Gujarat High Court
Ashish Grover @ Ashu S/O. Satyapal ... vs State Of Gujarat & on 17 December, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/20433/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO.20433
of 2015
=========================================
ASHISH GROVER @ ASHU S/O. SATYAPAL GROVER....Applicant Versus STATE OF GUJARAT & 1....Respondents ========================================= Appearance :
MR VIKRAM CHAUDHARY, SENIOR ADVOCATE ASSISTED BY MR SUMIT B SIKARWAR, MR. VIJAY U. GOSWAMI, MR. MOHD. JUBER KHAN PATHAN AND MR CHETAN K. PANDYA, ADVOCATES for the Applicant. MS NISHA THAKORE, APP for the Respondent No.1. RULE SERVED BY DS for the Respondent No.2. ========================================= CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 17/12/2015 CAV ORDER
1. By way of the present application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') read with Section 45 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as 'PMLA'), the applicant has prayed to release him on regular bail in connection with ECIR No. - ECIR/03/AMZO/2015 [NOW PMLA Complaint No.10 of 2015] registered at the instance of the respondent No.2 - the authority appointed under the PMLA for the offences punishable under Section 3 read with Section 4 of the PMLA read with Section 120-B of the Indian Penal Code.
2. On 29.10.2015, this Court issued rule making it returnable on 2nd December, 2015. The notice of rule was served on respondent No.2 on 16.11.2015. On 2.12.2015, nobody appeared on behalf of the respondent No.2. Hence, this Court called upon learned Central Government Standing Counsel Ms. Trusha K. Patel who normally appears for the respondent No.2 and Page 1 of 16 HC-NIC Page 1 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER inquired whether she has any instruction to appear on behalf of respondent No.2. However, she has stated that she has not received any instructions. However, with a view to give one more chance, the matter was adjourned to 10th December, 2015. On 10.12.2015 also, Ms. Trusha K. Patel informed the Court that she had not been instructed to appear in the matter. Hence, the Court has proceeded on the basis of the documents available on the record of this petition. Mr. Vikram Chaudhary, learned Senior Counsel appearing on behalf of the applicant has fairly provided copy of the affidavit-in-reply filed by respondent No.2 before the learned Trial Court as well as the statement of the applicant recorded under Section 50 of the PMLA Act.
3. The brief facts arose from the record are as under :-
3.1 That on 25.3.2015, one Haresh B. Vohra, Police Inspector, Special Operation Group, Vadodara City, lodged an FIR being I C.R. No.85 of 2015 with Kishanvadi Police Station, Dist.
Vadodara against four accused, namely, Girish @ Tomi Purshottam Patel, Kiran Jayantilal Mala, Chirag Parikh and Dharmendrasinh Vishwanath Chauhan @ Dharmin Chauhan for the offences punishable under Sections 418, 419, 420, 465, 467, 468, 471 and 120-B of Indian Penal Code alleging that the Enforcement department had raided a farm house on 19.3.2015 wherein it was found that 16 persons were indulging in Hawala racket and of cricket betting. An FIR was also lodged against 16 persons for the offences punishable under Sections 4 and 5 of the Public Gambling Act, 1867 read with Sections 65, 66 and 66C of the I.T. Act. The said FIR was registered as C.R. No.222 of 2015 with Kishanvadi Police Station. The said four persons who are referred herein above were amongst the 16 accused against whom the said FIR Page 2 of 16 HC-NIC Page 2 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER was filed.
3.2 During further investigation of the said offence, it was found that the aforesaid four accused persons had entered into a partnership firm by oral understanding, namely, M/s. Maruti Ahmedabad, Partnership Firm to carry on illegal activities like cricket betting, Hawala etc. It was found that against those persons, other offences were registered for betting at Unjha of District Mehsana as well as Ahmedabad and Mumbai. It was alleged in the FIR that during the raid, different types of electronic gadgets were discovered and about 147 Mobiles were collected which were being used for betting. The Sim Cards which were being used by those persons, found to be forged and the same were collected in bogus names. It was also found that by creating bogus documents and forging signatures in the applications form, different Sim Cards were purchased and the same were used for cricket betting which is an illegal activity.
3.3 The Investigating Agency recorded the statement of the above referred accused persons and started further investigation. It was found that one Ankush Bansal as well as his brother, namely, Ritesh Bansal @ Bharat Delhi and one Mukesh Kumar, who are resident of Delhi were also found to be in contact with those four accused. The applicant - accused was called for by the Investigating Agency and his statement was recorded on 14.7.2015. He was arrested on 15.7.2015. Statements of co-accused were also recorded by the Investigating Agency. Ultimately, the respondent No.2 filed a supplementary complaint in the Court of Principal District and Sessions Judge, Ahmedabad (Rural), the Designated Special Court established under the PMLA being PMLA supplementary Complaint No.10 of 2015.
