Chattisgarh High Court
Shiv Shankar Naag vs Enforcement Directorate on 26 June, 2024
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Neutral Citation
2024:CGHC:22303
Page 1 of 35
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 7520 of 2023
Reserved on : 09.05.2024
Delivered on : 26.06.2024
Shiv Shankar Naag, S/o Shri Prem Lal Naag, aged about 40 years, R/o
Village- Amlidih, Post Mudi, Bhawan, Tahsil- Magarload, District-
Dhamtari (C.G.)
--- Applicant
Versus
Enforcement Directorate through Investigation Officer Enforcement
Directorate (FEMA/PMLA), Raipur (C.G.)
--- Respondent
For Applicant : Mr. S.K. Srivastava with Ms. Shubhi Srivastava, Ms. Garima Singh, Mr. Prince Kumar & Mr. Krishna Tandon, Advocates.
For Respondent : Dr. Sourbh Kumar Pande, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas CAV ORDER
1. This is first bail application filed under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to the applicant, who has been arrested on 25.01.2023 in connection with Crime No. ECIR/RPZO/09/2022 dated 29.09.2022 registered at Police Station- Directorate of Enforcement, Zonal Office, Raipur (C.G.) for the offence punishable under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (for short "the PMLA, 2002").
Neutral Citation 2024:CGHC:22303 Page 2 of 35
2. The case of the prosecution, in brief, is that on 12.07.2022, FIR No. 129/2022 was registered by Kadugodi Police Station, Whitefield, Bengaluru under Sections 186, 204, 353 & 120B of IPC against one Suryakant Tiwari & other persons on the basis of complaint filed by Deputy Director of Income Tax, Foreign Assets Investigation Unit-I Bengaluru alleging that as part of conspiracy, during course of search by Income Tax department on 30.06.2022, Suryakant Tiwari had obstructed the officials from carrying their official duties and destroyed crucial incriminating documents and digital evidence about the alleged illegal extortion on Coal Transportation, payments collected by Suryakant Tiwari and his associates.
3. It is also case of the prosecution that on 13.09.2022, OM in F. No. 22-IT was forwarded by Central Board of Direct Taxes (for short "CBDT") to the Directorate of Enforcement containing the FIR No. 1292022 Police Station- Kadugodi along with a report on the investigation conducted by the Income Tax Department on M/s Jay Ambey Group of Raipur (Suryakant Tiwari Group). In the report, it has been mentioned that during search operations on 30.06.2023 by Income Tax Department on the premises of Suryakant Tiwari and his associates, evidence was gathered related to a syndicated being operated and coordinated by Suryakant Tiwari whereby additional unauthorized cash to the tune of Rs. 25 per ton of coal was being collected over and above the legal amount against Coal Delivery Orders. It has also been alleged that pursuant to the Order F.No.4138- Neutral Citation 2024:CGHC:22303 Page 3 of 35 47/Sankhikiya/Coal bhandaran/N.Kra 2020 dated 15.07.2020 issued by the State Government the dispatch rules of coal mines by authorities have been changed from an online process to introduction of manual verification. The said notification was issued under the signatures of one Sameer Vishnoi, IAS who was the Director, Geology & Mining as well as MD of CMDC. It is also case of the prosecution that it is only after the said notification Suryakant Tiwari in conspiracy with certain other persons started obtaining an illegal levy of Rs. 25 per ton of coal for issuance of delivery order for coal transportation. The handwritten diaries maintained by one Rajnikant Tiwari who is brother of Suryakant Tiwari contained entries of incoming and outgoing amounts of unaccounted cash generated, inter alia from illegal levy on coal transport revealed profits of more than Rs. 500 crores in 16 months from different kinds of levies. On 29.09.2022, ECIR/RPZ0/09/2022 was registered by Directorate of Enforcement, Raipur Zonal Office for commission of offence under Sections 120 (B) & 384 of IPC being a part of FIR No. 129/2022.
4. The role of the present applicant is that the present applicant who is posted as Deputy Director, Mining Department is involved in verifying of delivery orders on instructions of Suryakant Tiwari in lieu of illegal gratification, disregarding and abusing his official position. It was not possible to run the extortion racket without collusion of mining officers, thus, the applicant has knowingly assisted in offence of money laundering as defined 3 of the Neutral Citation 2024:CGHC:22303 Page 4 of 35 PMLA, 2002. The applicant has assisted in generation of proceeds of crime as defined under Section 2(1)(u) of the PMLA, 2002 to the extent of quantity of coal cleared by him during the tenure of the scam (the PoC calculated as quantity of coal in tonnes multiplied by Rs. 25).
5. The statement of the applicant under Section 50 of the PMLA, 2002 has been recorded wherein he inter alia stated that for verification of the delivery order, the authorized office only used to match the data mentioned in delivery order and Form-A which are both forwarded by SECL and no specific database or documents of mining department is issued for verification of delivery order. The applicant has been untruthful during his statements recorded under Section 50 of the PMLA, 2002 which is evidence from- (1) Initially during his statement, the applicant had stated that he neither knows Suryakant Tiwari nor he has financial transaction with him. However, when the applicant was confronted with his Whatsapp chats with Suryakant Tiwari, the applicant admitted that the said conversation was between him and Suryakant Tiwari. The applicant then admitted that he knew Suryakant Tiwari and that during his posting as Mining Officer, Raigarh in 2015, Suryakant Tiwari visited his office to meet him and discussed the matter related to coal transportation. They were in contact with each other on regular Whatsapp calls and from the year 2020 to June, 2022, Suryakant Tiwari used to contact him for coal transportation. (2) In his other statement recorded under Section 50 of the PMLA, 2002, he initially stated Neutral Citation 2024:CGHC:22303 Page 5 of 35 that he did not know Hemant Jaiswal (Partner & associate of Suryakant Tiwari) however, in his later statement he stated that he knew Hemant Jaiswal who is in the business of coal transportation. The applicant in his statement recorded under Section 50 of the PMLA, 2002 had admitted that Suryakant Tiwari and Hemant Jaiswal used to contact him for clearance/verification of delivery orders and that other transporters also contacted him for clearance/verification of their Dos. The fact that applicant was clearing coal delivery orders on instructions of Suryakant Tiwari is also evident from his Whatsapp chats where in has messaged that "work has been done", "Do de diya hai Sir" to Suryakant Tiwari. Some coal transporters in their statement recorded under Section 50 of the PMLA, 2002 had stated that they used to pay bribe @ Rs. 1/ton to the applicant for clearing their coal delivery orders. Further, Nikhil Chandrakar, associate and confidant of Suryakant Tiwari in his statement recorded under Section 50 of the PMLA, 2002 on 25.12.2022 had stated that Moen Khan who was posted by Suryakant Tiwari in Korba for collection of illegal levy there used to contact the applicant for clearing of documents. In view of the above, the applicant has knowingly assisted Suryakant Tiwari by facilitating the extortion syndicate and has been actually involved in the activity connected to acquisition of POC, thus making himself guilty of Section 3 of the PMLA, 2002 which is punishable under Section 4 of the PMLA, 2002.
