Jharkhand High Court
Irshad Akhtar vs Directorate Of Enforcement Through ... on 11 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:11567
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No.9846 of 2024
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Irshad Akhtar, aged about 45 years, son of Late Mustaffa
Hasan, resident of Millat Colony, Bariatu, P.O. and P.S.
Bariatu, District-Ranchi. ... ... Petitioner
Versus
Directorate of Enforcement through Assistant Director,
(Complainant) Ranchi Zonal Office, Ranchi P.O.-GPO,
P.S. Lower Bazar and District- Ranchi....... Opp. Party
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. R.S. Mazumdar, Sr. Advocate
: Mr. Naveen Kumar, Advocate
For the Opp. Party : Mr. Amit Kumar Das, Advocate
: Mr. Saurav Kumar, Advocate
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Order No. 04/Dated 11 April, 2025
th
Prayer
1. The instant application has been filed under Section 45 of
PMLA, 2002 read with Sections 483 and 484 of the
Bhartiya Nagarik Suraksha Sanhita, 2023 praying for
grant of regular bail in connection with ECIR Case No.06
of 2023, arising out of ECIR/RNZO/25/2023 for the
offence under Section 3 punishable under Section 4 of
Prevention of Money Laundering Act, 2002.
Factual Matrix of the Case:
2. The prosecution story in brief as per the allegation made
in the instant ECIR/complaint reads as under:
3. ECIR bearing No. RNZO/25/2023 has been recorded on
the basis of F.I.R. bearing No. 272/23 dated 01.06.2023
registered by P.S.- Sadar, Ranchi against Bhanu Pratap
Prasad, Ex- Revenue Sub Inspector, Baragain under
Sections 465/467/468/469/476/466/420/379/474 of
the Indian Penal Code. This F.I.R. was the outcome of the
information shared with Jharkhand Government under
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Section 66(2) of PLMA, 2002 which was shared in another
case bearing ECIR No. RNZO/18/2022 dated 21.10.2022.
4. In the instant investigation, the scrutiny of voluminous
property documents secreted at the premises of Bhanu
Pratap Prasad along with the seventeen original registered
revealed fresh facts and evidences about illegal activities
to acquire several other properties by a syndicate which
comprise of Md. Sadam Hussain, Afshar Ali, Bhanu
Pratap Prasad, Priya Ranjan Sahay, Bipin Singh and
others.
5. Investigation has revealed about preparation of a fake
Deed Number 3985 of the year 1940, a copy of which was
seized from the possession of Md. Saddam Hussain on
13.04.2023. This deed has been made for a property of
6.34 Acres spreads over several plots of Khata No. 234.
During the scrutiny of diaries seized from possession of
Md. Saddam Hussain, it reveals that Antu Tirkey is
involved in fraudulent sale/purchase of land under the
above said Khata No. 234. The scrutiny of Diary has also
revealed about huge cash dealing between Md. Saddam
Hussain and Antu Tirkey in relation to land of Khata No.
234 and others. The accused persons namely Md.
Saddam Hussain, Afsar Ali, Bhanu Pratap Prasad, Priya
Ranjan Sahay, Irshad Akhtar, Bipin Singh and others are
also involved in the preparation of fake Deed No. 3954 of
year 1974 and 2376 of 1940 in relation of the property,
admeasuring 4.83 Acres at Gari Mauja, Ranchi.
6. The above said land admeasuring 4.83 Acres is a portion
of 37.10 Acres land of Khata No. 53, Mouza- Gari, Ranchi.
The accused persons namely Bipin Singh and Priya
Ranjan Sahay are also involved in the forgeries with
government records in association with Afsar Ali, Bhanu
Pratap Prasad, Shekhar Kushwaha @ Mahto and others
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in tampering the original Panji-II registers to acquire the
said 4.83 Acres of land.
7. The present petitioner Md. Irshad Akhtar was
instrumental in arranging blank sheets of original
registers kept at Registrar of Assurances, Kolkata for
preparation of fake deeds.
8. Investigation has also revealed that the said applicant
Irshad Akhtar brought blank sheets from original
registers in which the Fake deeds were prepared in
respect of the above 4.83 acres property and the same
were planted in records through him.
9. It has been alleged that the present petitioner also
brought original volumes from Registrar of Assurances,
Kolkata at Hotel Peerless Inn where the registers were
tampered by Afshar Ali and Μd. Saddam Hussain. After
tampering, the said information was given to Priya Ranjan
Sahay over WhatsApp.
10. It has further been alleged that the above-named persons
are knowingly involved in the processes and activities
connected with proceeds of crime which are derived out
of illegal activities of forgery, falsification and tampering
with government records. These persons are directly a
party with one another in the activities related to
acquisition, possession and use of proceeds of crime
which are done in concealed manner and have been
projected as untainted properties.
11. Therefore, it has been stated that the above facts lead to
a reasonable belief that a very big racket is operating in
Ranchi and the abovenamed persons are a part of the said
racket. They are involved in acquiring nonsaleable landed
properties in illegal manner. Further there is a reasonable
belief that an offence under Section 3 of PMLA, 2002 has
been committed by the 4 persons namely Bipin Singh,
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Priya Ranjan Sahay, Irshad Akhtar and Anand Tirkey @
Antu Tirkey.
12. It has been alleged that the above stated persons are
actually and knowingly involved in the process and
activity connected with proceeds of crime including their
acquisition, possession and use in a concealed manner
and projecting them as untainted property, and as such
they are guilty of the offence of money laundering.
Therefore, it has been stated that the aforesaid persons
namely Priya Ranjan Sahay, Bipin Singh, Anand Tirkey @
Antu Tirkey and petitioner Irshad Akhtar are involved in
the proceeds of crime, used and generated out of the said
activities.
13. In the backdrop of the aforesaid alleged facts the present
petitioner had been taken into judicial custody on
17.04.2024 and accordingly the petitioner had preferred
the Misc. Cri. Application No.2525 of 2024 for grant of
bail but the same was dismissed vide order dated
20.09.2024 passed by the learned Spl. Judge, PMLA,
Ranchi.
14. Hence, the present petition has been preferred for the
grant of bail.
Argument on behalf of the learned senior counsel for
the petitioner:
15. The, learned senior counsel appearing on behalf of the
petitioner has taken the following grounds:
i. The petitioner is innocent and has falsely been
implicated in this case as he has committed no
offence as alleged in the prosecution complaint.
ii. Information shared u/s 66(2) by E.D. is integral part
of the F.I.R. lodged by Sadar P.S., Ranchi dated
01.06.2023underSections465/467/468/469/476/
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466/420/379/474 of I.P.C., out of which, Sections
420/467/476 are schedule offences, based upon
which, ECIR/RNZO/25/2023 has been recorded.
The ground has also been taken that the scheduled
offence in the present case are Sections 420, 467,
476 of IPC of the predicate case being Sadar P.S.
case No. 272 of 2023 and the petitioner is not an
accused of the predicate offence and in absence of
any accusation for the predicate offence, the
petitioner cannot be held guilty under the Prevention
of Money Laundering Act, 2002.
iii. The ground has also been taken that the prime
allegation in the scheduled offence is with respect to
forging of documents and there is no allegation
against the petitioner that he has forged any
document, hence, no offence under Sections 468
and 476 of IPC is made out against the petitioner.
Moreso, it has nowhere been alleged that the
petitioner had fraudulently induced any person to
deliver any property so as to attract the offence of
cheating against the petitioner.
iv. The petitioner is a shopkeeper and he was not the
custodian of key or any paper of the office of
Registrar of Assurance, Kolkata, so it is highly
improbable that he with the help of other accused
persons namely Tapas Ghosh and Sanjit Kumar,
had planted the fake deed in the said offence.
v. The ground has also been taken that the
involvement of the petitioner as per the prosecuting
agency is primarily through the angle of conspiracy,
though, Section 120-B of IPC is not incorporated in
the predicate offence which led to institution of
Sadar P.S. Case no. 272 of 2023. It has been
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contended that the petitioner was taken to judicial
custody on 17.04.2024 and since then he is
languishing in judicial custody.
