Marath Sashidharan vs Directorate Of Enforcement And ...
2022 Latest Caselaw 1803 Bom

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     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CRIMINAL APPELLATE JURISDICTION

      CRIMINAL BAIL APPLICATION NO.1046 OF 2021

Marath Sashidharan                             ....Applicant
            Versus
Directorate of Enforcement
and another                                    .... Respondents
                              -----
Mr. Kushal Mor, Advocate a/w. Kunal Bilaney, Ms Miloni Gala
i/b. Dhiren H Shah, for the Applicant.

Mr. Anil Singh, ASG, a/w. Aditya Thakkar, Shreeram Shirsat,
Pranav Thakur, Ms. Smita Thakur, for Respondent No.1-ED.

Smt. A.A. Takalkar, APP for the Respondent-State.
                              -----

                             CORAM :SARANG V. KOTWAL, J.

                  RESERVED ON  : 17th February, 2022
                  PRONOUNCED ON: 23rd February, 2022

ORDER :

1. The applicant has preferred this application for his

release on bail in connection with Special Case No.1124/2020

pending before the Designated Court for the Prevention of

Money Laundering Act, 2002 (for short, 'PMLA'), Mumbai

arising out of ECIR/MBZ0-I/40/2020 registered by respondent

No.1 the Directorate of Enforcement (for short, 'ED').

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2. Heard Shri Kushal Mor, learned counsel for the

applicant and Shri Anil Singh, learned Additional Solicitor

General for the Respondent-ED.

3. On 15.10.2020, one Ramesh Iyer filed a complaint

before the Metropolitan Magistrate, 16th Court, Ballard Pier,

Mumbai vide Court Case No.39/Misc/2020 against eight

accused including the present applicant. In that complaint,

the learned Magistrate had passed an order under Section

156(3) of the Code of Criminal Procedure, 1973 (for short,

'Cr.P.C.') and had directed the Yellow Gate Police Station to

investigate into those allegations. Pursuant to that order, the

FIR vide MECR No.3/2020 was lodged at Yellow Gate police

station, Mumbai on 28.10.2020 for commission of offence

punishable under Sections 420, 406, 465, 467, 468, 471 and

120-B of IPC. The proforma mentions that the period of the

offence was between the year 2008 to year 2020.

4. In respect of the allegations in the FIR, the

respondent No.1 registered their Enforcement Case

Information Report (ECIR) No.ECIR/MBZO-I/40/2020 on

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31.10.2020, as according to respondent No.1 prima facie a

case for offence of money laundering under Section 3 of the

PMLA was made out. The applicant was shown as accused

No.8 in that ECIR.

5. The investigation was conducted by respondent

No.1 and that culminated into filing of the complaint on

19.12.2020 before the Designated Court for the PMLA, Greater

Mumbai. The complaint was filed against five accused. The

applicant was shown as accused No.3. The other accused

were Rahul Nanda, Rasshi Nanda, Amit Chandole and M/s.

Topsgrup Services & Solutions Limited.

6. The allegations in the complaint are as follows :

i. In paragraph No.2 of the complaint the allegations in

the FIR were mentioned.

ii. The result of the investigation under PMLA was

mentioned from paragraph-3 onwards. The averments

in the complaint are based on various statements of

different witnesses, including some of the accused,

recorded under Section 50 of the PMLA. Some of the

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main allegations are that, in the year 2014, a contract

was signed by M/s. Topsgrup Services and Solutions

Limited with Mumbai Metropolitan Region

Development Authority (for short, 'MMRDA'). There

were about 350 to 500 guards to be deployed at

MMRDA sites on a monthly basis. Only 70% of the

guards were actually deployed but the billing was done

for full number of guards which were to be deployed.

The MMRDA was submitted bills for many more guards.

Those many guards were not actually deployed. Thus,

there was undue monetary advantage gained by the

Topsgrup. Out of this illegal profit, 50% of the profit

was given to the accused Amit Chandole, in addition to

commission of Rs.50,000/- per month and Rs.500/- per

guard which was paid to him. As per the details

provided by Ramesh Iyer; from May 2017 till June

2020, Rs.2.36 Crores were shared as a commission. Out

of that Rs.90 Lakhs were paid through bank transfers to

Amit Chandole and one Sanket More. Since 2014 the

commission of Rs.7 Crores was paid to Amit Chandole.

