Sanjeev Suryakant Palande vs Union Of India And Anr
2022 Latest Caselaw 13237 Bom

                                                                                  ba-4449-2021.doc




                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       CRIMINAL APPELLATE JURISDICTION

                                        BAIL APPLICATION NO.4449 OF 2021

                      Sanjeev Suryakant Palande                           ...Applicant
                           vs.
                      Union of India and Others                           ...Respondents
VISHAL
SUBHASH
PAREKAR               Mr. Shekhar Jagtap a/w. Ms. Sairuchita Chowdhary and Ms. Rhea
                      Francis, for the Applicant.
Digitally signed by
VISHAL SUBHASH
PAREKAR
Date: 2022.12.20
                      Mr. Anil Singh, ASG a/w. Mr. Aditya Thakkar, Mr. Shreeram Shirsat,
22:01:04 +0530
                      Mr. Ashish Chavan, Mr. Shekhar Mane, Ms. Nishi Singhvi, Mr. Anna
                      Oommen, Ms. Smita Thakkar, Mr. Amandeep Singh and Mr. Pranav
                      Thakur, for Respondent - ED.

                                         CORAM :                N. J. JAMADAR, J.
                                         RESERVED ON :          NOVEMBER 21, 2022
                                         PRONOUNCED ON :        DECEMBER 20, 2022
                                                     --------------

                      ORDER

1. The applicant/accused No. 2 who is arraigned in case No.

1089 of 2021, arising out of ECIR No. MBZO-I/66/2021 at the

instance of Directorate of Enforcement (ED) for the offence

punishable under section 4 read with 3 of the Prevention of Money

Laundering Act, 2002 (PMLA), has preferred this application to

enlarge him on bail.

2. The applicant joined the State service as a Deputy Collector,

on 5th November, 1998. Over the period of time, the applicant has

Vishal Parekar. ...1 ba-4449-2021.doc

worked on various posts. On 7th January, 2020 the applicant came

to be appointed as a Private Secretary of Mr. Anil Deshmukh, the

then Home Minister and a co-accused.

3. In the month of February/March, 2021, certain events

unfolded which resulted in the arrest of Mr. Sachin Waze, the then

API attached to Crime Investigation Unit of Crime Branch, Mumbai

Police and the transfer of Mr. Param Bir Singh, the then

Commissioner of Police, Mumbai from the said post. In the wake of

the controversy, in a letter dated 20 th March, 2021 addressed by

Mr. Param Bir Singh to the then Chief Minister of Maharashtra

certain allegations were made against Mr. Anil Deshmukh.

4. Eventually pursuant to an order passed by a Division Bench of

this Court on 5th April, 2021, post preliminary inquiry, the Central

Bureau of Investigation (CBI) registered First Information Report

bearing No. RC 2232021A0003 dated 21st April, 2021 at AC-V, CBI,

New Delhi against Mr. Anil Deshmukh and unknown others, with

the allegations that the preliminary inquiry prima facie revealed

that cognizable offence was made out wherein Mr. Anil Deshmukh

and unknown others obtained undue advantage for improper and

dishonest performance of their public duty; Mr. Anil Deshmukh and

Vishal Parekar. ...2 ba-4449-2021.doc

others allegedly exercised undue influence over the transfer and

posting of the police officials/officers and thereby exercised undue

influence over the performance of the official duties by the officials.

5. On the strength of the above F.I.R. and treating it as a source

from which the information was received, and the offence alleged

therein as a predicate offence, E.D. registered the above ECIR

against the applicant and others for the offence punishable under

section 4 read with 3 of PMLA.

6. On 23rd August, 2021 the respondent No. 2/ED filed

prosecution complaint against the applicant and 13 others

including Mr. Sachin Waze (accused No. 1). It was inter alia alleged

qua the applicant that the applicant in the capacity of the Private

Secretary to the then Home Minister was instrumental in passing

on the instructions of the Home Minister to Mr. Sachin Waze. The

applicant arranged meetings, monitored the collection of money

from the Orchestra Bar owners, analyzed and assisted in the work

of collection of tainted money through the police officials. The

applicant was also allegedly involved in collection of money with

regard to transfer and posting of the police officials. The applicant

was allegedly an active participant in the generation of proceeds of

Vishal Parekar. ...3 ba-4449-2021.doc

crime and was also actively involved in laundering of the proceeds

of crime.

