Jharkhand High Court
Talha Khan vs Directorate Of Enforcement on 12 April, 2024
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.10296 of 2023
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Talha Khan, aged about 30 years, son of Salik Akhtar Khan, resident of Hill View Road, Near Rahat Nursing Home, Bariatu, P.O. Bariatu, P.S. Bariatu, District Ranchi .... .... Petitioner Versus Directorate of Enforcement, Government of India represented through its Assistant Director .... .... Opp. Party CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Indrajit Sinha, Advocate Mr. Sneh Singh, Advocate For the Opp. Party : Mr. Anil Kumar, Addl. S.G.I. Ms. Chandana Kumari, AC to Addl. SGI
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C.A.V. on 15.03.2024 Pronounced on 12/04/2024 Prayer
1. The instant application has been filed under Sections 439 and 440 of Code of Criminal Procedure for grant of regular bail to the petitioner, in connection with ECIR Case No.01 of 2023 in ECIR-RNZO/18/2022, dated 21.10.2022 registered for the alleged offence under Section 3 punishable under Section 4 of the Prevention of Money Laundering Act, 2002, now pending in the Court of Special Judge, P.M.L.A. at Ranchi. Facts/Prosecution case
2. The prosecution story in brief, as per the allegation made in the instant ECIR/complaint, reads as under:
3. An ECIR bearing No. 18/2022 was recorded on 21.10.2022 based on Bariatu P.S. Case No. 141 of 2022 dated 04.06.2022, registered under 1 B.A. No.10296/2023 section 420, 467 and 471 of IPC, against Pradeep Bagchi on the basis of complaint of Tax Collector of Ranchi Municipal Corporation for submission of forged papers i.e. Aadhar Card, Electricity Bill and Possession letter for obtaining holding number 0210004194000A1 and 0210004031000A5. Investigation revealed that by submitting the forged documents, a holding number was obtained in name of Pradeep Bagchi for property at Morabadi Mouza, Ward No. 21/19, Ranchi having an area of the plot measuring 455.00 decimals approx. at Ranchi.
4. Investigation further revealed that the above property belonged to Late B.M. Laxman Rao which was given to the Army and had been in the possession of the Defence, in occupation of the Army since independence. Investigation reveals that by way of creating a fake owner (Pradeep Bagchi) of the above said property, it was sold to one company M/s Jagatbandhu Tea Estate Pvt. Ltd for which the consideration amount was shown Rs. 7 crores which was highly under value and out of this amount Rs. 7 crores payment amounting to Rs. 25 lakhs only were made into the account of said Pradeep Bagchi and rest of the money was falsely shown to be paid through cheques in the deed no.- 6888 of 2021.
5. It has come during investigation that records available at the C.O. Bargain, Ranchi along with the office of Registrar of Assurances, Kolkata have been altered and records have been modified. The survey of Circle Office Bargain as well as Registrar of Assurances, Kolkata transpires that documents have been tempered to create fictitious onus of the above properties.
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6. The Enforcement Directorate upon completion of investigation filed the prosecution complaint under section 45 read with 44 of PML Act being ECIR Case no. 01/2023 against the present petitioner and consequently. the trial court vide order dated 19.06.2023 has taken the cognizance of the aforesaid offence.
7. The specific allegation against the present petitioner is like that he in connivance with other accused persons illegally acquired a piece of land measuring 60 decimals situated at Plot no.668, Khata no.29, Mauja Gari, P.S. Bariatu, Ranchi frivolously showing for an amount of Rs.4 crores. The accused person acquired proceeds of crime through his company Confiar Projects Pvt. Ltd. in its Axis Bank account 91802000064516549. Proceeds of crime amounting to Rs.12,35,56,621/- were credited during period 15.06.2019 to 07.06.2023 out of which Rs.1,28,74000 was siphoned off in cash. The accused person used his bank accounts for placement layering and integration of the proceeds of crime.
8. Accordingly, the present petitioner has been arrested under section 19 of PML, Act 2002 accordingly the petitioner had preferred the Misc. Cri. Application No. 2533 of 2023 for grant of his bail but the same was rejected vide order dated 25.08.2023 by the AJC-I-Cum Special Judge, CBI-Cum- Special Judge under PMLA at Ranchi.
9. Hence, the present petition has been preferred for the grant of bail. Argument on behalf of the learned counsel for the petitioner
10. Mr. Indrajit Sinha, learned counsel appearing for the petitioner has taken the following grounds that: -
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(i) Even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002.
(ii) The proceeds of crime are only be said to be proceeds of crime, if it is obtained from the scheduled offence.
(iii) The transaction in the present case is not anywhere related with the Jagatbandhu Tea Estates Pvt. Ltd, rather, the amount shown to be deposited in the bank account is of other business transaction.
(iv) The ground of parity has also been taken, since, one of the co-accused namely, Dilip Kumar Ghosh has been granted bail by the co-ordinate Bench of this Court vide order dated 28.11.2023 passed in B.A. No.7233 of 2023.
11. Learned counsel for the petitioner, based upon the aforesaid ground, has submitted that the learned court while considering the prayer for bail ought to have taken into consideration all these aspects of the matter both legal and factual but having not done so, serious error has been committed.
12. Further submission has been made in the aforesaid view of the matter as per the ground agitated that it is a fit case where the petitioner is to be given the privilege of bail.
Argument on behalf of the learned counsel for the Opp. Party/Directorate of Enforcement
13. Per contra, Mr. Anil Kumar, learned Addl. S.G.I. appearing for the 4 B.A. No.10296/2023 Opp. Party-Directorate of Enforcement has vehemently opposed the prayer for bail by taking the following grounds:-
(i) It is incorrect on the part of the petitioner to take the ground that the proceeds of crime are only be said to be proceeds of crime if it is obtained from the scheduled offence.
(ii) It has been contended that if the proceeds of crime are there, the same will be said to be respective of the proceeds obtained from the scheduled offence, rather, even in case of proceeds of crime if has been obtained other than the crime as under the scheduled offence, then also the ingredients of Section 3 of the P.M.L. Act, 2002 will be applicable.
(iii) Learned counsel appearing for the Opp. Party-E.D. has taken the ground that the petitioner is having direct nexus with the other co-accused persons namely, Dilip Kumar Ghosh, Amit Kumar Agarwal, Pradip Bagchi, Afshar Ali, Mohd. Saddam Hussain, Imtiaz Ahmed, Chhavi Ranjan, Faiyaz Ahmed, Bhanu Pratap Prasad, in the commission of crime in facilitating the 'proceeds of crime'.
(iv) So far as parity is concerned the fact of the case of the petitioner is different to that of the fact of the said Dilip Kumar Ghosh, the co-accused, hence, the principle of parity will not be applicable. Further, the bail application of another co- accused, namely, Amit Kumar Agarwal has already been dismissed by this Court vide order dated 01.03.2024 passed in B.A. No.7343 of 2023.
14. Learned counsel for the Opp. Party-ED, based upon the aforesaid ground, has submitted that it is not a fit case for grant of regular bail in 5 B.A. No.10296/2023 favour of the petitioner.
Analysis
15. Heard the learned counsel for the parties and perused the documents available on record.
16. This Court, before appreciating the argument advanced on behalf of the parties, deems it fit and proper to discuss herein some of the provision of law, as contained under the P.M.L. Act, 2002 (hereinafter referred to as the 'Act 2002') with its object and intent as also the legal proposition as settled by the Hon'ble Apex Court in various judgments.
17. The Act, 2002 was enacted to address the urgent need to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof including vesting of it in the Central Government, setting up of agencies and mechanisms for coordinating measures for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime.
