Patna High Court - Orders
Radha Charan Sah vs The Union Of India Through The Assistant ... on 28 June, 2024
Author: Anshuman
Bench: Anshuman
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.15740 of 2024
Arising Out of PS. Case No.-14 Year-2023 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Radha Charan Sah
... ... Petitioner/s
Versus
THE UNION OF INDIA THROUGH THE ASSISTANT DIRECTOR,
PATNA ZONAL OFFICE, ENFORCEMNET, DIRECTORATE,
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr.S.D. Sanjay, Sr. Adv.
: Mr.Mohit Agarwal, Adv.
For the Opposite Party/s : Mr.Dr. K.N. Singh, Sr. Adv. (ASG)
: Mr. Manoj Kr. Singh, Adv.
: Mr. Shivaditya dhari Sinha, AC to ASG
======================================================
CORAM: HONOURABLE MR. JUSTICE DR. ANSHUMAN
ORAL ORDER
7 28-06-2024Learned senior counsel Mr. S.D. Sanjay for the petitioner and learned senior counsel Mr. K.N. Singh for the Union of India are present.
2. Learned senior counsel on behalf of the E.D. vehemently opposes the prayer for bail of the petitioner and submits that the core argument of counsel for the petitioner is that the petitioner is not named in any of the 19 F.I.Rs. As such, no mens rea is there, and therefore, no offence under PMLA has been made out. This argument shall not support the petitioner in any manner. He also submits that the petitioner is accused in an offence under section 3 of the Prevention of Money Laundering Act, 2002 ( Act No.15 of 2003) (hereinafter referred to as the Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 2/9 PMLA) which is punishable under section 4 of the PMLA.
3. Learned senior counsel for the ED submits that for constitution of an offence under money laundering, insertion of petitioner's name in the 19 F.I.Rs is not an essential requirement. He further submits that for constitution of an offence under section 3 of the PMLA, the word whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connection with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. He submits that according to PMLA, it is not necessary that a person must be an accused of an F.I.R. with regard to scheduled offence whether the said person is named or not named. But when the said person is involved in concealment, possession, acquisition or use and projecting or claiming untainted property then he shall be alleged to commit an offence under PMLA, namely, money laundering.
4. Learned senior counsel further submits that the ingredient of section 3(i) of the PMLA is against the petitioner as it is apparent from page 54 of the bail petition where details of all 19 F.I.Rs. are there, which were lodged under scheduled Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 3/9 offence along with other offences also.
5. Learned senior counsel further submits that all the 19 F.I.Rs. have been filed against the accused persons other than petitioner in the year 2021 in between February 2021 to September 2021 under the specific provisions of I.P.C. and Bihar Mineral (Concession, Prevention of Illegal Mining, Transportation & Storage) Rules, 2019 whereas the ECIR has been made by the ED in the year 2023 after i.e., about 2 years of the F.I.R., investigation completed and complaint filed in which it has been found that the present petitioner along with other accused persons including the directors and accused persons of F.I.R., all have committed offence of PMLA under section 3 of the PMLA which is punishable under section 4 of the PMLA.
6. Learned senior counsel further submits that for constitution of PMLA, it is not a necessary requirement that the accused of scheduled offence has committed crime of money laundering rather any other person who are not even accused of the scheduled offence may constitute a crime of money laundering. The only ingredient is that the proceeds of crime to be used in concealment, possession, acquisition or use and projecting or claiming of untainted property in any manner whatsoever. He further submits that whosoever involved in Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 4/9 conversion of money which is connected with the proceeds of crime in any manner by way of different means mentioned in section 3 of the PMLA shall be entitled for punishment under section 4 of the PMLA.
7. Learned senior counsel further submits that raid of Income-tax took place in the month of February, 2023, ECIR launched in March, 2023 for the documents seized by Income- tax department. It revealed that there exists nexus of the petitioner with the said money which is proceeds of crime, and therefore, investigation started after ECIR. The said investigation has been conducted by the authorities of ED in which it has been found that the petitioner who is holding a post of MLC, a politician and businessman has indulged in money laundering.
8. Learned senior counsel further submits that there are materials available in complaint against the present petitioner, about the said involvement. He submits that it is true that the company, namely, M/s Broadson Commodities Pvt. Ltd. was the license holder for sand mining, mines/stocks the sand and sales the same to various buyers. But it has been found that the proceeds of crime have been concluded by the illegal mining, illegal transportation and search by a syndicate in which Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 5/9 the petitioner was policy maker. The money earned from those illegal work was trailed which has been tallied from the Bank account. The personal mobile of the petitioner revealed that Rs.5 crore (Rupees Five crore) has been received by him.
