Punjab-Haryana High Court
Gurpreet Singh And Anr vs Directorate Of Enforcement Govt. Of ... on 19 December, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:163179
CRM-M-48341-2023
204-6 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-48341-2023
Reserved on: 29.11.2023
Pronounced on: 19.12.2023
Gurpreet Singh and another ...Pe""oners
Versus
Directorate of Enforcement ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. A.S. Ahluwalia, Advocate and
Ms. Gurkaran Kaur Ahluwalia, Advocate and
Ms. Sunidhi Jain, Advocate.
for the pe""oners.
Mr. Satya Pal Jain, Addl. Solicitor General of India with
Mr. Lokesh Narang, Sr. Panel Counsel for the respondent.
****
ANOOP CHITKARA, J.
Case no. Date Offences Complaint Case No. COMA-3-2023 16.06.2023 3 and 4 of Preven"on of Money Laundering Act 2002 [PMLA] PREDICATE OFFENCE: FIR No. Dated Police Sta"on Sec"ons 13 02.11.2020 Vigilance Bureau, 409, 420, 465, 466, 467, 471, District SAS Nagar 120-B IPC and 7, 7(a) of Preven"on Mohali of Corrup"on Act, 1988
1. The pe""oners apprehending arrest in the complaint cap"oned above have come up before this Court under Sec"on 438 CrPC seeking an"cipatory bail.
2. Vide order dated 25.09.2023, this Court had granted interim an"cipatory bail to the pe""oners which is con"nuing "ll date.
3. Pe""oner's counsel argued that the custodial inves"ga"on would serve no purpose whatsoever, and the pre-trial incarcera"on would cause an irreversible injus"ce to the pe""oner and family.
4. The counsel for the Enforcement Directorate [ED] opposes the bail and states that considering the allega"ons, the pe""oner is not en"tled to any bail. The ED's counsel further contends that given the express bar of sec"on 45 of the Preven"on of Money Laundering Act 2002 [PMLA], this court can grant bail only when the accused meets the twin condi"ons, which he has not explained.
5. The facts of the case are that the Assistant Director of the Directorate of Enforcement [ED] filed a complaint based on predicate offence, which was FIR No.13 dated 02.11.2020 under Sec"ons 409, 420, 465, 466, 467, 471, 120-B IPC and Sec"on 7, 7-A of Preven"on of Corrup"on Act against Varinder Pal Singh Dhoot and other persons. In the said FIR, allega"ons were that the revenue officials misused their official posi"on 1 1 of 6 ::: Downloaded on - 20-12-2023 03:33:40 ::: Neutral Citation No:=2023:PHHC:163179 CRM-M-48341-2023 and wrongly allocated shamlat land amongst the residents of village Seonk. Although shamlat land has to be distributed by the revenue authori"es as per order dated 01.07.2016 and muta"on no. 1761, some beneficiaries were allocated extra land, and some were given less. In some instances, the land was given to those who were not eligible. Varinder Pal Singh Dhoot is the kingpin, and the pe""oner is one of the main accused. Allega"ons are of receipt of money from property dealers, and the accused allegedly received a massive amount of money by misusing the government machinery.
6. I have heard counsel for the par"es and gone through the pleadings.
7. Counsel for the respondent based his arguments on reply dated 19.10.2023 and submits that Sec"on 45 of PMLA Act imposes two mandatory condi"ons and one of which is that there should be reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit such offence while on bail. He further submits that there is evidence with corrobora"ve statement and in addi"on to the substan"ve evidence, even the pe""oner has confessed receiving of massive amount of money for doing illegal transfers. Counsel for the respondent explicitly refers to paras no.6 and 8 of the reply which read as follows: -
"6. That Gurpreet Singh is directly involved and has knowingly assisted in concealment, possession, use of proceeds of crime and in claiming the same to be untainted property. He has ac vely connived in selling excess shares of shamlat land to outside persons viz. Anand Khosla. Gurpreet Singh along with Jaswinder Singh S/o Surja Singh in connivance with revenue officials and other accused took the power of a)orney for 400 kanals of land from Balbir Singh and Tarsem Lal and further sold this 400 kanals of land to Anand Khosla for Rs.1.25 crores. Out of this an amount of Rs.7.5 lakhs was transferred to Varinder Pal Singh Dhoot as kickbacks from the sale of shamlat land.