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Those amounts were paid through Topsgrup's bank

accounts.

iii. There are allegations that the accused Rahul Nanda,

Rasshi Nanda and their associates siphoned off huge

amount of money from Topsgrup for their personal

benefits and they had purchased immovable properties

in U.K. and other parts of the world from the proceeds

of crime so generated. There are allegations of

diversion of funds to overseas jurisdictions in the guise

of acquisitions, diversions of loans from India,

misutilization of Government schemes etc..

iv. According to one Neeraj Bijlani, a profit sharing sheet

was prepared by the Finance Department of the

company on the basis of which the profit acquired

through deploying less number of guards was shared

between M/s. Tops Security Limited and one Pratap

Sarnaik equally. Amit Chandole was a close confidant

of Pratap Sarnaik. Amit Chandole used to coordinate

for the same and used to collect the profit shared on

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behalf of Pratap Sarnaik.

v. It is alleged that the applicant tried to mislead the

investigation by stating that Rahul Nanda was unaware

of the arrangement with Amit Chandole; though the

investigation revealed that the applicant was apprising

Rahul Nanda regarding the same. It is alleged that the

applicant accepted that he had spoken to Amit Chandole

about making pay off to a person from MMRDA for

releasing the payment and removing Topsgrup Company

from the blacklist.

vi. In paragraph-6.2 of the complaint, the details of the

amounts given to Amit Chandole are mentioned. From

the year 2017 onwards he was paid Rs.2,36,18,865/- in

cash which was calculated as 50% of the profitability of

the MMRDA contract. The profitability was calculated

on the basis of short deployment, underpaid overtime

and commissions. Mr. Amit Chandole was paid also

through NEFT and that amount was mentioned as

Rs.56,92,446/-.

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vii. In paragraph-8.4 of the complaint, the role played by

the applicant is described. According to this complaint,

the applicant had a complete knowledge of under

deployment of guards at MMRDA sites. He directed the

employees working under him to manipulate the

profitability sheet. He had accepted that he had spoken

to Amit Chandole about making payoff to a person from

MMRDA for releasing the payment and preventing the

company from being blacklisted by MMRDA. There are

allegations that the applicant assisted Rasshi Nanda to

destroy the electronic evidences by deleting the emails

and other documents. He was in complete knowledge of

and assisted Ayush Pasari in establishing a new

company by the name "Tops Force" and the existing

clients of Tops Security were diverted to this entity

controlled by Ayush Pasari, namely, Tops Force. This

was done to avoid payments of statutory dues that had

accumulated in Tops Security. Thus, the applicant had

assisted the activity of money laundering as defined

under Section 3 of the PMLA.

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Thus, the thrust of the allegations against the

present applicant are in respect of the contract with

MMRDA. Inflated number of guards who were actually

not employed were billed to the MMRDA. The money

was illegally obtained. Some profit sharing accounts

were made and the money was paid to the persons who

were neither connected with the Topsgrup nor with the

MMRDA. In this way, he assisted them in laundering the

money obtained illegally.

7. Submissions of learned counsel for the applicant :

(i) Learned counsel for the applicant submitted that the

applicant was much lower in the hierarchy of the

management. He did not have decision making power

regarding the tenders. He was not concerned with

entering into the contract with the MMRDA. The applicant

was working with the company since 1979 and had

studied only upto the matriculation.

(ii) On 15.9.2020, the applicant had given a written complaint

to Khar police station at the behest of Rahul Nanda and,

therefore, to seek revenge against him, the first informant

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Ramesh Iyer has falsely implicated the present applicant.

The informant Ramesh Iyer himself was occupying a very

high position and all the decisions were taken by Ramesh

Iyer and Rahul Nanda.

(iii) According to Ramesh Iyer, the illegalities were committed

by these companies and he had knowledge about those for

many years. His silence over all these years is unexplained.

(iv) The contents of ECIR are almost similar to the registered

FIR i.e. MECR No.3/2020 registered at Yellow Gate police

station, Mumbai; and there was no special reason to

invoke PMLA. Ramesh Iyer was terminated vide letter

dated 15.10.2020 and, therefore, immediately he had

lodged complaint against the company. That termination

letter was issued under the signature of the present

applicant and, therefore, the applicant is also roped in as

an accused.