6. The record of the case would show that the applicant filed an Neutral Citation 2024:CGHC:22303 Page 6 of 35 application for grant of regular bail before the learned PMLA Court, Raipur (C.G.) seeking enlargement on regular bail. Learned Special Judge vide order dated 14.07.2023, dismissed the bail application filed by the applicant by observing that there is involvement of the applicant in proceeds of crime. This order has been assailed by the applicant before this Court by filing the instant bail application under Section 439 of the Cr.P.C.
7. The record of the case would show that the bail application was filed on 07.10.2023 and the matter was listed before this Court on 17.10.2023 thereafter it was adjourned for 09.11.2023, 06.02.2024, 07.03.2024, 21.03.2024 as on these dates, counsel for the applicant sought time to argument, therefore, the matter was listed on 09.04.2024, the bail petition was admitted and thereafter the matter was listed on 23.04.2024, 02.05.2024, arguments were heard and thereafter again it was listed on 09.05.2024 for argument and finally matter was heard.
8. Learned Senior counsel for the applicant would submit that the ECIR is an abuse of process of law as the same has been registered against the applicant on false, frivolous, vague and vexation allegations which do not make out any offence against the applicant and the same are vexatious and nonest in the eyes of law. He would further submit that there is no nexus between the allegation in the FIR and the proceedings pending before the Court in the ECIR dated 29.09.2022 and even name of the applicant is not mentioned in the FIR. He would further submit that at the time of arrest of the applicant under Section 19 of the Neutral Citation 2024:CGHC:22303 Page 7 of 35 PMLA, 2002, the applicant was never supplied the grounds of arrest in writing despite the clear mandate of aforementioned provisions, therefore, the non-compliance of statutory provision will render whole arrest proceedings null and void. He would further submit that neither the complaint nor the FIR reveals commission of any offence by the applicant. Even the applicant is nowhere related to any of the events or irregularities narrated in the FIR. The FIR and the complaint which do not name the applicant at all cannot be used as predicate offence by the respondent to seek remand of the applicant and register an ECIR against him. He would further submit that from bare perusal of the complaint does not disclose the commission of a cognizable offence as against the applicant much less than the offence punishable under Sections 186, 204, 120-B & 353 of IPC. He would further submit that the respondent under the PMLA, 2002 to prosecute any person for offence of money laundering gets triggered only if there exist proceeds of crime within the meaning of Section 2(1)(u) of the PMLA, 2002 and it is involved in any process or activity. Not even in a case of existence of undisclosed income and irrespective of its volume, the definition of proceeds of crime, under Section 2(1)(u) will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence.
9. He would further submit that the main object of PMLA, 2002 is to prevent laundering of 'proceeds of crime' which has been defined under Section 2(1)(u) of the PMLA, 2002. It is settled law Neutral Citation 2024:CGHC:22303 Page 8 of 35 that for proceedings to be initiated under the PMLA, 2002, the existence a scheduled offence as defined under Section 2(1)(y) resulting in generation of 'proceeds of crime', is indispensable and a necessary prerequisite. Only a person connected with any process or activity relating to the alleged proceeds of crime derived necessarily from the scheduled offence can be proceeded against under the PMLA. He would further submit that the applicant is a public servant and continuously working as a public servant with Govt. of Chhattisgarh. Section 65 of the PMLA, 202 clearly mandates that all the provisions of the Cr.P.C. shall be applicable under this Act unless it is inconsistent with the provisions of the PMLA, 2002. Thus, the provisions contained under Section 197 of the Cr.P.C. are salutary in nature whereas the Enforcement Directorate has never obtained any sanction order for prosecuting the applicant by obtaining sanction for prosecution under Section 197 of the Cr.P.C. and to substantiate this submission, he would refer to the judgment rendered by Hon'ble the High Court of Tamilnadu in case of Bibhu Prasad Acharya Vs. Directorate of Enforcement, reported in MANU/TN/0008/2019 (decided on 21.01.2019) wherein it has been held that sanction to prosecute petitioners as public servants was mandatory and prerequisite to take cognizance and thus, allowed the petition. In the present case, the Directorate of Enforcement has never obtained any sanction for prosecution under Section 197 of the Cr.P.C. hence the bail application may kindly be allowed on this count alone. Neutral Citation 2024:CGHC:22303 Page 9 of 35
10. He would further submit that the Enforcement Directorate has failed to make any allegation or show how the applicant has claimed or projected the alleged proceeds of crime as untainted which is an essential ingredient of Section 3 of the PMLA, 2002, therefore, it is submitted that even on a bare perusal of the allegations, no offence under Section 3 of the PMLA, 2002 is prima facie made out against the applicant.
11. He would further submit that the arrest and remand both were illegal & unlawful as the Enforcement Directorate had already obtained an order of remand under Section 167 of Cr.P.C., 1973 from the Court of Special Judge (PMLA) & 4th Additional Sessions Judge, Raipur at 06.20 on 25.01.2023 when applicant was admittedly arrested at 16.36 on 25.01.2023 & both these timings are recorded by the learned Special Judge in remand order dated 25.01.2023. To substantiate this submission, he would refer to the judgment of Hon'ble Supreme Court in the case of Prabir Purkayastha Vs. State (NCT of Delhi) [SLP (Crl.) Diary No. 42896/2023, decided on 15.05.2024].