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3.4 Subsequent to his arrest, an application was filed by
the applicant before the Special Designated Court at Ahmedabad under Section 439 of the Code read with Section 435 of the PMLA to release him on bail during the pendency of the trial being Criminal Misc. Application No.1751 of 2015. The learned Designated Special Judge by his judgment and order dated 26.10.2015 rejected the said application. Hence this application.
3.5 On 10.12.2015, this Court passed the following order :-
"By way of the present application preferred under Section 439 of the Code of Criminal Procedure, 1973 read with Section 45 of the Prevention of Money Laundering Act, 2002, the applicant - original accused No.8 has prayed to release him on regular bail in connection with ECIR No.ECIR/03/AMZO/2015 and PMLA Complaint No.8 of 2015 registered at the instance of the respondent No.2.
2. The matter was listed for the first time before this Court on 29.10.2015, this Court passed the following order :-
"Rule returnable on 2nd December, 2015. Learned Additional Public Prosecutor waives service of rule on behalf of the respondent No.1 - State. Direct service is permitted for respondent No.2."
3. The respondent No.2 who is the complainant was served on 16.11.2015 and affidavit of service has also been filed to that effect on behalf of the applicant.
4. On 2.12.2015, though respondent No.2 was served, nobody appeared on behalf of the respondent No.2. Therefore, Ms. Trusha K. Patel, learned Central Government Standing Counsel was called for and was asked whether she has received any instruction to appear or not. She made a statement that she had not received any Page 4 of 16 HC-NIC Page 4 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER instructions and, therefore, on 2.12.2015, following order was passed :-
"Mr. Sumit B. Sikarwar, learned advocate appearing on behalf of the applicant states that respondent No.2 is served and shall file affidavit of service to that effect.
Ms. Trusha K. Patel, learned Standing Counsel is usually appearing on behalf of respondent No.2 states that she has no instruction to appear in this matter.
Hence, the matter is adjourned to 10th December 2015."
5. Today also, Ms. Trusha Patel was called for and she disclosed that though she had informed to the respondent No.2, she had not been instructed to appear in the matter.
6. It is very unfortunate that the respondent No.2 has neither appeared through any counsel nor has filed any affidavit-in-reply.
7. Therefore, Mr. Vikram Chaudhary, learned Senior Counsel assisted by Mr. Sumit Sikarwar appearing for the applicant was heart at length. He has fairly produced the copy of affidavit-in-reply filed by the respondent No.2 before the trial Court and has also supplied the statement of the petitioner recorded under Section 50 of the PMLA Act.
8. Kept for order."
4. Mr. Vikram Chaudhary, learned Senior Counsel assisted by Mr. Sumit B. Sikarwar, Mr. Vijay U. Goswami, Mr. Mohd. Juberkhan Pathan and Mr. Chetan K. Pandya, learned advocates appearing for the applicant has vehemently submitted that the complaint has been lodged for the so-called offence under Section 3 of PMLA which is punishable under Section 4 of the PMLA. However, the case of the applicant does not fall under the definition of offence of money laundering. He would submit that Page 5 of 16 HC-NIC Page 5 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER Section 3 of the PMLA provides that a person can be held guilty of offence of money laundering who is directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including its concealment, possession, acquisition or use and also projecting or claiming it as untainted property.
4.1 He would submit that the word "proceeds of crime" is defined under Section 2 (u) of the PMLA. As per the said definition, an amount alleged to have been derived by the applicant through cricket betting would not fall under the proceeds of crime since betting is not a scheduled offence. He would submit that betting of cricket is not a scheduled offence since the scheduled offence is defined under Section 2 (y) of the PMLA. He would submit that the only allegation made in the supplementary complaint against the present applicant who is accused No.1 in the supplementary complaint is that the applicant is one of the partners of "SAM DELHI" along with another accused of the Original Complaint No.8 of 2015 who were operating their own book in Delhi making and receiving bets on different matches. The book Sam Delhi has also been found to be giving line directly from stadium for giving ball by ball description to different bookies including Ritesh Bhansal @ Bharat Delhi, Aman Sachdeva which enabled these bookies to know the result of a particular ball 6 to 7 seconds prior to regular viewers watching live telecast of the match. Being aware of their clandestine activities they also used to replace their laptops after 10 to 12 months of use. The book "Sam Delhi" in which another accused is a partner of 23% had settled accounts to the tune of Rs.57.37 Crores approximately in the books of "MARUTI AHMEDABAD" between 1.12.2014 to 1.1.2015. He would further submit that though such allegations have been made, Page 6 of 16 HC-NIC Page 6 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER the Investigating Agency has failed to collect any supporting evidence and has failed in establishing that the alleged amount of Rs.57.37 Crores have been forwarded to foreign countries. He would submit that except the statement of a person who is accused of the original offence, there is no material against him which would even prima facie establish that the applicant has committed any offence which is a scheduled offence.