(v) The money trail analysis mentioned in paragraph-6 of the

complaint shows that the money has gone to Rahul Nanda

and his relatives. No money is received illegally by the

applicant himself. No amount has come to him. He is not

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the beneficiary. As per the allegations, the profitability

sheet was manipulated for the purpose of profit sharing

with Amit Chandole, but, it was an internal sheet of

Topsgrup. It was neither submitted to MMRDA nor to any

of the authorities. There is nothing to show that the

applicant had destroyed any evidence.

(vi) Even as per the statement of Neeraj Bijlani, only the final

process in respect of MMRDA tender was completed by the

present applicant. And, therefore, he had no connection

with the decision to enter into contract or to gain and

share the illegal profit by deploying lesser number of

guards.

(vii) None from the MMRDA is an accused. The contract was

dated 20.5.2014 and at that time the applicant was only a

Zonal Director. The informant Ramesh Iyer himself was

controlling the company.

(viii) Neeraj Bijlani and Amit Chandole have stated that the

contract was negotiated by the informant Ramesh Iyer and

Rahul Nanda. The applicant, at the highest, could only

execute the contract. He could not have had any mens rea.

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The applicant himself was not paid his salary since

October, 2019. He is not one of the beneficiaries.

(ix) Learned counsel referred to statements of Anand Kori,

Dilesh Thaval, Raju Pandey and Rajesh Singh. According

to learned counsel; these statements, as far as the

applicant is concerned, are not incriminating. At the

highest, it can be seen that there were many others who

had allegedly made false entries, but, none of them is

made as an accused. The present applicant is unfairly

singled out as an accused in the entire case.

(x) The statements of MMRDA officials are not recorded. In

fact there is nothing to show that the guards were actually

supplied short in numbers than what was claimed before

the MMRDA.

(xi) The EOW has filed 'C-summary' report in the predicate

offence; and it is also an important consideration.

(xii) The applicant is in custody for a long period of time. The

maximum punishment, which could be awarded is seven

years. The applicant is ready and willing to deposit his

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passport. He is not a flight risk. He is 71 years of age. He

is suffering from high cholesterol and diabetes. The trial

will take a long time to commence and, therefore, bail be

granted to him.

8. Submissions of learned ASG on behalf of respondent No.1-ED :

Learned ASG opposed this application. He made following submissions :

(i) The Topsgrup Company deliberately supplied less number

of guards. However the entire money, for the number of

guards which is subject matter of the contract, was taken

from MMRDA. This extra amount was shared as illegal

profit by the Topsgrup and by other accused who were

neither connected with MMRDA nor with the Topsgrup

Company.

(ii) The applicant was occupying a high position of Managing

Director and was aware of the under deployment and

over-charging.

(iii) The false accounts were prepared under his instructions.

     (iv)    The applicant was aware that the money was shared by

             Amit Chandole, Sanket More and Rahul Nanda.                  The



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illegally acquired money was diverted to foreign countries

to benefit Rahul Nanda.

(v) Learned ASG referred to the applicant's statement, the

statement of Amar Panghal and the four statements

referred to by learned counsel Shri Mor.

(vi) The money earned illegally in this case would fall within

the definition of the 'proceeds of crime' provided under

Section 2(1)(u) of the PMLA.

(vii) The applicant's act also falls within the meaning of

"money-laundering" as provided under Section 3 of the

PMLA.

(viii) There are restrictions to release the applicant on bail in

view of the conditions laid down under Section 45(1) of

the PMLA. A Division Bench of this Court in the case of

Ajay Kumar Vs. Directorate of Enforcement1 has held that

the twin conditions mentioned in Section 45(1) of the

PMLA would revive and operate by virtue of Amendment

Act which which is on date in force. In view of these twin

conditions and the judgment of the Division Bench, the

1 2022 SCC OnLine Bom 196

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applicant cannot be granted bail.

(ix) He submitted that the trial of the applicant and his co-

accused who is already arrested can be separated from

other accused who are not yet arrested. The investigating

agency i.e. respondent No.1 will cooperate for expeditious

disposal of the trial, as the applicant is already in custody

since 7.12.2020 and since he is 71 years of age.