18. The issues were debated threadbare in the United Nation Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basle Statement of Principles enunciated in 1989, the FATF established at the summit of seven major industrial nations held in Paris from 14th to 16th July, 1989, the Political Declaration and Noble Programme of Action adopted by United Nations General Assembly vide its Resolution No. S-17/2 of 23.2.1990, the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 6 B.A. No.10296/2023 10th June, 1998, urging the State parties to enact a comprehensive legislation.
19. It is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act. The same reads thus:
"INTRODUCTION Money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. To obviate such threats international community has taken some initiatives. It has been felt that to prevent money-laundering and connected activities a comprehensive legislation is urgently needed. To achieve this objective the Prevention of Money-laundering Bill, 1998 was introduced in the Parliament. The Bill was referred to the Standing Committee on Finance, which presented its report on 4th March, 1999 to the Lok Sabha. The Central Government broadly accepted the recommendation of the Standing Committee and incorporated them in the said Bill along with some other desired changes."
STATEMENT OF OBJECTS AND REASONS "It is being realised, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threat are outlined below:--
(a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug 7 B.A. No.10296/2023 crimes and other connected activities and confiscation of proceeds derived from such offence.
(b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money-laundering.
(c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money-laundering. The recommendations were classified under various heads. Some of the important heads are--
(i) declaration of laundering of monies carried through serious crimes a criminal offence;
(ii) to work out modalities of disclosure by financial institutions regarding reportable transactions;
(iii) confiscation of the proceeds of crime;
(iv) declaring money-laundering to be an extraditable offence;
and
(v) promoting international co-operation in investigation of money-laundering.
(d) the Political Declaration and Global Programme of Action adopted by United Nations General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia, calls upon the member States to develop mechanism to prevent financial institutions from being used for laundering of drug 8 B.A. No.10296/2023 related money and enactment of legislation to prevent such laundering.
(e) the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998 has made another declaration regarding the need to combat money-laundering. India is a signatory to this declaration."
20. It is thus evident that the Act 2002 was enacted in order to answer the urgent requirement to have a comprehensive legislation inter alia for preventing money-laundering, attachment of proceeds of crime, adjudication and confiscation thereof for combating money-laundering and also to prosecute the persons indulging in the process or activity connected with the proceeds of crime.
21. It needs to refer herein the definition of "proceeds of crime" as provided under Section 2(1)(u) of the Act, 2002 which reads as under:
"2(u) "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 3[or where such property is taken or held outside the country, then the property equivalent in value held within the country] 4[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;]"9 B.A. No.10296/2023
22. 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.
23. 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 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.
24. The aforesaid explanation has been inserted in the statute book by way of Act 23 of 2019.
25. It is, thus, evident that the reason for giving explanation under Section 2(1)(u) is by way of clarification to the effect that whether as per the substantive provision of Section 2(1)(u), the 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 but by way of explanation the proceeds of crime has been given broader implication by including property not only derived or obtained from the scheduled offence but also any property which 10 B.A. No.10296/2023 may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence.
26. The "property" has been defined under Section 2(1)(v) which means any property or assets of every description, whether corporeal or incorporeal, movable or immovable, tangible or intangible and includes deeds and instruments evidencing title to, or interest in, such property or assets, wherever located.
27. The schedule has been defined under Section 2(1)(x) which means schedule to the Prevention of Money Laundering Act, 2002. The "scheduled offence" has been defined under Section 2(1)(y) which reads as under:
"2(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."
28. It is evident that the "scheduled offence" means the offences specified under Part A of the Schedule; or the offences specified under Part B of the Schedule if the total value involved in such offences is [one crore rupees] or more; or the offences specified under Part C of the Schedule.
29. The offence of money laundering has been defined under Section 3 of the Act, 2002, which reads as under: 11 B.A. No.10296/2023
"3. Offence of money-laundering.--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 property shall be guilty of offence of money-laundering.
[Explanation.-- For the removal of doubts, it is hereby clarified that,--
(i) a person shall be guilty of offence of money-laundering if such 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.]"
30. 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 property shall be guilty of offence of money-laundering.
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31. It is further evident that the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.
32. The punishment for money laundering has been provided under Section 4 of the Act, 2002.
33. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready reference, Section 50 of the Act, 2002 reads as under:
"50. Powers of authorities regarding summons, production of documents and to give evidence, etc.--
(1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:--
(a) discovery and inspection;
(b) enforcing the attendance of any person, including any officer of a [reporting entity] and examining him on oath;
(c) compelling the production of records;
(d) receiving evidence on affidavits;
(e) issuing commissions for examination of witnesses and documents; and
(f) any other matter which may be prescribed.13 B.A. No.10296/2023
(2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act.
(3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.
(4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).
(5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act:
Provided that an Assistant Director or a Deputy Director shall not--
(a) impound any records without recording his reasons for so doing; or
(b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the [Joint Director]."
34. The various provisions of the Act, 2002 along with interpretation of the definition of "proceeds of crime" has been dealt with by the 14 B.A. No.10296/2023 Hon'ble Apex Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors., reported in (2022) SCC OnLine SC 929 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. The definition of "proceeds of crime" has been referred at paragraph-251 of the said judgment.
35. The interpretation of the condition which is to be fulfilled while arresting the person involved in the predicate offence has been made as would appear from paragraph-265. For ready reference, relevant paragraphs are being referred, as under:
"265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression "including", which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provision (as also the Explanation) predicates that if a person is found to be directly or indirectly involved in any process or activity connected with the proceeds of crime must be held guilty of offence of money-laundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word "and" preceding the expression "projecting or claiming" therein. This Court in Pratap Singh v. State of Jharkhand, enunciated that the 15 B.A. No.10296/2023 international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created. In Apparel Export Promotion Council v. A.K. Chopra, the Court observed that domestic Courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. This view has been restated in Githa Hariharan, as also in People's Union for Civil Liberties, and National Legal Services Authority v. Union of India."
36. The implication of Section 50 has also been taken into consideration. For ready reference, the relevant paragraph, i.e., paragraphs- 422, 424, 425, 431, 434 reads as under:
"422. The validity of this provision has been challenged on the ground of being violative of Articles 20(3) and 21 of the Constitution. For, it allows the authorised officer under the 2002 Act to summon any person and record his statement during the course of investigation. Further, the provision mandates that the person should disclose true and correct facts known to his personal knowledge in connection with the subject matter of investigation.16 B.A. No.10296/2023
The person is also obliged to sign the statement so given with the threat of being punished for the falsity or incorrectness thereof in terms of Section 63 of the 2002 Act. Before we proceed to analyse the matter further, it is apposite to reproduce Section 50 of the 2002 Act, as amended. -----:
424. By this provision, the Director has been empowered to exercise the same powers as are vested in a civil Court under 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.
425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act.
We have already highlighted the width of expression "proceeding" in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to 17 B.A. No.10296/2023 understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of subsection (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself. This position is well-established. The Constitution Bench of this Court in M.P. Sharma had dealt with a similar challenge wherein warrants to obtain documents required for investigation were issued by the Magistrate being violative of Article 20(3) of the Constitution. This Court opined that the guarantee in Article 20(3) is against "testimonial compulsion" and is not limited to oral evidence. Not only that, it gets triggered if the person is compelled to be a witness against himself, which may not happen merely because of issuance of summons for giving oral evidence or producing documents. Further, to be a witness is nothing more than to furnish evidence and such evidence can be 18 B.A. No.10296/2023 furnished by different modes. The Court went on to observe as follows:
"Broadly stated the guarantee in article 20(3) is against "testimonial compulsion". It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing 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 19 B.A. No.10296/2023 evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case."
(emphasis supplied)
431. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a 20 B.A. No.10296/2023 different matter that the information and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money-laundering. If the statement made by him reveals the offence of money-laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses 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 21 B.A. No.10296/2023 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence.
434. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government."