16. Learned counsel for the petitioner, based upon the
aforesaid grounds, has submitted that the learned court
while considering the prayer for bail ought to have taken
into consideration all these aspects of the matter both
legal and factual but having not done so, serious error has
been committed. Hence, it is a fit case where the petitioner
is to be given the privilege of bail.
Argument on behalf of the learned counsel for the
respondent-ED:
17. While on the other hand, Mr. Amit Kumar Das, learned
counsel for the opposite party-Enforcement Directorate
has vehemently opposed the prayer for grant of regular
bail by taking the following grounds:
(i) The ground has been taken that it is incorrect on the
part of the petitioner to take the ground that the
petitioner was having no access to the original
records lying at the office of Registrar of Assurances,
Kolkata rather he was having access and has
assisted his accomplices namely, Sanjit Kumar @
Sanjeet Kumar, Tapas Ghosh and others accused
persons.
(ii) The ground has also been taken that it is incorrect
on behalf of the petitioner to take the ground that
the petitioner is not an accused of the predicate
offence and in absence of any accusation for the
predicate offence, the petitioner cannot be held
guilty under the Prevention of Money Laundering
Act, 2002 because the Hon'ble Supreme Court in the
case of Pavana Dibbur vs. Directorate of
Enforcement (Criminal Appeal No. 2779 of 2023)
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has held that it is not necessary that the accused for
the offence of money laundering to be made accused
of schedule offence as the offence of money
laundering is an independent offence.
(iii) The petitioner had access to the original records and
were involved in supplying blank pages and original
volumes from the registrar of assurances, Kolkata
and was in direct contact with co-accused persons
and provided original registers/blank pages of
original volumes for making fake deed.
(iv) So far as the ground of parity is concerned which
has been taken on behalf of the petitioner that the
co-accused person, namely, Hemant Soren who was
made accused in the original prosecution complaint,
has already been granted bail by this Court vide
order dated 28.06.2024 passed in B.A. No. 4892 of
2024, the ground is being taken that the Hon'ble
Supreme Court in Tarun Kumar vs. Enforcement
of Directorate, 2023 INSC 1006 has held that to
apply parity, individual role of the accused must be
seen and accused cannot seek bail merely because
co-accused person has been granted bail.
(v) The learned counsel contended that prayer for bail
of the co-accused persons namely Sanjit Kumar @
Sanjeet Kumar, Md. Irshad and Anand Tirkey @
Antu Tirkey, have already been rejected by this
Court vide order dated 21.03.2025 passed in B.A.
No. 7501 of 2024, B.A No. 7598 of 2024 and B.A. No.
8022 of 2024 respectively.
18. The ground has also been taken that in course of
investigation, the statement of various persons was
recorded which corroborates the role of the petitioner in
providing assistance to the accused persons.
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19. Learned counsel for the opposite party-ED, based upon
the aforesaid grounds, has submitted that since the
nature of allegation committed by the present petitioner
is serious, as such, the instant bail application is fit to be
rejected.
Analysis
20. This Court, before appreciating the argument advanced
on behalf of the parties, deems it fit and proper to discuss
herein some of the provision of law as contained under
the Act, 2002 with its object and intent.
21. The Act was enacted to address the urgent need to have a
comprehensive legislation inter alia for preventing money-
laundering, attachment of proceeds of crime, adjudication
and confiscation thereof including vesting of it in the
Central Government, setting up of agencies and
mechanisms for coordinating measures for combating
money-laundering and also to prosecute the persons
indulging in the process or activity connected with the
proceeds of crime.
22. It is evident that the Act, 2002 was enacted in order to
answer the urgent requirement to have a comprehensive
legislation inter alia for preventing money-laundering,
attachment of proceeds of crime, adjudication and
confiscation thereof for combating money-laundering and
also to prosecute the persons indulging in the process or
activity connected with the proceeds of crime.
23. The objective of the PMLA is to prevent money laundering
which has posed a serious threat not only to the financial
systems of the country but also to its integrity and
sovereignty. The offence of money laundering is a very
serious offence which is committed by an individual with
a deliberate desire and the motive to enhance his gains,
disregarding the interest of the nation and the society as
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a whole, and such offence by no stretch of imagination
can be regarded as an offence of trivial nature. The
stringent provisions have been made in the Act to combat
the menace of money laundering.
24. It needs to refer herein the definition of "proceeds of
crime" as provided under Section 2(1)(u) of the Act, 2002
which reads as under:
"2(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 3[or where such property is taken or
held outside the country, then the property equivalent in
value held within the country] 4[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;]"
25. It is evident from the aforesaid provision that "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.
26. In the explanation it has been referred that 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.
27. It is, thus, evident that the reason for giving explanation
under Section 2(1)(u) is by way of clarification to the effect
that whether as per the substantive provision of Section
2(1)(u), the property derived or obtained, directly or
indirectly, by any person as a result of criminal activity
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relating to a scheduled offence or the value of any such
property or where such property is taken or held outside
the country but by way of explanation the proceeds of
crime has been given broader implication by including
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.
28. The "property" has been defined under Section 2(1)(v)
which means any property or assets of every description,
whether corporeal or incorporeal, movable or immovable,
tangible or intangible and includes deeds and
instruments evidencing title to, or interest in, such
property or assets, wherever located.
29. The schedule has been defined under Section 2(1)(x)
which means schedule to the Prevention of Money
Laundering Act, 2002. The "scheduled offence" has been
defined under Section 2(1)(y) which reads as under:
"2(y) "scheduled offence" means-- (i) the offences specified
under Part A of the Schedule; or (ii) the offences specified
under Part B of the Schedule if the total value involved in
such offences is [one crore rupees] or more; or (iii) the
offences specified under Part C of the Schedule."
30. It is evident that the "scheduled offence" means the
offences specified under Part A of the Schedule; or the
offences specified under Part B of the Schedule if the total
value involved in such offences is [one crore rupees] or
more; or the offences specified under Part C of the
Schedule.
31. The offence of money laundering has been defined under
Section 3 of the Act, 2002 which reads as under:
"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 and
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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.]"
32. It is evident from the aforesaid provision that "offence of
money-laundering" means 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 and
projecting or claiming it as untainted property shall be
guilty of offence of money-laundering.
33. It is further evident that 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.
34. The punishment for money laundering has been provided
under Section 4 of the Act, 2002.
35. Section 50 of the Act, 2002 confers power upon the
authorities regarding summons, production of documents
and to give evidence.
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36. The various provisions of the Act, 2002 along with
interpretation of the definition of "proceeds of crime" has
been dealt with by the Hon'ble Apex Court in the case of
Vijay Madanlal Choudhary and Ors. Vs. Union of
India and Ors., (2022) SCC OnLine SC 929 wherein the
Bench comprising of Three Hon'ble Judges of the Hon'ble
Supreme Court have decided the issue by taking into
consideration the object and intent of the Act, 2002.
37. The predicate offence has been considered in the
aforesaid judgment wherein by taking into consideration
the explanation as inserted by way of Act 23 of 2019
under the definition of the "proceeds of crime" as
contained under Section 2(1)(u), whereby and
whereunder, it has been clarified for the purpose of
removal of doubts that, the "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,
meaning thereby, the words "any property which may
directly or indirectly be derived or obtained as a result of
any criminal activity relatable to the scheduled offence"
will come under the fold of the proceeds of crime.
