1

2025:CGHC:804

AFR

HIGH COURT OF CHHATTISGARH AT BILASPUR

ORDER RESERVED ON 16.12.2024

ORDER DELIVERED ON 06.01.2025

MCRC No. 7284 of 2024

1 - Trilok Singh Dhillon S/o Lt. Mr. Surta Singh Dhillon Aged About 60

Years R/o Block 12 Plot No. 123 Nehru Nagar East , Bhilai, Dist Durg,

Chhattisgarh.

... Applicant

versus

1 - directorate of enforcement GOI, Raipur Zonal Office, A-1 block, 2

nd

floor , Pujari Chambers, Pachpedinaka, Raipur, Chhattisgarh

... Respondent

For Applicant :Shri Harshwardhan Parganiha, Advocate

For Respondent/ED :Dr. Saurabh Kumar Pandey, Advocate

(HON’BLE SHRI JUSTICE ARVIND KUMAR VERMA)

Order on Board

The applicant is seeking release on regular bail under section

483 of the Bhartiya Nagrik Surksha Sanhita, 2023 read with Section 45

of the PMLA 2002 in connection with ECIR No. RPZO/04/2024 dated

11.04.2024 registered by the Directorate of Enforcement, Raipur, Zonal

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Office (ED), for the offences under Sections 03 and 04 of the PMLA,

2002.

FACTUAL ASPECTS

2. Chhattisgarh State Police had registered FIR bearing No. 04/2024

dated 17.01.2024 at EOW/ACB, Raipur under Section 420,467,471 and

120-B IPC and Sections 7 & 12 of the Prevention of Corruption Act,1988

against the accused persons for illegally collecting commissions and

supplying unaccounted liquor to the government liquor shops causing

loss of Rs. 2161 crores to the State Government.

3.The FIR for the predicate offence as mentioned above is

registered by the ACB/EOW, Raipur, Chhattisgarh under Sections 120-

B, 420, 467 and 47 IPC and Sections 7 & 12 of the PC Act, which are

schedule offences in para 1 & 8 of the Part A of Schedule to

PMLA,2002 as defined under Section 2(1)(y) of the Act. The inquiries

were initiated under PMLA against the suspected persons after

recording the brief facts of scheduled offence and initiating money

laundering investigation in ECIR/RPZO/04/2023 on 11.04.2024 by the

officials of the Directorate of Enforcement, Raipur Zonal Office.

4.The Directorate has filed total 3 prosecution complaints dated

19.06.2024, 30.08.2024 and 5.10.2024 in the present case. The

investigation has revealed that the applicant has knowingly participated

in the criminal acts of the syndicate and is in possession of Proceeds

of Crime. He was involved with the syndicate for safekeeping and

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concealment of the illegal commission collected for which he received

large amount of Part A commission from the liquor suppliers in his FDR

bank account. He is in possession of proceeds of crime through his

company M/s. Petrosun Bio Refineries Pvt. Ltd. which was utilized by

the syndicate for resolving the problems of the distillers for arranging

cash for payment of Part A commission. The distillers would take their

raw material from their regular suppliers but through M/s. Petrosun Bio

Refineries Pvt. Ltd. for which the regular suppliers used to pay the

actual rate but the M/s. Petrosun Bio Refineries inflated the invoices by

20-40% and charge the distillers. These excess amount of 20-40% was

kept with the company and remit the remaining routine rate to the actual

routine suppliers.

5.In his statement recorded under Section 50 of the PMLA, the

applicant has admitted that he was engaged in grain trading for the

distillers and the FDR bank accounts and invoices generated in the name

of this entity have been analyzed by the ED which shows a huge earnings.

The mechanism has been set up for showing excess profit in his company

and it is nothing but illegal commission/bribe which was being paid in this

manner. The applicant had assisted the co-accused Anwar Dhebar in

receiving part-A bribe payments via FDR bank accounts.

6. Another company of the applicant ie. Ms. Dhillon City Mall Pvt.Ltd. was

utilized by the syndicate to park the illegal funds received from the FL-

10(A) licensees. These FL-10(A) licenses had to pay 60% share of the

profits earned to the syndicate member Vikas Agrawal @ Subbu. As

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part of payment of this profit share, the amount was remitted to the

company of the applicant ie. M/s. Dhillon City Mall Pvt. Ltd. It has thus

been revealed that the Company of the applicant had received

unsecured loan of Rs.12.52 crores from various firms/companies. Thus,

the proceeds of crime to the tune of Rs. 28,13,66,989/- related to the

applicant have been attached vide PAO dated 02.05.2024.

7.In nutshell, the case of the prosecution is that a large scale

syndicate was operating in the State of Chhattisgarh by extorting illegal

commission from the unaccounted sale of liquor and acting as a conduit

in the systematic extortion resulting in generation of huge proceeds of

crime. The role of the applicant was that he was safely keeping the

proceeds of crime acquired by the syndicate members through his

companies for which he received a huge sum of money. Hence the

applicant has preferred the instant bail application under Section 483 of

the BNSS, 2023 read with Section 45 and 65 of the PMLA Act, 2002.

SUBMISSIONS

8.Contention of Shri Parganiha, learned counsel for the applicant is

that the allegations levelled against the applicant in the first

supplementary prosecution complaint dated 30.08.2024 filed in the

ECIR No RPZO/04/2024 are as follows:

a. The bank account of M/s. Dhillon City Mall Pvt

Limited was used by the syndicate to park the

Proceeds of Crime.

b. The money received from FL-10A licensees

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operating in the State of Chhattisgarh has been shown

to be unsecured loans in the accounts which was the

commission paid by the FL-10A licensees to the

syndicate.

c. The alleged proceeds of crime thus infused in the

bank account of M/s. Dhillon City mall has ben utilized

to make various fixed deposits.

d. another company of the applicant namely Petrosun

Bio Refineries Pvt. Ltd. got Part -A commission from

the Distillers by over invoicing the distillers by 20%

purchase of rice.

9.Contention of learned counsel for the applicant is that the

respondent has misused its power to arrest with a malafide intention to

defeat the fundamental rights of the applicant enshrined under Article 21

of the Constitution of India. He submits that on the same set of

allegations and alleged transactions in relation to ECIR No.

RPZO/11/2022, wherein the prosecution complaint against the present

applicant came to be filed. The predicate FIR No. 04/2024 dated

17.01.2024 registered by the EOW/ACT itself has been registered at the

behest of the ED with an intent to circumvent the orders passed by the

Apex Court in W.P.(Crl.) No. 153/2023 (Yash Tuteja and Another Vs.

Union of India and others) and other connected matters.

10.It is next contended that the mere power to arrest simply does not

give rise to the necessity to arrest. He has relied upon the judgment of

the Apex Court in the matter of Arvind Kejriwal Vs. Directorate of

Enforcement, 2024 SCC OnLine SC1703 wherein it has been

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observed as under:

“67. It has been strenuously urged on behalf of

Arvind Kejriwal that the arrest would falter on the

ground that the “reasons to believe” do not mention

and record reasons for “necessity to arrest”. The

term “necessity to arrest” is not mentioned in

Section 19(1) of the PML Act. However, this

expression has been given judicial recognition in

Arnesh Kumar v. State of Bihar,57 which lays down

that “necessity to arrest” must be considered by an

officer before arresting a person. This Court

observed that the officer must ask himself the

questions – why arrest?; is it really necessary to

arrest?; what purpose would it serve?; and what

object would it achieve?