Reasons :

9. Broadly speaking the case of the applicant is that

he was aware that the MMRDA was given bills by

manipulating the real figures and projecting higher number of

guards deployed than the actual number of guards who were

deployed. After receiving the full amount for higher number

of guards, the illegal profit was shared by the Topsgrup and

other persons, including the accused Amit Chandole, who

were not connected with MMRDA or the Topsgrup Company.

The profit shared by the Topsgrup was used in diverting the

funds to foreign countries and for personal use of the co-

accused Rahul Nanda and accused No.2 Rasshi Nanda.

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10. Learned counsel for the applicant as well as

learned ASG referred to the statements of certain witnesses in

that regard.

11. Anand Kori was one such witness. He had joined

M/s. Tops Securities Limited in May 2008 as a Senior

Accountant. He has stated that he used to prepare a Gross

Operative Margin [GOM] sheets (profitability sheets) in

respect of the clients. He has specifically stated that, in

respect of the contract of MMRDA, the applicant used to

instruct him to prepare the GOM sheets. The percentage of

profit was very high, but, the applicant used to instruct to keep

the profit margin very low to about 20%. This witness

accordingly used to adjust wages, statistics and other

parameters by inflating the wages paid to keep the profitability

low. 50% of the profitability was paid to Amit Chandole in the

name and under the head of "Admin expenses". However, to

keep the payment to Amit Chandole low, the profitability was

adjusted to 20% on average. The actual profitability was very

high. The applicant has told this witness to meet Amit

Chandole as Amit Chandole was complaining of wrong

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calculations of GOM (profitability). As per the instructions of

the applicant, this witness along with other witness Raju

Pandey had met Amit Chandole and had explained the

working sheet of GOM to him. Amit Chandole was convinced

by that.

This statement shows that the accounts were

manipulated under the instructions of the present applicant.

The profitability shared with Amit Chandole was also

manipulated to keep higher amount with Tops Securities Ltd.

The funds were immediately used for the benefit of other

above mentioned accused. The applicant was not only fully

aware of the illegal profit, but, he was directly responsible for

instructing this witness to manipulate the accounts. Though,

this statement of account has not gone to MMRDA, the receipt

of money from MMRDA was used in preparing the accounts to

share that illegal profit with Amit Chandole. Therefore, the

applicant not only was aware of the illegal manipulation of the

accounts, but, he was instrumental in actual manipulation.

12. The next witness in that behalf is Dilesh Thawai.

He had joined M/s. Tops Detective and Security Services

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Limited as a guard and got promotions intermittently. He had

left the company but then he had again joined the company as

a Branch Head of Konkan; and in the year 2018 he was

promoted as Deputy Regional Head, Mumbai and was posted

at Sakinaka office. He has stated that MMRDA contract was

assigned to Raju Pandey, who was handling the entire business

including billing wages. Raju Pandey was specially selected by

the present applicant to handle the entire working in MMRDA

contract. This witness has stated that around Rs.9 Lakhs in

cash were withdrawn in this connection. Rs.6 Lakhs was given

to Amit Chandole and around Rs.3,30,000/- was given to

MMRDA officers.

This witness has also stated about the role of the

applicant; as he was using Raju Pandey to prepare false

accounts.

13. In this background, the statement of Raju Pandey

assumes importance. He was working with Tops Security as a

Security Guard since 2006 and then he was promoted. Since

2012 he was promoted to Deputy Manager. He has thrown

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further light on the modus operandi. He has stated that the

contract with MMRDA was for three shifts of eight hours each,

but in practice, guards were deployed in two shifts for twelve

hours each. No over-time was paid to those guards for extra

four hours. There was always short supply of the number of

guards. When 270 guards were required, only 120 to 125

guards were deployed. When 170 guards were required, only

60 to 65 guards were deployed. But the bills were always sent

for supply of full number of guards irrespective of short

deployment. Payment for full supply was released from

MMRDA. The applicant had told this witness that Amit

Chandole was an important person and friend of the

company's owner Rahul Nanda. The issues/tensions with

MMRDA payments used to be sorted out by Amit Chandole

and that the applicant used to directly contact the co-accused

Amit Chandole. Once Amit Chandole had raised the issue that

he was receiving less amount, the applicant had told this

witness to meet Amit Chandole to resolve the issue.