8. That Jaswinder Singh s/o Surja Singh is directly involved and has knowingly assisted in concealment, possession, use of proceeds of crime and in claiming the same to be untainted property. He has ac vely connived in selling excess shares of shamlat land to outside persons viz. Anand Khosla. Jaswinder Singh S/o Surja Singh along with Gurpreet Singh in connivance with revenue officials and other accused took the power of
a)orney for 400 kanals of land from Balbir Singh and Tarsem Lal and further sold this 400 kanals of land to Anand Khosla for Rs.1.25 crores. Out of this an amount of Rs.5 lakhs were paid to Iqbal Singh (then Patwari of Seonk) in his wife Gurjinder Kaur's account."
8. It would be appropriate to refer to the complaint dated 16.06.2023 filed under Sec"on 44 read with Sec"on 45 of the PMLA for the commission of offence defined under Sec"on 3 and punishable under Sec"on 4 of PMLA by the Assistant Director, Directorate of Enforcement, Jalandhar Zone, Punjab. In the complaint, 13 persons have been arraigned as accused, including the pe""oners, Gurpreet Singh and Jaswinder Singh, who are cited as accused No.8 and 9. The complainant claims to be an authorized 2 2 of 6 ::: Downloaded on - 20-12-2023 03:33:40 ::: Neutral Citation No:=2023:PHHC:163179 CRM-M-48341-2023 person to file the complaint via an authoriza"on issued by the Government of India.
9. Just like a hidden por"on of an ice burg, the roots of this complaint trace back to the predicate offence registered in FIR No. 13 dated 02.11.2020, under Sec"ons 409, 420, 465, 466, 467, 471, 120-B IPC and Sec"on 7, 7-A of Preven"on of Corrup"on Act in Police Sta"on Vigilance Bureau, Mohali against eleven persons, in which the pe""oner was not ini"ally named. Briefly, the main accused, who were the revenue officials, in connivance with property dealers and beneficiaries, not only alloJed surplus land to some but also to those who were not even en"tled, and in the process, some genuine beneficiaries were not allocated any land to which they were legally en"tled. Based on such allega"on, the total irregulari"es resulted in a difference of 99 acres, 4 Kanals, and 14.32 Marlas of land. Allega"ons were that Iqbal Singh, Patwari (accused no.3); Raghbir Singh, Kanungo (accused no.2); Varinder Pal Singh Dhoot, Naib Tehsildar (accused no.1); Shyam Lal, property dealer (accused no.5); and Gurnam Singh, Lambardar (accused no.4) were primarily responsible for all the misdeeds.
10. Based on this predicate offence, i.e., the hidden por"on of an iceberg, the inves"ga"on commenced into the present scheduled offence. Since there were allega"ons of receipt of money and its laundering, such inves"ga"on was required to ascertain money laundering and confisca"on of property derived or obtained directly or indirectly or which was involved in the process or ac"vity connected with the proceed of crime, including its concealment, possession, acquisi"on or used in any manner in its tain"ng. On 10.08.2021, searches were conducted, and massive documents were seized, as men"oned in para no.5 of the complaint. Even statements of witnesses were recorded under Sec"on 17 of the PMLA. The list of the property acquired by money laundering or tainted money or proceeds of crime has been men"oned in para no.8, and it is valued at Rs.8,02,33,803/-.
11. The complainant is the Assistant Director of Enforcement, and the complaint is filed under Sec"on 45 read with Sec"on 44 of Preven"on of Money Laundering Act, 2002 (hereinaNer referred to as PMLA, 2002). In para 1.2.1., FIR No.13 was registered on 02.11.2020 by Vigilance Bureau, Mohali for offences under Sec"ons 420, 467, 471, 120-B IPC and Sec"on 7 of PC Act, 1988. The allega"ons were that revenue officials mis-used their official posi"ons and wrongly allocated Shamlat land of Seonk village amongst the residents of the village. There was a specific order dated 01.07.2016 passed by Addi"onal Deputy Commissioner (Development) SAS Nagar, as per which the land has to be distributed by Land Revenue Authori"es, however, the revenue officials including Naib Tehsildar, Patwari and Kanungo in connivance with the beneficiaries allocated extra land to some and lesser to others than their righOul share. In some cases, the land was allocated to people who were not even eligible to receive the same. In all, the irregulari"es resulted in a difference of 99 acres 4 kanal 14.32 marlas of land. Further allega"ons were that land mafia in connivance with Iqbal Singh, Patwari, Raghbir Singh, Kanungo and Varinder Pal Singh Dhoot, Naib Tehsildar, Shyam Lal, property dealer and Gurnam Singh- Lambardar increased the area alloJed to Khewatdars and subsequently did not perform their official du"es in accordance with law. In the said case, police report was filed aNer comple"on of inves"ga"on.