12. He would further submit that the remand was illegal & unlawful as the Enforcement Directorate not being the Police Station & its Director not being the SHO of Police Station could not have taken the remand of the arrested accused and also on the count that after the cognizance of offence on the complaint is taken by the concerned Court, the Enforcement Directorate cannot arrest accused named in its complaint if the said accused was not arrested till the complaint was filed by the Enforcement Neutral Citation 2024:CGHC:22303 Page 10 of 35 Directorate. He would submit that the applicant was arrested on 25.01.2023 though he was named by the Enforcement Directorate as an accused in complaint dated 09.12.2022. He would further submit that cognizance of the said complaint dated 09.12.2022 was taken by the Court on the same day & therefore, the applicant could not have been arrested by the Enforcement Directorate without the permission of learned Special Court which was never obtained by the respondent. To substantiate this submission, he has referred to the judgment of Hon'ble the Supreme Court in case of Tarsem Lal Vs. Directorate of Enforcement, Jallandhar Zonal Office [Criminal Appeal No. 2608/2024, SLP (Crl.) No. 121/2024].
13. He would further submit that the arrest & continued detention of the applicant is illegal as admittedly no "predicate offence" is remaining in the matter of FIR No.129/2022 of the Income Tax Deptt. filed with Bengaluru Police in which charge-sheet has been filed before the Court of competent jurisdiction & Investigation stands completed & there is no "scheduled offence"
reported by Police and would submit that the order passed by this Court in case of Sunil Kumar Agrawal Vs. Directorate of Enforcement reported in 2024 SCC OnLine Chh 2875, has been superceded by the Hon'ble the Supreme Court on 17.05.2024. To substantiate this submission, he would refer to the order passed by Hon'ble the Supreme Court on 17.05.2024 in case of Sunil Kumar Agrawal Vs. Directorate of Enforcement [Special Leave to Appeal (Crl.) Nos. Neutral Citation 2024:CGHC:22303 Page 11 of 35 5890/2024].
14. He would further submit that the arrest of the applicant is ab-
initio ex-facie res ipsa locquitor illegal unlawful as the applicant was not provided with the grounds of arrest in the manner prescribed by Hon'ble Supreme Court in the case of Pankaj Bansal Vs. Union of India & others [Criminal Appeals Nos. 3051-3052/2023, SLP (Crl.) No. 9220-9221/2023, decided on 03.10.2023].
15. He would further submit that the arrest of the applicant was ab-
initio ex-facie res ipsa locquitor illegal unlawful as the applicant was arrested by Deputy Director/Assistant Director, Directorate of Enforcement, Raipur Zonal Office who are not the officers authorized under the PMLA, 2002 but are the Officers of the FEMA, 1999 in the Directorate of Enforcement, Raipur Zonal Office constituted u/s 36 of the FEMA, 1999 & has not been authorized by the Central Govt. so far to exercise the powers under the PMLA, 2002 which has been authorized to the Director, Directorate of Enforcement, Delhi by the Central Govt. alone & therefore, the officers from the Directorate of Enforcement other than the Director, Directorate of Enforcement, Delhi cannot exercise the jurisdiction under the PMLA, 2002 & admittedly the applicant was neither arrested by the Director, Directorate of Enforcement nor investigated & this material fact has not been denied by the Enforcement Directorate on affidavit despite the specific direction of this Court on 02.05.2024 for that, & the Notification of Central Govt. that was filed by Enforcement Neutral Citation 2024:CGHC:22303 Page 12 of 35 Directorate was only in respect of the Director, Directorate of Enforcement & not for other officers. He would further submit that the applicant is remained incarcation on 25.01.2023 and there is no justification remaining to keep the applicant in jail after the orders dated 17.05.2024 of the Hon'ble Supreme Court.
16. He would further submit that the only evidence against the applicant of any involvement in alleged PMLA, 2002 offence is an alleged Whatsapp message but the same is not permissible to be led as evidence as the Enforcement Directorate had not complied with the due procedure of law laid down by Section 69 of the Information Technology Act, 2000 read with the Rules 4, 8, 10, 22 & 23 of "the Information Technology (Procedure & Safeguards for Interception, Monitoring & Decryption of Information) Rules, 2009" read with the Rule 419A of the Indian Telegraph Rules, 1955. He would further submit that the alleged statement of the applicant allegedly recorded by the Enforcement Directorate under duress, cannot be used against the applicant.
17. He would further submit that the applicant has a clean record & has never been arraigned as an accused so far in any criminal case and is willing to submit any of the conditions which this Hon'ble Court may be pleased to impose on him and would pray for releasing the applicant on bail.
18. To substantiate his submission, he would refer to the judgment rendered by Hon'ble the Supreme Court in case of Vijay Madanlal Choudhary & others Vs. Union of India & others Neutral Citation 2024:CGHC:22303 Page 13 of 35 [SLP(Crl.) No. 4634/2014 (decided on 27.07.2022)], Dataram Vs. State, reported in (2018) 3 SCC 22, Joginder Kumar Vs. State of U.P., reported in (1994) 4 SCC 260, State of Maharashtra Vs. Nainmal Punjaji Shah, reported in (1969) 3 SCC 904, P. Chidambaram Vs. CBI, reported in (2020) 13 SCC 337, Gurbaksh Singh Sibbia Vs. State of Punjab, reported in (1980) 2 SCC 565, Bhadresh Bipinbhai Sheth Vs. State of Gujarat, reported in (2016) 1 SCC 152, Union of India Vs. Rattan Mallik, reported in (2009) 2 SCC 624, Prabir Purkayastha Vs. State (NCT of Delhi) [SLP (Crl.) Diary No. 42896/2023], Sunil Kumar Agrawal Vs. Directorate of Enforcement, reported in 2024 SCC OnLine Chh 2875, Tarsem Lal Vs. Directorate of Enforcement, Jallandhar Zonal Office [Criminal Appeal No. 2608/2024, SLP (Crl.) No. 121/2024], Yash Tuteja & another Vs. Union of India & others [W.P.(Crl.) No. 153/2023] & Pankaj Bansal Vs. Union of India & others [Criminal Appeals No. 3051-3052/2023, SLP (Crl.) No. 9220-9221/2023].
