Jharkhand High Court
Krishna Kumar Saha vs Union Of India Through Directorate Of ... on 7 December, 2023
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 8709 of 2023
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Krishna Kumar Saha, son of Dilip Kumar Saha, resident of Jampur, near
Resore More, P.O. & P.S. Barharwa, District Sahebganj, Jharkhan
.... .... .... Petitioner
Versus
Union of India through Directorate of Enforcement, represented by
Assistant Director, (PMLA), Ranchi Zonal Office, Ranchi
.... .... .... Opp. Party
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioner : Mr. S. Nagamuttu, Sr. Advocate
Mr. Devesh Ajmani, Advocate
Mr. Yash, Advocate
For the ED : Mr. Anil Kumar, ASGI
Ms. Chandana Kumari, A.C. to ASGI
Mr. Rishabh Dubey, A.C. to ASGI
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Order No.06 Dated : 07.12.2023
Heard both the sides.
2. The petitioner- Krishna Kumar Saha is in custody since 05.07.2023 in
connection with ECIR No.04 of 2022 (S) in ECIR-RNZO/03/2022 for the
offence registered under Sections 3 read with Section 4 of the Prevention of
Money Laundering Act, 2002 (in short 'PMLA Act') pending in the Court of
learned Special Judge, CBI cum PMLA at Ranchi.
PROSECUTION CASE
3. ECIR No.04 of 2022(S) in ECIR/RNZO/03/2022 dated 08.03.2022
under Section 3 read with Section 4 of PMLA Act was registered on the basis
of F.I.R. being Barharwa P.S. Case No.85/2020 under Sections 147, 149, 341,
342, 323, 379, 120B, 504 and 506 of the Indian Penal Code, 1860 against
Pankaj Mishra. As per the F.I.R the informant Shambhu Nandan Kumar, was
threatened and obstructed by accused persons from participating in tender for
Barharwa Toll. The control for Barharwa Toll was key to gain control over the
six tolls which came under this Nagar Panchayat and was connecting the
mining site and main road from where the mined items were transported to the
destined places. The object to control Barharwa toll was to eliminate the rivals
in monitoring illegal transportation of stone. Pankaj Mishra is alleged to be
king pin of illegal mining and transportation of stones from Sahebganj and
illegal activities were carried out under political and administrative patronage.
The Four F.I.Rs. which were registered against Pankaj Mishra were merged
into the existing ECIR case relating to illegal mining.
4. The illegal mining activity was not committed in silos, but under a
criminal conspiracy involving different players. Petitioner was lease holder for
mining over an area of 6.13 acres whereas inspection revealed that he had
been conducting mining much beyond the lease hold area over 12.6 acres
approximately. In the illegal mining, two labours had died in an accident
regarding which F.I.R. No.65/22-23 under Sections 279, 304A, 201 read with
Sections 120B, 34 of the IPC was registered against the petitioner and others.
5. Cash deposits and transfer from the Bank Account under his control
Rs.9,58,30,129/- in the name of petitioner was frozen.
6. It also came to light that he operated and managed several Bank
Accounts including those in the name of father-in-law, mother-in-law which
were used to launder funds by way of cash deposits total Rs.1.08 Crore which
was swiftly transferred into the Account of petitioner.
7. The Bank Accounts were also used for laundering crime proceeds of
Pankaj Mishra and on several instances payments from Krishna Kumar Shah
Account were made to Pankaj Mishra Bank Account. It has been estimated
that the petitioner was in possession of crime proceeds amounting to
Rs.17,58,18,751/- which was projected at untended.
ARGUMENT ON BEHALF OF PETITIONER
8. It is submitted by learned senior counsel on behalf of petitioner that
the petitioner is not named in the F.I.R. or in the E.C.I.R. and his name has
surfaced in the third supplementary prosecution complaint filed on behalf of
Enforcement Directorate.
9. Here, there is no material to show that proceeds of crime travelled to
this Petitioner from the other co-accused persons, rather it is said on the basis
of the statement of Pankaj Mishra (accused no.1) that he had received Rupees
Ten Lakhs from this petitioner.
10. None of the offences in Barharwa P.S. Case No.85/2020 was
scheduled offence under PMLA, except Section 120B of the Indian Penal
Code. Police, on investigation, has dropped Section 120B of the Indian Penal
Code and submitted charge sheet. Therefore, there does not exist predicate
offence and in this view of matter, there can be no offence of money
laundering against him in view of the ratio laid down in Vijay Madan Lal
Choudhary Versus Union of India Others; 2022 SCC OnLine 929 (para
467).
11. The Hon'ble Supreme Court in recent judgment Pavana Dibbur
Versus Directorate of Enforcement (Cr. Appeal No.2779 of 2023) has held
that Section 120B of the Indian Penal Code will become schedule offence only
if conspiracy alleged is of committing an offence which is otherwise a
scheduled offence. In the present case, the F.I.R. does not relate to any
schedule offence, therefore, the offence under Section 120B of the Indian
Penal Code will not be made out.