7. On 25th June, 2021 a search was conducted at the residence of

the applicant and, eventually, the applicant came to be arrested on

the night intervening 25th and 26th June, 2021. In the meanwhile,

the learned Special Judge took cognizance of the offence. The

learned Special Judge by an order dated 7 th December, 2021 was

persuaded to reject the applicant's prayer for bail. Hence, this

application.

8. The applicant asserts, inter alia, that the arrest of the

applicant was wholly illegal and unwarranted. No prima facie case

for the offence punishable under section 4 of the PMLA has been

made out. Apart from the bare words of Mr. Sachin Waze, the co-

accused, there is not an iota of material to connect the applicant

with the alleged offence. Even the statement of Mr. Sachin Waze, in

the context of the alleged role of the applicant in the transfer and

posting, is mere hearsay. In the circumstances, the applicant

deserves to be enlarged on bail.

9. An affidavit in reply is filed on behalf of the respondent No. 2 -

Vishal Parekar.                                                              ...4
                                                           ba-4449-2021.doc

ED contesting the prayer for bail. The reply adverts to the role of

the applicant as borne out by the statements of the witnesses

recorded under section 50 of PMLA, especially that of Mr. Sachin

Waze, the co-accused No. 1, Mr. Sanjay Patil, the then ACP, Social

Service Branch, Mr. Raju Bhujbal, the then DCP, Social Service

Branch and Mr. Sitaram Kunte, the then Chief Secretary, State of

Maharashtra.

10. In substance, the respondent No. 2 alleges that, at the

instance of and in pursuance of the criminal conspiracy with, the

then Home Minister the applicant indulged in laundering of the

proceeds of crime generated by extorting money from Orchestra

Bar owners and transfer/ posting of the police officials/officers.

According to the respondent No. 2, since the interdict contained in

section 45(1) PMLA comes into operation, the applicant does not

deserve to be enlarged on bail.

11. I have heard Mr. Shekhar Jagtap, learned counsel for the

applicant, and Mr. Anil Singh, learned ASG for respondent No. 2-ED,

at some length.

12. The learned counsel have taken me through the prosecution

Vishal Parekar. ...5 ba-4449-2021.doc

complaint, supplementary prosecution complaint and first

information report registered against Mr. Anil Deshmukh and

others by CBI, the statements of witnesses recorded by ED under

section 50 of PMLA, the statements of witnesses recorded by CBI in

the predicate offence and the statements of witnesses recorded

under section 164 of Code of Criminal Procedure in C.R. No. 71 of

2021.

13. Mr. Jagtap, the learned counsel for the applicant would urge

that the applicant was not named as a co-accused in the first

information report registered by CBI against Mr. Anil Deshmukh,

and till the date of registration of ECIR, there was no predicate

offence qua the applicant. Resultantly, the arrest of the applicant on

26th June, 2021, was wholly illegal and, on this count alone, the

applicant is entitled to be released on bail.

14. Mr. Jagtap further submitted that even if the case of

respondent No. 2 (ED) is taken at par, no offence can be said to have

been prima facie made out against the applicant. Taking the Court

through the statements of Sachin Waze (accused No. 1), Mr. Sanjay

Patil and Mr. Raju Bhujbal, recorded by ED under section 50 of the

PMLA, Mr. Jagtap would urge that those statements singularly lack

Vishal Parekar. ...6 ba-4449-2021.doc

incriminating tendency. Furthermore, if the statements of these

witnesses are considered in the light of the statements recorded in

other proceedings, the inherent improbability of the prosecution

version becomes writ large.

15. Mr. Jagtap laid emphasis on the fact that this Court in Bail

Application No. 1021 of 2022 was persuaded to release Mr. Anil

Deshmukh on bail. The case of the applicant, against whom there is

no allegation of receiving, layering or projecting the proceeds of

crime, stands on a much better footing and, therefore, the applicant

deserves to be released on bail, urged Mr. Jagtap.

16. Per contra, Mr. Anil Singh, learned ASG, submitted that in

SLP (Cri) Diary No(s.) No. 32078 of 2022 while dismissing the SLP

against the aforesaid order granting bail to Mr. Anil Deshmukh, the

Supreme Court, in its order dated 11th October, 2022, clarified that

the observations made by this Court while releasing Mr. Anil

Deshmukh on bail shall not affect the merits of the trial or be

pressed in any other collateral proceedings. Therefore, according to

Mr. Anil Singh, the applicant can not draw any mileage from the

aforesaid order and the observations therein in support of the

instant application. Secondly, Mr. Anil Singh strenuously submitted

Vishal Parekar. ...7 ba-4449-2021.doc

that since the applicant came to be remanded to custody by judicial

orders, at this stage, the Court would not be justified in delving into

the legality of the arrest of the applicant, sought to be pressed into

service by Mr. Jagtap.