37. It is evident from the observation so made, as above that the purposes and objects of the 2002 Act for which it has been enacted, is not limited to punishment for offence of money-laundering, but also to provide measures for prevention of money-laundering. It is also to provide for attachment of proceeds of crime, which are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceeding relating to confiscation of such proceeds under the 2002 Act. This Act is also to compel the banking companies, financial institutions and intermediaries to maintain records of the transactions, to furnish information of such transactions within the prescribed time in terms of Chapter IV of the 2002 Act.
38. The predicate offence has been considered in the aforesaid judgment wherein by taking into consideration the explanation as inserted by way of Act 23 of 2019 under the definition of the 22 B.A. No.10296/2023 "proceeds of crime" as contained under Section 2(1)(u), whereby and whereunder, it has been clarified for the purpose of removal of doubts that, the "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, meaning thereby, the words "any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence" will come under the fold of the proceeds of crime.
39. So far as the purport of Section 45(1)(i)(ii) is concerned, the aforesaid provision starts from the non-obstante clause that notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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
40. Sub-section (2) thereof puts limitation on granting bail specific in sub-section (1) in addition to the limitations under the Code of 23 B.A. No.10296/2023 Criminal Procedure, 1973 or any other law for the time being in force on granting of bail.
41. The explanation is also there as under sub-section (2) thereof which is for the purpose of removal of doubts, a clarification has been inserted that the expression "Offences to be cognizable and non-bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973, and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.
42. The fact about the implication of Section 45 has been interpreted by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) at paragraphs-371 to 374. For ready reference, the said paragraphs are being referred as under:
"371. The relevant provisions regarding bail in the 2002 Act can be traced to Sections 44(2), 45 and 46 in Chapter VII concerning the offence under this Act. The principal grievance is about the twin conditions specified in Section 45 of the 2002 Act. Before we elaborate further, it would be apposite to reproduce Section 45, as amended. The same reads thus:24 B.A. No.10296/2023
"45. Offences to be cognizable and non-bailable.--(1) [Notwithstanding anything contained in the Criminal Procedure Code, 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.
[(1A) Notwithstanding anything contained in the Criminal Procedure Code, 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 25 B.A. No.10296/2023 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 Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. [Explanation.--For the removal of doubts, it is clarified that the expression "Offences to be cognizable and non- bailable" shall mean and shall be deemed to have always meant that all offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Criminal Procedure Code, 1973 (2 of 1974), and accordingly the officers authorised under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under section 19 and subject to the conditions enshrined under this section.]"
372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub- section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are:26 B.A. No.10296/2023
(i) that there are reasonable grounds for believing that he is not guilty of such offence; and
(ii) that he is not likely to commit any offence while on bail.
373. 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.
374. 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 29 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 legislative power. In the process of reasoning, it did advert to the exposition in Behram Khurshid Pesikaka and Deep Chand7 including American jurisprudence expounded in Cooley on Constitutional Limitations and Norton v. Shelby County."
27 B.A. No.10296/2023
43. Subsequently, the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement, (2023) SCC OnLine SC 1486 by taking into consideration the law laid down by the Larger Bench of the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra), it has been laid down that since the conditions specified under Section 45 are mandatory, they need to be complied with. The Court is required to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail.
44. It has further been observed that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act. For ready reference, paragraph-17 of the said judgment reads as under:
"17. As well settled by now, the conditions specified under Section 45 are mandatory. They need to be complied with. The Court is required to be satisfied that 28 B.A. No.10296/2023 there are reasonable grounds for believing that the accused is not guilty of such offence and he is not likely to commit any offence while on bail. It is needless to say that as per the statutory presumption permitted under Section 24 of the Act, the Court or the Authority is entitled to presume unless the contrary is proved, that in any proceedings relating to proceeds of crime under the Act, in the case of a person charged with the offence of money laundering under Section 3, such proceeds of crime are involved in money laundering. Such conditions enumerated in Section 45 of PML Act will have to be complied with even in respect of an application for bail made under Section 439 Cr. P.C. in view of the overriding effect given to the PML Act over the other law for the time being in force, under Section 71 of the PML Act."
45. 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.
46. In the judgment rendered by the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) as under paragraph-284, it has been held that the Authority under the 2002 Act, is to prosecute a person for offence of money- 29 B.A. No.10296/2023 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 concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process.
47. The Hon'ble Apex Court in the case of Gautam Kundu vs. Directorate of Enforcement (Prevention of Money-Laundering Act), Government of India through Manoj Kumar, Assistant Director, Eastern Region, reported in (2015) 16 SCC 1 has been pleased to hold at paragraph-30 that the conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act.
30 B.A. No.10296/2023
48. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money-laundering and the burden to prove that the proceeds of crime are not involved, lies on the petitioner. For ready reference, paragraph-30 of the said judgment reads as under:
"30. The conditions specified under Section 45 of PMLA are mandatory and need to be complied with, which is further strengthened by the provisions of Section 65 and also Section 71 of PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of CrPC would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 CrPC. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money- laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant."31 B.A. No.10296/2023
49. The Hon'ble Apex Court, in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra) has again reiterated the implication of Sections 45 and the principle of parity at paragraphs-17 and 18. The issue of parity has been considered by the Hon'ble Apex Court at paragraph-18 by making observation therein that parity is not the law. While, applying the principle of parity, the Court is required to focus upon the role attached to the accused, whose application is under consideration. For ready reference, paragraph- 18 read as under:
"18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/operator/controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of 32 B.A. No.10296/2023 the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court."
50. The Hon'ble Apex Court recently in the case of Gurwinder Singh Vs. State of Punjab and Anr., reported in (2024) SCC OnLine SC 109, has observed that the conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act and the 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. For ready reference, relevant paragraph of the said judgment is being referred as under:
"28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal offences that the discretion of Courts must tilt in favour of the oft-quoted phrase - 'bail is the 33 B.A. No.10296/2023 rule, jail is the exception' - unless circumstances justify otherwise - does not find any place while dealing with bail applications under UAP Act. The 'exercise' of the general power to grant bail under the UAP Act is severely restrictive in scope. The form of the words used in proviso to Section 43D (5)- 'shall not be released' in contrast with the form of the words as found in Section 437(1) CrPC - 'may be released' - suggests the intention of the Legislature to make bail, the exception and jail, the rule."
51. The reason for making reference of this judgment is that in the case of Satender Kumar Antil vs. CBI and Anr., the U.A.(P) Act has also been brought under the purview of category 'c' wherein, while laying observation that in the U.A.(P) Act, it comes under the category 'c' which also includes money laundering offence wherein the bail has been directed to be granted if the investigation is complete but the Hon'ble Apex Court in Gurwinder Singh Vrs. State of Punjab and Anr. (supra) has taken the view by making note that the penal offences, as enshrined under the provision of U.A.(P) Act are also under category 'c' making reference that jail is the rule and bail is the exception.
52. Now coming to the grounds, as have been raised on behalf of the learned counsel for the petitioner that even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002. The further ground has been taken regarding the allegation against the petitioner is that the petitioner has cooperated in the illegal transfer of 34 B.A. No.10296/2023 the land pertaining to the land in question, save and except, the said allegation, there is no allegation against the petitioner.
53. While on the other hand, Mr. Anil Kumar, learned counsel appearing for the respondent-E.D. has submitted that there is ample material available in course of inquiry, based upon which, the prosecution report was submitted and hence, it cannot be said that there is no legal evidence.