12. The F.I.R. which has been registered against this petitioner is under
Sections 279, 304A, 120B, 201 and 34 of the Indian Penal Code which is for
the accidental death of two labours and it cannot be subject matter of criminal
conspiracy to make out an offence under Section 120B of the Indian Penal
Code. Rupees Twelve Lakhs was transferred by him to the bank Account of
Pankaj Mishra as he was MLA representative of Shri Hemant Soren on
account of donations for helping the people impacted by Covid-19. Mining
beyond the lease hold area, will make out an offence under Mines and
Minerals (Development and Regulation) Act (MMDR Act) and not for Indian
Penal Code offences. The offence under MMDR Act are not schedule offence.
13. Lastly, it is submitted that the arrest of the petitioner has been made
in violation to the mandate of Section 19(1) of the Prevention of Money
Laundering Act, 2002 as he was not informed in writing about the ground of
arrest. Hon'ble Supreme Court in Pankaj Bansal Vs. Union of India, 2023
SCC OnLine SC 1244 has held that furnishing of the ground in writing was
mandatory and non-compliance will entail the arrest as illegal. It is further
argued that 'henceforth' in the judgment is retrospective in its import and has
been interpreted as such by the co-ordinate Bench of this Court in B.A.
No.7233 of 2023 (Dilip Kumar Ghosh @ Dilip Ghosh Versus Union of India
through Directorate of Enforcement) and in the judgment delivered by the
Division Bench of Punjab & Haryana High Court in the case of Roop Bansal
Vs. Union of India & Another (CWP 23005 of 2023).
ARGUMENT ON BEHALF OF E.D.
14. It is submitted that the proceeds of crime generated in the clandestine
business of illegal mining being carried out in the area under political and
administrative patronage was laundered with aid and connivance of different
operatives under the cover of bonafide business being carried out. There were
multiple F.I.Rs. relating to mining in Sahebganj and adjoining region
regarding which separate F.I.Rs. were registered under Sections 411 and 414
of the Indian Penal Code along with Sections 3, 4 & 5 of Explosive Substance
Act, 1908, which are categorized as schedule offence. After investigation,
offence under Section 120B of the Indian Penal Code was dropped, is an
evidence the political and administrative clout of those who were involved in
it. Reference is made to para 269 of Vijay Madan Lal Choudhary case (supra)
wherein it has been held by the Hon'ble Supreme Court as under:-
269. From the bare language of Section 3 of the 2002 Act, it is amply clear
that the offence of money-laundering is an independent offence regarding the
process or activity connected with the proceeds of crime which had been
derived or obtained as a result of criminal activity relating to or in relation to
a scheduled offence. The process or activity can be in any form -- be it one of
concealment, possession, acquisition, use of proceeds of crime as much as
projecting it as untainted property or claiming it to be so. Thus, involvement in
any one of such process or activity connected with the proceeds of crime
would constitute offence of money-laundering. This offence otherwise has
nothing to do with the criminal activity relating to a scheduled offence --
except the proceeds of crime derived or obtained as a result of that crime.
15. It is not necessary that present accused of money laundering also be
an accused of predicate offence. The laundering of the amount is evident from
the manner in which the amount has been channelized in the Account of
petitioner after receiving huge cash deposits in the Account of his in-laws.
16. On the plea of furnishing written ground of arrest as required under
Section 19(1) of the Prevention of Money Laundering Act, 2002, it is
submitted that the petitioner was summoned on 2 nd July, 2023 for the 7th time
by the E.D. for the purpose of investigation. In response to it, he appeared on
5th July, 2023. The arrest was made on 5th July, 2023 and on 6th July, 2023 the
petitioner was presented before the learned Special Judge for seeking custody
and in the remand application, the detailed grounds were stated.
17. There was substantial compliance with the mandate of Section 19(1)
of the Prevention of Money Laundering Act, 2002 as the object of stating the
ground is to enable the arrested person to file his bail application. The order of
remand also stated the grounds of arrest therefore, no prejudice can be pleaded
on this count.
18. With regard to the order passed in B.A. No.7233 of 2023 (Dilip
Kumar Ghosh @ Dilip Ghosh Versus Union of India through Directorate
of Enforcement), it is submitted that the order as been assailed in SLP before
the Hon'ble Supreme Court.
19. After having considered the submissions advanced on behalf of both
sides and the materials available on record, it is difficult to be persuaded by
the argument on behalf of petitioner that the mandate of directions given in
Pankaj Bansal (supra) was intended to have retrospective operation. The plain
reading of para 35 of the said order and the use of word 'henceforth', can only
mean that that direction of the Hon'ble Supreme Court was prospective and
not retrospective in nature. Furthermore, if the suggested interpretation of the
expression 'henceforth' is accepted, it will amount to review all the arrest so
far made under Section 19(1) of PMLA.
20. Be that as it may, there are factors from which an inference can be
drawn that rigors of Section 45 PMLA Act will not apply in the present case.
The petitioner was not named in the earlier two prosecution complaints
submitted by E.D. and his name has transpired in the 3 rd supplementary
prosecution complaint. The F.I.R. which has been lodged under Sections 279
and 304A, read with Section 120B of the IPC, will have no bearing on the
present case.
Under the circumstances, the above named petitioner is directed to be
released on bail on furnishing bail bond of Rs.1,00,000/-(One Lakh) with two
sureties of the like amount each to the satisfaction of the Court below, subject
to the condition that one of the bailor shall be an income tax payee.
(Gautam Kumar Choudhary, J.)
Anit