Thereafter Amit Chandole was explained the calculations

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14. The next witness is Rajesh Singh. He was working

with the company since 2009 and was promoted to the post of

Operations Manager in 2016. He has stated that the applicant

had orally instructed him to keep a short supply of more than

30% in guard deployment on MMRDA sites. This was in turn

instructed by this witness to Raju Pandey. This witness has

also spoken about how the documents were maintained by

Raju Pandey on the directions of the applicant.

Learned counsel for the applicant submitted that

besides the applicant, there were other officers as well who

were asking the subordinates to maintain false entries. They

were not made accused and the applicant is unfairly singled

out. This argument has no substance because the applicant's

role is specifically spelt out by these witnesses in manipulating

accounts and earning higher illegal profits for the company.

15. Besides the statements of these four witnesses,

learned ASG also referred to the statements of the applicant

himself and one Amar Panghal. The applicant has referred to

the WhatsApp Group namely "Senior Management Group" and

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from the conversation shown to him during investigation;

according to the applicant, Rahul Nanda was aware of all this

and was part of the scheme.

16. Amar Panghal had joined the Topsgrup from 2008

and in 2016, he was the Finance Director. He had noticed

several irregularities due to misappropriation of funds,

mismanagement and siphoning off of funds from the company

by Rahul Nanda for his personal use and for use of his family.

He has stated that under the instructions of Rahul Nanda, the

accounts department kept on transferring the funds on-line.

He has named the applicant along with others who were

instrumental in transferring the funds. He has also referred to

MMRDA contract and has stated that, in that connection huge

amounts were withdrawn from the Topsgrup bank accounts

and were given to the ex-CEO Niraj Bijlani. He has referred to

Sanket More and Amit Chandole who were sharing 50% of the

profits.

17. All these witnesses have referred to the applicant's

role and his active involvement.

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18. Section 2(1)(u) of PMLA defines 'proceeds of

crime' as follows:

"2. Definitions. (1) In this Act, unless the context otherwise requires.--

xxxx xxxx (u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country or abroad;

Explanation.-- For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may directly or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence;"

19. Section 3 of PMLA defines 'offence of money-

laundering' as follows :

"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

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and projecting or claiming it as untainted property shall be guilty of offence of money- laundering.

Explanation.--For the removal of doubts, it is hereby clarified that,--

(i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:--

(a) concealment; or

(b) possession; or

(c) acquisition; or

(d) use; or

(e) projecting as untainted property; or

(f) claiming as untainted property, in any manner whatsoever;

(ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever."

20. Thus, firstly the higher amount received illegally

from MMRDA would be covered by the definition of 'proceeds

of crime'. The predicate offences are covered under the

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schedule of the Act i.e. under Sections 420, 406, 465, 467,

468, 471 and 120-B of IPC.

21. The definition of "offence of money laundering"

also mentions that the accused who 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, or possession, or acquisition, or use, or

projecting or claiming it as untainted property, is said to have

committed the offence. In this case, the proceeds of crime

were received from MMRDA. It was projected as if it was

legally acquired and then it was utilized for the personal

benefits of Rahul Nanda and his family. Thus, his act clearly

falls within the definition of 'offence of money laundering'.

The material shows that the applicant had done it knowingly.

22. The relevant provision for restrictions on granting

bail under the PMLA are under sub-section (1) of Section 45,

which reads thus :

"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

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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:

                    xxxxx
                    xxxxx"                                         "

23. These particular provisions were specifically

considered by a Division Bench of this Court in the case of

Ajay Kumar (supra). The judgment was delivered specifically

on a reference made by a learned Single Judge considering

divergent views expressed by other Single Judges of this Court

and ultimately, in conclusion, it was held thus :

"51. We may reiterate that the reference arose out of statutory jurisdiction and not constitutional jurisdiction of this Court. Unless there is proper challenge and pleadings, the issue of constitutional validity cannot be undertaken. Undoubtedly, the Legislature has power and competence to amend the provisions of the Act. Unless the amended provision is struck down by the Courts, it cannot be watered down. Since after the amendment the entire complexion of

24 of 30 : 25 : ba-1046-21.odt

section 45 has been changed, we are not in agreement with the contention that the entire section has to be re-enacted by way of amendment after decision in the case of Nikesh T. Shah Vs. Union of India, (2018) 11 SCC 1. Therefore, in our opinion, the twin conditions would revive and operate by virtue of Amendment Act, which is on date in force. In view of that, we answer the reference by stating that the twin conditions in section 45(1) of the 2002 Act, which was declared unconstitutional by the judgment of the Apex Court in Nikesh T. Shah Vs. Union of India, (2018) 11 SCC 1, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018."