17. On the merits of the application, Mr. Anil Singh would urge

that there is overwhelming material to demonstrate that the

applicant was involved in generation of the proceeds of the crime

and also laundering thereof. It was urged with a degree of

vehemence that two sets of allegations against the applicant are

firmly made out. First, the statements of Mr. Sachin Waze, Mr.

Sanjay Patil and Mr. Raju Bhujbal indicate that the applicant was

instrumental in supervising and monitoring extortion of money

from Orchestra Bar owners. Second, the statements of Mr. Sachin

Waze, Sitaram Kunte and Mr. Ravi Vhatkar spell out the role played

by the applicant in transfer and posting of police officials/officers.

These factors coupled with the money trail qua Mr. Anil Deshmukh,

according to Mr. Singh, establish the complicity of the applicant.

18. It was further submitted that it is not the requirement of law

that there should be direct involvement of an accused in the

collection of money. Inviting the attention of the Court to the wide

Vishal Parekar. ...8 ba-4449-2021.doc

ambit of definition of "money laundering", Mr. Singh would urge

that the submission on behalf of the applicant that there is no direct

allegation of acquisition or possession of proceeds of crime does not

merit acceptance. To this end, Mr. Singh placed a strong reliance on

the judgment of the Supreme Court Vijay Madanlal Choudhary and

Others vs. Union of India and Others1.

19. Mr. Singh would further urge that the mandate of section 45

must be satisfied by the accused who is charged with the offence of

money laundering before he is released on bail. At this juncture,

according to Mr. Singh, the Court would not be justified in delving

deep into the merits of the case, much less hold a mini-trial. To

bolster up this submission a strong reliance was placed on the

judgments of the Supreme Court in the cases of Vijay Choudhary

(supra) and National Investigating Agency vs. Zahoor Ahmad Shah

Watali2.

20. There can be no quarrel with the proposition that at the stage

of consideration of entitlement for bail, a detail examination of the

material/evidence and elaborate documentation of merits of the

case are not warranted. Nonetheless, the Court is required to

1 2022 SCC OnLine SC 929 2 2019 (5) SCC 1

Vishal Parekar. ...9 ba-4449-2021.doc

ascribe reasons for granting or refusal to grant bail. This

requirement of giving reasons assumes more significance when

there are statutory restrictions in the matter of grant of bail like

section 45 of PMLA.

21. Section 45 contains an interdict against grant of bail to a

person accused of an offence under PMLA, unless the Public

Prosecutor has been given an opportunity to oppose the application

and the Court is satisfied that there are reasonable grounds for

believing that such person is not guilty of such offence and that, if

released on bail, he is not likely to commit any offence, while on bail.

Sub-Section (2) of Section 45 further provides that the limitation

on granting bail under sub-section (1) is in addition to the

limitation under the Code or any other law for the time being in

force for granting of bail. The aforesaid restrictions, however, do not

imply that there is an absolute bar against grant of bail.

22. A useful reference in this context can be made to a three

Judge Bench judgment of the Supreme Court in the case of

Ranjitsingh Brahmajeetsing Sharma V/s. State of Maharashtra 3

wherein the contours of the power of the Court to grant bail in the

face of the interdict contained in Section 21(4) of the Maharashtra

3 (2005) 5 SCC 294

Vishal Parekar. ...10 ba-4449-2021.doc

Control of Organized Crime Act, 1999 arose for consideration. The

interdict against the grant of bail under Section 21(4) of the MCOC

Act, 1999 is pari materia the bar contained in Section 45(1) of the

PMLA. In Ranjitsingh Sharma (supra) the Supreme Court

illuminatingly postulated the approach to be adopted in arriving at

the satisfaction as to whether the accused is "not guilty of such

offence' and that the accused is "not likely to commit any offence

while on bail". They read as under :

"35. Presumption of innocence is a human right. [See Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699, para 31] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-Section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of Sub-section (4) of Section 21 must be given a proper meaning.

36. Does this statute require that before a person is released on bail, the court, albeit prima facie, must come to the conclusion that he is not guilty of such offence? Is it necessary for the Court to record such a finding? Would there be any machinery available to the Court to ascertain that once the accused is enlarged on bail, he would not commit any offence whatsoever ?

37. Such findings are required to be recorded only for the purpose of arriving at an objective finding on the basis of materials on records only for grant of bail and for no other purpose .

