Gujarat High Court
Aman Krishanlal Sachdeva S/O. Shri ... vs Assistant Director & on 20 October, 2015
Author: A.J.Desai
Bench: A.J.Desai
R/CR.MA/16555/2015 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO.16555
of 2015
=========================================
AMAN KRISHANLAL SACHDEVA S/O. SHRI KRISHAN LAL SACHDEVA....Applicant Versus ASSISTANT DIRECTOR & 1....Respondents ========================================= Appearance :
MR VIKRAM CHAUDHARY, SENIOR ADVOCATE ASSISTED BY MR SANJAY AGARWAL, ADVOCATE WITH MR HARDIK MODH AND MR DIGANT M POPAT, ADVOCATES for the Applicant.
MS TRUSHA K PATEL, ADVOCATE for the Respondent No.1. MR J. K. SHAH, APP for the Respondent No.2. ========================================= CORAM: HONOURABLE MR.JUSTICE A.J.DESAI Date : 20/10/2015 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 bail bail in connection with PMLA Case File No. ECIR/03/AMZO/2015 registered at the instance of the respondent No.1 - 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. During the pendency of this application, the said complaint has been given number as PMLA Complaint No.8 of 2015.
3. Pursuant to the notice issued by this Court, the Page 1 of 15 HC-NIC Page 1 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER respondent No.1 has filed his affidavit dated 24.9.2015 and opposed this application by producing relevant documents collected by the authority before filing of the above referred case.
4. The brief facts arose from the record are as under :-
4.1 During the investigation, the present applicant was examined under the provisions of PMLA on 14.7.2015 under Section 17(i)(f) of PMLA i.e. during the course of search of his residential premises on 14.7.2015. He disclosed before the Investigating Agency that he is running a cricket betting in the name of Aman and using 8 different Mobiles for the said activities.
He further disclosed that he is carrying out his operation from his residence through his Laptop and Computers, having two different login IDs of 'BETFAIR.com'. Some amount was exchanged to another person, namely, Arun Gupta in the said transaction. He has disclosed the manner and method in which he was carrying on the illegal activities of betting. However, he has denied that he has made any bookings at Hotel Le-Meridian, Delhi in respect of a foreign national Andrew Riddel through website he was using. The details given at the Hotel including the mobile number does not belong to him. He has denied that he is Aman who has ever visited the said Hotel for payment of the Hotel charges for the guest Andrew Riddel. In fact, he has stated that he might be some Aman Kapoor whom he knows since he was introduced by the said Arun Gupta. The applicant - accused is shown arrested on 15.7.2015 and since then, he is behind the bar.
5. Mr. Vikram Chaudhary, learned Senior Counsel assisted by Mr. Sanjay Agarwal, Mr. Hardik Modh and Mr. Digant Popat, Advocates appearing for the applicant has vehemently Page 2 of 15 HC-NIC Page 2 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER submitted that the arrest of the applicant made by the respondents is illegal and contrary to the provisions of law. It was submitted that the applicant had filed an application under Section 482 of the Code before this Court being Special Criminal Application No.5014 of 2015 before filing of the present application. In the said petition, vide order dated 31.8.2015 passed by the coordinate Bench of this Court (Coram :- Hon'ble Mr. Justice J. B. Pardiwala), the said petition has been admitted and kept for further hearing. However, this Court has permitted the present applicant to file an application for bail before the appropriate Court. Hence, the present application.
5.1 Mr. Chaudhary has taken me through several provisions of PMLA as well as Code with regard to the powers of an Officer under PMLA and procedure to be followed by such Officers in case of a person arrested pursuant to lodgment of FIR under PMLA as well as under other offences. He has also made submissions with regard to provisions of PMLA comparing with the provisions of the Customs Act, 1962, Central Excise Act 1944, Railway Property (Unlawful Possession) Act, 1966 as well as Income Tax Act, 1961 and the language of similar provisions i.e. with regard to the powers of the Officers and submitted that the arrest itself is illegal and, therefore, the applicant may kindly be enlarged on bail by imposing suitable conditions.
5.2 Mr. Chaudhary has further submitted that the complaint has been lodged for the so-called offence under Section 3 of PMLA which is punishable under Section 4 of PMLA. However, the case of the applicant does not fall under the definition of offence of money laundering. He would submit that Section 3 of PMLA provides that a person can be held guilty of offence of money Page 3 of 15 HC-NIC Page 3 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER 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.
5.3 He would further 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 PMLA. He would submit that search operation was carried out by the Officers of the respondent No.1 on 14.7.2015 and on 15.7.2015, he was formally arrested. He would submit that the applicant is maximum can be said to have been involved in betting which is not a scheduled offence and, therefore, the provisions of Section 45 of PMLA would not be applicable and other proceedings qua Code with regard to bail would be available. He would submit that he is not involved in any other offence punishable under PMLA in past.
5.4 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 Page 4 of 15 HC-NIC Page 4 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER 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.
6. On the other hand, learned Standing Counsel Ms. Trusha Patel appearing for the respondent No.2 - original complainant has vehemently submitted 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 reveals that 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. She has, therefore, resisted the application.
6.1 It was further argued by Ms. Patel 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 from the residence of the applicant, therefore, is a proceeds of crime and, therefore, the case falls under Section 3 of the PMLA Act.