38. So far as the purport of Section 45(1)(i)(ii) is concerned,
the aforesaid provision starts from the non-obstante
clause that notwithstanding anything contained in the
Code of Criminal Procedure, 1973, 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
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(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.
39. Sub-section (2) thereof puts limitation on granting bail
specific in sub-section (1) in addition to the limitations
under the Code of Criminal Procedure, 1973 or any other
law for the time being in force on granting of bail.
The explanation is also there as under sub-section
(2) thereof which is for the purpose of removal of doubts.
A clarification has been inserted that the expression
"Offences to be cognizable and non-bailable" shall mean
and shall be deemed to have always meant that all
offences under this Act shall be cognizable offences and
non-bailable offences notwithstanding anything to the
contrary contained in the Code of Criminal Procedure,
1973, and accordingly, the officers authorised under this
Act are empowered to arrest an accused without warrant,
subject to the fulfilment of conditions under section 19
and subject to the conditions enshrined under this
section.
40. The fact about the implication of Section 45 has been
interpreted by the Hon'ble Apex Court in Vijay Madanlal
Choudhary and Ors. Vs. Union of India and Ors.
(supra) at paragraphs-387 and 412. For ready reference,
the said paragraphs are being referred as under:
"387.............The provision post the 2018 Amendment, is in
the nature of no bail in relation to the offence of money
laundering unless the twin conditions are fulfilled. The twin
conditions are that there are reasonable grounds for
believing that the accused is not guilty of offence of money
laundering and that he is not likely to commit any offence
while on bail. Considering the purposes and objects of the
legislation in the form of the 2002 Act and the background
in which it had been enacted owing to the commitment made
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to the international bodies and on their recommendations, it
is plainly clear that it is a special legislation to deal with the
subject of money laundering activities having transnational
impact on the financial systems including sovereignty and
integrity of the countries. This is not an ordinary offence. To
deal with such serious offence, stringent measures are
provided in the 2002 Act for prevention of money laundering
and combating menace of money laundering, including for
attachment and confiscation of proceeds of crime and to
prosecute persons involved in the process or activity
connected with the proceeds of crime. In view of the gravity
of the fallout of money laundering activities having
transnational impact, a special procedural law for
prevention and regulation, including to prosecute the person
involved, has been enacted, grouping the offenders involved
in the process or activity connected with the proceeds of
crime as a separate class from ordinary criminals. The
offence of money laundering has been regarded as an
aggravated form of crime "world over". It is, therefore, a
separate class of offence requiring effective and stringent
measures to combat the menace of money laundering.
412. As a result, we have no hesitation in observing that in
whatever form the relief is couched including the nature of
proceedings, be it under Section 438 of the 1973 Code or for
that matter, by invoking the jurisdiction of the constitutional
court, the underlying principles and rigours of Section 45 of
the 2002 Act must come into play and without exception ought
to be reckoned to uphold the objectives of the 2002 Act, which
is a special legislation providing for stringent regulatory
measures for combating the menace of money laundering."
41. Subsequently, the Hon'ble Apex Court in the case of
Tarun Kumar vs. Assistant Director Directorate of
Enforcement, (2023) SCC OnLine SC 1486 by taking
into consideration the law laid down by the Larger Bench
of the Hon'ble Apex Court in Vijay Madanlal Choudhary
and Ors. Vs. Union of India and Ors. (supra), has laid
down that since the conditions specified under Section 45
are mandatory, they need to be complied with. The Court
is required to be satisfied that there are reasonable
grounds for believing that the accused is not guilty of
such offence and he is not likely to commit any offence
while on bail. It has further been observed that as per the
statutory presumption permitted under Section 24 of the
Act, the Court or the Authority is entitled to presume
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unless the contrary is proved, that in any proceedings
relating to proceeds of crime under the Act, in the case of
a person charged with the offence of money laundering
under Section 3, such proceeds of crime are involved in
money laundering. Such conditions enumerated in
Section 45 of PML Act will have to be complied with even
in respect of an application for bail made under Section
439 Cr. P.C. in view of the overriding effect given to the
PML Act over the other law for the time being in force,
under Section 71 of the PML Act.
42. The Hon'ble Apex Court in the said judgment has further
laid down that the twin conditions as to fulfil the
requirement of Section 45 of the Act, 2002 before granting
the benefit of bail is to be adhered to which has been dealt
with by the Hon'ble Apex Court in Vijay Madanlal
Choudhary and Ors. Vs. Union of India and Ors.
(supra).
43. In the judgment rendered by the Hon'ble Apex Court in
Vijay Madanlal Choudhary and Ors. Vs. Union of
India and Ors. (supra) as under paragraph 284, it has
been held that the Authority under the 2002 Act, is to
prosecute a person for offence of money-laundering only
if it has reason to believe, which is required to be recorded
in writing that the person is in possession of "proceeds of
crime". Only if that belief is further supported by tangible
and credible evidence indicative of involvement of the
person concerned in any process or activity connected
with the proceeds of crime, action under the Act can be
taken to forward for attachment and confiscation of
proceeds of crime and until vesting thereof in the Central
Government, such process initiated would be a
standalone process.
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44. So far as the issue of grant of bail under Section 45 of the
Act, 2002 is concerned, as has been referred hereinabove,
at paragraph-412 of the judgment rendered in Vijay
Madanlal Choudhary and Ors. Vs. Union of India and
Ors. (supra) it has been held therein by making
observation that whatever form the relief is couched
including the nature of proceedings, be it under Section
438 or 439 of the 1973 Code or for that matter, by
invoking the jurisdiction of the Constitutional Court, the
underlying principles and rigors of Section 45 of the 2002
must come into play and without exception ought to be
reckoned to uphold the objectives of the 2002 Act, which
is a special legislation providing for stringent regulatory
measures for combating the menace of money-
laundering.
45. The Hon'ble Apex Court in the case of Gautam Kundu vs.
Directorate of Enforcement (Prevention of Money-
Laundering Act), Government of India through Manoj
Kumar, Assistant Director, Eastern Region, (2015) 16
SCC 1 has been pleased to hold at paragraph -30 that the
conditions specified under Section 45 of PMLA are
mandatory and need to be complied with, which is further
strengthened by the provisions of Section 65 and also
Section 71 of PMLA.
46. Section 65 requires that the provisions of Cr.P.C shall
apply insofar as they are not inconsistent with the
provisions of this Act and Section 71 provides that the
provisions of PMLA shall have overriding effect
notwithstanding anything inconsistent therewith
contained in any other law for the time being in force.
PMLA has an overriding effect and the provisions of CrPC
would apply only if they are not inconsistent with the
provisions of this Act.
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47. Therefore, the conditions enumerated in Section 45 of
PMLA will have to be complied with even in respect of an
application for bail made under Section 439 CrPC. that
coupled with the provisions of Section 24 provides that
unless the contrary is proved, the authority or the Court
shall presume that proceeds of crime are involved in
money-laundering and the burden to prove that the
proceeds of crime are not involved, lies on the appellant.
48. Now adverting into fact of the instant case and the
allegation levelled against the present petitioner which
according to learned counsel for the petitioner is being
said that the same cannot be said to attract the ingredient
of Section 3 of PMLA, 2002. While on the other hand, the
learned counsel appearing for the ED has submitted by
referring to various paragraphs of prosecution complaint
that the offence is very much available attracting the
offence under the provisions of PML Act.
49. This Court, in order to appreciate the rival submission, is
of the view that various paragraphs of prosecution
complaint upon which the reliance has been placed on
behalf of both the parties, needs to be referred herein so
as to come to the conclusion as to whether the parameter
as fixed under Section 451(i)(ii) of the PML Act 2002 is
being fulfilled in order to reach to the conclusion that it is
a fit case where regular bail is to be granted or not.