4.2 He would further submit that the investigation is over qua C.R. No.85 of 2015 registered with Kishanvadi Police Station wherein the applicant has not been made an accused. He would submit that since the applicant is not the accused in the said offence which are scheduled offence as per PMLA, he cannot be charged under Section 3 of the PMLA. Since provisions of Section 45 of the PMLA is not applicable, his case can be considered under Section 45 (2) of the PMLA and he can be released by imposing appropriate conditions. He would submit that the applicant is a permanent resident of Delhi and shall cooperate with the Investigating Agency and Court till the trial is over and shall abide by all the conditions which may be imposed by this Court and, therefore, he may be released on bail. He has also relied on the orders passed by this Court in the case of co-accused who were released on bail vide order dated 20.10.2015 passed in Criminal Misc. Application No.16555 of 2015, order dated 20.10.2015 passed in Criminal Misc. Application No.14446 of 2015 and order dated 8.12.2015 passed in Criminal Misc. Application No.18711 of 2015 and submitted that the said orders have become final and no appeals have been preferred before the Hon'ble Supreme Court.
5. In absence of Counsel appearing for the respondent No.2 - original complainant, this Court has gone through the Page 7 of 16 HC-NIC Page 7 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER affidavit-in-reply filed by the respondent No.2 before the learned Trial Court. Further, since this Court had occasion to deal with the matter of co-accused and had gathered information with regard to the entire facts of the case, I find that the case of the prosecution is that huge scam of Hawala to the tune of about Rs.2500 Crores has come in light in the game of Cricket betting. The investigation till date carried out and record recovered and seized from the Farm house at Vadodara on 19.3.2015 reveals that those four accused had received and placed various bets from large number of bookies and punters amounting to Rs.2500 Crores on different Cricket matches played between 4.12.2014 till 19.3.2015 i.e. the date on which the farm house was raided and searched under the Foreign Exchange Management Act, 1999 for the ongoing ICC World Cup Quarterfinal match between India and Bangladesh. Further, the investigation revealed that the applicant along with other accused were actively participating in the illegal activities of betting.
5.1 It is further the case of the prosecution that unless and until there is conspiracy between the applicant and other co- accused to project and/or claim the untainted property which has been received through cricket betting, false and fabricated Sim Cards could not have been prepared at the instance of those four accused. She would submit that the money found at the time of raid, therefore, is a proceeds of crime and, therefore, the case falls under Section 3 of the PMLA Act.
5.2 It is further the case of the prosecution that under Section 24 of PMLA, the burden of proof is upon the accused person to prove that the money received by him is untainted one. The applicant - accused has miserably failed in establishing that the money involved in the present complaint are untainted Page 8 of 16 HC-NIC Page 8 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER property. The provisions of Section 45 of PMLA would be applicable and, therefore, unless the Court concludes that the applicant is innocent, he may not be released on bail. Even otherwise, considering the gravity of offence and the maximum punishment provided under the PMLA Act, the Court may not use powers under Section 439 of the Code.
6. I have heard learned advocates appearing for the applicant and perused the affidavit-in-reply filed on behalf of the respondent No.2 before the learned Trial Court as well as gone through the statement of the applicant. If the complaint is looked into, the present applicant along with other six accused have been charged under Sections 3 and 4 of the PMLA Act. The four accused against whom FIR being C.R. No. I-85 of 2015 was lodged on 25.3.2015 at Kishanvadi Police Station, the present applicant is not implicated as an accused. For the ready reference and for appreciating the arguments advanced by learned advocates for the respective parties, certain provisions of the PMLA Act are reproduced herein below :-
7. Sections 3 and 4 of the PMLA Act read as under :-
"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 and projecting it as untainted property shall be guilty of offence of money-laundering.
4. Punishment for money-laundering --
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Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine which may extend to five lakh rupees:
Provided that where the proceeds of crime
involved in money-laundering relates to any
offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted."
8. Section 3 provides that a person shall be guilty of offence of money laundering when he is directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected proceeds of crime including the concealment, possession, acquisition or use and projecting or claiming it as untainted property. The definition of "proceeds of crime: provided in Section 2 (u) 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;"
9. The "scheduled offence" defined under Section 2 (y) of the PMLA reads as under :-
"2 (y) "scheduled offence" means --
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(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 thirty lakh rupees or more; or]
(iii) the offences specified under Part C of the Schedule;"
10. In view of the above, if the Schedules to the Act are perused, the applicant is not charged with any of the offences punishable under PMLA referred in the Schedule. It is pertinent to note that the applicant is facing charge only for the offences punishable under PMLA and is not the accused wherein the allegations of cheating, forgery etc. have been made against other accused which are scheduled offence. Therefore, there might be some illegal activities committed by the applicant i.e. with regard to cricket betting, but in my prima facie opinion, the said income would not be covered under the definition of proceeds of crime.
