The Allahabad High Court granted bail to the accused against whom a case is registered under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (“PMLA”).
A single judge bench of this Court comprising of Hon’ble Justice Rajesh Singh Chauhan held that the Investigating Agency has not arrested the Applicant under Section 19 of the PMLA, therefore, rigors of Section 45 of the PMLA should not be made applicable in the present case.
Brief Facts:
The Applicant joined Jagran Solutions in the year 2007 as Senior Accounts Manager and is presently working as the business head of Jagran Solutions. As a part of his official duties, the Applicant undertook business development and client servicing for Jagran Solutions. The Director General, Family Welfare, U.P., published an advertisement seeking private bidders to operate MMUs in selected districts of U.P. for a period of three years. The financial proposals of Jagran Solutions were approved and the Firm entered into four different agreements with the Director General, Family Welfare. On the complaint of massive bungling, fraud, and forgery in the issue relating to the NRHM, the matter was referred to the CBI and CBI registered a preliminary enquiry. Pursuant to the report of a preliminary enquiry, CBI registered FIR against M/s. Jagran Solutions, under Section 420 IPC, Sections 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 (“PC Act”).
The present Applicant was sent to judicial custody on 03.07.2014 by the Special Judge, P.C. Act in relation to the predicate offence due to his non-appearance in the Court on the date fixed. Thereafter, vide order dated 28.08.2015, the present Applicant was granted bail by this Court as it was observed that the Applicant has cooperated in the investigation.
After more than 10 years from the registration of ECIR, the E.D. on 05.12.2022 filed a prosecution complaint under Section 44 read with Section 45 of the PMLA, inter alia, making the present Applicant and JPL as accused. However, no proper service of summons was effected on the Applicant and only a constructive service was effected.
Contentions of the Applicant:
The learned Counsel for the Applicant submitted that the summons issued to the Applicant did not contain a copy of the prosecution complaint filed by the E.D., copy of statements and relevant documents of the complaint, which is a clear-cut violation of Sections 204 (3) & 208 Cr.P.C. The Counsel further relied on the Apex Court judgement in Aman Preet Singh vs. C.B.I. Through Director, 2021 SCC OnLine SC 941, in which it was held that if, during investigation, the accused has cooperated in the investigation and has not been arrested by the Investigating Agency, merely because a charge sheet has been filed, he should not be arrested.
Contentions of the Respondents:
The learned Counsel for the Respondents submitted that a person accused of the offence of money laundering can only be released when the conditions stipulated under Section 45 of the PMLA are satisfied i.e. prosecution/E.D. is allowed to oppose the release/bail of the accused Applicant and if the accused is released, reasons have to be recorded that there is a reasonable satisfaction that the accused has not committed the offence of money laundering. In support of his submission above, he relied on the mandate of the Apex Court Vijay Madanlal Choudhary and Others Vs. Union of India and Others, 2022 SCC OnLine SC 929.
Observations of the Court:
The Court noted that it is clear that considering the proper cooperation of the present Applicant in the investigation and evidence, material and allegations against the Applicant, the Investigating Officer did not find it proper to arrest the Applicant under Section 19 of the PMLA. In other words, his arrest was not warranted during an investigation. However, his regular bail application before the trial Court was rejected on the ground that the twin conditions of Section 45 of the PMLA are not being satisfied whereas in the present case, the Investigating Agency has not arrested the Applicant under Section 19 of the PMLA and the Counsel for the E.D. was properly heard by the trial court, therefore, the bench held that rigors of Section 45 of the PMLA should not be made applicable in the present case.
After perusing the judgments cited by both the parties, this Court viewed that in the present case, prima facie, there was no requirement to take the Applicant into custody when he appeared before the learned trial court pursuant to the summons being issued inasmuch as he has never flouted the process of law. He cooperated in the investigation throughout, and the Investigating Agency has never thought to arrest him under Section 19 of the PMLA despite he appeared before the E.D. to record his statement twice pursuant to the summons being issued under Section 50 of the PMLA, and there was no request of the E.D. before the learned trial court to the effect that arrest of the present Applicant is warranted. Therefore, it appeared that the learned trial court had taken custody of the present Applicant without following the settled proposition of law of the Apex Court in Aman Preet Singh (supra).
The decision of the Court:
The Allahabad High Court, allowing the bail application, held that the rigor of section 45 of the PMLA will not be applicable to the accused if he was not arrested under section 19 of the PMLA.
Case Title: Govind Prakash Pandey v. Directorate of Enforcement, Govt of India
Coram: Hon’ble Justice Rajesh Singh Chauhan
Case no.: CRIMINAL MISC. BAIL APPLICATION No.1943 of 2023
Advocate for the Applicant: - Aviral Raj Singh,Alok Kumar Singh,Dhruv Kumar Singh,Palash Banerjee,Ritwick Rai,Vaibhav Tiwari
Advocate for the Respondents: - - Rohit Tripathi
Read Judgment @LatestLaws.com
Picture Source :
