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B.A. No.10296/2023

IN THE HIGH COURT OF JHARKHAND AT RANCHI

B.A. No.10296 of 2023

------

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

------

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

------

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

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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 0210004 031000A5.

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 afo resaid

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

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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

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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 Natio n

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

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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 4

th

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

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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

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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 crim e,

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;]”

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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

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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:

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“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.

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(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

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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 in to

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

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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 in to

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.

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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

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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

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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

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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

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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

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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

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“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

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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:

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“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

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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:

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(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 Chand

7

including American

jurisprudence expounded in Cooley on Constitutional

Limitations and Norton v. Shelby County.”

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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

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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 Or s.

(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-

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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, Assistan t

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.

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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.”

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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

42

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

43

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

44

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

45

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

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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

Name and

number

Role of Accused Proceeds of crime

involved with the accused

person-

Talha Khan

@ Sunny

(accused

no.9)

The accused person

was a party with other

accused persons in

acquiring properties in

fraudulent manner and

selling them illegally to

acquire proceeds of

Assisted other accused

persons in arranging

buyers of fraudulently

acquired lands. Entered

into an agreement for 60

decimal land situated at

Bariyatu, Ranchi for an

47

B.A. No.10296/2023

crime. The accused

person in connivance

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

amount of Rs.4 crores on

19.02.2022.

48

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

49

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

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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

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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

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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

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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

54

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

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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

56

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 13

th

April to 19

th

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

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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 th e

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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

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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

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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.

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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

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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

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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

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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:

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“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:-

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(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

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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

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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,

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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

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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

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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.)