54. This Court, in order to appreciate the rival submissions, needs to refer herein the relevant paragraphs of prosecution complaint, which are being referred as under:
8.4 Mohammad Saddam Hussain (Accused No.7)-
In his statement dated 17.04.2023, (RUD No. 56) the accused Md. Saddam Hussain has stated that Afshar Ali with the help of his accomplices got the land transferred in name of his associates and he along with Imtiaz Ahmed, Talha Khan, Faiyaz Khan used to assist him in selling the fraudulently acquired lands. He has also stated that he is involved with Afshar Ali, Lakhan Singh, Bharat Prasad and others in selling a plot of land admeasuring 3.81 acres whose ownership was made in the name of Saraswati Devi, mother of Lakhan Singh. This land was situated at Khata no. 256, Plot no. 891, 893 and 903 and it was a Gairmajarua Khas land. The sale proceeds were distributed amongst him with one Devesh Kumar, Bharat Prasad, Afshar Ali, Imtiaz Ahmed, Jahid Iqbal and others. He 35 B.A. No.10296/2023 further stated that the sale deeds and property documents recovered from his premises were given by Afshar Ali and Faiyaz Khan has kept those documents at his residence for sale to customers.
During his statement dated 18.04.2023 (RUD No. 57), it is revealed that his firm Green Traders is in receipt of huge amount of money which are the result of the sale of land in which forgery was committed. It also reveals that Imtiaz Ahmed, Arvind Sahu, Faiyaz Khan and Afshar Ali were directly involved in the sale of land measuring 3.81 acres by fake deed and Talha Khan was involved in the sale of land at plot no. 668, Khata no. 29 at Morabadi, Ranichi. The sale proceeds were routed into Green Traders through the account of associates. He further stated in his statement dated 18.04.2023 that the transactions with Talha Khan, Imtiaz Ahmed, Falyaz Khan, Pradip Bagchi and Afshar Ali appearing into the account of Green Traders have been made on the directions of Afshar Ali Afsu Khan. He further stated that the accused person Afshar Ali has been using bank accounts of his firm Green Traders and his company F2R Constructions Pvt. Ltd. as per his discretions. During his statement dated 26.04.2023 (RUD No. 60) has stated that one Rajdeep Kumar (associate of Prem Prakash) arranged meeting with the accused Chhavi Ranjan regarding the property of 4.55 acres (in possession of the army). He went 36 B.A. No.10296/2023 to the office of the accused Chhavi Ranjan along with Rajdeep Kumar and Afshar Ali where Circle Officer Manoj Kumar was also present. He further stated that Mr. Chhavi Ranjan after the discussion, directed the Circle Officer Manoj Kumar to conduct verification regarding the claim of Pradip Bagchi from the office of Registrar of Assurances (records), Kolkata. He further stated that he has also committed forgery in another and admeasuring 4.83 acres at Khata no. 53, Mauja Gari, Rance and has prepared its fake deed in name of one Samrendra Chandra Ghoshal, relative of Pradip Bagchi. This has been done in connivance with Shekhar Prasad Mahto @ Kushwaha, Bipin Singh, Priya Ranjan Sahay and others.
During his statement dated 20.04.2023 (RUD No. 58) reveals that he works in connivance with Afshar All and on the directions of Afshar Ali, the accused person Talha Khan @ Sunny has transferred the following amount into the bank account of his company F2R constructions Pvt. Ltd.
Date Transactions with Talha Khan 18.08.2022 Credit of Rs. 10,00,000 20.08.2022 Credit of Rs. 4,00,000 21.09.2022 Credit of Rs. 2,50,000 13.10.2022 Credit of Rs. 3,00,000 37 B.A. No.10296/2023 14.10.2022 Credit of Rs. 4,50,000 15.10.2022 Credit of Rs. 5,00,000 17.10.2022 Credit of Rs. 10,00,000 19.10.2022 Credit of Rs, 5,00,000
The above payments are the sale proceeds of land credited by Talha Khan into the account of F2R Constructions Pvt. Ltd. which is a company of Md. Saddam Hussain and Imtiaz Ahmed. Thus, it reveals that Afshar All, Md. Saddam Hussain, Talha Khan and Imtiaz Ahmed are accomplices of each other and are habitually engaged in the illegal activities of land dealings by preparing fake deeds and in turn acquiring proceeds of crime. 8.5 Imtiaz Ahmed (Accused No.8)-
In his statement dated 13.04.2013 recorded under section 50 PML Act 2002, (RUD No. 65) the accused person Imtiaz Ahmad has stated that in the year 2020, on the directions of Afshar Ali, he obtained power of attorney of a land at measuring 60 kathas at Bariyatu, Ranchi in his name and in the name of Bharat Prasad from one Rajesh Rai. He further stated that the amount of it. 15 lacs which he received from Pradip Bagchi was on the direction of Afsar Ali (the said amount of Rs. 15 lacs was out of Rs. 25 lacs given by Jagatbandhu Tea Estate Pvt. Ltd. to Pradip bagchi as commission).
Several documents have been seized from his premises dung 38 B.A. No.10296/2023 searches including one diary containing details of cash. In his statement dated 19.04.2023 (RUD No. 66), he stated that payments to the persons namely Sunny (Talha Khan), Faiyaz Khan, Saddam Hussain, Afsu Khan and others appearing in the diary have been made by him. During his statement dated 19.04.2023, it is found that he obtained power of attorney of one land of nearly 96 decimals at Mauja Kanke, Ranchi and sold this land to several persons. The power of attorney was taken on the directions of Afshar Ali. He has also accepted that he has obtained the power of attorney of a plot of land at Khata no. 4, Plot no. 1967, and Khata no. 25, Pinot no. 1989 from Lakhan Singh on the directions of Afshar Ali. He has also accepted that on the directions of Afshar Ali, land was acquired in frivolous manner which was situated at Plot no. 1965 admeasuring 1.79 acres and plot no. 1966 admeasuring 1.93 acres in which the power of attorney was given to Bharat Prasad on directions of Afshar All. Similarly, he has stated that on directions of Afshar Ali, he obtained a power of attorney for a land admeasuring 13.98 acres situated at Plot no. 1942, Khata no. 197. During searches on 13.04.2023, the property documents were recovered from his residence (RUD No. 22). It is evident that the accused person has dealt with several landed properties in a fake and frivolous manner with his associate Afshar Ali and his accomplices namely Bharat Prasad, Lakhan Singh, Rajesh 39 B.A. No.10296/2023 Ral and others. These properties have been sold to different persons in which the cash amount has been distributed between Afshar All, Md. Saddam Hussain, Talha Khan @ Sunny, and other associates which prove that these persons are a part of the racket which are habitually involved in forging documents and falsifying records for acquiring proceeds of crime and later using them and projecting them as untainted property.
Faiyaz Khan (Accused No.10)-
In his statement dated 13.04.2023 (RUD No. 72) recorded under section 50 of PMLA, 2002 has stated that he knows Afshar Ali since childhood and he drives car for him. He further stated that presently Afshar Ali has been dealing with a piece of land of 4.83 acres at Cheshire Home Road with one Sahay, Kushwaha, Imtiaz and others. He is also working with Afshar Ali in arranging buyers of land. Further, on the directions of Afshar Ali, he has visited several times to Kolkata with Imtiaz Ahmed for bringing deeds of properties, Further, he has stated that Imtiaz and Pradip Bagchi work with Afshar Ali Afsu Khan. He further stated that the seals/stamps which were recovered from his possession at his residence belonged to Afshar Ali. During course of investigation, 10 number of duplicate stamps/seals of Land Registration Department were recovered from the possession of Faiyaz Khan. Several fake and forged 40 B.A. No.10296/2023 property documents bear the same impression as the seal which have been seized from the premises of Faiyaz Khan which were kept by Afshar Ali. It is thus proved that Faiyaz Khan is also a party with Afshar Ali in his illegal and criminal activities of making fake deeds and later selling the lands to several buyers by showing them as legal properties.