50. Relevant paragraphs of prosecution complaint are
referred herein:
"Background of the information shared under section
66(2) of the PMLA. 2002 to the Chief Secretary, Govt.
of Jharkhand
9.2 In one of the investigation under ECIR/RNZO/18/2022,
conducted by the Directorate of Enforcement, searches were
conducted at several premises including the premises of
accused person namely Bhanu Pratap Prasad, Md. Saddam
Hussain, Afshar Ali and others on 13.04.2023. The search
was conducted in a matter of fraudulent acquisition of a
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defence possessed land by a group of persons on the basis
of fake deed. During searches, several incriminating
documents and original government records were recovered
and seized from the premises of Bhanu Pratap Prasad,
which were found falsified and tampered in order to acquire
as well as assist other personas to acquire landed
properties in illegal manner. Bhanu Pratap Prasad and six
other members of the above stated syndicate including
Afshar Ali and Md Saddam Hussain were arrested on
14.04.2023 under section 19 of PMLA for being involved in
the above forgeries which have resulted in the generation of
proceeds of crime.
9.3Bhanu Pratap Prasad being a government servant
(Revenue Sub-Inspector, Baragain) was part of a syndicate
that was habitually involved in illegal activities pertaining
to forgeries and tampering with government records aimed
at acquiring landed properties. As such, the information
with respect to Bhanu Pratap Prasad and the documents
seized from his possession was shared with the Chief
Secretary, Govt. of Jharkhand under section 66(2) of the
PMLA, 2002 On the basis of said information, the FIR was
lodged by the Sadar PS. The information shared under
section 66(2) of PMLA, 2002 is an integral part of the FIR
272/2023. On the basis of the FIR no: 272/2023 the ECIR:
RNZO/25/2023 was recorded for further investigation
under PMLA, 2002.
Investigation under PMLA, 2002 in ECIR:
RNZO/25/2023-
9.5 During investigation, the accused person Bhanu Pratap
Prasad was taken into remand in ECIR RNZO/18/2022 and
the seized documents and his digital devices were
scrutinized. The scrutiny of the mobile phone of Bhanu
Pratap Prasad further led to the identification of one 8.80
acres property situated at Shanti Nagar, Behind DAV
School, Bariatu, Ranchi, acquired and possessed by
Hemant Soren Another property ad measuring (4.83) acres
which were acquired by the above stated syndicate of
Bharu Pratap Prasad, Afshar Ali and others was also
identified.
9.9 As stated above, during investigation, another 4.83
acres property, situated at Cheshire Home Road, Mauja
Gart, Ranchi was also identified to be acquired by the
accused persons inducing Afshar All, Md Saddam Hussain
and others in connivance with Bhanu Pratap Prasad. Fake
deeds, diaries having hand written cash details were also
seized from possession of Md. Saddam Hussain, Imtiyaz
Ahmed (an accomplice of Afshar Ali and Saddam Hussain).
These entries contained huge cash payments including
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compensatory payment to Bhanu Pratap Prasad in relation
of the above stated 4.83-acre property.
9.17 During further investigation into the role of other
associates of Bhanu Pratap Prasad, it has surfaced that a
fake deed no. 3985/1940 has been prepared by the
accused persons Md. Saddam Hussain, Afshar Ali and
others, the copy of which was also seized from the
possession of Md. Saddam Hussain during searches dated
13.04.2023 (in ECIR/RNZO/18/2022). The scrutiny of the
said fake deed no. 3985 of year 1940 between Balka Pahan
s/o Rati Pahan (Seller) and Asgar Hussain S/o Nabu
Hussain (purchaser) reveals that the deed has been
executed for the Bhuinhari property falling under Khewat
No. 10 (the same Khewat of which, 8.86 acres property has
been in use and possession of the accused person Hemant
Soren) under Mauja Baragain at Thana no 184.----
9.19 During course of investigation, the said Md. Saddam
Hussain was taken in remand on 19.04.2024 to 20.04.
2024 and his statement was recorded. In his statement
dated 13.04 2024, he was shown deed no. 3985 of the year
1940. Book 1, Volume 80, Page no. 297 to 298, executed for
property under Mauja Baragain at Thana no. 184, Ranchi,
Khata no 234, Khewat no. 10/11 of various plots including
plot no. 989, area 0.84 acres and plot no 996, area 0.32
acres part of total area 6.34 acres, to which he admitted
that deed No 3985/1940 is a fake deed, which was made
by Afshar Ali and the same was placed in the records of the
Registrar of Assurances, Kolkata. The said fake deed was
recovered from his residence, as he was working with
Afshar Ali for disposing of the land. The involvement of Md.
Saddam Hussain in the said fake deed no. 3985 is
corroborated from the seizure of the said deed 3985 of the
year 1940 from his possession during searches conducted
on 13.04.2023 by EC IR/RNZO/18/2022)
9.20 Subsequently, the said Afshar Ali was also taken into
the custody of the Directorate of Enforcement on 16.104
2024. During his custody, he stated that deed no. 3985 of
the year 1940, registered at the Registrar of Assurances
Kolkata, related to property under Mauja Baragain at
Thana no. 184, Ranchi, Khata no 234. Khewat no 10/11,
totalling to 6.34 acres, was a fake deed. He further stated
that two other fake deeds were written while making this
fake deed 3985 of the year 1940. The pages from the
original volumes of the Registrar of Assurances, Kolkata
were provided by the Shekhar Prasad Mahto, Shekhar
Kushwaha, Md. Saddam Husain then handed over these
pages to the accused person namely Md Irshad, r/o
Hazaribagh for writing the three deeds including deed No
3985/1940. He stated to have given Rs 60.000/ to Md
Irshad for writing the deeds. The statement of Md. Irshad
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was recorded u/s 50 of P'MLA, 2002 on 24.04 2024 in
which he admitted to have written the above stated deed
and further acknowledged his hand writing in which the
said deed was written.
9:35 Investigation reveals that the syndicate used to
identify vacant land parcels in Ranchi, where no activity
was done. In addition to this the accused persons namely
Afshar Ali, Priya Ranjan Sahay and others largely targeted
tribal lands whose sale purchase were restricted under CNT
Act. Then they used to make antedated fake deeds either to
change the nature of the property (making them general
lands) or to create fictitious owners. Later with the
assistance of officials of circle offices, the original records
were falsified so that the land could be acquired by them.
In addition, the above 8.86 acres of property as discussed
above, the accused persons namely Md. Saddam Hussain,
Afshar Ali. Priya Ranjan Sahay and others are involved
with Bhanu Pratap Prasad in forgery with respect to
property admeasuring 4.83 acres situated at Mauja Gari,
Khata no. 53, at Plot No. 31 32,33,35, 36, 38, 72 and 73,
Baragain Anchal, Ranchi. The Land was identified by Priya
Ranjan Sahay, Md. Saddam Hussain, Shekhar Kushwaha
and Bipin Singh. For this property, two take deeds, deed no.
2376 of the year 1940 and other 3954 of the year 1974
were prepared by Saddam Hussain, Md. Afshar Ali end
others. Deed no 2376 of 1940 was written by Makbul
Ansari and the deed no. 3954 of 1974 was written by Md.
Alauddin, by the involvement of the accused Md. Irshad,
who used to work with Makbul Ansari and Md Alauddin.
The said Makbul Ansari and Md. Alauddin are now
deceased. This fact has been admitted by the accused
person Md. Irsad in his statement dated 24.04.2024
recorded u/s 50 of PMLA, 2002.