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12. Based on this structure i.e. scheduled offence, the inquiry under PMLA Act, 2002 was ini"ated. The inves"ga"on revealed that in addi"on to Iqbal Singh (Patwari), Raghbir Singh, Kanungo and Varinder Pal Singh Dhoot, Naib Tehsildar distributed land in viola"on of the orders passed by the Addi"onal Deputy Commissioner (Development) SAS Nagar, Mohali.
13. As per para 3.1.4 of the complaint, total area of 81 acres and 1 Kanal was wrongly allocated to villagers and 102 acres 2 kanal and 14.8 marla of Shamlat land was illicitly sold by property dealers aNer obtaining Power of AJorney from those villagers. As per para no.3.2 of the complaint, the property dealer Shyam Lal and others in connivance got a muta"on prepared and a massive amount of bribe was paid to the officials and was received as illicit commission by property dealers which was inquired into. The Inves"gator was able to recover a massive number of documents including unsigned agreements, registered deeds, General Power of AJorney and jamabandi which have been men"oned in para 5.3 of the complaint.
14. Allega"ons against pe""oner No.1- Gurpreet Singh are men"oned in 12.8 of the complaint by the Inves"gator. He was involved in selling excess share to outside persons including one Anant Khosla. He along with co-accused Jaswinder Singh in connivance with revenue officials took Power of AJorney of 400 kanals of land from Balbir Singh and Tarsem Lal and sold the same to Anant Khosla for a sum of Rs.1.25 crores. Out of the said illegal sale transac"on, Gurpreet Singh received a sum of Rs.62.50 lacs in his bank account from which he transferred Rs.42 lacs in the account of Tarsem Lal, Gurnam Singh and Shyam Lal as per money trail defined in para 11.3 of the complaint. Gurpreet Singh kept Rs.20 lacs as his share and later on, transferred Rs.19 lacs to his father in PNB account on 30.01.2017. An amount of Rs.7.5 lacs was paid to Varinder Pal Singh Dhoot by transferring the same to account of Amit Kumar, an employee of Amarpal Singh who is friend of Varinder Pal Singh Dhoot, one of the main accused. Thus, the evidence collected points out towards his involvement. Allega"ons against pe""oner No.2- Jaswinder Singh are men"oned in para no.12.9 of the complaint. The Inves"gator collected evidence of receiving proceeds of crime. He connived with outside people sold excess share of land to Anant Khosla. He also connived with Jaswinder Singh and Gurpreet Singh and with the help of revenue officials took Power of AJorney of 400 kanals of land and in connivance with co-accused sold the same to Anant Khosla. There is allega"on that out of Rs.1.25 crores, pe""oner No.2 received Rs.62.50 crores in his account from where Rs.56 lacs were transferred to Tarsem Lal, Gurnam Singh, Shyam Lal and Iqbal Singh. He kept Rs.7 lacs which he transferred to his brother Shamsher Singh.
15. Sec"on 45(1) of the Preven"on of Money Laundering Act, 2002 [PMLA] requires sa"sfying the mandatory twin condi"ons before a person can be granted bail. The first condi"on is that the Public Prosecutor has been allowed to oppose the applica"on. In the present case, not only was proper opportunity given, but they filed a reply, and their counsel was heard. As such, the first condi"on of S. 45 (1) has been complied with. The second condi"on is that where the Public Prosecutor opposes the applica"on, the Court must be sa"sfied that there are reasonable grounds for believing that he is not guilty of such an offence and is not likely to commit any offence while on bail. Regarding the 4 4 of 6 ::: Downloaded on - 20-12-2023 03:33:40 ::: Neutral Citation No:=2023:PHHC:163179 CRM-M-48341-2023 second condi"on there is enough evidence against the pe""oners as they were involved in selling excess share to outside persons including one Anant Khosla. They in connivance with revenue officials took Power of AJorney of 400 kanals of land from Balbir Singh and Tarsem Lal and sold the same to Anant Khosla for a sum of Rs.1.25 crores. Out of the said illegal sale transac"on, they received a sum of Rs.62.50 lacs each in his bank account, therefore, they are not en"tled for bail and fail to fulfil second condi"on as mandated under Sec"on 45(1) of PMLA Act.