The statement of Faiyaz Khan recorded on 21.04.2023 (RUD No. 73) reveals that he has been maintaining an Axis bank account bearing по. 920010047770735 in which several large value transactions with Md. Saddam Hussain, Talha Khan, Greensoil Enterprises have been made. He has stated that this account was opened on the directions of Afshar Ali and the transactions with the above-stated persons were done on the insistence of the accused Afshar All. During the course of the search on 13.04.2023 (RUD No. 23), property deeds number 4381/4369 (Plot No. 557, Morabadi property in possession of defence) and 08/348 was recovered from his premises. He stated that these documents were kept on the directions of Afshar Ali.
Talha Khan @ Sunny (Accused No.9) -
In his statement dated 13.04.2023, (RUD No. 68 & 69) he stated that he had entered into an agreement with Pradip Bagchi for a 60 decimal land situated at Bariyatu, Ranchi for an amount of Rs. 4 crores on 19.02.2022. The agreement was 41 B.A. No.10296/2023 mediated by Afshar Ali and token money of Rs, 20 lacs was paid to Afshar Ali on 19.02.2022. For this, he had also paid an additional amount and the total amount paid to Afshar Ali, Md. Saddam Hussain and Pradip Bagchi for obtaining the power of attorney from Pradip Bagchi was Rs. 50 lacs. Further, Md. Saddam Hussain, Pradip Bagchi and Afshar Ali were working as a team and as per the directions of Afshar Ali, he paid money to all of them. Out of this 60-decimal plot, he had sold them to three persons at the rate of Rs. 8 lacs per decimal in the registry completed in the month of July, 2022. He further stated that he is the director of a company Confiar Projects Pvt. Ltd, with his father Salik Akhtar. On being asked about huge cash deposits amounting to Rs. 87,97,029 in his Axis Bank, Bariyatu account bearing no. 918020064516549 (RUD No. 102), he stated that this was the proceeds of the sales of land and was deposited by him. On being asked about cash withdrawal of Rs. 1,28,74,000 from his above-said account, he provided unsatisfactory answers and was not able to justify his dealings in cash. He also stated that he was also involved in land dealing of 3.81 acres with Afshar Ali and 30-40 decimals of land were sold through him although, he was nowhere on papers. His statement dated 22.04.2023 (RUD No. 70) also reveals that he took several blank cheques of HDFC Bank account of Pradip Bagchi on the directions of Afshar Ali and used these cheques 42 B.A. No.10296/2023 to accept money from buyers and later transfer them to his account or the account of Afshar All. The scrutiny of his bank account 918020064516549 (RUD No. 102) maintained at Axis Bank reveals that during the period 15.06.2019 to 07.03. 2023, there has been total credit of Rs. 12.355621 and these amounts have been debited or withdrawn from the bank account a major portion of this i.e. Rs. 1,26,74,000 has been withdrawn in cash. The scrutiny of bank account shows transactions to the other accused namely Faiyaz Khan, Imtiaz Ahmed other accused persons.
Pradip Bagchi (Accused No.5) -
In his statement dated 16.12.2022 (RUD No. 48), the accused Pradip Bagchi stated that he had not submitted any document of had applied for any application for staining the ding numbers 0210004031000A5 and 0210004154000A1 and further stated that the addresses given in the said documents were fake. He further stated that he was threatened by Dilip Kumar Ghosh not to attend the ED Office, Ranchi against the summonses issued to him. Further, he was also threatened not to reveal the truth behind the registration of the property in the name of Jagatbandhu Tea Estate Pvt. Ltd. He also submitted the proof of several WhatsApp calls done by Dilip Kumar Ghosh to Pradip Bagchi after summonses were issued to him.
In his statement dated 13.04.2023 (RUD No. 50) recorded 43 B.A. No.10296/2023 under section 50 of PMLA, 2002 he has stated that he knows Afshar Ali, Imtiaz Ahmed, Md. Saddam Hussain, Talha Khan alias Sunny and Faiyaz Khan. They all are involved in manipulating sale deeds of landed properties and pay him money for getting signatures on forged sale deeds. He further stated in his statement that he had forged around 5 sale deeds and had done signatures as its owner and for this, he has obtained money from the above-stated persons. He stated that Afshar Ali, Imtiaz Ahmed and others manufactured fake deed of the property M.S Plot no. 557, Morabadi Mauja, Ranchi admeasuring 4.55 acres and sold it to Dilip Kumar Ghosh who was working under Amit Kumar Agarwal. He further stated that he was under pressure by Dilip Kumar Ghosh and Afshar Ali not to take the name of Amit Kumar Agarwal and if he does so, he would not get any work in future. He further stated that Afshar Ali, Imtiaz Ahmed, Falyaz Khan, Talha Khan Sunny are experts in altering old property deeds. Falysis Khan is the dniver of Afshar All and works for him in creating fake documents These persons have forged stamps/seals which they use in making fake sale deeds. They have good contacts with Land Registry offices and one of the said officers is Bhanu Pratap Prasad who works in Cinde Office, Baragal, Ranchi. Bhanu Pratap Prasad assists Afshar All and others in acquiring properties illegally. In his statement dated 17.04.2023 (RUD No. 51), he stated that 44 B.A. No.10296/2023 on directions of Afshar All, he stood as the owner of the property of 60 decimals at Khata no. 29, Plot no. 66ti at Morabadi, P.S Banyatu, Ranchi for money. Afshar All arranged fake deed of the year 1943 and executed it in name of his deceased father Prafulia Bagchi, son of Mohini Bagchi. As per instructions of Afshar All, he executed sale agreement with Talha Khan Sunny. He was shown the agreement dated 19.02.2022 on which he stated that only signature made on page ne 7 of the agreement was made by him and other signatures done on the rest of the pages were not his signatures. He further stated that an account 50200061315883 was opened in his name in HDFC Bank and Afshar Ali and Talha Khan Sunny operated the said account as per their desires. They had also taken their signatures on blank cheques and their passbooks were also taken by them. He further stated that Afshar Ali was the kingpin of the gang who forged registers by creating and inserting extra pages, therefore charging the nature of the land.
In his statement dated 25.04.2023 (RUD No. 54), he stated that after summonses were issued to him by the E.D, Ranchi Zonal Office, he had informed about it to Dilip Kumar Ghosh and he informed him not to divulge any matter before the Directorate of Enforcement. It was further by Afshar Ali that Dilip Kumar Ghosh wanted to make an agreement for the purported dues of 45 B.A. No.10296/2023 Rs. 6.75 crores and according to it shall be paid after the possession of the said land. He further stated that the agreement was signed on back date with Dilip Kumar Ghosh at Hotel Peerless Inn, Kolkata, where Afshar Ali and Md. Saddam Hussain were also present. He further stated that he had visited the office of Prem Prakash for money in Jagatbandhu matter with Ashar Ali and Saddam Hussain wherein he was scolded and threatened by Prem Prakash and his associates including Rajdeep Kumar with warming not to visit or call again for money.
In the above matter enquiries conducted with the Peerless Hotels Kolkata reveals that the accused persons Afshar Ali has stayed at Peerless Inn Kalkata during 09.02.2023 to 11.02.2023 (RUD No.104).
11. Specific roles of the Accused:-
Accused Role of Accused Proceeds of crime
Name and involved with the accused
number person-
Talha Khan The accused person Assisted other accused
@ Sunny was a party with other persons in arranging
(accused accused persons in buyers of fraudulently
no.9) acquiring properties in acquired lands. Entered
fraudulent manner and into an agreement for 60
selling them illegally to decimal land situated at
acquire proceeds of Bariyatu, Ranchi for an
46
B.A. No.10296/2023
crime. The accused amount of Rs.4 crores on
person in connivance 19.02.2022.
with other accused
person illegally
acquired a piece of
land measuring 60
decimals situated at
Plot no.668, Khata
no.29, Mauja Gari, P.S.
Bariatu, Ranchi
frivolously showing for
an amount of Rs.4
crores. The accused
person acquired
proceeds of crime
through his company
Confiar Projects Pvt.
