Indian Kanoon - Search engine for Indian Law

2. Learned counsel for the petitioner contends that the petitioner is a senior freelance journalist aged 61 years old, suffering from various ailments and has represented premier news agencies like United News of India BAIL APPLN. 3156/2021 PageDigitally GUPTA Signing Date:07.01.2022 20:43:21 (UNI), The Tribune, Free Press Journal, Sakal Times and Enadu. The petitioner has also written various books and is a journalist accredited by Press Information Bureau, Govt. of India. The petitioner worked as a freelance journalist for Chinese newspaper i.e. Global Times from the year 2014 to 2016 and during this employment as a journalist, the petitioner used to send and receive emails from his aforesaid employer which are all easily available in public domain. In connection with the predicate offence being FIR No. 230/2020 registered at P.S.Special Cell, the petitioner was arrested for the offences punishable under Sections 3/4/5 of the Official Secrets Act on 14th September 2020 and was released on default bail in terms of Section 167(2) Cr.P.C on 4th December 2020 as the charge sheet/complaint had not been filed within the statutory period. On 26th February 2021, the respondent recorded the above-noted ECIR and directed the petitioner to join the investigation which he joined several times till 1 st July 2021. The premises of the petitioner was searched and seizures affected, however, nothing except sixteen visiting cards were recovered. In the above-noted ECIR, the petitioner was arrested on 1st July 2021 for offences punishable under Sections 3/4 of PMLA and is in custody since then.

7. Rebutting the arguments of the learned Additional Solicitor General, learned Senior Counsel for the petitioner contends that the articles written by the petitioner are as 'South Asia Monitor' of a Malaysian company which has not been made an accused. The other two co-accused alleged are not accused in the predicate offence and since the petitioner satisfies the requirements under the triple test for grant of bail, the petitioner be released on bail. As regards the contentions of the respondent that offences punishable under Sections 120B and Section 411 IPC having been invoked, the same being notified as Scheduled offences under the PMLA, the respondent has validly proceeded under the provisions of Sections 3/4 of PMLA, it is stated by learned counsel that Section 120B IPC has not been invoked substantively but along with the offences punishable under Sections 3/4/5 of the Official Secrets Act. Reliance is placed on the decision of the Hon'ble Supreme Court in Opto Circuit India Limited Vs. Axis Bank, Crl.Appeal No. 102/2021 decided on 3rd February 2021. Further, even on a query raised from the concerned Ministry in relation to the so-called information published by the petitioner, the reply by the concerned department is that the information is not classified and provisions under Sections 3/4/5 of the Official Secrets Act cannot be also invoked.

13. Indubitably, offences punishable under the Official Secrets Act are not in the list of Scheduled Offences under the PMLA. Whether the charge sheet filed in the predicate offence is for offences punishable under Sections 3/4/5 of Official Secrets Act read with 120B IPC or for Section 120B IPC substantively or whether in the absence of any charge sheet under Section 411 IPC having been filed by the Special Cell, Delhi Police, the respondent/Enforcement Directorate could have recorded the above-noted ECIR for offences punishable under Sections 3 & 4 of the PMLA on the ostensible ground that since Section 120B IPC is a Schedule Offence and the BAIL APPLN. 3156/2021 PageDigitally GUPTA Signing Date:07.01.2022 20:43:21 Enforcement Directorate had jurisdiction to investigate into offence of money laundering pursuant to the offences under Sections 3/4/5 of Official Secrets Act would be a matter to be dealt by the learned Trial Court at the stage of charge. It may be noted that the charge sheet filed by the Special Cell does not note the offence punishable under Section 411 IPC. Even in the complaint filed by the respondent before the learned Trial Court, Section 411 IPC being the predicate offence has not been mentioned. This plea has been taken by the learned Additional Solicitor General during the course of arguments. Further, even taking the allegations on their face value, the proceeds of crime are less than Rs.1 Crore.

16. Learned Additional Solicitor General has laid great emphasis on the ground that the petitioner is involved in a very serious offence of passing on the information relating to Indian Army to the Chinese nationals thereby compromising with the national security. However, by this petition the petitioner does not seek bail for offences punishable under Sections 3/4/5 of the Official Secrets Act but for offences punishable under Section 3/4 PMLA. Considering that the predicate offence, if any, against the petitioner is under Section 120B IPC and Section 411 IPC only and the proceeds of BAIL APPLN. 3156/2021 PageDigitally GUPTA Signing Date:07.01.2022 20:43:21 the crime which are alleged to be laundered are a sum of ₹48,20,788.50 paisa and that the petitioner has been in custody now for nearly six months, this Court deems it fit to grant bail to the petitioner.