6.2 She would submit that under Section 24 of PMLA, the burden of proof is upon the accused person to prove that the proceeds of crime are untainted property. She would submit that the applicant - accused has miserably failed in establishing that the Page 5 of 15 HC-NIC Page 5 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER money involved in the present complaint are untainted property. She, therefore, would submit that provisions of Section 45 of the PMLA would be applicable and, therefore, unless the Court concludes that the applicant is innocent, he may not be released on bail. In support of her contention, she has relied upon the Division Bench decision of this Court dated 16.1.2015 rendered in Special Criminal Application (Direction) No.4496 of 2014 with Special Criminal Application No.4672 of 2014. She has also relied upon the decision of the coordinate Bench of this Court dated 31.7.2013 rendered in Special Civil Application No.4171 of 2012 with Special Civil Application No.1059 of 2012 wherein while dealing with the provisions of PMLA, this Court has held that certain presumptions are to be drawn as per Section 23 of the PMLA. She, therefore, would submit that the application be rejected.
6.3 Ms. Patel has relied upon 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, wherein this Court has refused to grant bail of similar nature.
6.4 Ms. Patel has also relied upon 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.
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6.5 In alternate, she would submit that even otherwise,
considering the gravity of offence and the maximum punishment provided under the PMLA Act, the Court may not use its powers under Section 439 of the Code.
7. I have heard learned advocates appearing for the parties. Since the applicant has already preferred an exhaustive application before this Court being Special Criminal Application No.5014 of 2015 and is entertained by the coordinate Bench of this Court and has been fixed for final hearing and the fact that now the complaint has already been lodged against the present applicant, I would not like to express any opinion on this part. The applicant has placed entire copy of the said Special Criminal Application along with all the annexures including several orders passed by different Courts as well as this Court in connection with the co- accused of the present transaction which I have gone through, but the same is not dealt with in view of the pendency of the substantive petition.
8. 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 :-
9. Sections 3 and 4 of PMLA read as under :-
"3. Offence of money-laundering --
Whosoever directly or indirectly attempts to
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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 -- 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."
10. 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 Page 8 of 15 HC-NIC Page 8 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER property;"
11. The "scheduled offence" defined under Section 2 (y) of PMLA 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 thirty lakh rupees or more; or]
(iii) the offences specified under Part C of the Schedule;"
12. 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 offences. 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.
13. Section 45 of PMLA reads as under :-
"45. Offences to be cognizable and non- bailable --
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(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 --
(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 Page 10 of 15 HC-NIC Page 10 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."
14. 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."
15. 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.
16. As stated herein above, since the applicant is not facing any charge for any of the offence under Part A of Schedule, the Page 11 of 15 HC-NIC Page 11 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER rigours of declaring the applicant accused as not guilty of such offence would not come into play at the time of dealing an application for bail.
17. Under Section 45 (2) of the PMLA Act, the other provisions of the Code would be applicable and, therefore, the case is to be dealt with accordingly.
18. I have gone through the decisions relied upon by Ms. Trusha Patel and it appears from the decision in the case of Afroz Mohmad Hasanfatta (Supra) that the applicant - accused was facing charge of a scheduled offence and, therefore, the coordinate bench has not entertained such an application. As far as the case of Rakesh Manekchand Kothari is concerned, he had preferred an application for habeas corpus being Special Criminal Application No.4247 of 2015 which petition was entertained by the Division Bench of this Court and it was declared that he has been illegally detained and the said decision is confirmed by the Hon'ble Supreme Court in Special Leave to Appeal (Criminal) No.13552 of 2015.
19. I have also considered the decision in the case of Rakesh Manekchand Kothari rendered in Special Criminal Application No.4247 of 2015 as well as the decision in the case of Afroz Mohmad Hasanfatta (Supra) wherein it has been specifically held that if the accused is facing charge of a scheduled offence under PMLA, the rigours would be applicable and otherwise, the case can be considered according to the Code of Criminal Procedure.
20. I have also considered the allegations levelled against Page 12 of 15 HC-NIC Page 12 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER the present applicant and also gone through the statements produced by learned advocate Ms. Trusha Patel. Prima facie, it appears that he was knowing some of the co-accused. However, there is no direct link between the other accused who were found with forged Mobile Sim cards. It is not the case that 8 Mobile phones which were being used by the applicant are collected on some forged material. It is also pertinent to note that there are no antecedents against the present applicant. 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.
21. In view of the above aspect, considering the decisions of the Hon'ble Supreme Court in the case of Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40, Gurcharan Singh and others v. State (Delhi Administration), reported in (1978) 1 SCC 118, Arnesh Kumar v. State of Bihar and another, (2014) 8 SCC 273, Ranjeetsing Bhramajeetsing Sharma v. State of Maharashtra and another, (2005) 5 SCC 294, I am of the opinion that the present application requires consideration.
22. 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.8 of 2015], 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
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prosecution;
[c] surrender passport, if any, to the lower court within a
week;
[d] not leave the State of Gujarat and union territory
of Delhi without prior permission of the Sessions Judge concerned;
[e] mark presence with the respondent No.1 every Monday 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;
23. 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 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.
24. Rule made absolute to the aforesaid extent. Direct service is permitted.
(A.J.DESAI, J.)
25. At the time of pronouncement of the judgment, Ms. Trusha K. Patel, learned Central Government Standing Counsel appearing for the respondent No.1 requests to stay the Page 14 of 15 HC-NIC Page 14 of 15 Created On Wed Oct 21 02:56:44 IST 2015 R/CR.MA/16555/2015 CAV ORDER implementation of this order. Considering the facts and circumstances of the case, the request made by Ms. Trusha K. Patel is refused.
(A.J.DESAI, J.) Savariya Page 15 of 15 HC-NIC Page 15 of 15 Created On Wed Oct 21 02:56:44 IST 2015