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69. In Joginder Kumar Vs. State of Uttar Pradesh,

59 the distinction between the power to arrest and

the necessity and need to arrest, is explained in the

following terms:

“20…No arrest can be made because it is

lawful for the police officer to do so. The

existence of the power to arrest is one

thing. The justification for the exercise of

it is quite another. The police officer must

be able to justify the arrest apart from his

power to do so. Arrest and detention in

police lock-up of a person can cause

incalculable harm to the reputation and

self-esteem of a person. No arrest can be

made in a routine manner on a mere

allegation of commission of an offence

made against a person. It would be

prudent for a police officer in the interest

of protection of the constitutional rights of

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a citizen and perhaps in his own interest

that no arrest should be made without a

reasonable satisfaction reached after

some investigation as to the genuineness

and bona fides of a complaint and a

reasonable belief both as to the person's

complicity and even so as to the need to

effect arrest. Denying a person of his

liberty is a serious matter. The

recommendations of the Police

Commission merely reflect the

constitutional concomitants of the

fundamental right to personal liberty and

freedom. A person is not liable to arrest

merely on the (2014) 8 SCC 273, (2022)

SCC OnLine SC 897 (1994) 4 SCC 260.

Necessity to arrest is not a precondition and

safeguard mentioned in Section 19 of the PML Act,

albeit treated as a part of the general law and

exercise of the power to arrest. The legislature

being aware of this interpretation has not excluded

the application of this principle in Section 19 of the

PML Act. suspicion of complicity in an offence.

There must be some reasonable justification in the

opinion of the officer effecting the arrest that such

arrest is necessary and justified. Except in heinous

offences, an arrest must be avoided if a police

officer issues notice to person to attend the Station

House and not to leave the Station without

permission would do.”

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81.The proportionality test is more precise and

sophisticated than other traditional grounds of

review. The court is required to assess the balance

struck by the decision maker, not merely whether it

is within the range of rational or reasonable

decisions. In this manner, proportionality goes

further than the traditional grounds of review as it

requires attention to the relative weight according

to interest and considerations. State of Uttar

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Pradesh Vs. Lal, (2006) 3 SCC 276 which refers to

several other cases, states that the proportionality

test safeguards fundamental rights of citizens to

ensure a fair balance between individual rights and

public interest. It requires the court to judge

whether the action taken was really needed and

whether it was within the range of courses of action

which could be reasonably followed. Proportionality

is more concerned with the aims and intentions of

the decision maker and whether the decision

maker has achieved more or less the correct

balance or equilibrium.”

11.It is contended by the learned counsel for the applicant that the

material on the basis of which the applicant was arrested and taken into

custody in the present ECIR No. RPZO/04/2024 is exactly the same as

that in the ECIR No. RPZO/11/2022. The first arrest of co-accused has

been effectuated by the respondent/ED in the present ECIR for which

the prosecution complaint was filed before the learned Special Judge

(PMLA), Raipur on 19.06.2024.

12.It is further contended that the custodial detention is no longer

necessary. The first supplementary prosecution complaint against the

applicant has been filed on 30.08.2024 before the learned Special

Court (PMLA), Raipur and as such the investigation against him stands

complete. The applicant has already spend a period of more than five

months as pre-trial incarceration. The trial is yet to commence and is not

likely to conclude in the near future. The first supplementary complaint

dated 30.08.2024 arraigns 6 accused persons and is relied upon 77

documents running into about 4,671 pages. He has relied upon the

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judgment of the Apex Court in the matter of Javed Gulam Nabi Sheikh

Vs. State of Maharashtra and Anr. , 2024 SC OnLine SC1963 wherein

it has been observed that while considering the bail aplciation of an

accused prosecuted under the UAPA, 1967 (a much serious offence)

observed thus:

“19. If the State or any prosecuting agency

including the court concerned has no wherewithalto

provide or protect the fundamental right of an

accused to have a speedy trial as enshrined under

Article 21 of the Constitution then the State or any

other prosecuting agency should not oppose the

plea for bail on the ground that the crime

committed is serious. Article 21 of the Constitution

applied irrespective of the nature of the crime.”

13.In catena of decisions, the Apex Court, while considering the

period spent in the custody and there being so likelihood of conclusion

of trial within a short span has been pleased to enlarge the accused on

bail. He has further relied upon the decision reported in SLP (Crl.) No.

3205/2024, Ramkripal Meena Vs. Directorate of Enforcement and

SLP (Crl.) No. 8781/2024, Manish Sisodia Vs. Directorate of

Enforcement wherein it has been observed that :

“7. Adverting to the prayer for grant of bail in the

instant case, it is pointed out by the learned

counsel for the ED that the complaint case is at the

stage of framing of charges and 24 witnesses are

proposed to been examined. The conclusion of

proceedings thus, will take some reasonable time.

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The petitioner has already been in custody for

more than a year. Taking into consideration the

period spent in custody and there being no

likelihood of conclusion of trial within a sport span,

coupled with the fact that the petitioner is already

on bail in the predicate offence, and keeping in

view the peculiar facts and circumstances of the

case, it seems to us that the rigours of Section 45

of the Act can be suitably relaxed to afford

conditional liberty to the petitioner. Ordered

accordingly.

14.It has been further submitted that the Apex Court in the matter of

SLP (Crl.) No. 8781/2024, Manish Sisodia Vs. Directorate of

Enforcement has held that due to the voluminous documents running

into thousands of pages and the huge magnitude of the documents

involved, the accused cannot be denied the right to fair trial and cannot

be denied the right to have inspection of the documents including the

“un relied upon documents.”

“49. We find that, on account of a long period of

incarceration running for around 17 months and the

trial even not having been commenced, the

appellant has been deprived of his right to speedy

trial.

50. As observed by this Court, the right to speedy

trial and the right to liberty are sacrosanct rights. On

denial of these rights, the trial court as well as the

High Court ought to have given due weightage to

this factor.

51. Recently, this Court had an occasion to consider

an application for bail in the case of Javed Gulam

Nabi Shaikh Vs, State of Maharashtra and Another

2024 SCCOnLine SC 1693 wherein the accused

was prosecuted under the provisions of the Unlawful

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Activities (Prevention) Act, 1967. This Court

surveyed the entire law right from the judgment of

this Court in the cases of Gudikanti Narasimhulu

and others Vs. Public Prosecutor, High Court of

Andhra Pradesh (1978) 1 SCC 240 Shri Gubaksh

Singh Sibbia and Others Vs. State of Punjab (1980)

2 SCC 565, Hussainara Khatoon and Others (1)v.

Home Secretary, State of Bihar, CRIMINAL APPEAL

NO. 98 of 2021[Arising out of Special Leave Petition

(Crl.) No. 11616 of 2019], Union of India Vs. K.A.

Najeeb (2021) 3 SCC 713 and Satender Kumar Antil

Vs. Central Bureau of Investigation and Another

(2022) 10 SCC 51. The Court observed thus:

“19. If the State or any prosecuting

agency including the court concerned has

no wherewithal to provide or protect the

fundamental right of an accused to have a

speedy trial as enshrined under Article 21

of the Constitution then the State or any

other prosecuting agency should not

oppose the plea for bail on the ground that

the crime committed is serious. Article 21

of the Constitution applies irrespective of

the nature of the crime.”

15.Further contention of the counsel for the applicant is that the

status of the trial in predicate offence (FIR No.04/2024), four accused

persons have been arraigned and 146 documents have been relied

which runs into thousands of pages citing 295 witnesses. The first

supplementary charge sheet was filed against three accused persons

on 27.09.2024 and the second charge sheet was filed on 17.11.2024

arraigning three more accused persons. It is contended by the counsel

for the applicant that the further investigation is going on and the

learned Special Court (PC Act) Raipur is yet to frame the charges,

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therefore even the trial in the predicate offence is not likely to conclude

early. He has referred to the judgment of the Apex Court in the matter of

V. Sentil Balaji Vs. Deputy Director, Directorate of Enforcement,

Criminal Appeal No. 4011/2024, wherein it has been observed as

under:

“21. …….The existence of proceeds of crime at

thetime of trial of the offence under Section 3 of

PMLA can be proved only if the scheduled offence

is established in the prosecution of the Scheduled

offence. Therefore, even if the trial of the case

under the PMLA proceeds, it cannot be finally

decided unless the trial of scheduled offences

concludes…..”