38. We are furthermore of the opinion that the restrictions on the power of the Court to grant bail should not be pushed too far. If the Court, having

Vishal Parekar. ...11 ba-4449-2021.doc

regard to the materials brought on record, is satisfied that in all probability he may not be ultimately convicted, an order granting bail may be passed. The satisfaction of the Court as regards his likelihood of not committing an offence while on bail must be construed to mean an offence under the Act and not any offence whatsoever be it a minor or major offence. ............

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.

45. It is, furthermore, trite that for the purpose of considering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail.

46. 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. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub- section (4) of Section 21 of the Act, the Court may

Vishal Parekar. ...12 ba-4449-2021.doc

have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby."

(emphasis supplied)

23. The aforesaid pronouncement was followed with approval by

the Supreme Court in the case of Vijay Choudhary (supra), wherein

the law on the aspect of the twin conditions under Section 45 of the

PMLA was enunciated as under :

"400. 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 2002 Act. While dealing with a similar provision prescribing twin conditions in MCOCA, this Court in Ranjitsingh Sharma (supra) held as under :

44......

45.....

46..... (extracted above).

401. We are in agreement with the observations made by the Court in Ranjitsing Sharma (supra). The Court while dealing with the application for grant of bail need not delve deep into the merits of the case and only a view of the Court based on available material on record is required. The Court will not weight the evidence to find the guilt of the accused which is, of course, the work of trial Court. The Court is only required to place its view based on probability on the basis of reasonable material collected during investigation and the said view will not be taken into

Vishal Parekar. ...13 ba-4449-2021.doc

consideration by the Trial Court in recording its finding of the guilt or acquittal during trial which is based on the evidence adduced during the trial. As explained by this Court in Nimmagadda Prasad 4, the words used in Setion 45 of the 2002 Act are "reasonable grounds for believing" which means the Court has to see only if there is a genuine case against the accused and the prosecution is not required to prove the charge beyond reasonable doubt."

(emphasis supplied)

24. The aforesaid pronouncements, thus, indicate that the

statutory restrictions in the matter of grant of bail are required to

be considered reasonably. A finding that the accused is not guilty

of the offence and that he is not likely to commit an offence if

released on bail, are required to be recorded only for the purpose of

arriving at an objective finding on the strength of the material on

record to assess the entitlement for bail only. If the Court having

regard to the material brought on record is satisfied that, in all

probability, the accused may not be ultimately convicted, an order

granting bail may be passed. Conversely, it is not peremptory that

the Court must arrive at a positive finding that the Applicant has

not committed an offence under the Act. Likewise, the satisfaction

that the accused is not likely to commit an offence while on bail is

qua the offence of the kind with which the accused is charged and

not any other offence.

4   (2013) 7 SCC 466

Vishal Parekar.                                                                   ...14
                                                                  ba-4449-2021.doc

25. In the light of the aforesaid exposition of law, re-adverting to

the facts of the case, it has to be seen whether the aforesaid twin

test can be said to have been satisfied in the case at hand. Of

necessity, the allegations against the applicant and the nature of

evidence and material in respect of those allegations are required to

be evaluated with a view to arrive at a tentative finding of existence

or otherwise of reasonable grounds for believing that the applicant

is not guilty of the offence and the reasonable prospect of the

applicant not likely to commit an identical offence in the event of

his release on bail.

26. As noted above, the allegations against the applicant are in

two parts. First, the applicant was instrumental in passing on

instructions of Mr. Anil Deshmukh to Sachin Waze with regard to

extortion of money from Orchestra Bar owners, and supervising

and monitoring the collection of money. Second, the applicant had

also a role in the transfer and posting of police officers/ officials, and

indulged in the laundering of money generated thereby.

27. On the first count, the prosecution primarily banked upon

the statements of Sachin Waze, Sanjay Patil, Raju Bhujbal, Mahesh

Shetty and Rameshwar Yadav and other Bar owners.

Vishal Parekar.                                                            ...15
                                                              ba-4449-2021.doc

28. Mr. Sachin Waze, in his fist statement recorded on 19 th June,

2021 stated that in the month of October, 2020 Mr. Anil Deshmukh

had asked him to collect Rs. 3 lakh from each of the Bar and

Restaurants in the presence of one Mr. Karunakar Shetty, who had

given him a list of 1750 Bars and Restaurants. On the instruction of

Mr. Anil Deshmukh, Mr. Sachin Waze claimed to have held meetings

with the Orchestra Bar owners in his office. In one such meeting,

held on 16th December, 2020, Mr.Sanjay Patil, ACP was also present.