9.38 Investigation reveals that the blank page for
writing the said deed was arranged by accused person
Irshad Akhtar. The said accused person Irshad
Akhtar arranged the blank pages with the assistance
of the accused persons namely Tapas Ghosh, a deed
searcher and Sanjeet Kumar, a contractual staff,
both working at the office of the Registrar of
Assurance, Kolkata. After the fake deed was written
on blank page, the same was again planted in the
records of Registrar of Assurances, Kolkata by the
accused persons namely Irshad Akhtar, Sanjit Kumar
and Tapas Ghosh. In addition to preparation of fake
deed no 3954/1974, the accused persons namely
Bipin Singh, Bhanu Pratap Prasad, Afshar Al, Md.
Irshad and others in connivance with each other
entered the property admeasuring 4.83 acres in the
name of Samrendra Chandra Ghoshal in page no. 139
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of register II. volume I. The accused persons namely Bipin
Singh, Bhanu Pratap Prasad, Md. Irshad and others have
admitted this fact during their statement. The accused
person Md. Irshad did the entry in his own handwriting on
page 139 of the register II. volume 1 The work of entering
the name of Sammendra Chandra Ghoshal was done at the
residence of the accused person. Md. Saddam Hussain and
for this work. Re 5 lakhs was paid to Bhanu Pratap Prasad
through the accused person Bipin Singh. In his statement
dated 24.04 3024 recorded u/s 50 of PMLA, 2002, the
accused person Md. Irshad admitted to have written a
correction slip related to the property situated at Cheshire
Home Road, Khata no 53, covering an area of 4.83 acres in
the name of Samrendra Chandra Ghoshal in connivance
with Saddam Hussain. The said correction slip was
recovered from the residence of Mid Saddam Hussain
during search dated 13.04.2023 in ECIR-RNZO/18/2022
which has been discussed above. The accused person Md.
Irshad also acknowledged his handwriting on the said
correction slip. In addition to the above stated correction
slip, on 13.04.2023, pages of register II related to Khata no
53 in the name of Samrendra Chandra Ghoshal were also
recovered. The accused person Md. Irshad also admitted to
have made the said entries in Register II. The bank
account scrutiny of the accused persons namely
Sanjit Kumar, Tapas Ghosh, Md. Irshad, and Irshad
Akhtar reveals interconnected transactions amongst
the said persons. In addition to this frequent cash
deposits made into their bank accounts during the
period of commission of offence has also been
identified. These cash deposits and bank account
transactions corroborate the link between the
accused persons and also establish the receipt of
proceeds of crime in cash, out of which, some portion
has been deposited by them in their bank accounts. -
9.41 The accused person Afshar Ali also admitted that
another deed no 2376/1940 was prepared by him in
relation to a part of land admeasuring 2.83 acres out
of the 4.83 acres of the above stated land. The blank
page for this deed was obtained with the assistance
of the accused person Irshad Akhtar, Sanjit Kumar
and Tapas Ghosh.
9.42 Investigation reveals that when the fake deed no. 3954
of 1974 was prepared by Afshar Ali and others in relation
to property ad measuring 4.83 acres, they missed to enter
Plot no. 32 out of the several plots of 4.83 acres. It is
revealed that in the month of May, 2022, Afshar Ali and Md
Saddam Hussain went to Kolkata to enter the said plot no.
32 in the fake deed which was affixed in original volume
kept at Registrar of Assurances, Kolkata. Both of them
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stayed at the Hotel Peerless Inin, Kolkata. During their stay
the accused person Irshad Akhtar, r/o Bariatu, Ranchi
brought an original volume from the Registrar of
Assurances, Kolkata. After making fake entries, Irshad
Akhtar took the volume back to the Registrar of Assurances
in Kolkata for depositing the same. Afshar Ali made fake
entries on page 299 of the deed while their stay at Hotel
Peerless Inn. In addition to entering Plot no 32, they erased
some portion of previously written deed using blade, and re-
wrote the sentences "two registered deeds of sale dated
15.7.1939 and 24.7.1940 executed by".-----
At the said Hotel Peerless Inn, the original volume
169, (in which the fake deed no. 3954 of 1974 in the
name of Samrendra Chandra Ghosal was earlier
affixed) was brought for corrections by the accused
person Irshad Akhtar The accused persons namely
Md. Saddam Hussain and Afshar Ali were present
inside the hotel room. On the said day, at Hotel
Peerless Inn, the original volume was provided by the
accused persons Tapas Ghosh and Sanjit Kumar to
Irshad Akhtar who brought it to Hotel Peerless and
the said correction was made. During correction, a
photograph of Afshar Ali was captured by Md.
Saddam Hussain which was recovered from his
mobile phone.
9.47 Further, the scrutiny of the bank accounts bearing no.
400010110005147 and 879576110 in the name of Sanjeet
Kumar maintained in Bank of India and Indian Bank reveal
a cash deposit of Rs. 60000 in lieu of providing assistance
to Tapas Ghosh, Irshad Akhtar and others.
10. Gist of the statements recorded during course of
investigation under PMLA 2002
Irshad Akhtar
(Accused No.11)
His statement dated 16.04.2024 reveals his role in
arranging blank pages of original deed volumes from the
office of the registrar of assurances, Kolkata. He also
admitted his association with Afshar Ali in arranging
original deed volume of the year 1940 in lieu of money and
his further involvement and association with accused
person Sanjit Kumar and Tapas Ghosh who brought blank
pages from original volumes for the accused Irshad Akhtar.
His statement dated 20.04.2024, 21.04.2024 and
25.04.2024 reveal about the money received by him in cash
and through bank account transfers from the accused
persons namely Sanjit Kumar, Afshar Ali, Md. Saddam
Hussain and others.
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Process and activity connected with proceeds of crime
and role of the accused persons in offence of money
laundering -
6. Irshad Akhtar
The accused person is knowingly involved in the forgery
with respect to the property admeasuring 4.83 acres. The
accused person was directly a party with Afshar Ali, Md.
Saddam Hussain, Tapas Ghosh and Sanjit Kumar obtained
blank pages of original registers for writing fake deeds in
lieu of deriving proceeds of crime. The accused person
directly assisted Afshar Ali and Md. Saddam Hussain in
writing fake deeds on blank pages and later planting them
into the records of Registrar of Assurances, Kolkata in order
to project them as untainted property deeds. The accused
person was directly a party with his co-accused persons in
the preparation of fake deed of the said 4.83 acres property
having value of Rs. 22,61,84,553/- (Urban residential @ Rs
4,68,291/- per decimal as per the revised Circle rate w.e.f
01.08.2023.)
The bank account of the accused person and the call detail
records corroborate the association of the accused person
with his co-accused Afshar Ali, Md. Saddam Hussain and
others. Thus, the accused is knowingly involved in the
processes and activities connected with tampering with
original government records for illegally acquiring
properties, which are proceeds of crime and hence, has
committed the offence of money laundering as defined
under section 3 of the PMLA, 2002 and is liable to be
punished under section 4 of the PMLA, 2002."
51. It is evident from the prosecution complaint that the
instant case ECIR RNZO/25/2023 has been recorded on
the basis of the FIR no 272/2023 lodged under sections
465/467/468/469/476/466/420/379/474 of IPC by
Sadar PS, Ranchi on the complaint of Manoj Kumar, ex-
Circle Officer, Baragain, Ranchi. The complaint of Manoj
Kumar was the result of action taken on the information
shared by the Directorate of Enforcement under section
66(2) of the PMLA, 2002 to the Chief Secretary, Govt. of
Jharkhand against Bhanu Pratap Prasad and other
persons of his syndicate.
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52. It has come during investigation that the petitioner along
with other accused persons was involved in preparation
of fake deed.
53. It has come in investigation that present petitioner
directly assisted Afshar Ali and Md. Saddam Hussain in
writing fake deeds on blank pages and later planting them
into the records of Registrar of Assurances, Kolkata in
order to project them as untainted property deeds. He was
directly a party with his co-accused persons in the
preparation of fake deed of the said 4.83 acres property
having value of Rs. 22,61,84,553/- (Urban residential @
Rs 4,68,291/- per decimal as per the revised Circle rate
w.e.f 01.08.2023.)