19. On the other hand, learned counsel for the Enforcement Directorate would refer to the ECIR and would submit that the role of the present applicant is that the present applicant who is posted as Deputy Director, Mining Department is involved in verifying of delivery orders on instructions of Suryakant Tiwari in lieu of illegal gratification thus disregarding and abusing his official position. It was not possible to run the extortion racket without collusion of mining officers, thus, the applicant has Neutral Citation 2024:CGHC:22303 Page 14 of 35 knowingly assisted in offence of money laundering as defined 3 of the PMLA, 2002. The applicant has assisted in generation of proceeds of crime as defined under Section 2(1)(u) of the PMLA, 2002 to the extent of quantity of coal cleared by him during the tenure of the scam (the PoC calculated as quantity of coal in tonnes multiplied by Rs. 25) and to substantiate his submission, he would refer to the statement of the applicant recorded under Section 50 of the PMLA, 2002 which has already been referred to by this Court in foregoing paragraphs.
20. He would further submit that the learned Special Judge (PMLA), Raipur vide order dated 14.07.2023 while dismissing the bail application filed by the applicant has observed that there is involvement of the applicant in proceeds of crime, which has not been rebutted by the applicant while making this submission before this Court. He would further submit that the applicant is unable to fulfill the twin conditions of Section 45 of the PMLA, 2002 as from the above factual matrix, it is quite vivid that the possibility of the accused being not guilty of the offence of money laundering is highly impossible. To substantiate the submission, he would refer to paragraph 135 of the the judgment rendered by Hon'ble the Supreme Court in case of Vijay Madanlal Choudhary (supra). He would further submit that the applicant with proceed of crime and having deep roots in the society, is in a position to influence witnesses. He has referred to the judgment of Hon'ble Allahabad High Court in case of Pankaj Grover v. ED [Criminal Misc. Anticipatory Bail Application Neutral Citation 2024:CGHC:22303 Page 15 of 35 U/S 438 Cr.P.C. No. 7661 of 2021] wherein Hon'ble the High Court has held that the accused in economic offences/ PMLA cases are in possession of huge proceeds of crime and may use those to influence witnesses. Further the Court also held that since such offences are committed mostly by influential persons, there is a high likelihood of their using influence to tamper with evidence and influence witnesses. He would further submit that economic offence constitute a separate class of offence and in the present case, the amount involved in the offence of money laundering is Rs. 540 crores approximately and in view of well settled position of law that economic offence constitutes a separate class of offence and bail should not normally be granted in such cases and would pray for rejection of bail petition.
21. To substantiate his submission, he would refer to the judgment rendered by Hon'ble the Supreme Court in case of Nimmagadda Prasad Vs. CBI, reported in (2013) 7 SCC 466, State of Bihar Vs. Amit Kumar reported in (2017) 13 SCC 751, Gautam Kundu Vs. Manoj Kumar reported in (2015) 16 SCC 1, Mohd. Arif Vs. Directorate of Enforcement, Govt. of India, BLAPL No. 8882/2021 (decided on 31.05.2022), Soumya Chaurasia Vs. Directorate of Enforcement Special Leave Petition (Crl.) No. 8847/2023, Radha Mohan Lakhotia Vs. The Deputy Director, PMLA, Department of Revenue reported in MANU/MH/1011/2010, Anirudh Kamal Shukla Vs. Union of India [Criminal Misc. Anticipatory Bail Application under Neutral Citation 2024:CGHC:22303 Page 16 of 35 Section 438 Cr.P.C. No. 307/2022, decided on 21.03.2022], Naib Singh Vs. State of Haryana [CRM-M-29466-2022, decided on 15.11.2022].
22. This Court on 02.05.2024 has directed the Enforcement Directorate to file an affidavit showing authority of officers of Enforcement Directorate to investigate and lodge prosecution complaint. In pursuance of the direction issued by this Court, the respondent-Enforcement Directorate has filed affidavit mainly contending that from bare perusal of the PMLA, 2002, it is quite vivid that Assistant Director is an authority empowered to conduct investigation under the PMLA, as such, the investigation and prosecution has been initiated by the competent authority. The relevant part of the affidavit is as under:-
"3.1 That in exercise of the powers conferred by sub-section (3) of section 1 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA, 2002), the Central Government (Government of India), vide notification(G.S.R. No.436(E) dated 01.07.2005, appointed the 1 day of July, 2005, as the date on which all the provisions of the PMLA, 2002 were come into force.
3.2 Further, it is submitted that the Authorities under this act and their appointment and powers are provided under section 48 and 49 of the PMLA, 2002.
For the sake of reference Sections 48 & 49 of PMLA are reproduced as follows:-
48. Authorities under Act.-
There shall be the following classes of authorities for the purposes of this Act, namely:-
(a) Director or Additional Director or Joint Director,
(b) Deputy Director,
(c) Assistant Director, and
(d) such other class of officers as may be appointed for the purposes of this Act.
49. Appointment and powers of authorities and other Neutral Citation 2024:CGHC:22303 Page 17 of 35 officers.-
(1) The Central Government may appoint such persons as it thinks fit to be authorities for the purposes of this Act. (2) Without prejudice to the provisions of sub-section (1), the Central Government may authorise the Director or an Additional Director or a Joint Director or a Deputy Director or an Assistant Director appointed under that sub-section to appoint other authorities below the rank of an Assistant Director.
(3) Subject to such conditions and limitations as the Central Government may impose, an authority may exercise the powers and discharge the duties conferred or imposed on it under this Act.
3.3 That further in exercise of the powers conferred by sub- section (1) of section 49 of the PMLA, 2002, the Central Government (Government of India), vide notification(GS.R. No. 440(E) dated 01.07.2005, appointed, with effect from the 1º date of July, 2005, the Director of Enforcement nolding office immediately before the said date under the Foreign Exchange Management Act, 1999 (42 of 1999), as the Director to exercise the exclusive powers conferred under section 5, section 8, section 16, section 17, section
18. section 19, section 20, section 21, sub-section (1) of section 26. section 45, section 50, section 57, section 60, section 62 and section 63 of the said Act and the said Director shall also concurrently exercise powers conferred by sub section (3), sub section (4) and sub-section (5) of section 26, section 39, section 40, section 41, section 42, section 48, section 49, section 66 and section 69 of the PMLA, 2002.