Mr. Sachin Waze claimed to have collected approximately a sum of

Rs. 4.70 Crores during the months of December, 2020 to February,

2021 and handed over the same to Mr. Kundan Shinde, the then

Personal Assistant of Mr. Anil Deshmukh and another co-accused,

on the instructions of Mr. Anil Deshmukh.

29. With regard to the role of supervising and monitoring the said

exercise attributed to the applicant, the statement of Mr. Sachin

Waze recorded on 11th July, 2021 was pressed into service. Mr.

Sachin Waze asserted that he used to get calls from the applicant or

Mr. Kundan Shinde to attend the meetings at the office or residence

of Mr. Anil Deshmukh. On 24th February, 2021, after a meeting at

the residence of Mr. Anil Deshmukh about Legislative Assembly

Business was over, Mr. Anil Deshmukh asked Mr. Kundan Shinde

Vishal Parekar. ...16 ba-4449-2021.doc

and the applicant to discuss about the collection of demanded

money from 1750 Bars and Restaurants across Mumbai to achieve

the target. Thereafter, Mr. Waze, the applicant and Mr. Kundan

Shinde discussed about the possibility of increasing the collection as

desired by Mr. Anil Deshmukh.

30. The prosecution seeks to draw support to the statement of Mr.

Sachin Waze from the statements of Mr. Sanjay Patil and Raju

Bhujbal. Mr. Sanjay Patil in his statement recorded on 22 nd June,

2021 refers to a meeting which Mr. Sachin Waze had with Orchestra

Bar owners including the fact that Sachin Waze informed him that

he was collecting money from Orchestra Bar owners across Mumbai

in lieu of letting them run the Bars beyond the prescribed hours and

without restriction as to the number of performance artists. In the

month of March, 2021 also, according to Mr. Sanjay Patil, Mr.

Sachin Waze had apprised him that Mr. Anil Deshmukh had asked

him to collect Rs. 3 lakhs each from 1750 Bars and Restaurants

across Mumbai. Mr. Sanjay Patil refers to a conversation which he

and Mr. Raju Bhujbal had with the applicant on 4th March, 2021 at

the official residence of Mr. Anil Deshmukh. He states that the

applicant asked them as to whether collection of Rs. 3 lakhs each

from 1750 Bars and Restaurants across Mumbai was being made.

Vishal Parekar.                                                        ...17
                                                              ba-4449-2021.doc

To which, he claimed to have replied that, the figure of 1750 Bars

and Restaurants was incorrect and no such amount was being

collected. Thereupon, the applicant replied that he knew they were

not doing any such collection and he had also known the person

who was collecting the said amount. The statement of Mr. Raju

Bhujbal proceeds on the same line.

31. It would be contextually relevant to note Mr. Param Bir Singh,

the then Commissioner of Police has also stated that Mr. Sachin

Waze had informed him about the expectation of Mr. Anil

Deshmukh of collection of Rs. 100 Crore including Rs. 40-50 Crore

from the Restaurants and Bar owners and that he had advised Mr.

Waze not to succumb to pressure and indulge in such illegal

activities. The role attributed to the applicant also finds mention in

the Whatsapp conversation which Mr. Param Bir Singh had with

Mr. Sanjay Patil.

32. Mr. Anil Singh, learned ASG submitted that in the Whatsapp

conversation, Mr. Sanjay Patil stated that the applicant had told

him that there was instruction to collect Rs. 3 lakh per

establishment from 1750 establishments in Mumbai.

Vishal Parekar.                                                        ...18
                                                                  ba-4449-2021.doc

33. At this stage, without delving into the aspect of further

explanation furnished by Mr. Sanjay Patil regarding the Whatsapp

conversation, it would be imperative to note that the reference in

the Whatsapp conversation prima facie appears to be to the

conversation which the applicant had with Mr. Sanjay Patil and Mr.

Raju Bhujbal, on 4th March, 2021.

34. I find it rather difficult to accede to the submission of Mr. Anil

Singh that the statements of Mr. Sanjay Patil and Mr. Raju Bhujbal

sustain an inference, prima facie, that the applicant had asked Mr.

Sanjay patil and Mr. Raju Bhujbal to collect a sum of Rs. 3 lakhs per

month from 1750 Bars and Restaurants in the said meeting dated

4th March, 2021. Those statements, at best, indicate that the

applicant had inquired with Mr. Sanjay Patil as to whether the said

amount was being collected from Bars and Restaurants. The

statements of Mr. Sanjay patil and Mr. Raju Bhujbal, even if taken at

par, do not bear the weight of accusation that the applicant was

instrumental in either directing the police officers to extort money

from the Orchestra Bar owners or supervising and monitoring the

said exercise.