54. Thus, the petitioner is knowingly involved in the
processes and activities connected with tampering with
original government records for illegally acquiring
properties, which are proceeds of crime and hence, has
committed the offence of money laundering as defined
under section 3 of the PMLA, 2002 and is liable to be
punished under section 4 of the PMLA, 2002.
55. Further in the ECIR it has come that the blank page for
writing the said deed was arranged by accused person
Irshad Akhtar. The said accused person Irshad Akhtar
arranged the blank pages with the assistance of the
accused persons namely Tapas Ghosh a deed searcher
and Sanjeet Kumar both working at the office of the
Registrar of Assurance, Kolkata and after the fake deed
was written on blank page, the same was again planted
in the records of Registrar of Assurances, Kolkata by the
present petitioner Irshad Akhtar, Sanjit Kumar and Tapas
Ghosh.
56. Thus, from the aforesaid prima facie, it is evident that the
present applicant/petitioner was directly a party with
accused persons namely Afshar Ali, Saddam Hussain and
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others in their activities linked to acquiring landed
properties fraudulently, i.e, on the basis of fake deeds and
he has knowingly involved in the process and activities
connected to proceeds of crime and has directly assisted
the above named accused persons in preparation of fake
deeds and instruments to acquire proceeds of crime (in
form of landed properties) and using and claiming as well
as projecting the said fake deeds/instruments as
untainted property.
57. Further, the bank account scrutiny of the accused
persons, namely, Sanjit Kumar, Tapas Ghosh, Md.
Irshad, and present petitioner Irshad Akhtar reveals
interconnected transactions amongst the said persons. In
addition to this frequent cash deposits made into their
bank accounts during the period of commission of offence
has also been identified. These cash deposits and bank
account transactions corroborate the link between the
accused persons and also establish the receipt of
proceeds of crime in cash, out of which, some portion has
been deposited by them in their bank accounts.
58. Thus, from aforesaid imputation and discussion prima-
facie it appears that the involvement of present petitioner
in alleged crime cannot be lightly brushed out.
59. Now coming to the contentions as raised by the learned
counsel for the petitioner, wherein, he has taken the
ground that the petitioner is not accused in the predicate
offence, hence, cannot be made liable for money
laundering offence. But the contention of the learned
counsel appears to be misplaced reason being that it is
settled proposition of law that the offence of money
laundering is independent of the scheduled offence,
particularly in matters related to the proceeds of crime.
60. It is evident that as per Section 3, there are six processes
or activities identified therein. They are, (i) concealment;
2025:JHHC:11567
(ii) possession; (iii) acquisition; (iv) use; (v) projecting as
untainted property; and (vi) claiming as untainted
property. Even if a person does not retain the money
generated as proceeds of crime but "uses" it, he will be
guilty of the offence of money-laundering, since "use" is
one of the six activities mentioned in Section 3. In the
instant case the proceeds obtained from alleged activities
are laundered through diverse methods, one of which
involves making cash deposits in respective bank
accounts. This is done in a piecemeal manner with the
intention of presenting the tainted property as untainted.
61. Keeping in mind these essential elements that make up
the molecular structure of Section 3, this Court adverts
into facts of the instant case as discussed in preceding
paragraph is of view that the contention of the learned
counsel for the petitioner has no substance.
62. Further, the burden of proof is on the Petitioner until the
contrary is proved, the same is observed in various
judicial pronouncements and upheld in Vijay Madanlal
Choudhary (2022) SCC Online 929. In Rohit Tandon
v. Directorate of Enforcement, (2018) 11 SCC 46
wherein the Hon'ble Supreme Court observed that the
provisions of section 24 of the PMLA provide that unless
the contrary is proved, the authority or the Court shall
presume that proceeds of crime are involved in money
laundering and the burden to prove that the proceeds of
crime are not involved, lies on the appellant.
63. Further it is settled proposition of law that if a person who
is unconnected with the scheduled offence, knowingly
assists the concealment of the proceeds of crime or
knowingly assists the use of proceeds of crime, in that
case, he can be held guilty of committing an offence under
Section 3 of the PMLA. Therefore, it is not necessary that
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a person against whom the offence under Section 3 of the
PMLA is alleged must have been shown as the accused in
the scheduled offence.
64. So far as the facts of the present case are concerned, the
respondent ED has placed heavy reliance on the
statements of witnesses recorded and the documents
produced by them under Section 50 of the said Act to
prima facie show the involvement of petitioner in the
alleged offence of money laundering under Section 3
thereof.
65. The three Judges Bench of the Hon'ble Apex Court in the
case of Rohit Tandon vs. Directorate of Enforcement
(2018) 11 SCC 46 has held that the statements of
witnesses recorded by Prosecution - ED are admissible in
evidence in view of Section 50. Such statements may
make out a formidable case about the involvement of the
accused in the commission of the offence of money
laundering
66. In the instant case, it has been found that during the
course of investigation from the statements of witnesses
recorded under Section 50 that the petitioner had
indulged, knowingly as the party and is actually involved
in all the activities connected with the offence of money
laundering.
67. Further, it is evident from the judicial pronouncement as
discussed above that in order to constitute any property
as proceeds of crime, it must be derived or obtained
directly or indirectly by any person as a result of criminal
activity relating to a scheduled offence. The explanation
clarifies that the proceeds of crime include property, not
only derived or obtained from scheduled offence but also
any property which may directly or indirectly be derived
or obtained as a result of any criminal activity relatable to
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the scheduled offence. Clause (u) also clarifies that even
the value of any such property will also be the proceeds
of crime and in the instant case from perusal of paragraph
of the prosecution complaint it is evident that the
petitioner is not only involved rather his involvement is
direct in procuring the proceeds of crime by way of
connivance with the other accused persons.
68. At the cost of repetition, it is pertinent to mention here
that the offence of money laundering under Section 3 of
the Act 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 offence of money laundering is not dependent or
linked to the date on which the scheduled offence or
predicate offence has been committed. The relevant date
is the date on which the person indulges in the process or
activity connected with the proceeds of crime. Thus, the
involvement of the person in any of the criminal activities
like concealment, possession, acquisition, use of proceeds
of crime as much as projecting it as untainted property or
claiming it to be so, would constitute the offence of money
laundering under Section 3 of the Act.
69. Thus, on the basis of the discussion made hereinabove,
the contention of the learned counsel for the petitioner
that even if the entire ECIR will be taken into
consideration, no offence will be said to be committed so
as to attract the ingredients of Sections 3 & 4 of the P.M.L.
Act, 2002, is totally misplaced in the light of accusation
as mentioned in prosecution complaint.
70. Further, the contention has been raised that a
prosecution complaint against the petitioner has already
been filed and, thus, investigation is complete and
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therefore, no purpose would be served in keeping the
petitioner in judicial custody.
71. In the aforesaid context, it is settled position of law that
the mere fact that investigation is complete does not
necessarily confer a right on the accused/petitioner to be
released on bail.
72. In the context of aforesaid contention, it would be
relevant to note here that in the instant case mere filing
of the charge-sheet does not cause material change in
circumstances.
73. Further, it is settled proposition of law that the filing of
charge-sheet is not a circumstance that tilts the scales
in favour of the accused for grant of bail and needless to
say, filing of the charge-sheet does not in any manner
lessen the allegations made by the prosecution.