16.Next contention of the counsel for the applicant is that the

allegation of over invoicing the distillers for supply of rice, the ED has

failed to produce any material on record to demonstrate that the

commission/bribe was paid for the benefit of the syndicate. He

contended that the applicant has not played any active role in the

alleged syndicate and his legitimate business transactions are being

unjustly misrepresented as illegal activities with the intention of falsely

implicating him in the allege crime. He contends that at the stage of

considering bail application, the Court ought not enter into a meticulous

examination of merits of the case by delving into the statements of

witnesses and/or documents produced in evidence and conduct a mini

trial. He has placed his reliance on the decision of the Apex Court in the

matter of Vijay Madanlal Choudhary Vs. Union of India, 2022 SCC

OnLine SC 929, wherein it has been held as under:

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“388.The successive decisions of this Court

dealing with analogus provision have stated that

the Court at the stage of considering the

application for grant of bail, is expected to consider

the question from the angle as to whether the

accused was possessed of the requisite mens rea.

The Court is not required to record a positive

finding that the accused had not committed an

offence under the Act. The Court ought to maintain

a delicate balance between a judgment of acquittal

and conviction and an order granting bail much

before commencement of trial. The duty of the

Court at this stage is not to weigh the evidence

meticulously but to arrive at a finding on the basis

of broad probabilities. Further, the Court is required

to record a finding as to the possibility of the

accused committing a crime which is an offence

under the Act after grant of bail.”

17. It is contended by the learned counsel for the applicant that vide

order dated 27.11.2024, the Apex Court in Criminal Appeal No.

4844/2024 @ SLP (Crl.) No. 14697/2024 has directed the applicant

shall be enlarged on bail by producing him before the trial court on 15

th

January 2025. The Trial court shall enlarge the applicant on bail on

appropriate stringent terms including the conditions ie. the applicant

shall regularly and punctually attend the trial court and cooperate with

trial court for completion of trial at all stages.

18.He contended that even otherwise the applicant has a strong case

on merits to satisfy the twin test under Section 45 of the PMLA, 2002.

The reminder letters sent by M/s. Dishita Ventures Pvt. Ltd. the then FL-

10A licensee to M/s. Dhillon City Mall Pvt. Ltd. as well as payment of

interest component established bolsters that the money infused were

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actual unsecured loans. The alleged over invoicing to the distillers are

legitimate business transaction. He contended that the applicant had

already undergone incarceration of 94 days on the same set of facts

and allegations. The role attributed to the applicant in the present ECIR

by the respondent is identical to that in the prosecution complaint dated

04.07.2023 filed by the non-applicant in ECIR No. RPZO/11/2022 before

the learned Special Court (PMLA) Raipur. The applicant was arrested on

11.05.2023 in connection with the aforesaid ECIR and was released on

ad-interim bail vide order dated 14.08.2023 passed by the High Court in

M.Cr.C. No. 5056/2023. He contended that the extension of custody of

the applicant would act against the constitutional guarantee of personal

liberty guaranteed under Article 21 of the Constitution of India as has

been held by the Apex Court in the matter of Union of India Vs.

K.A.Najeeb, (2021) 3 SCC 713 and Criminal Appeal No. 4011/2024 V.

Senthil Balaji Vs. The Deputy Director, Directorate of Enforcement.

The Apex Court ha already elucidated in the matter of P. Chidambaram

Vs. Directorate of Enforcement that the parameters for bail to no

change in the economic offences and held that “it is not a rule that bail

(with appropriate conditions) cannot be granted in cases of such

offences.” Ex facie, the allegations are grave, the punishment is severe

and it cannot be said that there are no materials on record at all. In the

matter of P. Chidambaram Vs. Directorate of Enforcement” reported

in (2020) 13 SCC 791, wherein Hon'ble Apex Court held as hereunder:

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“Thus from cumulative perusal of the judgments

cited on either side including the one rendered

by the Constitution Bench of this Court, it could

be deduced that the basic jurisprudence relating

to bail remains the same inasmuch as the grant

of bail is the rule and refusal is the exception so

as to ensure that the accused has the

opportunity of securing fair trial.

However, while considering the same the gravity

of the offence is an aspect which is required to

be kept in view by the Court. The gravity for the

said purpose will have to be gathered from the

facts and circumstances arising in each case.

Keeping in view the consequences that would

befall on the society in cases of financial

irregularities, it has been held that even

economic offences would fall under the category

of “grave offence” and in such circumstance

while considering the application for bail in such

matters, the Court will have to deal with the

same, being sensitive to the nature of allegation

made against the accused. One of the

circumstances to consider the gravity of the

offence is also the term of sentence that is

prescribed for the offence the accused is alleged

to have committed. Such consideration with

regard to the gravity of offence is a factor which

is in addition to the triple test or the tripod test

that would be normally applied. In that regard

what is also to be kept in perspective is that even

if the allegation is one of grave economic

offence, it is not a rule that bail should be denied

in every case since there is no such bar created

in the relevant enactment passed by the

legislature nor does the bail jurisprudence

provides so. Therefore, the underlining

conclusion is that irrespective of the nature and

gravity of charge, the precedent of another case

alone will not be the basis for either grant or

refusal of bail though it may have a bearing on

principle. But ultimately the consideration will

have to be on case to case basis on the facts

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involved therein and securing the presence of

the accused to stand trial.”

19.He further contended that the applicant has satisfied the triple test

ie. flight risk, influencing witnesses and tampering evidence. The

applicant has his business setup and is a permanent resident of State of

Chhattisgarh. The applicant has complied with all the summons issued

by the ED in connection with the ECIR/RPZO/11/2022 and after being

released on interim bail in ECIR No. RPZO/11/2022 by this Court, the

applicant did not misuse his liberty and has cooperated in the

investigation in FIR No. 04/2024 dated 17.01.2024 as well as the

investigation in the present ECIR No. RPZO/04/2024. He has placed his

reliance upon the decision reported in the matter of Preeti Chandra Vs.

Directorate Of Enforcement , 2023 SC OnLine Del. 3622 and the said

decision of the High Court of Delhi has been upheld by the Apex Court

in SLP (Crl.) No. 7409/2023 and it has been observed as under:

"The proviso to Section 45 of the Prevention of

Money Laundering Act, 2002 confers a discretion

on the Court to grant bail where the accused is a

woman. Similar provisions of Section 437 of the

Code of Criminal Procedure, 1973 have been

interpreted by this Court to mean that the statutory

provision does not mean that person specified in

the first proviso to sub-section (1) of Section 437

should necessarily be released on bail."

20.It is further submitted that there has been no instance of

influencing any witness because even after registration of the subject

ECIR the applicant was not arrested for about 3 months. It is a settled

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law that apprehension of influencing the witnesses and tampering of

evidence is required to be based on tangible evidence and mere

allegation cannot be taken at face value on the asking of the

investigating agency.

21.It is contended that it is trite law that the gravity or seriousness of

the offence is to be determined from the severity of the punishment. The

offence of money laundering under Section 3 and 4 of the PMLA is not a

serious or grave offence since the maximum imprisonment is for a term

not exceeding 7 years. He has placed his reliance in the matter of

Sanjay Chandra Vs. CBI (2012) 1 SCC 40 wherein it has been held

that the purpose of bail or the denial of bail is neither punitive nor

preventive. He has emphasized upon the judgment of the Hon’ble

Supreme Court in the matter of Kalyan Chandra Sarkar Vs.Rajesh

Ranjan (2004) and Sanjay Chandra Vs. CBI (2012) that bail is the rule

and jail is the exception. The applicant has no criminal antecedent and

there is no chance of his fleeing from justice or tampering with the

evidence. The provisions of Cr.P.C. confer discretionary jurisdiction on

Criminal Courts to grant bail to accused pending trial or in appeal

against convictions, since the jurisdiction is discretionary, it has to be

exercised with great care and caution by balancing valuable right of

liberty of an individual and the interest of the society in general. If such

power is recognized, then it may lead to chaotic situation and would

jeopardize the personal liberty of an individual. In Kalyan Chandra

Sarkar Vs. Rajesh Ranjan (2005) 2 SCC 42, it has been observed that:

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“18. It is trite law that personal liberty cannot

be taken away except in accordance with the

procedure established by law. Personal liberty

is a constitutional guarantee. However, Article

21 which guarantees the above right also

contemplates deprivation of personal liberty

by procedure established by law. Under the

criminal laws of this country, a person

accused of offences which are non bailable is

liable to be detained in custody during the

pendency of trial unless he is enlarged on bail

in accordance with law. Such detention

cannot be questioned as being violative of

Article 21 since the same is authorized by

law. But even persons accused of non

bailable offences are entitled for bail if the

court concerned comes to the conclusion that

the prosecution has failed to establish a prima

facie case against him and/or if the court is

satisfied for reasons to be recorded that in

spite of the existence of prima facie case

there is a need to release such persons on

bail where fact situations require it to do so. In

that process a person whose application for

enlargement on bail is once rejected is not

precluded from filing a subsequent application

for grant of bail if there is a change in the fact

situation. In such cases if the circumstances

then prevailing requires that such persons to

be released on bail, in spite of his earlier

applications being rejected, the courts can do

so.