9. Counsel further submits that during search made by the ED, list of premises of the petitioner has been identified which is at Serial No.3, 4, 5, 20 and 25 of Table No.B contained at Page 71 of the bail petition. Those premises were not on rent. He further submits a series of documentary records were seized from the petitioner with the specific addresses on 05.06.2023, but the petitioner had not made any protest in this regard. There was no rent agreement produced by the petitioner at any level which shows that his premises in question were not on rent. He has given list of his tenants, but those premises were not on rent which were subject to search of recovery relating to documents which are basis of PMLA case.
10. Learned senior counsel further submits that in the statement, the petitioner stated that the details shall be disclosed by his son who is accused of PMLA, but in the statement of the son, it has been revealed that the father knows about the details and this creates sharp doubt. He further submits that the petitioner is a syndicate member, who was involved in the work Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 6/9 of money laundering along with others. It has been cleared from the statements of different witnesses whose details are described in the complaint.
The Statements of different witnesses as mentioned in Paragraph 8.4 (ix), 8.9(xiv) (xviii), 8.4 (xiv) (xviii), paragraph 8.5(vii) and 8.5(xv)(ix), 8.6(iv) and 8.6(xi) (v), paragraph 8.7(vii), paragraph 8.8 (vi) and 8.8 (xi) of complaint are there in complaint, which reveals that the petitioner is member of syndicate and policy maker of this crime.
11. Learned senior counsel further submits that in paragraph 9.6 of complaint is a brief summary of result of investigation under PMLA against the petitioner. It has been found that I.T department seized huge amount of documents relating to sand mining from the premises of the petitioner in which 35% (thirty five percent) combined share of Radha Charan Sah and Ashok Kumar and subsequently, 20% (twenty percent) of Radha Charan Sah was found, from the mobile of petitioner receiving of Rs.5 crore (Rupees Five crore) has been accepted. The documents seized by I.T. department also showed that the petitioner has spent about Rs.1 crore from October, 2017 to December, 2017 and 3.89 crore approx from January, 2018 to 2018. Total Rs.5,36,85,809 (Rupees five crore thirty six Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 7/9 lakh eighty five thousand eight hundred nine only) was alleged to be generated from his and his family multiple business, but documents not provided. The details of money Rs.2 lakh deposited by 140 persons in the Bihar Gramin Bank Account have not been disclosed by the petitioner.
12. Learned senior counsel further submits that the son of the petitioner has taken plea that whatever be the unexplained money found by the Income-tax department, he has deposited the tax on the same. In this regard, counsel submits that the role of Income-tax is to impose tax on money which has been defined as income according to Income Tax Act, whether it has been earned legally or illegally. He submits that by paying tax on the earning from illegal gain shall not convert the illegal money into legal. He submits that the consequences of earning of illegal money shall continue even if the tax has been paid on it. He submits that the petitioner being the policy maker of a syndicate who involved in money laundering case, is basically running a parallel economy which is harmful for the economy of country and on this ground alone, his bail application may be rejected.
13. Learned senior counsel further submits that antecedent of the petitioner is not clean and case of fraud is Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 8/9 against him. There are two criminal cases pending against him. He submits that the petitioner is alleged to be aged about 70 years and at this stage, medical problem automatically occurs and every treatment is available in jail.
14. Learned senior counsel further submits that the case of Avtar Singh (supra) on which the petitioner relying shall not be helpful for the petitioner due to the reason that the said case is relating to electricity matters Vs. Indian Penal Code matters, but herein the present case, the offence of money laundering under PMLA is there with I.P.C. He further submits that for offence of PMLA, there is nothing to do with the involvement of the accused in the F.I.R. mentioned in the complaint.
15. Learned senior counsel further relied on judgment of Pavana Dibbur Vs. the Directorate of Enforcement reported in 2023 (13) S.C.R. 1049. He submits that an accused in PMLA case who comes into picture after the scheduled offence is committed by assisting in concealment or use of proceeds of crime need not be an accused in the scheduled offence. Such an accused can still be prosecuted under PMLA so long as the scheduled offence exists.
16. Learned senior counsel further relied on another Patna High Court CR. MISC. No.15740 of 2024(7) dt.28-06-2024 9/9 judgment of Supreme Court of India in the case of Tarun Kumar Vs. the Assistant Director, Directorate of Enforcement reported in AIR 2024 SC 169. He submits that the offence of money laundering is not dependent or linked to date on which scheduled offence or predicate offence has been added. If the documents prima facie showed that how accused was actually involved in conspiracy and in activities connected with proceeds of crime then the denial of bail is proper.
17. Learned senior counsel further submits that due to lack of time today, he could not completed his argument and hence, he seeks a short adjournment for conclusion of his argument.
18. In this view of the matter, put up this case on 03.07.2024 within top 5 cases for the continuation of argument of Sr. counsel for the E.D. (Dr. Anshuman, J.) Prakashmani/-
U