16. In Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, a three- member bench of Supreme Court holds, [131]. It is important to note that the twin condi"ons provided under Sec"on 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the condi"ons provided under Sec"on 45 impose absolute restraint on the grant of bail. The discre"on vests in the Court which is not arbitrary or irra"onal but judicial, guided by the principles of law as provided under Sec"on 45 of the 2002 Act. While dealing with a similar provision prescribing twin condi"ons in MCOCA, this Court in Ranjitsing Brahmajeetsing Sharma, (2005) 5 SCC 294, held as under:
"44. The wording of Sec"on 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a posi"ve finding that the applicant for bail has not commiJed an offence under the Act. If such a construc"on is placed, the court intending to grant bail must arrive at a finding that the applicant has not commiJed such an offence. In such an event, it will be impossible for the prosecu"on to obtain a judgment of convic"on of the applicant. Such cannot be the inten"on of the legislature. Sec"on 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquiJal and convic"on and an order gran"ng bail much before commencement of trial. Similarly, the Court will be required to record a finding as to the possibility of his commiSng a crime aNer grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the maJer having regard to the antecedents of the accused, his propensi"es and the nature and manner in which he is alleged to have commiJed the offence.
45. It is, furthermore, trite that for the purpose of considering an applica"on for grant of bail, although detailed reasons are not necessary to be assigned, the order gran"ng bail must demonstrate applica"on of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.
46. The duty of the court at this stage is not to weigh the evidence me"culously but to arrive at a finding on the basis of broad probabili"es. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-sec"on (4) of Sec"on 21 of the Act, the court may have to probe into the maJer deeper so as to enable it to arrive at a finding that the materials collected against the accused during the inves"ga"on may not jus"fy a judgment of convic"on. The findings recorded by the court while gran"ng or refusing bail undoubtedly would be tenta"ve in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby"5
5 of 6 ::: Downloaded on - 20-12-2023 03:33:40 ::: Neutral Citation No:=2023:PHHC:163179 CRM-M-48341-2023 We are in agreement with the observa"on made by the Court in Ranjitsing Brahmajeetsing Sharma. The Court while dealing with the applica"on for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weigh the evidence to find the guilt of the accused which is, of course, the work of Trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during inves"ga"on and the said view will not be taken into considera"on by the Trial Court in recording its finding of the guilt or acquiJal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad, the words 635 Supra at Footnote No.275 (also at used in Sec"on 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecu"on is not required to prove the charge beyond reasonable doubt.
[145]. ... The provision in the form of Sec"on 436A of the 1973 Code, as has now come into being is in recogni"on of the cons"tu"onal right of the accused regarding speedy trial under Ar"cle 21 of the Cons"tu"on. For, it is a sanguine hope of every accused, who is in custody in par"cular, that he/she should be tried expedi"ously - so as to uphold the tenets of speedy jus"ce. If the trial cannot proceed even aNer the accused has undergone one-half of the maximum period of imprisonment provided by law, there is no reason to deny him this lesser relief of considering his prayer for release on bail or bond, as the case may be, with appropriate condi"ons, including to secure his/her presence during the trial.
17. An analysis of the pleadings and the response as well as arguments would lead to following outcome. Out of the twin condi"ons of Sec"on 45 of PMLA Act, first condi"on was complied with because opportunity was given to the respondent to oppose the bail. Regarding condi"on no.2 that before this Court grants bail, there should be reasonable grounds for believing that the person is not guilty of such offence cannot be said to have been made by the pe""oner as they were involved in selling excess share to outside persons including one Anant Khosla. They in connivance with revenue officials took Power of AJorney of 400 kanals of land from Balbir Singh and Tarsem Lal and sold the same to Anant Khosla for a sum of Rs.1.25 crores.
18. An analysis of the allega"ons and evidence collected does not warrant the grant of bail to the pe""oner.
19. In the background of the allega"ons and the light of the judicial precedents men"oned above in the facts and circumstances peculiar to this case, the pe""oner fails to make a case for an"cipatory bail.
20. Any observa"on made hereinabove is neither an expression of opinion on the case's merits, neither the court taking up regular bail nor the trial Court shall advert to these comments.
Pe on dismissed. All interim orders stand vacated. All pending applica"ons, if any, also stand disposed.
(ANOOP CHITKARA)
JUDGE
19.12.2023
Jyo" Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
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