XXXX XXXX XXXX

20.The decisions given by a superior

forum, undoubtedly, is binding on the

subordinate fora on the same issue even in

bail matters unless of course, there is a

material change in the fact situation calling for

a different view being taken. Therefore, even

though there is room for filing a subsequent

bail application in cases where earlier

applications have been rejected, the same

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can be done if there is a change in the fact

situation or in law which requires the earlier

view being interfered with or where the earlier

finding has become obsolete. This is the

limited area in which an accused who has

been denied bail earlier, can move a

subsequent application. Therefore, we are not

in agreement with the argument of learned

counsel for the accused that in view the

guaranty conferred on a person under Article

21 of the Constitution of India, it is open to the

aggrieved person to make successive bail

applications even on a ground already

rejected by courts earlier including the Apex

Court of the country.”

22.Further in the matter of Sanjay Chandra Vs.CBI (2012) 1 SCC

40, it has been observed as under:

10) Shri. Haren P. Raval, the learned Additional

Solicitor General, in his reply, would submit that

the offences that are being charged, are of the

nature that the economic fabric of the country is

brought at stake. Further, the learned ASG would

state that the quantum of punishment could not

be the only determinative factor for the magnitude

of an offence. He would state that one of the

relevant considerations for the grant of bail is the

interest of the society at large as opposed to the

personal liberty of the accused, and that the Court

must not lose sight of the former. He would

submit that in the changing circumstances and

scenario, it was in the interest of the society for

the Court to decline bail to the appellants. Shri.

Raval would further urge that consistency is the

norm of this Court and that there was no reason

or change in circumstance as to why this Court

should take a different view from the order of 20th

June 2011 in Sharad Kumar Etc. v. Central

Bureau of Investigation [in SLP (Crl) No. 4584-

4585 of 2011] rejecting bail to some of the co-

accused in the same case. Shri. Raval would

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further state that the investigation in these cases

is monitored by this Court and the trial is

proceeding on a day-to-day basis and that there

is absolutely no delay on behalf of the

prosecuting agency in completing the trial.

Further, he would submit that the appellants,

having cooperated with the investigation, is no

ground for grant of bail, as they were expected to

cooperate with the investigation as provided by

the law. He would further submit that the test to

enlarge an accused on bail is whether there is a

reasonable apprehension of tampering with the

evidence, and that there is an apprehension of

threat to some of the witnesses.

The learned ASG would further submit that there

is more reason now for the accused not to be

enlarged on bail, as they now have the

knowledge of the identity of the witnesses, who

are the employees of the accused, and there is

an apprehension that the witnesses may be

tampered with. The learned ASG would state that

Section 437 of the Cr.P.C. uses the word

"appears", and, therefore, that the argument of

the learned senior counsel for the appellants that

the power of the trial Judge with regard to a

person summoned under Section 87 is controlled

by Section 88 is incorrect. Shri. Raval also made

references to the United Nations Convention on

Corruption and the Report on the Reforms in the

Criminal Justice System by Justice Malimath,

which, we do not think, is necessary to go into.

The learned ASG also relied on a few decisions of

this Court, and the same will be dealt with in the

course of the judgment. On a query from the

Bench, the learned ASG would submit that in his

opinion, bail should be denied in all cases of

corruption which pose a threat to the economic

fabric of the country, and that the balance should

tilt in favour of the public interest.

XXXX XXXX XXXX

21

14.In bail applications, generally, it has been

laid down from the earliest times that the object of

bail is to secure the appearance of the accused

person at his trial by reasonable amount of bail.

The object of bail is neither punitive nor

preventative. Deprivation of liberty must be

considered a punishment, unless it can be

required to ensure that an accused person will

stand his trial when called upon.

The courts owe more than verbal respect to the

principle that punishment begins after conviction,

and that every man is deemed to be innocent until

duly tried and duly found guilty.

From the earliest times, it was appreciated that

detention in custody pending completion of trial

could be a cause of great hardship. From time to

time, necessity demands that some un-convicted

persons should be held in custody pending trial to

secure their attendance at the trial but in such

cases, `necessity' is the operative test.

In this country, it would be quite contrary to the

concept of personal liberty enshrined in the

Constitution that any person should be punished

in respect of any matter, upon which, he has not

been convicted or that in any circumstances, he

should be deprived of his liberty upon only the

belief that he will tamper with the witnesses if left

at liberty, save in the most extraordinary

circumstances. Apart from the question of

prevention being the object of a refusal of bail,

one must not lose sight of the fact that any

imprisonment before conviction has a substantial

punitive content and it would be improper for any

Court to refuse bail as a mark of disapproval of

former conduct whether the accused has been

convicted for it or not or to refuse bail to an un-

convicted person for the purpose of giving him a

taste of imprisonment as a lesson.

15) In the instant case, as we have already

noticed that the "pointing finger of accusation"

22

against the appellants is `the seriousness of the

charge'. The offences alleged are economic

offences which has resulted in loss to the State

exchequer. Though, they contend that there is

possibility of the appellants tampering witnesses,

they have not placed any material in support of

the allegation. In our view, seriousness of the

charge is, no doubt, one of the relevant

considerations while considering bail applications

but that is not the only test or the factor : The

other factor that also requires to be taken note of

is the punishment that could be imposed after trial

and conviction, both under the Indian Penal Code

and Prevention of Corruption Act. Otherwise, if

the former is the only test, we would not be

balancing the Constitutional Rights but rather

"recalibration of the scales of justice." The

provisions of Cr.P.C. confer discretionary

jurisdiction on Criminal Courts to grant bail to

accused pending trial or in appeal against

convictions, since the jurisdiction is discretionary,

it has to be exercised with great care and caution

by balancing valuable right of liberty of an

individual and the interest of the society in

general. In our view, the reasoning adopted by

the learned District Judge, which is affirmed by

the High Court, in our opinion, a denial of the

whole basis of our system of law and normal rule

of bail system. It transcends respect for the

requirement that a man shall be considered

innocent until he is found guilty.

If such power is recognized, then it may lead to

chaotic situation and would jeopardize the

personal liberty of an individual. This Court, in

Kalyan Chandra Sarkar Vs. Rajesh Ranjan-

(2005) 2 SCC 42, observed that "under the

criminal laws of this country, a person accused of

offences which are non-bailable, is liable to be

detained in custody during the pendency of trial

unless he is enlarged on bail in accordance with

law. Such detention cannot be questioned as

23

being violative of Article 21 of the Constitution,

since the same is authorized by law. But even

persons accused of non- bailable offences are

entitled to bail if the Court concerned comes to

the conclusion that the prosecution has failed to

establish a prima facie case against him and/or if

the Court is satisfied by reasons to be recorded

that in spite of the existence of prima facie case,

there is need to release such accused on bail,

where fact situations require it to do so."