Therefore it is necessary to record the satisfaction

as required under those twin conditions for grant of bail and

unless such satisfaction is recorded, bail cannot be granted.

24. In this connection, reference can also be made to

the decision of Hon'ble Supreme Court in the case of

Ranjitsing Brahmajeetsing Sharma Vs. State of Maharashtra

and another2, wherein in a similar provision under the

Maharashtra Control of Organized Crime Act, 1999, the

Hon'ble Supreme Court had observed as to what should be the

2 (2005) 5 SCC 294

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approach of the Court in dealing with these twin conditions.

The relevant paragraphs in that judgment are paragraphs-45

and 46, which read thus :

"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 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."

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25. In light of the above legal principles, I have

considered the prayer for bail from that perspective. Taking

into account the above discussion on merits, it is not possible

to record a satisfaction that there are reasonable grounds to

believe that the applicant is not guilty of such offence.

Therefore, the first of the twin conditions is not satisfied and,

therefore, the applicant cannot be granted bail. In this case

there is sufficient material against the applicant to show that

he has committed offence under PMLA. However, this

observation is made as is mentioned in Ranjitsingh Sharma's

case (supra) only for the purpose of deciding this bail

application. Ordinarily the applicant's age, long period spent

as an undertrial, absence of material to show that he is a

beneficiary and maximum sentence being seven years; would

have been relevant considerations for granting bail, but,

because of the restrictions imposed by the twin conditions,

these factors cannot be considered in favour of the applicant.

26. Having said that the applicant cannot be kept in

custody for inordinate long time. The applicant is 71 years of

age and since 7.2.2021 he is in custody.

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27. Learned ASG submitted that the trial of the

arrested accused can be separated from the accused who are

not arrested as of today. According to learned ASG, if any such

application is made by either of the parties, the respondent

No.1's stand would be that the trial can be separated. He

further submitted that once the trial is separated, the trial can

be directed to be concluded expeditiously and even in a time

bound manner.

28. Learned counsel for the applicant Shri Mor

submitted that in view of Section 44(1)Explanation (ii), the

trial cannot be separated. Said explanation reads thus:

"44. Offences triable by Special Courts.--

(1) xxxx Explanation.- for the removal of doubts, it is clarified that,--

(i) xxxx

(ii) the complaint shall be deemed to include any subsequent complaint in respect of further investigation that may be conducted to bring any further evidence, oral or documentary, against any accused person involved in respect of the offence, for which complaint has already been filed, whether named in the original complaint or not."

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29. I do not see how this explanation supports Shri

Mor's submission. It would be beyond logic, reason and

propriety that the arrested accused would have to remain in

jail as an under-trial prisoner till all the absconding accused

are arrested, though he cannot be granted bail because of the

restrictions under Section 45 of the PMLA. Said explanation

does not indicate even remotely that Shri Mor's submission in

that behalf is acceptable.

30. In view of the above discussion, the following

order is passed :

ORDER

(i) The bail application is rejected.

(ii) Either the prosecuting agency or the applicant is at

liberty to make an application before the trial court

for separation of the applicant's trial. If the trial is

separated, learned trial Judge is requested to decide

the trial expeditiously and in any case within a period

of nine months or earlier from separation of the trial.

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                                 (ii)       Learned trial Judge shall send a report of the

progress of the trial to this Court every two month's

till conclusion of the trial.

(iii) The prosecuting agency as well as the defence shall

cooperate in expeditious disposal of the trial.

(iv) The application is disposed of accordingly.

PRADIPKUMAR PRAKASHRAO DESHMANE Digitally signed by PRADIPKUMAR PRAKASHRAO DESHMANE Date: 2022.02.23 11:47:32 +0530

(SARANG V. KOTWAL, J.)

Deshmane (PS)

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