74. At this juncture, it would be apposite to refer the decision
of Hon'ble Supreme Court rendered in the case of
Virupakshappa Gouda vs. State of Karnataka,
(2017) 5 SCC 406, wherein, at paragraph-12, the
Hon'ble Apex Court has observed which reads as under:
"12. On a perusal of the order passed by the learned trial
Judge, we find that he has been swayed by the factum that
when a charge-sheet is filed it amounts to change of
circumstance. Needless to say, filing of the charge-sheet
does not in any manner lessen the allegations made by the
prosecution. On the contrary, filing of the charge-sheet
establishes that after due investigation the investigating
agency, having found materials, has placed the charge-
sheet for trial of the accused persons."
75. Thus, this Court, after taking note of the settled legal
proposition, is of view that the aforesaid contention is not
tenable in the eye of law.
76. Now in the light of aforesaid discussion, at this juncture,
this Court thinks it fit to revisit the scope of section 45 of
the PML Act 2002. As discussed in preceding paragraphs
2025:JHHC:11567
that Section 45 of the PMLA Act, 2002 provides twin test.
First 'reason to believe' is to be there for the purpose of
reaching to the conclusion that there is no prima facie
case and second condition is that the accused is not likely
to commit any offence while on bail.
77. It is, thus, evident by taking into consideration the
provision of Sections 19(1), 45(1) and 45(2) of PML Act
that the conditions provided therein are required to be
considered while granting the benefit of regular bail in
exercise of power conferred under Section 439 of Cr.P.C.,
apart from the twin conditions which have been provided
under Section 45(1) of the Act, 2002.
78. The power of the Court to grant bail is further conditioned
upon the satisfaction of the twin conditions prescribed
under Section 45(1) (i) and (ii) PMLA. While undertaking
this exercise, the Court is required to take a prima facie
view on the basis of materials collected during
investigation. The expression used in Section 45 of PMLA
are "reasonable grounds for believing" which means that
the Court has to find, from a prima facie view of the
materials collected during investigation, that there are
reasonable grounds to believe that the accused has not
committed the offence and that there is no likelihood of
him committing an offence while on bail. Recently, in
Tarun Kumar v Assistant Directorate of Enforcement,
2023 SCC Online SC 1486, the Hon'ble Supreme Court
has held as under:
"As well settled by now, the conditions specified under
Section 45 are mandatory. They need to be complied
with. The Court is required to be satisfied that there are
reasonable grounds for believing that the accused is not
guilty of such offence and he is not likely to commit any
offence while on bail. It is needless to say that as per the
statutory presumption permitted under Section 24 of the
Act, the Court or the Authority is entitled to presume
unless the contrary is proved, that in any proceedings
relating to proceeds of crime under the Act, in the case of
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a person charged with the offence of money laundering
under Section 3, such proceeds of crime are involved in
money laundering. Such conditions enumerated in
Section 45 of PML Act will have to be complied with even
in respect of an application for bail made under Section
439 Cr. P.C. in view of the overriding effect given to the
PML Act over the other law for the time being in force,
under Section 71 of the PML Act."
79. Further, it is pertinent to mention here that the process
envisaged under Section 50 of PMLA is in the nature of an
inquiry against the proceeds of crime and it is not an
investigation and the authorities who are recording the
statements are not police officers and therefore, these
statements can be relied upon as admissible piece of
evidence before the Court. The summons proceedings and
recording of statements under PMLA are given the status
of judicial proceedings under Section 50(4) of PMLA.
When such is the sweep of Section 50 of PMLA, the
statements have been recorded which has been relied
upon in the complaint must be taken to be an important
material implicating the petitioner. The statements that
were recorded during the investigation has been dealt
with in prosecution complaint and many of the
statements clearly implicate the petitioner. Therefore, the
statements that have been recorded and which has been
relied upon, is also a strong material that prima facie
establishes the offence of money laundering against the
present petitioner.
80. It is pertinent to mention here that the Hon'ble Apex Court
in P. Chidambaram v. Central Bureau Investigation
reported in 2020 13 SCC 337 has come up with triple
test under Section 439 of Cr.PC, while dealing with cases
involving economic offences. The principles that were
summarized in this judgment is extracted hereunder:
"21. The jurisdiction to grant bail has to be exercised on the
basis of the well-settled principles having regard to the facts
and circumstances of each case. The following factors are
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to be taken into consideration while considering an
application for bail: (i) the nature of accusation and the
severity of the punishment in the case of conviction and the
nature of the materials relied upon by the prosecution; (ii)
reasonable apprehension of tampering with the witnesses
or apprehension of threat to the complainant or the
witnesses; (iii) reasonable possibility of securing the
presence of the accused at the time of trial or the likelihood
of his abscondence; (iv) character, behaviour and standing
of the accused and the circumstances which are peculiar to
the accused; (v) larger interest of the public or the State and
similar other considerations."
81. This Court, on the basis of aforesaid discussions, factual
aspects as also the legal position, is of prima facie view
that there is no reason to believe by this Court that the
petitioner is not involved in alleged commission of crime.
82. This Court, while considering the prayer for regular bail,
has taken into consideration that though, the Court is not
sitting in appeal on the order passed by learned Court,
since, this Court is exercising the power of Section 439
Cr.P.C but only for the purpose of considering the view
which has been taken by learned court while rejecting the
prayer for bail. This Court is also in agreement with the
said view based upon the material surfaced in course of
investigation, as referred hereinabove.
On the issue of Parity:
83. The learned counsel for the petitioner has raised the
ground of parity with respect to co-accused person,
namely, Hemant Soren who was made accused in the
original prosecution complaint, has already been granted
bail by this Court vide order dated 28.06.2024 passed in
B.A. No. 4892 of 2024.
84. Now coming to the ground of parity as raised by the
learned counsel for the petitioner, the law is well settled
that the principle of parity is to be applied if the case on
fact is exactly similar then only the principle of parity in
the matter of passing order is to be passed but if there is
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difference in between the facts then the principle of parity
is not to be applied.
85. It is further settled connotation of law that Court cannot
exercise its powers in a capricious manner and has to
consider the totality of circumstances before granting bail
and by only simple saying that another accused has been
granted bail is not sufficient to determine whether a case
for grant of bail on the basis of parity has been
established. Reference in this regard may be made to the
judgment rendered by the Hon'ble Apex Court in Ramesh
Bhavan Rathod vs. Vishanbhai Hirabhai Makwana,
(2021) 6 SCC 230, wherein, it has been held as under:
"25. We are constrained to observe that the orders passed
by the High Court granting bail fail to pass muster under
the law. They are oblivious to, and innocent of, the nature
and gravity of the alleged offences and to the severity of the
punishment in the event of conviction. In Neeru Yadav v.
State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC
508 :] , this Court has held that while applying the principle
of parity, the High Court cannot exercise its powers in a
capricious manner and has to consider the totality of
circumstances before granting bail. This Court observed :
(SCC p. 515, para 17)
"17. Coming to the case at hand, it is found that when a
stand was taken that the second respondent was a
history-sheeter, it was imperative on the part of the High
Court to scrutinise every aspect and not capriciously
record that the second respondent is entitled to be
admitted to bail on the ground of parity. It can be stated
with absolute certitude that it was not a case of parity
and, therefore, the impugned order [Mitthan Yadav v.
State of U.P., 2014 SCC OnLine All 16031] clearly
exposes the non-application of mind. That apart, as a
matter of fact it has been brought on record that the
second respondent has been charge-sheeted in respect of
number of other heinous offences. The High Court has
failed to take note of the same. Therefore, the order has
to pave the path of extinction, for its approval by this
Court would tantamount to travesty of justice, and
accordingly we set it aside.
26. Another aspect of the case which needs emphasis is the
manner in which the High Court has applied the principle of
parity. By its two orders both dated 21-12-2020 [Pravinbhai
Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj
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2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat,
2020 SCC OnLine Guj 2988] , the High Court granted bail to
Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was
sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to
whom bail was granted on 22-10-2020 [Siddhrajsinh
Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine
Guj 2985] on the ground (as the High Court recorded) that
he was "assigned similar role of armed with stick (sic)".