23.Time and again, Hon’ble Supreme Court has stated that bail is

the rule and committal to jail an exception. It is also observed that

refusal of bail is a restriction on the personal liberty of the individual

guaranteed under Article 21 of the Constitution. In the matter of

Manoranja Sinha Vs. Central Bureau of Investigation (2017) 5 SCC

218, it has been observed as under:

16. This Court in Sanjay Chandra Vs. CBI,

also involving an economic offence of

formidable magnitude, while dealing with the

issue of grant of bail had observed that

derivation of liberty must be considered a

punishment unless it is required to ensure that

an accused person would stand his trial when

call upon and that the courts owe more than

verbal respect to the principle that punishment

begins after conviction and that every man is

deemed to be innocent until duly tried and

found guilty. It was underlined that the object

of bail is neither punitive nor preventive. This

Court sounded a caveat that any imprisonment

before conviction has a substantial punitive

content and it would be improper for any court

to refuse bail as a mark of disapproval of a

conduct whether an accused has been

convicted for it or not or to refuse bail to an un

convicted person for the purpose of giving him

24

a taste of imprisonment as a lesson. It was

enunciated that since the jurisdiction to grant

bail to an accused pending trial or in appeal

against conviction is discretionary in nature, it

has to be exercised with care and caution by

balancing the valuable right of liberty ofan

individual and the interest of the society in

general. It was elucidated that the seriousness

of the charge is no doubt one of the relevant

considerations while examining the application

of bail but it was not only the test or the factor

and that grant or denial of such privilege,is

regulated to a large extent by the facts and

circumstances of each particular case. That

detention in custody of under trial prisoners for

an indefinite period would amount to violation

of Article 21 of the Constitution was

highlighted.”

24.Lastly, he contended that the applicant is a 60 year old man

having age related ailments ie. diabetes and blood pressure. He was

also diagnosed with blockage in the heart and due to the prolonged

incarceration, the health of the applicant is deteriorating and therefore

on the medical ground, he may be enlarged on bail.

25.Per contra, Dr. Saurabh Kumar Pandey, learned counsel

appearing for the ED contended that the Chhattsigarh State Police

registered an FIR bearing No. 04/2024 dated 17.01.2024 at EOW/ACB,

Raipur under Sections 420,467,471 and 120-B of IPC and Sections 7 &

12 of the PC Act, 1988 against Anil Tuteja (retired IAS) the then Joint

Secretary in the State of CG, Mr. Anwar Dehbar, Mr. Arun Pati Tripathi

(ITS) then Special Secretary, Government of Commerce and Industries

Department and MD, CG State Marketing Corporation ltd., Mr. Vikas

25

Agrawal @ Subbu, Mr. Sanjay Diwan and others for collecting

commissions and supplying unaccounted liquor to government liquor

shops, resulting loss of Rs. 2161 crores to the government of

Chhattisgarh.

26.The FIR for the predicate offence is registered by ACB/EOW,

Raipur, Chhattisgarh under Sections 120-B,420, 467 and 471 IPC and 7

& 12 of the P Act which are scheduled offences included in paragraphs

1 & 8 of Part A of the Schedule to PMLA, 2002 as defined under Section

2(1)(y) of the Act and accordingly, the enquiries were initiated under

PMLA against the suspected persons after recording brief facts of the

scheduled offence and initiating money laundering investigation in file

No. ECIR/RPZO/04/2024 on 11.04.2024 by the officials of the ED,

Raipur Zonal Office. The Directorate has filed total three prosecution

complaints dated 19.06.2024, 30.08.2024 and 5.10.2024 in thepresent

case. One PAO 02/2024 dated 02.05.2024 was issued whereby the

properties to the tune of about Rs. 205 crores have been attached and

subsequently the same has been confirmed by the learned adjudicating

authority vide its order dated 7.10.2024 in OC No. 2318/2024.

27.It is contended by Shri Pandey that the applicant was safe

keeping the proceeds of crime acquired by the syndicate members

using his associated companies. He received Rs. 10.50 crores from the

FL-10A license which was shown as loan and invested in FDR by him.

The original plan was to show these payments as share application

money and forfeit the proceeds of crime in his companies. The plan was

26

made in the office of co-accused Anwar Dhebar in his presence. The

applicant had used the method of invoicing goods and keeping the

margin in his company by doing paper transaction in the name of his

company M/s.Petrosun Bio Refineries Pvt. Ltd. whereas this payment

was actually the commission generated from the distillers. The

applicant had shown unsecured loan from various agro based

companies in M/s. Dhillon City Mall Pvt. Ltd. whereas in reality these

were the entries against cash that was generated out of funds

generated by the syndicate. He submits that the investigation has

clearly proven that the agro base companies were just dummy

companies and all the unsecured loans provided by them were just bank

entries arranged against cash.

28.Contention of Shri Pandey, learned counsel for the ED is that the

possession of proceeds of crime by the applicant is as under:

1) As per the statements of the distillers by ED under

Section 50 of the PMLA, it has been categorically

admitted that in order to pay huge amount of Part-A

commission, generated to cash in association with

co-accused Anwar Dhebar by way of over invoicing

the bills for purchase of husk/coal/grains in the name

of the firms suggested by the liquor syndicate. The

modus operandi for this was:

- the distillers were taking their raw material

from their regular suppliers.

- co-accused Anwar Dhebar introduced few

companies who would pretend to be raw material

traders

27

- the actual suppliers of distillers sold the raw

material to these dummy companies at routine rats.

- the dummy companies would inflate the

invoices by 20-40% and charge the distillers.

- the dummy company would keep the excess

20-40% excess amount and remit the remaining

routine rate to the actual routine suppliers.

-thus, the access amount paid to the dummy

companies would be treated as successfully

delivered commission.

29.Further it has been contended that the applicant was identified to

be one such entity. M/s. Petrosun Bio Refineries Pvt. Limited which had

no role in supply of grains would keep the excess share of 15-30% on

behalf of the syndicate which is nothing but illegal commission which

was being paid in this manner. The company of the applicant had made

the fixed deposits in its bank account of the illegal commission received

which is estimated to Rs. 1,26,00,000/-, 1,99,00,000/- and

1,30,00,000/-.

30.In another company of the applicant ie. M/s. Dhillon City Mall Pvt.

Ltd. was utilized by the syndicate for parking of its illegal earning. The

profit share of 60% of the FL-10A Licensee was given to one of the

syndicate member namely Vikas Agrawal @ Subbu. As part of payment

of this profit share, the licensees remitted the amount to this company of

the applicant and the fund trail investigations, the payments received

from the FL-10A licensees in his FDR bank accounts are Rs.

5,01,42,258/-, 5,01,42,259/-,5,01,42,258/-, 5,01,42,258/- and Rs.

28

3,00,85,356-.

31.The balance sheets of M/s. Dhillon City Mall Pvt. Ltd. revealed

that the company had received unsecured loan of Rs. 12.52 crores from

various firms/companies. Learned counsel for the respondent

contended that this amount of Rs. 12.52 crores is part of the Proceeds

of Crime. He contends that the source of funds for creation of the five

freezed FDRs amounting to Rs. 23 crores was actually the funds

received from the FL-10A licencees viz. M/s. Om Sai Beverages Ltd.

and M/s. Dishita Ventures Pvt. Ltd. and entry against the cash providers

viz. M/s. AK Agro, M/s. Pitambra Trades, M/s. Saraswati Corporation,

M/s. Shree EkVira Agro Products and others. Thus, from the above

submissions it is clear that the applicant is in possession of the

Proceeds of Crime to the tune of Rs. 27.2 crores approximately. He

submits that the entities from whom these funds were received have

categorically admitted that excess funds or unsecured loans were given

to the applicant at the behest of the syndicate. He has placed his

reliance in the matter of Gautam Kundi Vs. Directorate of

Enforcement (2015) 16 SCC 1. It is also not out of place to mention

that the applicant is involved in money laundering of huge sum of money

amounting to Rs.28,13,66,989/-(approximately). The Enforcement

Directorate has also produced reports and documents as to how the

applicant tried to coerce with the co-accused (members of the

syndicate) for extortion of money and wrongful gain.