35. As regards the statement of Mr. Sachin Waze, it is pertinent

Vishal Parekar. ...19 ba-4449-2021.doc

to note, Mr. Sachin Waze does not attribute any role to the applicant

in the first meeting wherein Mr. Anil Deshmukh allegedly

instructed him to collect money from the Orchestra Bar owners and

Restaurants. The applicant came in the frame in the meeting dated

24th February, 2021 which Mr. Sachin Waze allegedly had with Mr.

Anil Deshmukh.

36. I deem it appropriate to evaluate this aspect along with the

material on the second count of the accusation, as it turns on the

credibility of Mr. Sachin Waze.

37. In support of the allegation that the applicant was a privy to

the exercise of undue influence by Mr. Anil Deshmukh over the

transfer and posting of police officials/ officers and thereby obtained

undue advantage, the prosecution principally relies on the

statements of Mr.Sitaram Kunte, the the Additional Chief Secretary,

Mr. Param Bir Singh, the then Commissioner of Police and Member,

Police Establishment Board, and the statements of the applicant as

well as Mr. Ravi Vhatkar, the then OSD to Mr. Anil Deshmukh

recorded under section 50 of PMLA.

38. Mr. Stitaram Kunte stated Mr. Anil Deshmukh used to hand

Vishal Parekar. ...20 ba-4449-2021.doc

over an unofficial list containing suggestions in respect of certain

police officials /posts with regard to transfer and posting. At times,

on the directions of Mr. Anil Deshmukh, the applicant used to hand

over such list to him. Thereupon, Mr. Sitaram Kunte used to orally

convey those suggestions to other members of Police Establishment

Board(PEB). Post discussion, suggestions were considered and

accepted unanimously by PEB.

39. Mr. Param Bir Singh asserted that the list of police officials to

be transferred was prepared in the office of Mr. Anil Deshmukh and

handed over to Mr. Sitaram Kunte, the proceedings of the

Committee were a mere formality and the members of PEB, despite

having reservations, had to agree and sign the recommendations.

40. Mr. Ravi Vhatkar stated that Mr. Anil Deshmukh used to

have meetings and discussions with another Cabinet colleague and

finalize the names of the police officers to be posted at the given

places. Mr. Vhatkar and the applicant used to be a part of such

discussions or meetings. He was looking after the preparation of the

lists of police officers up to the rank of Inspector and below and the

applicant used to prepare the list of the officers of the rank of

Dy.S.P./ACP and above. It would be contextually relevant to note

Vishal Parekar. ...21 ba-4449-2021.doc

that the applicant in his statement recorded under section 50 of

PMLA also stated that a list for recommending the transfer of police

officials was made by Mr. Anil Deshmukh in consultation with

another Cabinet colleague.

41. Mr. Anil Singh, learned ASG, strenuously submitted that the

aforesaid statements, indicate that the applicant was very much

involved in the transfer and posting of the police officers/ officials,

as the preparation of unofficial lists for transfer and posting has

been stated to by all.

42. The pivotal question that comes to the fore is whether any

element of criminality is prima facie discernible in the aforesaid

exercise qua the applicant ?

43. To this end, the prosecution primarily relies on the

statements of Mr. Sachin Waze. In the statement dated 19 th June,

2021, Mr. Sachin Waze stated that after 3-4 days of the posting

orders being reversed in the month of July, 2020, he learned that a

sum of Rs. 40 Crore had been collected from the police officers and

out of that Rs. 20 Crores was given to Mr. Anil Deshmukh through

the applicant.

Vishal Parekar.                                                         ...22
                                                            ba-4449-2021.doc

44. In the statement, recorded on 21st June, 2021. Mr. Sachin

Waze stated that as per his knowledge, the applicant and another

officer, used to handle the dealings in connection with transfer and

posting of the police officials for Mr.Anil Deshmukh and another

Cabinet colleague, respectively. Mr. Sachin Waze stated that he

came across the said information from his other colleague but he

did not wish to name them.

45. Mr. Param Bir Singh in his statement recorded on 3rd

December, 2021 also referred to the aforesaid incident of transfer

and posting of DCPs in the month of July, 2020 and asserted that he

had heard that huge consideration was paid to Mr. Anil Deshmukh

through some intermediaries for favourable transfer and posting.