Again, bail was granted to Vanraj Koli (A-16) on the ground
that he was armed with a wooden stick and on the ground
that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13)
who were armed with sticks had been granted bail. The
High Court has evidently misunderstood the central aspect
of what is meant by parity. Parity while granting bail must
focus upon the role of the accused. Merely observing that
another accused who was granted bail was armed with a
similar weapon is not sufficient to determine whether a case
for the grant of bail on the basis of parity has been
established. In deciding the aspect of parity, the role
attached to the accused, their position in relation to the
incident and to the victims is of utmost importance. The High
Court has proceeded on the basis of parity on a simplistic
assessment as noted above, which again cannot pass
muster under the law."
86. The Hon'ble Apex Court in Tarun Kumar Vs. Assistant
Director Directorate of Enforcement (supra) wherein at
paragraph-18, it has been held that parity is not the law
and while applying the principle of parity, the Court is
required to focus upon the role attached to the accused
whose application is under consideration.
87. Now, this court is adverting into facts of instant case to
decide the issue of parity in the backdrop of aforesaid
settled legal ratio and further taken into consideration the
aforesaid settled position of law, thinks fit to refer herein
distinguishable facts in the case of present petitioner to
that of the case of co-accused and petitioner of B.A
No.4892 of 2024.
88. This Court, in order to verify the application of principle
of parity, has gone through the order passed in B.A
No.4892 of 2024, by which, co-accused has been enlarged
on the bail and found that there is allegation upon the
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said petitioner about using the State machinery for his
own benefit and to frustrate the investigation.
89. But, herein against the present applicant/petitioner, it
has come in the investigation that he was very much
instrumental in arranging blank sheets of original
registers kept at Registrar of Assurances, Kolkata for
preparation of fake deeds.
90. Further in the ECIR it has come that the blank page for
writing the said deed was arranged by present petitioner
Irshad Akhtar. The said accused person Irshad Akhtar
arranged the blank pages with the assistance of the
accused persons namely Tapas Ghosh a deed searcher
and Sanjeet Kumar both working at the office of the
Registrar of Assurance, Kolkata and after the fake deed
was written on blank page, the same was again planted
in the records of Registrar of Assurances, Kolkata by the
present petitioner Irshad Akhtar, Sanjit Kumar and Tapas
Ghosh.
91. Thus, the allegation against the present petitioner is
entirely different and as per the prosecution complaint it
is evident that the present petitioner was provider of
blank page for writing the said deed and was involved in
assisting the syndicate who was involved in preparation
of fake deeds, falsification of government records and
tampering with revenue registers to acquire and dispose
of landed properties.
92. Applying the principle of parity, this Court is of the view
as per the judgment rendered by the Hon'ble Apex Court
rendered in Tarun Kumar (Supra) that the benefit of
parity is to be given if the facts/involvement of the
petitioner, is identical to the persons with whom parity is
being claimed.
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93. This Court, on the basis of the discussion of the
involvement of the petitioner, vis-à-vis, the other co-
accused person, is of the view that the case of the
petitioner is quite distinguishable to that of the case of
the co-accused/petitioner of B.A no.4892 of 2024,
therefore, it is considered view of this Court that it is not
a fit case for applying the principle of parity herein.
94. Further it needs to refer herein that prayer for bail of the
co-accused persons namely Sanjit Kumar @ Sanjeet
Kumar, Md. Irshad and Anand Tirkey @ Antu Tirkey, have
already been rejected by this Court vide order dated
21.03.2025 passed in B.A. No. 7501 of 2024, B.A No.
7598 of 2024 and B.A. No. 8022 of 2024 respectively.
95. Further, it is required to refer herein that the Money
Laundering is an economic offence and economic offences
comes under the of grave offences hence needs to be
visited with a different approach in the matter of bail as
held by the Hon'ble Apex court in the case of Y. S Jagan
Mohan Reddy v/s C. B. I., reported in (2013) 7 SCC 439.
For ready reference, the relevant paragraphs of the
aforesaid judgments are being quoted as under:
"34. Economic offences constitute a class apart and need
to be visited with a different approach in the matter of bail.
The economic offences having deep-rooted conspiracies and
involving huge loss of public funds need to be viewed
seriously and considered as grave offences affecting the
economy of the country as a whole and thereby posing
serious threat to the financial health of the country."
96. Similarly, the Hon'ble Apex Court in case of Nimgadda
Prasad Vs. C.B.I., reported in (2013) 7 SCC 466 has
reiterated the same view in paragraphs-23 to 25 which
reads as under:
"23. Unfortunately, in the last few years, the country has
been seeing an alarming rise in white-collar crimes, which
has affected the fibre of the country's economic structure.
Incontrovertibly, economic offences have serious
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repercussions on the development of the country as a whole.
In State of Gujarat v. Mohanlal Jitamalji Porwal [(1987) 2
SCC 364 : 1987 SCC (Cri) 364] this Court, while considering
a request of the prosecution for adducing additional
evidence, inter alia, observed as under: (SCC p. 371, para
5)
"5. ... The entire community is aggrieved if the economic
offenders who ruin the economy of the State are not
brought to book. A murder may be committed in the heat
of moment upon passions being aroused. An economic
offence is committed with cool calculation and deliberate
design with an eye on personal profit regardless of the
consequence to the community. A disregard for the
interest of the community can be manifested only at the
cost of forfeiting the trust and faith of the community in
the system to administer justice in an even-handed
manner without fear of criticism from the quarters which
view white-collar crimes with a permissive eye unmindful
of the damage done to the national economy and national
interest."
24. While granting bail, the court has to keep in mind the
nature of accusations, the nature of evidence in support
thereof, the severity of the punishment which conviction will
entail, the character of the accused, circumstances which
are peculiar to the accused, reasonable possibility of
securing the presence of the accused at the trial, reasonable
apprehension of the witnesses being tampered with, the
larger interests of the public/State and other similar
considerations. It has also to be kept in mind that for the
purpose of granting bail, the legislature has used the words
"reasonable grounds for believing" instead of "the evidence"
which means the court dealing with the grant of bail can
only satisfy itself as to whether there is a genuine case
against the accused and that the prosecution will be able to
produce prima facie evidence in support of the charge. It is
not expected, at this stage, to have the evidence
establishing the guilt of the accused beyond reasonable
doubt.
25. Economic offences constitute a class apart and need to
be visited with a different approach in the matter of bail.
The economic offence having deep-rooted conspiracies and
involving huge loss of public funds needs to be viewed
seriously and considered as a grave offence affecting the
economy of the country as a whole and thereby posing
serious threat to the financial health of the country."
97. This Court is conscious of this fact that while deciding the
issue of grant bail in grave economic offences, it is utmost
duty of this Court that the nature and gravity of the
alleged offence should have been kept in mind.
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98. Having regard to the entirety of the facts and
circumstances of the case, this Court, is of the view that
the petitioner has miserably failed to satisfy this Court
that there are reasonable grounds for believing that he is
not guilty of the alleged offences. On the contrary, there
is sufficient material collected by the respondent-ED to
show that he is prima facie guilty of the alleged offences.
99. For the foregoing reasons, having regard to facts and
circumstances, as have been analysed hereinabove, since
the petitioner has failed to make out a case to exercise the
power to grant bail and considering the facts and
parameters, necessary to be considered for adjudication
of bail, this Court does not find any exceptional ground to
exercise its discretionary jurisdiction to grant bail.
100. Therefore, this Court is of the view that it is not a case
where the prayer for bail is to be granted, as such, the
instant application stands dismissed.
101. It is made clear that the views expressed in this order are
prima-facie for consideration of matter of bail only.
(Sujit Narayan Prasad, J.)
Birendra/A.F.R.