Ltd. in its Axis Bank
account
91802000064516549.
Proceeds of crime
amounting to
Rs.12,35,56,621 were
credited during period
15.06.2019 to
07.06.2023 out of
which Rs.1,28,74000
was siphoned off in
cash. The accused
person used his bank
47
B.A. No.10296/2023
accounts for
placement layering
and integration of the
proceeds of crime. The
said amount were also
transferred to other
accused persons.
Thus, the accused
person was knowingly
a party and actually
involved with the other
accused persons in
activity connected with
the proceeds of crime
i.e. its acquisition, use
and projecting and
claiming the proceeds
of crime as untainted
property. Thus, the
accused person has
committed the offence
of money laundering
under section 3 of
PMLA, 2002 and is
liable to be punished
under section 4 of
PMLA, 2002.
55. It has come on record that the searches were conducted on 13.04.2023 and 10 numbers of manufactured stamps/seals were 48 B.A. No.10296/2023 seized from the premises of one of the accomplices Faiyaz Khan (accused no. 10). Investigation also revealed that several fake deeds recovered from the possession of the accused Afshar Ali @ Afsu Khan bears the same impression of the seals seized from the possession of Faiyaz Khan.
56. Further, the Registrar of Assurances, Kolkata, formed a four- man committee and conducted an inquiry and submitted their initial report related to the three sale deeds including the land in question and confirmed the manipulation and tampering had been identified in the said sale deeds and accordingly an FIR no. 137 of 2023 dated 10.05.2023 under section 120B, 465, 467, 468 and 471 of IPC was registered at Hare Street P.S, Kolkata on the basis of the complaint of Registrar of Assurances, Kolkata for the above temperance.
57. Further, the Investigation revealed that the accused persons, namely Afshar Ali @ Afsu Khan, Mohammad Saddam Hussain, Talha Khan @ Sunny (present petitioner), Faiyaz Khan, Pradip Bagchi, and Imtiaz Ahmed, have actively been involved in sequestering several pieces of land situated in Ranchi and its vicinity by manipulating and forging the original records available at the Circle Offices in connivance with certain government officials/record keepers, including Bhanu Pratap Prasad, Revenue Sub-Inspector, Baragai, Ranchi. The Circle Office, deeds/documents/records recovered and seized during the course of searches conducted on April 13, 2023, corroborate the fact that the accused persons have been running a racket involved in 49 B.A. No.10296/2023 the illegal acquisition of lands by converting non-saleable land into saleable lands for monetary benefits. They have acquired proceeds of crime through the aforementioned criminal activities and thus committed the offence of money laundering. The properties are used to commit offences under this Act and scheduled offences and derive proceeds, further projecting their activities and acquired properties as 'untainted property'.
58. It is evident from the prosecution complaint that co-accused of this case have also confessed that the petitioner is a part of the racket and used to assist in selling acquired lands fraudulently in connivance with other accused persons. He and his accomplices, illegally acquired a piece of land measuring 60 decimals situated at Plot no. 668, Khata no. 29, Mauja Gari, P.S Bariatu, Ranchi by way of a forged sale deed from the office of the Registrar of Assurances, Kolkata, falsely showing an amount of Rs. 4 crores. The accused person acquired proceeds of crime through his company, Confiar Projects Pvt. Ltd., account 921020002279585 maintained at Axis Bank. In his Axis Bank account, 9180200064516549, proceeds of crime amounting to Rs. 12,35,56,621 were credited during the period from June 15, 2019, to June 7, 2023, out of which Rs. 1,28,74,000 was siphoned off in cash. When asked about the significant cash deposits totaling Rs.87,97,029 in his Axis Bank Bariyatu account bearing no. 918020064516549, he stated that this was the proceeds deposited from the sale of land by him. The accused person used his bank accounts for placement, layering, and 50 B.A. No.10296/2023 integration of the proceeds of crime. The said amount was also transferred to other accused persons.
59. Further, the statement of Sadam Hussain mentioned in paragraph-8.4 of the prosecution complaint reveals that the petitioner was involved in money laundering. The petitioner, Talha Khan @ Sunny, has also transferred Rs. 44 Lakhs into the bank account of F2R Constructions Pvt. Ltd., which is a company of Md. Saddam Hussain and Imtiaz Ahmed. Thus, it reveals that Afshar Ali, Md. Saddam Hussain, Talha Khan, and Imtiaz Ahmed are accomplices of each other.
60. Further, the petitioner in his statement mentioned in para-8.7 of the prosecution complaint also revealed his involvement in land dealings of 3.81 acres with Afshar Ali, where 30-40 decimals of land were sold through him despite not being documented. He further admitted to taking several blank cheques from the HDFC Bank account of Pradip Bagchi and using the said account to accept money from buyers, which he later transferred to his account or Afshar Ali's account. A scrutiny of his bank account, 918020064516549, maintained at Axis Bank under the name of Talha Khan, reveals that during the period from June 15, 2019, to March 7, 2023, there has been a total credit of Rs.12,35,56,621/-, with a significant portion, Rs.1,28,74,000/-, being withdrawn in cash.
61. Further, it is evident that the copy of deed no. 1813 of year 1943, book no. I, volume no. 48, page no. 168-171, executed at the 51 B.A. No.10296/2023 Registrar of Assurances, Kolkata, between Sheikh Jamir Ali and Prafulla Bagchi which later established as forged, a Sale Agreement dated 19.02.2022, executed between Pradip Bagchi (first party) and Talha Khan (second party) related to land measuring 60 Decimal situated at Khata no. 29, Plot no. 668, mouja Morhabadi, along with online land details, was recovered during the search conducted on 13.04.2023, at the residential premises under the use and occupation of Talha Khan. Details in this regard have been mentioned at paragraph-7.2 of the prosecution complaint.
62. From the statement of Imtiaz Ahmad mentioned at paragraph- 8.5 of the prosecution complaint reveals that he made payments to the present petitioner and others, as recorded in a diary recovered from his possession during the search on 13.04.2023. Images of the diary are provided in paragraph-9.6.4 of the prosecution complaint, showing payments of Rs.17,29,100/- to Sunny @ Talha Khan. The distribution of proceeds of crime is depicted in the diary, linking the accused persons to their fraudulent activities of acquiring and disposing of land, and subsequently acquiring the proceeds of crime.
63. The statement of Faiyaz Khan mentioned at paragraph-8.5 of the prosecution complaint reveals that he has used an Axis Bank account bearing no. 920010047770735, through which several large- value transactions have been made with Md. Saddam Hussain, Talha Khan and Greensoil Enterprises.
64. The statement of Pradeep Bagchi, as mentioned in paragraph 52 B.A. No.10296/2023 8.6 of the prosecution complaint, reveals the involvement of Afshar Ali, Imtiaz Ahmed, Md. Saddam Hussain, Talha Khan @ Sunny (the present petitioner), and Faiyaz Khan in manipulating sale deeds of landed properties. They paid him money to stand as the owner property on of the forged sale deeds. Bagchi further disclosed that he had signed as approximately five sale deeds, the owner for of which he received money from the aforementioned persons. He also mentioned that, at the direction of Afshar Ali, he posed as the owner of a property and Afshar Ali arranged a fake deed dating back to year 1943, executed in the name of his deceased father, Prafulla Bagchi, son of Mohini Bagchi and on instruction of Afshar Ali, he entered into a sale agreement with present petitioner, i.e., Talha Khan @ Sunny. Pradeep Bagchi also stated that an account was opened in his name at HDFC Bank, which Afshar Ali and Talha Khan operated according to their wishes. They had also obtained his signatures on blank cheques, and its bank passbooks were also taken by them.