11. Section 45 of PMLA reads as under :-
"45. Offences to be cognizable and non- bailable --
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless --Page 11 of 16
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(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, 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 State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.
[(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, Page 12 of 16 HC-NIC Page 12 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
12. Section 24 of PMLA reads as under :-
"24. Burden of Proof -- When a person is accused of having committed the offence under section 3, the burden of proving that proceeds of crime are untainted property shall be on the accused."
13. The burden of proof as referred to herein above relates to proceeds of crime. As stated herein above, since the applicant is not facing any charge for any offence under Part A of Schedule, Section 45 (1) of the PMLA would not be prima facie applicable and, therefore, it is not required that the applicant is to be declared as not guilty of such offence at the time of dealing with an application for bail.
14. Under Section 45 (2) of PMLA, the other provisions of the Code would be applicable and, therefore, the case is to be dealt with accordingly. Therefore, I am dealing with the same. As far as the allegations levelled against the present applicant are concerned, I have gone through the statement of the applicant himself. It appears that applicant is one of the partners of "SAM DELHI" along with another accused of the Original Complaint No.8 Page 13 of 16 HC-NIC Page 13 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER of 2015 who were operating their own book in Delhi making and receiving bets on different matches. The investigation is almost over and on completion of investigation, the present complaint has been filed by the authority. I have also considered the fact that the maximum punishment is of 7 years and, therefore, the case of the applicant can be considered by imposing certain conditions. In my view, the judgments relied upon by Ms. Patel would not be applicable to the facts of the present case.
15. I have gone through the unreported decision dated 5.10.2015 passed by the coordinate Bench of this Court (Coram :-
Hon'ble Ms. Justice Harsha Devani) in the case of Afroz Mohmad Hasanfatta v. Deputy Director and another, Criminal Misc. Application No.17000 of 2014. I have also gone through another unreported decision dated 31.3.2015 of the coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice Paresh Upadhyay) in the case of Rakesh Manekchand Kothari v. Deputy Director, Enforcement Directorate, in Criminal Misc. Application No.3637 of 2015 wherein the coordinate Bench has dealt with similar offence and has refused to release the applicant on bail on the ground that he is not facing any charge of scheduled offence which order has been confirmed by the Hon'ble Supreme Court.
16. I have also considered the fact that the Hon'ble Supreme Court has released the accused, namely, Afroz Mohmad Hasanfatta on interim bail who is facing charges under PMLA Act as well as scheduled offence.
17. Hence, the application is allowed and the applicant is ordered to be released on bail in connection with ECIR No.-
ECIR/03/AMZO/2015 [Now PMLA Complaint No.10 of 2015] Page 14 of 16 HC-NIC Page 14 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER registered at the instance of the respondent No.2, on executing a bond of Rs.1,00,000/- (Rupees One Lac only) with two local sureties of Rs.50,000/- each to the satisfaction of the trial Court and subject to the conditions that he shall;
[a] not take undue advantage of liberty or misuse liberty;
[b] not act in a manner injuries to the interest of the prosecution;
[c] surrender passport, if any, to the lower court within a week;
[d] not leave State of Gujarat and Union territory of Delhi without prior permission of the concerned Sessions Judge;
[e] mark presence with the respondent No.2 on every Monday of each English Calendar month for a period of three months and thereafter on any day of the first week of each English Calendar month for a period of one year;
[f] furnish the present address of residence to the I.O. and also to the Court at the time of execution of the bond and shall not change the residence without prior permission of this Court;
17. The Authorities will release the applicant only if he is not required in connection with any other offence for the time being. If breach of any of the above conditions is committed, the Sessions Judge concerned will be free to issue warrant or take appropriate action in the matter. Bail bond to be executed before Page 15 of 16 HC-NIC Page 15 of 16 Created On Fri Dec 18 02:45:44 IST 2015 R/CR.MA/20433/2015 CAV ORDER the lower court having jurisdiction to try the case. It will be open for the concerned Court to delete, modify and/or relax any of the above conditions in accordance with law. At the trial, the trial Court shall not be influenced by the observations of preliminary nature, qua the evidence at this stage, made by this Court while enlarging the applicant on bail.
18. Rule made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.) Savariya Page 16 of 16 HC-NIC Page 16 of 16 Created On Fri Dec 18 02:45:44 IST 2015