3.4 Further, it is submitted that the Respondent in the present case has also been duly authorized by the Central Govt. vide Ministry of Finance, DOR Order F. No.6/14/2008- ES dated 11/11/2014.
"In exercise of the powers conferred under sub section (1) of section 45 of PMLA 2002(15 of 2023) (hereinafter referred to as the Act), the Central Government hereby authorizes the officers not below the rank of Assistant Director in the Directorate Of Enforcement to file complaint under section 45 of the Act before the designated Special Courts constituted under sub section (1) of section 43 of the act of the Act for trail of offence punishable under section 4 of the Act."
3.5 Further, Section 2(na) of the PMLA defines Neutral Citation 2024:CGHC:22303 Page 18 of 35 "investigation as follows:
"Investigation includes all the proceedings under this Act conducted by the Director or by an authority authorized by the Central Government under this Act for the collection of evidence"
3.6 That in view of the above, the authorities under the PMLA have the power to investigate and to file prosecution complaints under PMLA, also, the Assistant Director being an authorized officer notified by the Central Government for this purpose has the power to file a Prosecution Complaint under the act.
3.7 As evident from the above produced Sections, Section 48 provides that a certain class of officers shall be appointed as authorities under the Act, wherein Assistant Director is mentioned as one of the officers for acting as an authority under the Act.
3.8 The above produced sections make it aburidantly clear that Assistant Director is one of the authorities under the Act and once a Assistant Director has been appointed as an authority under the Act, he shall exercise the powers conferred or assigned to him under the provisions of the PMLA, 2002.
3.9 The above provisions of the PMLA, 2002 unequivocally designates the Assistant Director, among other specified officers, as an authority empowered to conduct investigations under the PMLA Therefore, based on the plain language of the statute, the Assistant Director is explicitly authorized to investigate the offence of money laundering under the PMLA, 2002.
3.10 In conclusion, considering the expansive definition of "investigation" provided in Section 2(na) of the PMLA and the specific mention of the AD as an authorized officer under Section 48 of the Act, the AD possesses the requisite authority to investigate the offence of money laundering under the PMLA, 2002 and the notification of Central Government discussed above empowers the AD to file a prosecution complaint under the act."
23. I have heard learned counsel for the parties and perused the documents placed on record including ECIR with utmost satisfaction.
24. From the above discussion, the points to be emerged for Neutral Citation 2024:CGHC:22303 Page 19 of 35 determination by this Court are :-
Point No. 1 : Whether disclosure of insufficient reason in remand order, alleged illegal custody entitled the applicant to be released on bail under the PMLA, 2002.
Point No. 2 : Whether the applicant fulfills twin conditions of Section 45 of the PMLA, 2002 for grant of bail.Point No. 1
25. To determine this issue, it is necessary for this Court to examine the relevant provisions of the PMLA, 2002. Chapter-V of the PMLA, 2002 deals with the power of an authority to conduct survey, search and seizure of both a place and a person followed by arrest, if so required. These provisions of step-in-aid in the conduct of the enquiry of investigation. Section 19 of the PMLA, 2002 is reproduced below:-
"Section 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 (that 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 Director, Deputy Director, Assistant Director or any other officer shall, immediately after arrest of such person under sub-section (1), forward a copy of the order along with the material in his possession, referred to in that sub-
section, to the Adjudicating Authority, in a sealed envelope, in the manner, as may be prescribed and such Adjudicating Authority shall keep such order and material for such period, as may be prescribed.
(3) Every person arrested under sub-section (1) shall, within twenty-four hours, be taken to a [Special Court or] [Inserted by Finance Act, 2018 (Act No. 13 of 2018) dated 29.3.2018.] Judicial Magistrate or a Metropolitan Magistrate, as the case may be, having jurisdiction:
Provided that the period of twenty-four hours shall exclude Neutral Citation 2024:CGHC:22303 Page 20 of 35 the time necessary for the journey from the place of arrest to the [Special Court or] Magistrate's Court."
26. From bare perusal of the Section 19 of the PMLA, 2002, it is quite vivid that for arresting any person, any officer authorized has on the basis of material on his possession and through such materials, he is expected to form a reason to believe that a person has been guilty of an offence punishable under the PMLA, 2002, then only, he is at liberty to arrest. This Section further provides that the said exercise has to be followed by way of an information being served on the arrestee of the grounds of arrest. Any non-compliance of the mandate of Section 19(1) of the PMLA, 2002 would vitiate the very arrest itself. Under sub-
section (2), the Authorized Officer shall immediately, after the arrest, forward a copy of the order as mandated under sub- section (1) together with the materials in his custody, forming the basis of his belief, to the Adjudicating Authority, in a sealed envelope. Needless to state, compliance of sub-section (2) is also a solemn function of the arresting authority which brooks no exception.
27. Now this Court has to examine the case of the applicant vice versa case of the Enforcement Directorate whether there is compliance of Section 19 of the PMLA is done by the Enforcement Directorate or not. For considering this issue, it is expedient for this Court to extract the reason to believe to arrest dated 25.01.2023 as well as grounds of arrest dated 25.01.2023 have been recorded by the Enforcement Directorate. The Enforcement Directorate in his grounds of arrest has considered Neutral Citation 2024:CGHC:22303 Page 21 of 35 in paragraphs 8 to 10, which are as under:-
"8. Some coal transporters in their statement recorded u/s 50 of PMLA had stated that they used to pay bribe @ Rs. 1/ton to Shri Shiv Shankar Nag for clearing their Coal Delivery Orders. Further, Shri Nikhil Chandrakar, associate and confidante of Shri Suryakant Tiwari in his statement recorded u/s 50 of PMLA on 25.12.2022 had stated that Moen Khan who was posted by Shri Suryakant Tiwari in Korba for collection of illegal levy there used to contact Shri Shiv Shankar Nag for clearing the DOs. Thus, it is clear that, Shri Shiv Shankar Nag was clearing DOs only when the coal transporter had paid an amount of Rs. 25/ton to Moen Khan and thus Shri Shiv Shankar Nag was knowingly and actively assisting Suryakant Tiwari in acquisition of proceeds of crime.
9. It is also pertinent to mention here that summon to Shiv Shankar Nag for his personal appearance in the office on 19.01.2023 and he did not appear in the office for tendering his statement.
