High Court of Delhi was dealing with the petition seeking regular bail in FIR at P.S. Special Cell under Sections 3/4/5 of the Official Secrets Act and Section 120B IPC.
Brief Facts:
Rajeev Sharma, a journalist was arrested on 14th September 2020. On his disclosure, one Nepalese national Sher Singh @ Raj Bohara and a Chinese national Qing Shi, who were working with one MZ Mall Pvt. Ltd. being run by Chinese nationals, were arrested. It is alleged that a secret information was received that the petitioner was going to supply the secret information to some unknown persons near Press Club of India, Raisina Road. The petitioner was arrested for the offences punishable under Sections 3/4/5 of the Official Secrets Act and was released on default bail in terms of Section167(2) Cr.P.C as the charge sheet/complaint had not been filed within the statutory period. On 26th February 2021, the respondent recorded the above-noted ECIR and directed the petitioner to join the investigation which he joined several times till 1st July 2021. The premises of the petitioner was searched and seizures affected, however, nothing except sixteen visiting cards were recovered. The petitioner was arrested on 1st July 2021 for offences punishable under Sections 3/4 of PMLA and is in custody since then.
Petitioner’s Contention:
Learned counsel for the petitioner contended that the offences punishable under the Official Secrets Act not being the Scheduled Offences under the PMLA, ECIR recorded by the respondent and the arrest made pursuant to that as also the complaint filed is without any jurisdiction. It was further contended that the proceeds of the crime attributable to the petitioner amount to ₹48,20,788.50 paisa and in terms of Proviso to Section 45 of the PMLA dehors the twin conditions as applicable in Sub-Section (1), clauses (i) and (ii) will not be applicable as the proceeds of the crime even as per the respondent is less than ₹1 Crore. It was contended that since the amount involved is less than ₹1 Crore, the Proviso to Section 45 of the PMLA would be applicable.
HC’s Observations:
After hearing both the sides Court stated that undoubtedly, offences punishable under the Official Secrets Act are not in the list of Scheduled Offences under the PMLA. Whether the charge sheet filed in the predicate offence is for offences punishable under Sections 3/4/5 of Official Secrets Act read with 120B IPC or for Section 120B IPC substantively or whether in the absence of any charge sheet under Section 411 IPC having been filed by the Special Cell, Delhi Police, the respondent could have recorded the above-noted ECIR for offences punishable under Sections 3 & 4 of the PMLA on the ostensible ground that since Section 120B IPC is a Schedule Offence and the Enforcement Directorate had jurisdiction to investigate into offence of money laundering pursuant to the offences under Sections 3/4/5 of Official Secrets Act would be a matter to be dealt by the learned Trial Court at the stage of charge.
Court noted that the charge sheet filed by the Special Cell does not note the offence punishable under Section 411 IPC. Even in the complaint filed by the respondent before the learned Trial Court, Section 411 IPC being the predicate offence has not been mentioned.
Court stated that the Supreme Court struck down the twin conditions mentioned in Section 45 of the PMLA. The amendment in Section 45 by the Finance Act 2018 is only with respect to substituting the term ‘offence punishable for 3 years’ with ‘offence under this Act’. The said amendment does not revive the twin conditions already struck down by the aforesaid judgment as held by this Court in Upendra Rai Vs. Directorate of Enforcement. The twin conditions under Section 45 of the PMLA not being applicable, the triple test is required to be applied so as to consider grant of bail to the petitioner.
HC Held:
After evaluating submissions made by both the parties the Court held that “Learned Additional Solicitor General has laid great emphasis on the ground that the petitioner is involved in a very serious offence of passing on the information relating to Indian Army to the Chinese nationals thereby compromising with the national security. However, by this petition the petitioner does not seek bail for offences punishable under Sections 3/4/5 of the Official Secrets Act but for offences punishable under Section ¾ PMLA. Considering that the predicate offence, if any, against the petitioner is under Section 120B IPC and Section 411 IPC only, this Court deems it fit to grant bail to the petitioner.”
Bench: Hon'ble Ms. Justice Mukta Gupta
Case Title: Rajeev Sharma v. Directorate Of Enforcement
Case Details: BAIL APPLN. 3156/2021
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