65. The three Judges Bench of the Hon'ble Apex Court in the case of Rohit Tandon vs. Directorate of Enforcement, (2018) 11 SCC 46 has held that the statements of witnesses recorded by Prosecution-ED are admissible in evidence, in view of Section 50. Such statements may make out a formidable case about the involvement of the accused in the commission of the offence of money laundering.
66. In the instant case, it has been found that during the course of investigation from the statements of witnesses recorded under Section 53 B.A. No.10296/2023 50 that the petitioner had directly indulged, knowingly is as the party and is actually involved in all the activities connected with the offence of money laundering, i.e., use or acquisition, possession, concealment, and projecting or claiming as untainted property.
67. Further, as per the evidence, the accusation against the present petitioner is like that the property in question was illegally acquired by way of a forged sale deed from the office of the Registrar of Assurances, Kolkata. The accused person acquired proceeds of crime by way of selling the illegally acquired land and distributed the proceeds of crime. Further, the distribution of proceeds of crime is depicted in the diary recovered from Imtiaz Ahmed, showing payments of Rs.17,29,100/- to Sunny alias Talha Khan, i.e., present petitioner.
68. Further, the Inter connected Banking transactions with co- accused Imtiaz Ahmad and Faiyaz Khan have also been identified prior to sale of Property MS plot no. 557 situated at Morabadi Ranchi on 01.10.2021 and executing the agreement on 19.02.2022 for the MS plot no. 668, Khata No. 29, P.S 192 admeasuring 60 Decimal. This links the accused petitioner with the co-accused and their fraudulent activities of acquiring and disposing of land, and subsequently acquiring proceeds of crime.
69. In the nutshell, it is evident from serial no.8 of para-7.2 of prosecution complaint that copy of sale agreement and sale deeds were recovered from the premises of petitioner Talha Khan. Prosecution complaint also transpires that the petitioner has 54 B.A. No.10296/2023 transferred Rs. 44 lacs into the bank account of his company F2R Construction Pvt. Ltd. Prosecution complaint further reveals that Afsar Ali, Md. Saddam Hussain, Talha Khan and Imtiyaz Ahmad are accomplices of each other and are habitually engaged in illegal activities of land dealings by preparing fake deeds and in turn acquiring proceeds of crime. Further from the statement of Imtiyaz Ahmad which was recorded at para 8.5 of the prosecution complaint u/s 50 of the PMLA, 2002 reveals that he had made payment to the petitioner and others as mentioned in the diary. Faiyaz Khan in his statement recorded at para-8.6 of the prosecution complaint also admitted that he has been mentioning an Axis bank account bearing no. 920010047770735 in which several larger value transactions with petitioner and others have been made.
70. Further, the petitioner Talha Khan @ Sunny himself admitted in his statement recorded under Section 50 of the P.M.L.A. that he had entered into an agreement with Pradeep Bagchi for 60 decimal land situated at Bariatu, Ranchi of an amount of Rs. 4 crores on 19.02.2022. The agreement was mediated by Afsar Ali and token money of Rs. 20 lacs was paid to Afsar Ali on 19.02.2022. He has also admitted that the petitioner along with other co-accused, were working as a team, as per directions of Afsar Ali. He paid money to all of them. He also disclosed that amount Rs. 87,97,029/- cash deposited by him in his Axis Bank, Bariatu account bearing no. 918020064516549. He stated that this amount was the proceeds of the sales of land and was 55 B.A. No.10296/2023 deposited by him. His statement also transpires that he took several bank cheques of HDFC of Pradeep Bagchi on the direction of Afsar Ali and used these cheques to accept money from buyers and later transferred it to his account or the account of Afsar Ali. The scrutiny of the bank account of Talha Khan maintained at Axis Bank reveals that during the period from 15.06.19 to 07.03.23, the amount of Rs. 12,35,56,621/- has been debited or withdrawn from the said bank account. The statement of Pradeep Bagchi recorded in para-8.8 of the case diary also shows the involvement of the petitioner in money laundering. Para-9.6.4 transpires that a diary recovered shown that Rs.18,50,000/- had been given to the petitioner on 13th April to 19th April. These cash amount proves that the petitioner and other co- accused are the members of the racket involved in fraudulent activities linked to the proceeds of crime and prima-facie it appears that the petitioner is also the beneficiary of proceeds of crime and as such the part of the racket.
71. Thus, it appears from the accusation made against the petitioner that he is involved in the proceeds of crime, as per the explanation of the same, the person concerned if found to be involved directly or indirectly, the provision of Section 3 along with Section 4 of the P.M.L.A. will be applicable. If the provision of Sections 3 & 4 will be read in entirety, the amplitude of penal offence will be wider.
72. Further, the explanation, so furnished under Section 3 of the P.M.L.A provides by broadening the scope of Section 3 that a person if 56 B.A. No.10296/2023 involved in the concealment, acquisition or layering, the penal provision of Section 3 will be attracted.
73. This Court, considering the accusation made against the petitioner, is of the view that the petitioner on the basis of commission of forgery, i.e., by fabricating the documents pertaining to the land from the office of Assurances, Kolkata has deeply been involved in selling the land in question.
74. Learned counsel for the petitioner has contended that the ED has already filed a supplementary prosecution complaint against the petitioner and, thus, investigation insofar as the petitioner is concerned, is complete and therefore, no purpose would be served in keeping the petitioner in judicial custody.
75. Per contra, the learned counsel appearing for Opp. Party-ED has submitted that the mere fact that investigation is complete does not necessarily confer a right on the accused/petitioner to be released on bail.
76. In the context of aforesaid contention of learned counsel for the petitioner, it would be relevant to note here that in the instant case mere filing of the charge-sheet does not cause material change in circumstances.
77. Further, it is settled proposition of law that the filing of charge- sheet is not a circumstance that tilts the scales in favour of the accused for grant of bail and needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the 57 B.A. No.10296/2023 prosecution.
78. At this juncture, it would be apposite to refer to the decision of Hon'ble Supreme Court rendered in the case of Virupakshappa Gouda Vs. State of Karnataka, (2017) 5 SCC 406, wherein, at paragraph-12, the Hon'ble Apex Court has observed as under:
"12. On a perusal of the order passed by the learned trial Judge, we find that he has been swayed by the factum that when a charge-sheet is filed it amounts to change of circumstance. Needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons. -"
79. Thus, this Court, after taking note of the settled legal proposition, is of view that the contention of the learned counsel for the petitioner is not tenable in the eye of law.
80. Thus, from the aforesaid deduction, the involvement of the present petitioner in the alleged crime, prima-facie appears to be true.
81. In this context, it will be purposeful to refer herein the judgment, as rendered by the Hon'ble Apex Court in Rohit Tandon vs. Directorate of Enforcement, reported in (2018) 11 SCC 46, wherein, the Hon'ble Supreme Court has observed that the provisions of Section 24 of the PMLA provide that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the 58 B.A. No.10296/2023 proceeds of crime are not involved, lies on the Petitioner.
82. Further, the Hon'ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra) as under
paragraph-284, has 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 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 concerned in any process or activity connected with the proceeds of crime, action under the Act can be taken forward for attachment and confiscation of proceeds of crime and until vesting thereof in the Central Government, such process initiated would be a standalone process.
83. In the backdrop of the aforesaid discussion, this court has "reason to believe" that prima-facie the involvement of the present petitioner is fully substantiated by the tangible and credible evidences which is indicative of involvement of the present petitioner in activity connected with the proceeds of crime.
84. So far as the issue of grant of bail under Section 45 of the Act, 2002 is concerned, as has been referred hereinabove, at paragraph- 412 of the judgment rendered in Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra), it has been held therein by making observation that whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or 59 B.A. No.10296/2023 439 for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold the objectives of the 2002 Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money-laundering.