10. In view of the above, it is evident that Shri Shiv Shankar Nag has knowingly and willingly assisted the extortion syndicate in committing the predicate crime of extortion and also in the generation of the proceeds of crime. He was well aware that by following the instructions of a private person like Moen Khan, he was deviating from the office rules and guidelines. He had complete knowledge that his acts were leading to extortion from transporters and thus, he has involved himself and is a party to the acquisition of the proceeds of crime. However, he is still evasive regarding his role and share in the loot.
11. Accordingly, on the basis of the material in my possession, I have the reason to believe that Shiv Shankar Nag has committed the offence of money laundering as defined under section 3 of the PMLA and hence his arrest is necessary to i. To prevent the destruction of evidence. ii. To confront him with various persons who are involved in these activities.
iii. To trace out the diverted funds which is the proceeds of crime.
iv. To prevent him from influencing the witnesses. v. To identify other persons involved in these activities."
28. Thus, there was reason to believe to arrest the applicant as well as grounds of arrest, are available with the Enforcement Directorate regarding involvement of the applicant in commission Neutral Citation 2024:CGHC:22303 Page 22 of 35 of offence under the PMLA, 2002. Thereafter the arrestee was taken to the Special Court on 25.01.2023 who has granted the custody. Thus, the foundation led by the applicant in light of law laid down by Hon'ble the Supreme Court in case of Prabir Purkayastha (supra) wherein Hon'ble the Supreme Court in paragraph 49 has held that there is a significant difference in the place of reason for arrest and ground for arrest. Hon'ble the Supreme Court has held that grounds of arrest would be required to contain all such details in the hands of Investigating Officer which necessitates the arrest of the accused. Simultaneously grounds of arrest in form in writing must convey to the arrested accused all basic facts on which was being arrested so as to provide him an opportunity of defending himself against the custodial remand and to seek bail, is not available to the applicant. As in the present case, the Enforcement Directorate has also reason to believe for arresting and grounds of arrest is available with the Enforcement Directorate, thus, the submission made by learned counsel for the applicant that the arrest and continuation of incarceration, is illegal, deserves to be rejected.
29. Further submission of learned counsel for the applicant that since sanction has not been obtained by the Enforcement Directorate before lodging of prosecution complaint as per the provision of Section 197 of the Cr.P.C., the investigation and subsequent prosecution and incarceration, are illegal, deserves to be rejected as it is well settled position of law that for getting Neutral Citation 2024:CGHC:22303 Page 23 of 35 protection under Section 197 of the Cr.P.C., the said offence should relate to in course of service whereas the present allegation levelled against the applicant relates to offence under Sections 3 & 4 of the PMLA, 2002 which has no nexus with the official duty to be discharged by him but it is derogation of duties as such no sanction is required. Even it is well settled of law that whether the sanction has been obtained or not or whether the sanction is necessary or not, can be ascertained by the trial Court where the evidence has to be examined after analyzing the material, evidence placed before it.
30. Further submission of learned counsel for the applicant that the prosecution complaint has been lodged by the Assistant Director who is not authorized under the PMLA, 2002. This submission is also deserves to be rejected as the Assistant Director has been authorized by the Directorate of Enforcement Officers to initiate search and seizure, power to arrest, filing of prosecution complaint and in pursuance of the order dated 11.11.2014 passed by Under Secretary to Government of India, not below the rank of Assistant Directors, have been authorized by the Central Government to file complaint under Section 45 of the PMLA, 2002 before the designated Special Court constituted under Section 43 of the PMLA, 2002. As such the investigation, search and prosecution complaint has been lodged by the competent authority accordingly, the submission regarding authority of the Assistant Director to investigation or to lodge prosecution complaint, deserves to be rejected accordingly, it is Neutral Citation 2024:CGHC:22303 Page 24 of 35 rejected.
31. From bare perusal of the second prosecution complaint dated 30.01.2023, it is quite vivid that prima facie the Enforcement Directorate has collected evidence of offence of money laundering against the present applicant though its correctness is required to adjudicated during trial.
32. Further submission of learned counsel for the applicant that the other co-accused Sunil Kumar Agarwal has been granted bail by the Hon'ble the Supreme Court on 17.05.2024 in Special Leave to Appeal (Crl.) Nos. 5890/2024, the order passed by this Court is superseded, deserves to be rejected as Hon'ble the Supreme Court while granting interim bail, has recorded its finding in paragraph 13 that consequently, but without expressing any final opinion with regards to the prayer, has granted interim bail to the applicant. Learned counsel for the applicant has vehemently submitted before this Court that the applicant is remained in jail for one year and six months, therefore, his bail should be considered sympathetically, deserves to be rejected as the applicant being Deputy Director of mining department of Government of Chhattisgarh and was very much responsible for affairs of the Government regarding transportation of mines and minerals, there is some evidence which is also against him and also as per the laid down by Hon'ble the Supreme Court in case of Y Vs. State of Rajasthan & another reported in (2022) 9 SCC 269 wherein Hon'ble the Supreme Court in paragraph 8 to 14 has held as under:-
Neutral Citation 2024:CGHC:22303 Page 25 of 35 "8. This Court has, in a catena of judgments, outlined the considerations on the basis of which discretion under Section 439, CrPC has to be exercised while granting bail. In Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118 this Court hasheld as to the various parameters which must be considered while granting bail. This Court held as follows:
"24. ...Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."
9. The above factors do not constitute an exhaustive list. The grant of bail requires the consideration of various factors which ultimately depends upon the specific facts and circumstances of the case before the Court. There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, interalia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused [see State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21].
10. At the stage of granting bail the Court is not required to enter into a detailed analysis of the evidence in the case. Such an exercise may be undertaken at the stage of trial.
11. Once bail has been granted, the Appellate Court is usually slow to interfere with the same as it pertains to the liberty of an individual. A Constitution Bench of this Court in Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767 observed as follows:
"3. ... It is for this reason that the Apex Court has evolved, as a matter of selfdiscipline, certain norms to guide it in the exercise of its discretion in cases where special leave Neutral Citation 2024:CGHC:22303 Page 26 of 35 petition are filed against orders granting or refusing bail or anticipatory bail....We reiterate this policy principle laid down by the bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter."
