Dhiraj Sao vs Enforcement Directorate
2022 Latest Caselaw 6140 Chatt

                                       1

                                                                        NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                           MCRC No. 7468 of 2022

   • Dhiraj Sao S/o Late Bindeshwari Sao Aged About 29 Years R/o
     Village Chattu Dhanama, Post Kakan, Jamui, Bihar

                                                                ---- Applicant

                                    Versus

   • Enforcement Directorate Government Of India Through The Assistant
     Director, Raipur, Sub Zonal Office 303, A-B Block C, GST Building,
     New Dhamtari Road, Tikrapara, Raipur District Raipur, Chhattisgarh.

                                                            ---- Non-Applicant



For Applicant    : Shri BP Singh, Advocate.
For Non-Applicant : Shri Anil S. Pandey, Advocate.



                      Hon'ble Shri Deepak Kumar Tiwari, J

                               Order On Board
30/09/2022 :

   1.

The applicant has preferred this application for grant of bail as he is

arrested in connection with Crime No.ECIR/RPSZO/01/2014

registered in Police Station Enforcement Directorate, District Raipur,

for offence under Section 3 & 4 of the Prevention of Money

Laundering Act.

2. This is the 2nd bail application on behalf of the applicant. The earlier

bail application has been dismissed as withdrawn on 20.6.2022 vide

order passed in MCRC No.618/2022.

3. Prosecution case is that the applicant and other co-accused are

indulged in the offence registered under Sections417 of the IPC and

under Sections 17, 40 (1)((b) and 40(1)(c) of the Unlawful Activities

(Prevention) Act, 1967 (for short 'the Act, 1967') wherein the National

Investigation Agency investigated the matter and filed the charge

sheet before the Special Court, Raipur vide judgment dated

24.11.2021. The Enforcement Directorate (for short 'the ED') filed a

complaint case under Sections 3 & 4 of the Prevention of Money

Laundering Act, 2002 (for short 'the PMLA Act') alleging that the

applicant had received an amount of Rs.19,02,679/- from one Khalid,

a Pakistani National for carrying out different criminal activities and

deposited the same in the bank account of other co-accused, and the

applicant has received commission. The money was sent by other co-

accused to the Organizations namely, SIMI and Indian Mujahideen.

The applicant has received the proceeds of crime and claimed the

money as untainted property. So the offence of Money Laundering

Act has been made out. Based on the aforesaid allegations, a

complaint has been filed before the Special Court.

4. Learned Counsel for the applicant would submit that the applicant is

innocent and has been falsely implicated. He would further submit

that on the same set of allegations, in CRA No.456/2022, after

conviction under the main schedule of the PLMA Act and under

Section 417 of the IPC and Sections 17, 40(1)(b) and 40(1)(c) of the

Act, 1967, substantive jail sentence imposed on the applicant was

suspended and he was enlarged on bail. He would further submit that

under the main schedule offence, maximum sentence awarded to the

applicant is 10 years, out of which he has already suffered more than

8 years & 7 months and he is in jail since 25.12.2013, therefore, on

such premises, his application under Section 389 of the CrPC has

been allowed. The ED has registered the case on 30.6.2018. He

would further submit that the ED has deliberately delayed the

investigation, though other parallel investigating agency has registered

the offence in the year 2013, therefore, to harass the applicant, a

complaint has been filed in the year 2018 and the applicant was

arrested on 3.3.2020. He would also submit that under Section 4 of

the PMLA Act, the minimum punishment is prescribed as 3 years

which may extend to 7 years and the applicant has already completed

more than 2½ years, therefore, considering all the aspects of the

matter, the applicant may be released on bail.

5. On the other hand, learned counsel appearing for the ED has

vehemently opposed the bail application on submission that the

applicant has withdrawn his bail application and without any

substantial change in the circumstances, filing of successive bail

application amounts to abuse of law. He would place reliance on the

judgment in the matter of Bhunesh Vs. State of Haryana {2022

LiveLaw (PH) 151}. He would further submit that offence is serious in

nature. Considering the gravity and nature of evidence, the applicant

should not be released on bail. Placing reliance in the matter of Y.S.

Jagan Mohan Reddy Vs. Central Bureau of Investigation {(2013) 7

SCC 439}, it was argued that the economic offence constitutes a class

apart and needs to be visited with a different approach in the matter of

bail. He would rely on Section 24 of the PLMA Act to submit that the

burden is on the accused. He would further submit that if the

applicant is released on bail, then there is every possibility that the

applicant may abscond. So considering all the aspects of the matter,

the bail application be rejected.

6. Section 45 of the PLMA Act deals with grant of bail 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] shall be released on bail or on his own bond unless--]

(i) the Public Prosecutor has been given a 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 authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.

[(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in sub- section (1) is in addition to the limitations under the

Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

7. Considering the aforesaid provision and the facts and circumstances

of the case; the applicant is in custody for more than 2½ years,

particularly considering that schedule offence has been registered in

the year 2013 and the investigation in respect of other offences

commenced after the knowledge of registration of schedule offence

and the investigation started belatedly and complaint was filed after

more than 5 years, and that the schedule offence has been finished

and till so far the Special Court has not framed the charges under the

PMLA Act; for the schedule offence the applicant has been in jail for

more than 8 years and was granted bail under Section 389 of the

CrPC; as also in the matter of Alok Kumar Agrawal Vs. Directorate of

Enforcement {2021 SCC OnLine SC 556} after considering that the

applicant therein has been released on bail in the schedule offence

and that the applicant is in jail for more than 2½ years, the Hon'ble

Supreme Court has granted bail on 12th July, 2021; further considering

the nature of accusation and the evidence and that the applicant has

taken a specific defence that one unknown person has called him that

he has won the lottery and the applicant has been trapped in such a

organized crime and further considering the statement given by the

applicant under Section 50 of the PMLA Act; without further

commenting anything on the merits of the case and that trial is likely to

take considerable time, this Court is inclined to release the applicant

on bail.

8. Accordingly, the application is allowed and the applicant is directed to

be released on bail on the following conditions:-

• he shall execute a personal bond for a sum of Rs.1 lakh with one surety for the like amount to the satisfaction of the trial Court. • He shall appear before the trial Court on each and every date given by the said Court.

• He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such fact to the Court. • He shall not act in any manner which will be prejudicial to fair and expeditious trial.

• The applicant and the surety shall submit a copy of their Adhaar Card along with a coloured postcard full size photo having printed the Adhaar number on it, which shall be verified by the trial Court. • He shall not involve himself in any offence of similar nature in future.

• He shall after his release, within 15 days, furnish the details of movable and immovable properties, details of all bank accounts held by him and his family members viz. Wife & dependent children and shall not alienate the immovable property without the prior permission of the concerned trial Court.

• He shall inform about his movement outside the State to the concerned Police Station in whose jurisdiction he normally resides.

Sd/-

(Deepak Kumar Tiwari) Judge Barve