Mr. Parm Bir Singh also states about the presence of the applicant

and Mr. Ravi Vhatkar in the meetings which were held regarding

transfer and posting of the police officers/ officials.

46. The situation which thus emerges is that the allegation of

generation of proceeds of crime qua the applicant as well is sought

to be sustained on the basis of statements of Mr. Sachin Waze and

Mr. Param Bir Singh. Evidently, both the witnesses claimed to have

"learned" or "heard" that money changed hands. These statements

Vishal Parekar. ...23 ba-4449-2021.doc

ex-facie are not sturdy enough to bear the weight of the allegations

of generation of proceeds of crime out of alleged predicate offence of

exercise of undue influence over transfer and posting of police

officers/ officials. These statements ex-facie lack element of

certainty as to the source, time and place. They prima facie appear

to be hearsay. What exacerbates the situation is the statement of

Mr. Sachin Waze that he had known the sources but did not wish to

name them.

47. At best, the material on record would indicate that the

applicant was present in the meetings which Mr. Anil Deshmukh

allegedly had with another Cabinet colleague and/or with the

members of the PEB and, at times, delivered unofficial lists to

Mr.Sitaram Kunte. This material, taken at its face value, is not

sufficient to rope in the applicant for the offence of money

laundering. The capacity in which the applicant rendered the

services at the office of Mr. Anil Deshmukh cannot be lost sight of.

Inviting officers for the meetings, organizing the meetings and even

attending the meetings are parts of the usual functions which a

Private Secretary is expected to perform. No element of criminality

can be attributed either for organizing the meeting or forwarding

the lists at the instance of Mr. Anil Deshmukh.

Vishal Parekar.                                                        ...24
                                                             ba-4449-2021.doc

48. Mr. Jagtap endeavoured to impress upon the Court that the

material on record throws a serious doubt as to the identity of the

person for whom Mr. Sachin Waze allegedly collected the amount

from the Orchestra Bar owners. Attention of the Court was invited

to the statements of the Bar owners Mr. Jaya Pujari, Mr. Uday

Shetty and Mr. Mahesh Shetty recorded under section 164 of the

Code before the learned Magistrate in the predicate CBI case. In the

said statements, these witnesses stated that though they never

asked Mr. Sachin Waze who was "No. 1", for whom the amount was

being collected, the Commissioner of Police was considered to be the

"No. 1" in the police hierarchy.

49. In addition, Mr. Jagap, laid a strong emphasis on the

statement of Mr. Sanjay Patil, recorded under section 164 of the

Code in C.R. No. 71 of 2021 wherein Mr. Sanjay Patil stated that

upon being inquired as to who was 'No. 1' for whom the money was

being collected, Mr. Sachin Waze had replied that the said person

was the then Commissioner of Police.

50. Mr. Anil Singh, learned ASG, joined the issue by canvassing a

submission that it is only in one of the statements, Mr. Sanjay Patil

has referred to the then Commissioner of Police as "No. 1". The

Vishal Parekar. ...25 ba-4449-2021.doc

other statements of Mr. Sanjay Patil are consistent as regard the

person for whom Mr. Sachin Waze collected the amount from the

Orchestra Bar and Restaurant owners. It was further submitted

that the statements of Bar owners as to who was "No.1", do not

command credence.

51. The statements of Bar owners may not be of determinative

significance. However, I am not persuaded to agree with the

submission that the statement of Mr. Sanjay Patil is of no

significance. In addition to aforesaid statement under section 164 of

the Code, Mr. Sanjay Patil, in his statement before CBI in the

predicate offence under section 161 of the Code, stated that Mr.

Sachin Waze told him that the then Commissioner of Police was "No.

1" for whom the money was being collected. These statements of Mr.

Sanjay Patil are required to be appreciated in the light of the official

position Mr. Sanjay Patil then held. Being in-charge of the Social

Service Branch, the presence of Mr. Sanjay Patil in the meetings

which Mr. Sachin Waze had with the Bar owners can not be

questioned. When Mr. Sanjay Patil learnt about the alleged

collection of money from the Bar owners, it was but natural for him

to inquire with Mr. Sachin Waze as to why and for whom the money

was being allegedly collected. The disclosure at that point of time by

Vishal Parekar. ...26 ba-4449-2021.doc

Mr. Sachin Waze, which runs counter to the prosecution version,

therefore, can not be brushed aside lightly.