(emphasis supplied)
12. The above principle has been consistently followed by this Court. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 this Court held as under:
"9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
xxx xxx xxx
10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of nonapplication of mind, rendering it to be illegal....."
13. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 this Court followed the holding in Prasanta Kumar Sarkar (supra) and held as follows:
"17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus Neutral Citation 2024:CGHC:22303 Page 27 of 35 required to consider whether the order granting bail suffers from a nonapplication of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed the crime, also taking into account the seriousness of the crime and the severity of the punishment..."
14. Recently, a three Judges' Bench of this Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & Anr. in Criminal Appeal No. 632 of 2022, has reiterated the factors that the Court must consider at the time of granting bail under Section 439 CrPC, as well as highlighted the circumstances where this Court may interfere when bail has been granted in violation of the requirements under the abovementioned section. This Court observed as follows:
"27. We may, at the outset, clarify that power to grant bail under Section 439 of CrPC, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court of the Sessions Court must grant bail after the application of a judicial mind, following well- established principles, and not in a cryptic or mechanical manner."
33. This Court has already rejected the bail application of other co-
accused persons who are also senior Government Officers. This Court while rejecting their bail application has recorded prima facie involvement of the Government servants, therefore, considering the prima facie involvement of the applicant as also the role played by the applicant, the present bail application deserves to be rejected. Even otherwise, the law has been well settled by Hon'ble the Supreme Court that while considering the bail application, the Court is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless, Neutral Citation 2024:CGHC:22303 Page 28 of 35 the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witness being tempered with, the large interest of the public/state etc. Hon'ble the Supreme Court in case of Saumya Chourasiya Vs. Directorate of Enforcement [Criminal Appeal No. 3840 of 2023, decided on 14.12.2023], wherein Hon'ble the Supreme Court has held at paragraph 18 & 19 as under:-
"18. The object of the PMLA hardly needs to be delineated. The said Act has been enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for the matters connected therewith and incidental thereto. As per Section 2(1)(p), "Money Laundering" has the meaning assigned to it in Section 3. The offence of Money Laundering has been defined in Section 3, which is punishable under Section 4 of the said Act. Section 45 makes the offences under the PMLA to be cognizable and non bailable. As regards the twin conditions for the grant of bail contained in Section 45(1), it has been held by the Three-Judge Bench in Vijay Madanlal (supra) that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering.
19. Though it is true that the Court while considering an application seeking bail is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witness being tempered with, the large interest of the Neutral Citation 2024:CGHC:22303 Page 29 of 35 public/ state etc. Though the findings recorded by the Court while granting or refusing to grant bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion while granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences."
34. Further contention of learned counsel for the applicant that the applicant is remained in custody for one year and six months, therefore, he should be released on bail, cannot be considered in view of the gravity of offence and prima facie involvement of the applicant in the commission of offence. Hon'ble the Supreme Court in case of Satyendar Kumar Jain Vs. Directorate of Enforcement [Criminal Appeal No. 1638 of 2024, decided on 18.03.2024] wherein it has been held at paragraph 28 to 34 as under:-
"28. From the above stated facts there remains no shadow of doubt that the appellant- Satyendar Kumar Jain had conceptualized idea of accommodation entries against cash and was responsible for the accommodation entries totalling to Rs. 4.81 crores (approx.) received through the Kolkata based entry operators in the bank accounts of the four companies i.e. M/s. Akinchan Developers Pvt. Ltd., M/s. Paryas Infosolution Pvt. Ltd., M/s. Indo Metalimpex Pvt. Ltd. and M/s. Mangalayatan Projects Pvt. Ltd., by paying cash and the said companies were controlled and owned by him and his family. Though it is true that a company is a separate legal entity from its shareholders and directors, the lifting of corporate veil is permissible when such corporate structures have been used for committing fraud or economic offences or have been used as a facade or a sham for carrying out illegal activities.
29. It has also been found that the appellants - Ankush Jain and Vaibhav Jain had assisted the appellant-Satyendar Kumar Jain by making false declarations under the IDS each of them declaring alleged undisclosed income of Rs.8.26 crores in order to protect Satyendar Kumar Jain. Though it was sought to be submitted by the learned counsel for the appellants that the said declarations under IDS having been held to be "void" in terms of Section 193 of FA, 2016 by the income tax authorities, the same could not be looked into in the present proceedings, the said submission cannot be accepted. The declarations made by Neutral Citation 2024:CGHC:22303 Page 30 of 35 the appellants-Ankush Jain and Vaibhav Jain under IDS have not been accepted by the Income Tax authorities on the ground that they had misrepresented the fact that the investments in the said companies belonged to the said appellants, which in fact belonged to Mr. Satyendar Kumar Jain. The appellants could not be permitted to take advantage of their own wrongdoing of filing the false declarations to mislead the Income Tax authorities, and now to submit in the present proceedings under PMLA that the said declarations under the IDS were void. The declarations made by them under the IDS though were held to be void, the observations and proceedings recorded in the said orders passed by the Authorities and by the High Court cannot be brushed aside merely because the said declarations were deemed to be void under Section 193 of the Finance Act, 2016. The said proceedings clearly substantiates the case of the respondent ED as alleged in the Prosecution Complaint under the PMLA.
30. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that the appellants have miserably failed to satisfy us that there are reasonable grounds for believing that they are not guilty of the alleged offences. On the contrary, there is sufficient material collected by the respondent-ED to show that they are prima facie guilty of the alleged offences.
31. Though Ms. Arora had faintly sought to submit that the so-called inadvertent mistake committed by the ED with regard to the figures mentioned in the Prosecution Complaint in respect of the role of the appellants Ankush Jain and Vaibhav Jain should not be permitted to be corrected, which otherwise show that the allegations against the appellants were vague in nature, we are not impressed by the said submission. We are satisfied from the explanation put forth in the affidavit filed on behalf of the respondent-ED that it was only an inadvertent mistake in mentioning the figure Rs.1,53,61,166/- in the bracketed portion, which figure was shown by the CBI in its chargesheet. The said inadvertent mistake has no significance in the case alleged against the appellants in the proceedings under the PMLA.
32. From the totality of facts and circumstances of the case, it is not possible to hold that appellants had complied with the twin mandatory conditions laid down in Section 45 of PMLA. The High Court also in the impugned judgment after discussing the material on record had prima facie found the appellants guilty of the alleged offences under the PMLA, which judgment does not suffer from any illegality or infirmity.