32. Shri Pandey, learned counsel for the respondent/Ed submits that

29

from the investigation, it has been revealed that the applicant has

knowingly participated in the criminal acts of the syndicate and is in

possession of the Proceeds of Crime. The applicant was also involved

in safe keeping and concealment of the illegal commission collected.

The applicant had received big amount of Part-A commission from the

liquor suppliers in his FDR bank account. It is further contended that

the company of the applicant was utilized by the syndicate to arrange

the cash for payment of Part-A commission. The modus operandi for

this was that the distillers would take their raw material from their

regular suppliers but through M/s. Petrosun Bio Refineries Pvt. Ltd. the

regular suppliers paid the actual rate and the company of the applicant

inflate the invoices by 20-40% and charge the distillers. These excess

amount was kept by him and the remaining routine rate was remitted to

the actual suppliers.

33.It is contended that the very intention of the applicant was to

retain these funds received from the FL-10A licensees as this was the

commission which was supposed to be paid by these companies.

Further, the balance sheets of M/s. Dhillon City Mall Pvt. Ltd. revealed

that the company had received unsecured loan of Rs. 12.52 crores from

various firms/companies. Lastly, it has been submitted that the

applicant is actually involved in all the activities connected with the

offence of money laundering ie. use or acquisition, possession,

concealment and projecting or claiming as untainted property as defined

under Section 3 of the PMLA 2002, thus, he is guilty of the offence of

30

money laundering under Section 3 of the PMLA 2002 and punishable

under Section 4 of the PMLA. He submits that the applicant is involved

in the activities connected with the offence of money laundering ie.

acquisition, possession, concealment and projecting or claiming as

untainted property as defined under Section 3 of the PMLA , 2002. Thus,

while considering the application for bail under Section 45 of the PMLA,

2002 the Court should keep in mind the abovementioned principles

governing the grant of bial. The limitations on granting bail as

prescribed under Section 45 of the Act are in addition to the limitations

under the 1973 Code. In the judgment dated 27.07.2022, Hon’ble

Supreme Court in Vijay Madanlal Chouhdary and Others Vs. Union

of India and Others Special leave Petitioner (Criminal) No. 4634 of

2014 has held that it is no longer res integra that the twin conditions

under Section 45 of the PMLA have to be met before grant of bail under

PMLA. The relevant observation of the Hon’ble Court is as under:

“135. We are conscious of the fact that in paragraph

53 of the Nikesh Tarachand Shah 642, the Court

noted that it had struck down Section 45 of the 2002

as a whole. However, in paragraph 54, the

declaration is only in respect of further (two)

conditions for release on bail as contained in Section

45(1), being unconstitutional as the same violated

Articles 14 and 21 of the Constitution. Be that as it

may, nothing would remain in that observation or for

that matter, the declaration as the defect in the

provision [Section 45(1)], as existed then,and noticed

by this Court has been cured by the Parliament by

enacting amendment Act 13 of 2018 which has come

into force with effect from 19.4.2018. We, therefore,

confined ourselves to the challenge to the twin

31

conditions in the provision, as it stands to this date

post amendment of 2018 and which, on analysis of

the decisions referred to above dealing with

concerned enactments having similar twin conditions

as valid, we must reject the challenge. Instead, we

hold that the provision in the form of Section 45 of

the 2002 Act, as applicable post amendment of

2018, is reasonable and has direct nexus with the

purposes and objects sought to be achieved by the

2002 Act to combat the menace of money-laundering

having transnational consequences including

impacting the financial systems and sovereignty and

integrity of the countries.”

34.Further, the High Court of Delhi in Sajjan Kumar Vs. Directorate

of Enforcement (MANU/DE/2155/2022) has held that in matter of

regular bail, the Court must consider aspects including but not limited to

the larger interest of the State or public-Another factor relevant would be

gravity of the alleged offence and/or nature of allegation levelled-

Economic offences constitute a class apart and need to be visited with a

different approach given their severity and magnitude.

35.It is submitted that Section 45 of the PMLA starts with non-

obstante clause and for deciding the bail in PMLA case, the conditions

envisaged in Section 45 are invariably satisfied. It is further submitted

that Section 37 of the NDPS is akin to Section 45 PMLA and Hon’ble

Supreme Court while interpreting Section 37 in the case of State of

Kerala Vs. Rajesh (2020) 12 SCC 122 held as under:

“19.The scheme of Section 37 reveals that the

exercise of power to grant bail is not only subject to

the limitations contained under Section 439 of the

CrPC, but is also subject to the limitation placed by

Section 37 which commences with non-obstante

32

clause. The operative part of the said section is in

the negative form prescribing the enlargement of bail

to any person accused of commission of an offence

under the Act, unless twin conditions are satisfied.

The first condition is that the prosecution must be

given an opportunity to oppose the application; and

the second, is that the Court must be satisfied that

there are reasonable grounds for believing that he is

not guilty of such offence. If either of these two

conditions is not satisfied, the ban for granting bail

operates.

36.It is further submitted that the economic offences falls in the

category of Offences which travel far ahead of personal or private

wrongs having the potential to usher in economic crisis. It is expected to

be on guard to these kinds of adroit moves with its principal duty should

be to scan the entire fact to find out the trust and the veracity of

allegations in the present criminal proceedings against the applicant

who is an accused under the Scheduled offence case. In the matter of

Alok Agrawal Vs. Directorate of Enforcement bearing MCRC No.

6533 of 2019, it has been discussed about the seriousness of the

offences of money laundering and their impact on the economy of the

country. The allegations in the Enforcement Case Information

Report/Prosecution Complaint is a matter of final outcome of the trial

but the burden of proof under Section 24 of the PMLA 2002 with regard

to the said money is not proceeds of crime and is always on the

accused person.

“….6. It is true that at present there may or may

not be direct or indirect attempts to indulge the

applicant in any process of activity connected

with the proceeds of crime, there is no attempt

33

on the part of the applicant to disclose the

source of the large sums of money handled by

him. There is no denying the fact that

allegations have been made that the said

money was the proceeds of crime and by

depositing or investing the same in his wife's

account and in the business of his wife and

brother, the applicant has attempted to project

the same as untainted money. The said

allegations may be the subject matter of final

outcome of the trial, but having been made, the

burden of proof that the said money is not the

proceeds of crime and, therefore, shifted to the

applicant under Section 24 of the PML Act,

2002. For the sake of reference, Sections 3

and 24 of the PML Act are extracted herein

below :-

“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.”

“24. Burden of Proof. - In any proceeding

relating to proceeds of crime under this Act, -7.

(a) in the case of a person charged with the

offence of money-laundering under Section 3,

the Authority or Court shall, unless the contrary

is proved, presume that such proceeds of crime

are involved in money-laundering; and

(b) in the case of any other person the Authority

or Court, may presume that such proceeds of

crime are involved in money-laundering.”

37.He has further submitted that the Apex Court has observed that

money laundering is a serious threat to the national economy and

national interest. Orissa High Court in the matter of Mohd. Arif Vs. ED

34

BLAPL No. 2606 of 2020 has observed that the impact of the offence of

money laundering is an act of financial terrorism not only posing a

serious threat to the financial system of the country but also to the

integrity and sovereignty of a nation and has observed as under:

“22. the offence of money laundering is nothing

but an act of financial terrorism that poses a

serious threat not only to the financial system of

country but also the integrity and sovereignty of a

nation. The International Monetary Fund

estimates that laundered money generates about

$590 billion to $1.5 trillion per year, which

constitutes approximately two to five percent of

the world's gross domestic product. The Supreme

Court of India has consistently held that economic

offences are sui generis in nature as they stifle

the delicate economic fabirc of a society. These

offences permeate to human consciousness

posing numerous questions on the very integrity

of the business world. The offences, such as this,

are committed with a deliberate design with an

eye on personal profit and often shown to be

given scant regard for a sordid residuum left

behind to be borne by the unfortunate “starry

eyed” petty investors. The perpetrators of such

deviant “schemes” including the petitioner herein,

who promise utopia to their unsuspecting

investors seem to have entered in a proverbial

“faustian bargain” and are grossly unmindful of

untold miseries of the faceless multitudes who are

left high and dry and consigned to the flames of

suffering.”