52. Since Mr. Sachin Waze is a co-accused, the question of

reliability of Mr. Sachin Waze to sustain the charge against the

applicant would crop up for consideration. The character in which

the statements are made by Mr. Sachin Waze and the credibility of

the accusation qua the applicant herein, in my considered view,

bear upon the exercise of discretion while considering the prayer

for bail as well. Though I am not inclined to embark upon an inquiry

into the alleged inconsistent statements made by Mr. Sachin Waze

before Justice Chandiwal Commission of Inquiry where Mr. Sachin

Waze conceded that the applicant had never made any demand of,

or communication for, money to him for any reason and disowned

the prosecution version, yet it would be extremely unsafe to place

reliance on the statements of Mr. Sachin Waze. The credentials of

Mr. Sachin Wasze as borne out by the material on record also

assume significance. In short, the prosecution version, which

heavily draws upon the statements of Mr. Sachin Waze to rope in

the applicant, appears fragile.

53. For the foregoing reasons, I am impelled to hold that there are

Vishal Parekar. ...27 ba-4449-2021.doc

reasonable grounds for believing that the applicant is not guilty of

the offence of money laundering.

54. Satisfaction as regards the second condition does not present

much difficulty. The applicant allegedly committed the offence in his

capacity as the Private Secretary of the then Home Minister. Since

the said position no longer obtains, in the absence of any

antecedents to the credit of the applicant, it can be legitimately

inferred that the applicant is not likely to commit an identical

offence if released on bail.

55. Moreover, the fact that Mr. Anil Deshmukh, at whose behest,

the offences were allegedly committed, has been ordered to be

released on bail, a fortiorari renders the claim of the applicant for

bail worthy of consideration.

56. The applicant being a public servant appears to have roots in

society. The applicant does not pose a flight risk. Apprehension on

the part of the prosecution of tampering with evidence and

threatening the witnesses can be taken care of by imposing

appropriate conditions. Resultantly, the application deserves to be

allowed.

Vishal Parekar.                                                       ...28
                                                            ba-4449-2021.doc




        Hence, the following order.



                                      ORDER

(i)     The Application stands allowed.

(ii)    The Applicant - Sanjeev Suryakant Palande be released on

bail on furnishing a P.R. bond in the sum of Rs.1 Lakh and one or

two sureties in the like amount to the satisfaction of the learned

Judge, PMLA, Mumbai.

(iii) The Applicant shall report at the Office of the Enforcement

Directorate on every Monday in between 10.00 a.m. to 12.00 noon

for a period of two months from the date of his release. Thereafter,

the Applicant shall report to the said office on every alternate

Monday from 10.00 a.m. to 12.00 noon for next four months.

(iv) The Applicant shall attend each and every date of the

proceedings before the PMLA Court, Mumbai.

(v) The Applicant shall remain within the jurisdiction of the

PMLA Court i.e. Greater Mumbai till the trial is concluded and shall

not leave the area without prior permission of the PMLA Court.

(vi) The Applicant shall surrender his passport before the PMLA

Court, if not already surrendered.

(vii) The Applicant shall not, either himself, or through any other

person, tamper with the prosecution evidence and give threats or

Vishal Parekar. ...29 ba-4449-2021.doc

inducement to any of the prosecution witnesses.

(viii) The Applicant shall not indulge in any activities similar to the

activities on the basis of which the Applicant stands prosecuted.

(ix) The Applicant shall not try to establish communication with

the co-accused or any other person involved directly or indirectly in

similar activities, through any mode of communication.

(x) The Applicant shall co-operate with the expeditious disposal

of the trial and in case the delay is caused on account of any act or

conduct of the Applicant, the bail shall be liable to be cancelled.

(xi) In the event the Applicant violates any of the aforesaid

conditions, the relief of bail granted by this Court shall be liable to

be cancelled.

(xii) After release of the Applicant on bail, he shall file an

undertaking within two weeks before the PMLA Court stating

therein that he will strictly abide by the aforesaid conditions.

(xiii) By way of abundant caution, it is clarified that the

observations made in the order are limited to the consideration of

the question of grant of bail and they shall not be construed as an

expression of opinion which bears on the merits of the matter in

this case as well as the prosecution for the predicate offences.

                                          (N. J. JAMADAR, J.)


Vishal Parekar.                                                          ...30
                                                              ba-4449-2021.doc

56. At this stage the learned counsel for respondent No. 2- ED

seeks stay to the execution and operation of this order.

57. Since the order passed by this Court in Bail Application No.

1021 of 2022 has not been interfered with by the Supreme Court,

the prayer for stay does not seem justifiable and, therefore, the oral

application for stay stands rejected.

                                              (N. J. JAMADAR, J.)




Vishal Parekar.                                                        ...31