33. The appellants were released on bail for temporary period after their arrest and the appellant-Satyendar Kumar Jain was released on bail on medical ground on Neutral Citation 2024:CGHC:22303 Page 31 of 35 30.05.2022, which has continued till this day. He shall now surrender forthwith before the Special Court. It is needless to say that right to speedy trial and access to justice is a valuable right enshrined in the Constitution of India, and provisions of Section 436A of the Cr.P.C. would apply with full force to the cases of money laundering falling under Section 3 of the PMLA, subject to the Provisos and the Explanation contained therein.
34. In that view of the matter, all the appeals are dismissed."
Thus, Point No. 1 answered against the applicant. Point No. 2
35. Before adverting to the facts of the case, it is expedient for this Court to extract Section 45 of the PMLA, 2002, which reads as under:-
"Section 45 of PMLA, 2002- Offences to be c31.05.2022ognizable and non-bailable.-- (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless--]
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by--
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.
[(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into Neutral Citation 2024:CGHC:22303 Page 32 of 35 an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub- section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
36. From bare perusal of ECIR with regard to the allegations leveled against the present applicant, it is quite vivid that the the present applicant has played a specific role in commission of offence. Investigation revealed that the applicant had helped Surykant Tiwari in the offence. The ECIR would further reflect that the present applicant is involved in verifying of delivery order on the instructions of Suryakant Tiwari in liue of illegal gratification, thus, disregarding and abusing is official position. It has also recorded in the ECIR that it was not possible to run the extortion racket without the collusion of the mining officers and thus the applicant was knowingly assisted in the offence of money laundering as defined in Section 3 of the PMLA, 2002. Thus, the applicant is unable to fulfill the twin conditions of Section 45 of the PMLA, 2002.
37. Considering the above stated factual legal matrix, it is quite vivid that the applicant is unable to fulfill twin conditions for grant of bail as per Section 45 of the PMLA, 2002 and also considering the submission that the applicant has not prima facie reversed the burden of proof and dislodged the prosecution case which is mandatory requirement to get bail. Hon'ble the Supreme Court in case of Directorate of Enforcement Vs. Aditya Tripathi (Criminal Appeal No. 1401/2023) decided on 12.05.2023 has Neutral Citation 2024:CGHC:22303 Page 33 of 35 held at paragraphs 6 & 7 as under:-
"6. At the outset, it is required to be noted that respective respondent No. 1 - accused are facing the investigation by the Enforcement Directorate for the scheduled offences and for the offences of money laundering under Section 3 of the PML Act punishable under Section 4 of the said Act. An enquiry/investigation is still going on by the Enforcement Directorate for the scheduled offences in connection with FIR No. 12/2019. Once, the enquiry/investigation against respective respondent No. 1 is going on for the offences under the PML Act, 2002, the rigour of Section 45 of the PML Act, 2002 is required to be considered. Section 45 of the PML Act, 2002 reads as under:-
"45. Offences to be cognizable and non-bailable.-- (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless--]
(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by--
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.
[(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub- section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for Neutral Citation 2024:CGHC:22303 Page 34 of 35 the time being in force on granting of bail."
By the impugned judgment(s) and order(s) and while granting bail, the High Court has not considered the rigour of Section 45 of the PML Act, 2002.
6.1 Even otherwise, the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offences under the PML Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly.
6.2 Now so far as the submissions on behalf of the respective respondent No. 1 that respective respondent No. 1 were not named in the FIR with respect to the scheduled offence(s) and/or that all the other accused are discharged/acquitted in so far as the predicated offences are concerned, merely because other accused are acquitted/discharged, it cannot be a ground not to continue the investigation in respect of respective respondent No. 1. An enquiry/investigation is going on against respective respondent No. 1 with respect to the scheduled offences. Therefore, the enquiry/investigation for the scheduled offences itself is sufficient at this stage. 6.3 From the impugned judgment(s) and order(s) passed by the High Court, it appears that what is weighed with the High Court is that chargesheet has been filed against respective respondent No. 1 - accused and therefore, the investigation is completed. However, the High Court has failed to notice and appreciate that the investigation with respect to the scheduled offences under the PML Act, 2002 by the Enforcement Directorate is still going on. Merely because, for the predicated offences the chargesheet might have been filed it cannot be a ground to release the accused on bail in connection with the scheduled offences under the PML Act, 2002. Investigation for the predicated offences and the investigation by the Enforcement Directorate for the scheduled offences under the PML Act are different and distinct. Therefore, the High Court has taken into consideration the irrelevant consideration. The investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is till going on.
7. As observed hereinabove, the High Court has neither considered the rigour of Section 45 of the PML Act, 2002 nor has considered the seriousness of the offences alleged against accused for the scheduled offences under the PML Act, 2002 and the High Court has not at all considered the fact that the investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is still going on and therefore, the impugned orders passed by the Neutral Citation 2024:CGHC:22303 Page 35 of 35 High Court enlarging respective respondent No. 1 on bail are unsustainable and the matters are required to be remitted back to the High Court for afresh decision on the bail applications after taking into consideration the observations made hereinabove."
38. Considering the ECIR and other material placed on record, which prima facie shows involvement of the applicant in crime in question and also considering the judgment of Hon'ble the Supreme Court in case of Saumya Chourasiya (supra) & Satyendar Kumar Jain (supra), it is quite vivid that the applicant is unable to fulfill the twin conditions for grant of bail as provided under Section 45 of the PMLA, 2002. Thus, Point No. 2 is answered against the applicant.
39. Considering the above stated factual and legal matrix, the role played by the applicant, prima facie, the remand and arrest order are in accordance with the provisions of the PMLA, 2002 and also considering the gravity of offence, I am not inclined to enlarge the applicant on bail.
40. Accordingly, the bail application filed under Section 439 of the Cr.P.C. is also liable to be and is hereby rejected.
41. The observation made by this Court is not bearing any effect on the trial of the case. The learned trial court will decide the criminal trial in accordance with evidence, material placed on record, without being influenced by any of the observations made by this Court while deciding the present bail application.
Sd/-
(Narendra Kumar Vyas) Judge Arun