of Section 24 of the PML Act, 2002, the respondent ED is not required to conc....
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....IR No. 28/2022 remains a subsisting FIR involving serious offences under Sections 147, 148, 149, 307 and 120-B of the IPC, which are scheduled offences under the Prevention of Money Laundering Act, 2002. The existence of even a single scheduled offence is sufficient to sustain investigation under the PMLA, if material discloses involvement in the process or activity connected with the proceeds of crime. 131. Thus, the merger of the said FIRs into the existing ECIR was therefore undertaken to ensure a comprehensive and holistic investigation into the entire spectrum of scheduled offences and laundering activities. The allegation that the FIRs were merged solely to falsely implicate the Petitioner is not tenable and contrary to the material collected during investigation. 132. It has been contended that the Petitioner had no means to ascertain whether the transported minerals were legal or illegal but the said contention cannot be accepted at this stage. The liability under Section 3 of the Prevention of Money Laundering Act, 2002 extends to any person who directly or indirectly assists in, or is knowingly a party to, any knowledge and intent can be inferred from surrounding ci....
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....he rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant." 136. Thus, in the aforesaid circumstances ....
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....usly 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." 141. Similarly, the Hon'ble Apex Court in case of "Nimmagadda Prasad Vs. Central Bureau of Investigation", reported in (2013) 7 SCC 466 has reiterated the same view in paragraphs-23 to 25 which reads as under: "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 wi....
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....the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is aptly said, "Corruption is a tree whose branches are of an unmeasurable length; they spread everywhere; and the dew that drops from thence, Hath infected some chairs and stools of authority." Hence, the need to be extra conscious." 143. Further, 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/pre-arrest 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. 144. 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 ag....
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....d the intricate nature of transactions, as also the role of the persons involved therein. Lot of minute exercise is expected to be undertaken by the Investigating Agency to see that no innocent person is wrongly booked and that no culprit escapes from the clutches of the law. When the detention of the accused is continued by the Court, the courts 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." 145. This Court, considering the aforesaid material available against the petitioner quoted and referred hereinabove in such a grave nature of offence and applying the principle of grant of pre-arrest bail as referred hereinabove 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 anticipatory bail. 146. For the foregoing reasons, having regard to facts and circumstances, as have been analysed hereinabove, the applicant has failed to make out a special case for exercise of power to grant pre-arrest bail and considering the facts and parame....