38.It is contended by the learned counsel for the respondent that the

economic offences constitute a class apart and need to be visited with

different approach. In this regard, it is pertinent to refer to the following

observations of this Court in Y.S. Jagan Mohan Reddy:

35

“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.

35. 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 the public/State and other similar

considerations.”

This Court has adopted this position in several

decisions, including Gautam Kundu v.

Directorate of Enforcement and State of Bihar v.

Amit Kumar. Thus, it is evident that the above

factors must be taken into account while

determining whether bail should be granted in

cases involving grave economic offences.”

39.He has further placed his reliance in the matter of the Apex Court

in State of State of Gujarat v. Mohanlal Jitamalji Porwal : (1987) 2

SCC 364 : AIR 1987 SC 1321 ). Economic offences have serious

repercussions on the development of the society as a whole. The entire

community would be aggrieved if the economic offenders, who ruin the

economy of the State, are not brought to book in a proper manner. It has

observed that :

“5…. The community or the State is not persona-

non-grata whose cause may be treated with disdain.

36

The entire community is aggrieved if the economic

offenders who ruin the economy of the State are

not brought to books. A murder may be committed in

the heat of moment upon passion 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….”

40.It is submitted that the applicant being an influential businessman

he is in a position to be able to influence the witnesses and if released

on bail, thee is a hight likelihood that the applicant would seek to

frustrate the proceedings under the Act. He has placed his reliance in

the matter of neeru Yadav Vs. State of UP and Another, AIR (SC)

(CRI) 2015 (0) 412 wherein following observation has been made:

“ it is well settled principle of law that while

dealing with an application for grant of bail, it is

the duty of the Court to take into consideration

certain factors and they basically are:

(i) the nature of accusation and the

severity of punishment in cases of conviction and

the nature of supporting evidence,

(ii) reasonable apprehension of tampering

with the witnesses for apprehension of threat to

the complainant and

(iii) Prima facie satisfaction of the court in

support of the charge.”

41.The gravity or seriousness of the offence cannot merely be seen

from the severity of punishment and in fact the nature of the offence

would also be relevant as the amount of proceeds of the crime in the

37

present case is more than Rs. 2000 crores. In this regard, he has relied

upon the judgment of the Apex Court in State of UP Vs. Gayatri Prasad

Prajapati AIR 2020 SC 5014, wherein certain guidelines have been laid

down vix-a-vis the present facts whereby, the Apex Court while

dismissing the bail application has observed that humane treatment to

all including an accused is requirement of law. A prisoner, who is

suffering from an ailment has to be given due treatment and care while

in prison and if the due medical care is being taken of the accused, bail

cannot be granted.

42.Shri Pandey, further submits that the twin conditions as mentioned

in Section 45 of the PMLA, 2002 is to be satisfied before an accused is

released on bail. Provision is mandatory in nature. Unless the Court

comes to the satisfaction that there are no reasonable grounds for

believing that the applicant-accused is guilty and he is not likely to

commit any offence only then the applicant-accused may be enlarged

on bail. It is submitted that voluminous evidence has been collected

which shows that the applicant is involved in money laundering which is

proceeds of crime. In view of the same, may not be granted bail and the

application may be dismissed.

ANALYSIS AND OPINION

43.Heard learned counsel for the parties and perused the documents

on record.

44. In the present case, the applicant was involved in the criminal

acts of the syndicate and that he received commission from the liquor

38

suppliers. However, no recovery of unaccounted money has been made

in this regard and as per the investigating agency, the investigation is

pending, hence, a conclusive determination of their role is yet to be

made. On perusal of the records, it appears that the co-accused Trilok

Singh Dhillon was a liquor contractor and he received commission from

the liquor suppliers in his FDR bank account and he is not a member of

the syndicate but has facilitated the payment of bribes to the syndicates

in collusion with other co-accused. The relevant provisions of PMLA,

2002 and Rules thereunder which is to be looked into by the Court for

considering the arguments for grant of bail is quoted as under:

Section -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

1

[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.

MCRC-19929-2024 Section 2(1)(u) in The Prevention of

Money-Laundering Act, 2002 "proceeds of crime" which

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 county, then the property equivalent in value held

within the country or abroad.

45.Considering that the present is a bail application for the offence

under Section 45 of PMLA, the twin conditions mentioned thereof

become relevant. Section 45(1) of PMLA reads as under:

39

“45. Offences to be cognizable and non-bailable.

(1)Notwithstanding anything contained in the

Code of Criminal Procedure, 1973 (2 of 1974), no

person accused of an offence [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 authorized in writing in this

behalf by the Central Government by a general or

special order made in this behalf by that

Government.”

46.In the case in hand, considering the fact that the charges levelled

against the applicant are grave and a serious threat to societal harmony.

On perusal of the aforesaid provisions of law and judgment passed by

the Apex Court in the matter of Vijay Madanlal Choudhary Vs. Union

of India and Others (2022) SCC OnLine SC 929, it is clear that the

offence under PMLA, 2002 is a separate and distinct offence. PMLA

2002 deals with the proceeds of crime which has been obtained by the

40

accused by committing schedule offences. Accused possess, conceals

and acquire tainted property or money claiming it to be untainted and

use the proceeds of crime. Said act of accused in dealing with ill gotten

money or property constitutes separate and distinct offence from earlier

offence committed to acquire money. The applicant was arrested on

17.01.2024 in connection with ECIR No. RPZO/04/2024 dated

11.04.2024 registered by the Directorate of Enforcement for the offence

under Sections 3 and 4 of the PMLA, 2002. It has been alleged that the

applicant was involved in the activities connected with the offence of

money laundering and proceeds of crime to the tune of Rs.

28,13,66,989/-. In Vijay Madanlal Choudhary (Supra), the Apex Court

has held as under:-

"269269. From the bare language of Section 3 of the

2002 Act, it is amply clear that the offence of

money-laundering is an independent offence

regarding the process or activity connected with

the proceeds of crime which had been derived or

obtained as a result of criminal activity relating to

or in relation to a scheduled offence. The process

or activity can be in any form -- be it one of

concealment, possession, acquisition, use of

proceeds of crime as much as projecting it as

untainted property or claiming it to be so. Thus,

involvement in any one of such process or activity

connected with the proceeds of crime would

constitute offence of money-laundering. This

offence otherwise has nothing to do with the

criminal activity relating to a scheduled offence --

41

except the proceeds of crime derived or obtained

as a result of that crime.

XXXX XXXX XXXX

295. As aforesaid, in this backdrop the

amendment Act 2 of 2013 came into being.

Considering the purport of the amended

provisions and the experience of

implementing/enforcement agencies, further

changes became necessary to strengthen the

mechanism regarding prevention of money-

laundering. It is not right in assuming that the

attachment of property (provisional) under the

second proviso, as amended, has no link with

the scheduled offence. Inasmuch as Section

5(1) envisages that such an action can be

initiated only on the basis of material in

possession of the authorised officer indicative

of any person being in possession of

proceeds of crime. The precondition for being

proceeds of crime is that the property has

been derived or obtained, directly or

indirectly, by any person as a result of

criminal activity relating to a scheduled

offence. The sweep of Section 5(1) is not

limited to the accused named in the criminal

activity relating to a scheduled offence. It

would apply to any person (not necessarily

being accused in the scheduled offence), if

he is involved in any process or activity

connected with the proceeds of crime. Such a

person besides facing the consequence of

42

provisional attachment order, may end up in

being named as accused in the complaint to

be filed by the authorised officer concerning

offence under Section 3 of the 2002 Act.