85. Therefore, the conditions enumerated in Section 45 of P.M.L.A. will have to be complied with even in respect of an application for bail made under Section 439 Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the authority or the Court shall presume that proceeds of crime are involved in money- laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant.
86. As discussed above, the "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 property shall be guilty of offence of money-laundering and 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.60 B.A. No.10296/2023
87. Further, it is evident from the judicial pronouncement as discussed above that in order to constitute any property as proceeds of crime, it must be derived or obtained directly or indirectly by any person as a result of criminal activity relating to a scheduled offence. The explanation clarifies that the proceeds of crime include property, not only derived or obtained from 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. Clause (u) also clarifies that even the value of any such property will also be the proceeds of crime and in the instant case from perusal of paragraph of the prosecution complaint it is evident that the petitioner is not only involved rather his involvement is direct in procuring the proceeds of crime by way of connivance with the other accused persons.
88. Thus, on the basis of the discussion made hereinabove the contention of the learned counsel for the petitioner that even if the entire ECIR will be taken into consideration, no offence will be said to be committed so as to attract the ingredients of Sections 3 & 4 of the P.M.L. Act, 2002, is totally misplaced in the light of accusation as mention in prosecution complaint.
Ground of Parity
89. Now coming to the ground of parity as raised by the learned counsel for the petitioner, the law is well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then 61 B.A. No.10296/2023 only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity will not be applied.
90. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by simply saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. Reference in this regard may be made to the judgment rendered by the Hon'ble Apex Court in the case of Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana, reported in (2021) 6 SCC 230, wherein, it has been held as under:
"25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 :] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17) "17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously 62 B.A. No.10296/2023 record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.
26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12- 2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was "assigned similar role of armed with stick (sic)". Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-
13) who were armed with sticks had been granted bail.
The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting 63 B.A. No.10296/2023 bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law."
91. The Hon'ble Apex Court in Tarun Kumar Vs. Assistant Director Directorate of Enforcement (supra) wherein at paragraph- 18, as has been quoted and referred above, it has been held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.
92. It has further been held at paragraph-19 of the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co-accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. For ready reference, relevant paragraph, i.e., paragraph-19, of the aforesaid judgment reads as under:
64 B.A. No.10296/2023
"19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."
93. Now this court is adverting into facts of instant case to decide the issue of parity in the backdrop of aforesaid settled legal ratio and further taken into consideration the aforesaid settled position of law, deems it fit to refer herein distinguishable facts in the case of present petitioner to that of the case of Dilip Kumar Ghosh, who has been granted bail by this Court vide order dated 28.11.2023 in B.A. No.7233 of 2023.
94. This Court needs to go through the imputation of allegation as against the Dilip Kumar Ghosh, which has been mentioned in the prosecution complaint.
95. As would be evident from the prosecution complaint made against the Dilip Kumar Ghosh requires to be referred herein:- 65 B.A. No.10296/2023
(I) Dilip Kumar Ghosh was working as director of Jagatbandhu Tea Estate Pvt. Ltd. under the dictate of accused person, namely, Amit Kumar Agarwal, who is the beneficial owner of Jagatbandhu Tea Estate Pvt.
Ltd. and the property in question has been acquisitioned by the said company.
(II) Further, the allegation is that the property in question was of 20 Crores but the company through the Dilip Kumar Ghosh has negotiated and purchased it in only 7 Crores.
96. This Court, on the basis of the different role committed by Dilip Kumar Ghosh, the accused person, who has been granted bail and comparing his accountability with the act of the present petitioner, is of the view that it cannot be said that what has been done by Dilip Kumar Ghosh is identical to that of the case of the present petitioner, as would be evident from the prosecution complaint, wherein, it has come on record that Dilip Kumar Ghosh was indulged in assisting the accused no.3, i.e., Amit Kumar Agarwal in acquiring the proceeds of crime in name of accused no.1, M/s Jagatbandhu Tea Estate Pvt. Ltd. which was completely under the control of Amit Kumar Agarwal.
97. This Court, in order to come to the conclusion as to whether, the principle of parity is to be followed on the ground that the said Dilip Kumar Ghosh has been granted bail, has already considered 66 B.A. No.10296/2023 the imputation against the present petitioner, which has already been mentioned in preceding paragraphs.
98. On comparative assessment of the allegation as per the material collected in course of investigation as referred hereinabove, it is evident that against the said Dilip Kumar Ghosh, the allegation of purchase of the land in question has been alleged and further allegation against him is that he is involved in the activities connected with the acquisition, possession, concealment and use of the proceeds of crime and claiming and projecting the proceeds of crime as untainted property.
99. Therefore, it is evident from the discussion as made above that the case of the petitioner is different to that of the said Dilip Kumar Ghosh as per the allegation and it is pertinent to mention here that the bail of accused no.3 Amit Kumar Agarwal has already been rejected by this Court vide order dated 01.03.2024 passed in B.A. No. 7343 of 2023.
100. Further, even accepting the said Dilip Kumar Ghosh has been granted bail, however, this Court is of the view that the Dilip Kumar Ghosh has also parted with the forgery and he has been granted bail by the coordinate Bench of this Court.
101. However, this Court is not making any comment upon the order passed by the coordinate bench but as has been held by the Hon'ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra), wherein, at 67 B.A. No.10296/2023 paragraph 19, the principle has been laid down that Article 14 since envisages the positive equality and not the negative equality and even accepting that the said Dilip Kumar Ghosh has been granted bail, the same cannot be given any aid to the petitioner in view of the applicability of the principle that the Article 14 of the Constitution of India does not envisage the negative equality, rather, it envisages the positive equality.
102. Further, it requires to refer herein that the Money Laundering is an economic offence and economic offences come under the grave offences, as has been held by the Hon'ble Apex Court in the case of Y. S Jagan Mohan Reddy Vs. C. B. I., reported in (2013) 7 SCC 439. For ready reference, the relevant paragraph of the aforesaid judgment is being quoted as under:
"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep- rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
103. Similarly, the Hon'ble Apex Court in case of Nimgadda Prasad Vs. C.B.I., reported in (2013) 7 SCC 466 has reiterated the same view in paragraph-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, 68 B.A. No.10296/2023 which has affected the fibre of the country's economic structure. Incontrovertibly, economic offences have serious repercussions on the development of the country as a whole. In State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2 SCC 364 : 1987 SCC (Cri) 364] this Court, while considering a request of the prosecution for adducing additional evidence, inter alia, observed as under: (SCC p. 371, para 5) "5. ... The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest."
24. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of 69 B.A. No.10296/2023 the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
25. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offence having deep- rooted conspiracies and involving huge loss of public funds needs to be viewed seriously and considered as a grave offence affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country."
104. It is, thus, evident from the discussion made hereinabove that so far as the case of the present petitioner is concerned, the twin condition as provided under Section 45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of bail to the present petitioner.
105. Even on the ground of parity as per the discussion made hereinabove, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Dilip Kumar Ghosh, is quite different.
106. For the foregoing reasons, having regard to the facts and circumstances, as have been analyzed hereinabove, the 70 B.A. No.10296/2023 applicant/petitioner failed to make out a case for exercise of power to grant bail and considering the facts and parameters, this Court therefore does not find any exceptional ground to exercise its discretionary jurisdiction under Section 439 of the Code of Criminal Procedure to grant bail.
107. Therefore, this Court is of the view that the bail application is liable to be rejected.
108. Accordingly, based upon the aforesaid discussion, this Court is of the view that the instant application is fit to be dismissed and as such, stands dismissed.
109. The observation/finding, as recorded hereinabove, is only for the purpose of consideration of issue of bail. The same will not prejudice the issue on merit in course of trial.
110. Pending interlocutory application(s), if any, also stands disposed of.
Rohit/-A.F.R. (Sujit Narayan Prasad, J.) 71 B.A. No.10296/2023