XXXX XXXX XXXX

387. Having said thus, we must now address the

challenge to the twin conditions as applicable post

amendment of 2018. That challenge will have to

be tested on its own merits and not in reference to

the reasons weighed with this Court in declaring

the provision, (as it existed at the relevant time),

applicable only to offences punishable for a term

of imprisonment of more than three years under

Part A of the Schedule to the 2002 Act. Now, the

provision (Section 45) including twin conditions

would apply to the offence(s) under the 2002 Act

itself. The provision post 2018 amendment, is in

the nature of no bail in relation to the offence of

money-laundering unless the twin conditions are

fulfilled. The twin conditions are that there are

reasonable grounds for believing that the accused

is not guilty of offence of money-laundering and

that he is not likely to commit any offence while on

bail. Considering the purposes and objects of the

legislation in the form of 2002 Act and the

background in which it had been enacted owing to

the commitment made to the international bodies

and on their recommendations, it is plainly clear

that it is a special legislation to deal with the

subject of money-laundering activities having

transnational impact on the financial systems

43

including sovereignty and integrity of the countries.

This is not an ordinary offence. To deal with such

serious offence, stringent measures are provided

in the 2002 Act for prevention of money-laundering

and combating menace of money-laundering,

including for attachment and confiscation of

proceeds of crime and to prosecute persons

involved in the process or activity connected with

the proceeds of crime. In view of the gravity of the

fallout of money-laundering activities having

transnational impact, a special procedural law for

prevention and regulation, including to prosecute

the person involved, has been enacted, grouping

the offenders involved in the process or activity

connected with the proceeds of crime as a

separate class from ordinary criminals. The

offence of money-laundering has been regarded

as an aggravated form of crime "world over". It is,

therefore, a separate class of offence requiring

effective and stringent measures to combat the

menace of money-laundering.”

47.It is important to note that the twin conditions provided under

Section 45 of the 2002 Act, though restrict the right of the accused to

grant of bail, but it cannot be said that the conditions provided under

Section 45 impose absolute restraint on the grant of bail. The discretion

vests in the Court which is not arbitrary or irrational but judicial, guided

by the principles of law as provided under Section 45 of the Act, 2002.

While dealing with a similar provision prescribing twin conditions in

44

MCOCA, this Court in Ranjitsing Brahmajeetsing Sharma(2005) 5 SCC

294, held as under:

"44. The wording of Section 21(4), in our opinion,

does not lead to the conclusion that the court

must arrive at a positive finding that the applicant

for bail has not committed an offence under the

Act. If such a construction is placed, the court

intending to grant bail must arrive at a finding

that the applicant has not committed such an

offence. In such an event, it will be impossible for

the prosecution to obtain a judgment of

conviction of the applicant. Such cannot be the

intention of the legislature. Section 21(4) of

MCOCA, therefore, must be construed

reasonably. It must be so construed that the

court is able to maintain a delicate balance

between a judgment of acquittal and conviction

and an order granting bail much before

commencement of trial. Similarly, the Court will

be required to record a finding as to the

possibility of his committing a crime after grant of

bail. However, such an offence in futuro must be

an offence under the Act and not any other

offence. Since it is difficult to predict the future

conduct of an accused, the court must

necessarily consider this aspect of the matter

having regard to the antecedents of the accused,

his propensities and the nature and manner in

which he is alleged to have committed the

offence.”

48.In view of the aforementioned factual background, the arguments

made by the learned counsel for the parties and further keeping in mind

the binding observations of their Lordships of the Apex Court that the

offence of money laundering not only relates to generation of such

proceeds of crime but it also includes any activity directly or indirectly

45

relating to concealment or possession or acquisition or use amongst

others. The said definition is very wide and inclusive, thus, the fact that

directly or indirectly if any person is in possession or use of such

proceeds of crime, knowingly assists or knowingly is a party or actually

involved or in any activity connected with proceeds of crime relating to

concealment possession acquisition or use or projecting the property as

untainted property or claiming as untainted property in any manner

whatsoever would be liable for commissioning of any offence under the

PMLA. Economic offences are grave offence affecting the economy of

the country as a whole and serious repercussions on the development

of the country and corruption is really a human rights violation specially

right to life, liberty, equality and non discrimination, and it is an

enormous obstacle to the realization of all human rights and the charges

alleged against the applicant are extremely serious and have been

committed in the State of Chhattisgarh and from perusal of the record

and in view of the fact that looking to the special and stringent provision

under Section 45(1) of the PMLA for grant of bail, in the considered

opinion of this Court, prima facie the money trail has been established

by the prosecution and therefore, it is not proper to order release of

present applicant on regular bail for the reasons mentioned

hereinabove.

49.The contention of the applicant that vide order dated 27.11.2024,

the Apex Court in Criminal Appeal No. 4844/2024 @ SLP (Crl.) No.

14697/2024 has directed the applicant shall be enlarged on bail by

46

producing him before the trial court on 15

th

January 2025 directing the

trial court to impose stringent terms including the conditions.

So far as the case of the applicant in the said case is related FIR

No.04/2024 dated 17.01.2024 (arrested on 25.04.2024) registered by

the EOW/ACB, Chhatisgarh for commission of offences punishable

under Sections 420,467, 471 & 120(B) of the IPC and Sections 7 and 12

of the Prevention of Corruption Act and the present is a case of money

laundering under Section 3 & 4 of the PMLA,2002. Hence, the ground

taken by the applicant cannot be considered at this stage.

50.What is required is to prima facie, consider the material available

on record to satisfy itself and to enable it to reasonably form an opinion,

to believe, that the applicant is not guilty of the offence and that he is not

likely to commit any offence on bail as enshrined in Section 45 of the

PMLA. It is also required to consider the nature and gravity of the

accusation, severity of the punishment in the event of conviction, danger

of the accused absconding or fleeing, character, behaviour means,

position and standing of the accused, the likelihood and reasonable

apprehension of the witnesses being influenced and danger, of course,

of justice being defeated by grant of bail.

Thus, from the above foregoing discussion, it is clear that the

balance sheets of the company of applicant ie. M/s. Dhillon City Mall

Pvt. Ltd. had received unsecured loan of Rs. 12.52 crores from various

companies and it has also been revealed that these firms are bogus and

only entries against cash has been provided to them by the company of

47

the applicant. This amount of Rs. 12.52 crores is part of the Proceeds of

Crime which was parked in the said company of the applicant. However,

there is no written loan agreement for unsecured loans and there are no

collaterals or the purpose has been mentioned in taking these loans and

he had claimed that he is paying interest on these loans at 8% from the

last two years but is keeping these amounts in FDs at the interest rate of

7%. It is thus clear from the above detailed discussion that the applicant

is in possession of the Proceeds of Crime of about 27.2 crores which

was used in creation of various Fixed Deposits of principal amount

totalling to Rs. 27.2 crores in the name of his companies ie. M/s.

Petrosun Bio Refineries Pvt. Ltd. and M/s. Dhillon City Mall Pvt. Ltd. It

is in the aforesaid backdrop, considering the material available on

record including the money transactions in the FDR accounts of the

applicant and its use by the applicant through his firms/companies, for

all the reasons aforesaid, this Court is unable to persuade itself to form

a prima facie, satisfaction in terms of Section 45 of the PMLA, at this

stage, and further that the prosecution complaint has been filed against

the applicant, this Court is not inclined to grant regular bail to the

applicant.

51.So far as the ground of age relating multiple ailments stating that

he is suffering from diabetes, high blood pressure and blockage in the

heart are concerned, there is no such serious ailments and therefore,

the applicant in the present case cannot claim for grant of bail on this

ground.

48

52. In view of the aforesaid circumstances, the prayer for bail made

by the applicant under Section 483 of the Bhartiya Nagrik Suraksha

Sanhita, 2023 (‘BNSS’) read with Section 45 of the PMLA, 2002 for the

offences under Section 3 & 4 of the PMLA, 2002, is hereby rejected.

Sd/-

(Arvind Kumar Verma)

Judge