Md. Irshad vs Directorate Of Enforcement Through ...
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Jharkhand High Court

Md. Irshad vs Directorate Of Enforcement Through ... on 21 March, 2025

Author: Sujit Narayan Prasad

Bench: Sujit Narayan Prasad

      IN THE HIGH COURT OF JHARKHAND AT RANCHI

                        B.A No. 7598 of 2024
                             ---------------

Md. Irshad, aged about 41 years, son of Md. Nizamuddin, Resident of Mandai Kala, PO-Marai Kala, PS-Hazaribagh, District-Hazaribagh ........Petitioner Versus Directorate of Enforcement through Assistant Director, (Complainant) Ranchi Zonal Office, Ranchi ......Opposite Party

CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

For the Petitioner : Mr. R.S Majumdar, Sr. Advocate For the O.Ps : Mr. Amit Kumar Das, Advocate Mr. Saurav Kumar, Advocate

C.A.V on 07.02.2025 Pronounced on 21/03/2025 Prayer

1. The instant application has been filed under Sections 483 and 484 of the BNSS, 2023 for grant of regular bail to the petitioner, in connection with ECIR Case No.06 of 2023 in ECIR/RNZO/25/2023, registered for alleged offence under Section 3 punishable under Section 4 of Prevention of Money Laundering Act, 2002, pending in the Court of learned Additional Judicial Commissioner-I-cum-Special Judge, P.M.L. Act, Ranchi.

Factual Matrix

2. It has been stated that the FIR being Sadar P.S. Case No. 272 of 2023 was registered on the written complaint of Manoj Kumar, Circle Officer, Bargai Anchal which was based upon the information shared under section 66(2) of PML Act, 2002 by the Directorate of Enforcement, Ranchi Zonal Office.

3. The allegations in the First Information Report being Sadar PS Case No. 272 of 2023 are briefly as follow:

4. The FIR alleged that the accused Bhanu Pratap Prasad (Ex-Revenue Sub-Inspector, Bargai, Ranchi) was having illegal possession of seventeen original register (Register-II) (out of which several were tampered) along with several property deeds which were the official documents. The register seized from the possession of Bhanu Pratap Prasad are properties as per the definition provided under section 2(1)(v) of PML Act, 2002 as it is involved/used in the commission of scheduled offence.

5. The above registers contain references to several properties which have been acquired in illegal manner including the reference of properties admeasuring 8.86 acres at Shanti Nagar, Baragain, Bariyatu Road (near Lalu Khatal) illegally acquired and possessed by the accused Hemant Soren and a property admeasuring 4.83 acres at Mauza Gari, Khata No.53, Plot Nos.31, 32, 33, 35, 36 and 37.

6. The investigation further revealed that in the searches which were conducted on the basis of the information shared by the Directorate of Enforcement, Ranchi Zonal Office under section 17 of PML Act on 13.04.2023 at several premises including 2 premises under use and occupation of Bhanu Pratap Prasad at Road No.7, Hill View Road, Bariyatu, Ranchi, Jharkhand and at Jhulan Singh Chowk, Simdega. During searches, 11 trunks of voluminous property documents including 17 original registers (Register-II) were seized from the possession of Bhanu Pratap Prasad which were concealed and secreted by him at his home.

7. During further investigation into the role of other associates of Bhanu Pratap Prasad, it revealed that a fake deed 3985/1940 in relation to one 6.34 acres property situated at Khata no. 234, Mauja-Baragain, Ranchi under Khewat No.10 have been prepared which was seized on 13.04.2023 from the possession of his associate, namely, Md. Saddam Hussain. In addition to this, several other property details were also seized including the above stated property admeasuring 4.83 acres.

8. Deed no. 3985 of the year 1940 related to property situated at Mouza Baragain, Thana no. 184 was executed between Balka Pahan and Asgar Hussain. The certified copy of this deed was obtained from the registrar of assurance in Kolkata on 03.01.2022. Further investigation revealed that it was a fake deed prepared by Md. Saddam Hussain, Afshar Ali and others who are a very close accomplice of Bhanu Pratap Prasad. This deed has been executed for a property admeasuring 6.34 acres at Baragain Anchal out of which plot No.989 and 996 are in possession and use of Hemant Soren.

9. As stated above, during investigation, another 4.83 acres property, situated at Cheshire Home Road, Mauja Gari, Ranchi was also identified

to be acquired by the accused persons including Afshar Ali, 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 Afhsar Ali and Saddam Hussain). These entries contained huge cash payments including compensatory payment to Bhanu Pratap Prasad in relation of the above stated 4.83 acres property.

10.During further investigation into the role of other associates of Bhanu Pratap Prasad, it revealed that a fake deed 3985/1940 in relation to one 6.34 acres property situated at Khata no. 234, Mauja-Baragain, Ranchi under Khewat No. 10 have been prepared which was seized on 13.04.2023 from the possession of his associate, namely, Md. Saddam Hussain. In addition to this, several other property details were also seized including the above stated property admeasuring 4.83 acres.

11.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.

12.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 fake deeds, deed no. 2376 of the year 1940 and other 3954 of the year 1974 were prepared by Saddam Hussain, Md. Afshar Ali and others.

13.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 (petitioner herein), 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.

14.The abovesaid land admeasuring 4.83 acres is a portion of 37.10 acres land which was purchased from Catholic Credit Co-operative Society by Mangal Mahto and Kaila Mahto through deed no. 2660, entered in book no. I, Volume no. 32 from pages 211 to 213 in the year 1939 executed at the office of District Sub-Registrar, Ranchi.

15.In this connection, the related index was also verified and the documents related to the said deed were also obtained from the DSR, Ranchi vide its letter no. 1143 dated 12.07.2023. During investigation, it revealed that the said properties are entered in panji II at page no 53 of volume- I of Gari Mauja. The certified copies of the same were also furnished by the Circle Officer, Baragain, Ranchi by its letter no. 234(ii) dated 19.03.2024. This land belongs to Mahatos which cannot be sold or transferred to the persons belonging to the general category.

16.Thus, in order to acquire and sell the said land, the accused persons, namely, Md. Saddam Hussain, Afshar Ali, Priya Ranjan Sahay, Bipin Singh and others connived with Bhanu Pratap Prasad, Manoj Kumar Yadav and others made fake deed 3954/1974 for this property in name of Samrendra Chandra Ghoshal. The accused persons, namely, Afshar Ali, Md. Saddam Hussain, Priya Ranjan Sahay and Bipin Singh indulged in the forgery as equal partners of the sale proceeds of the land along with another person, namely, Shekhar Prasad Mahto @ Shekhar Kushwaha.

17.These persons were assisted by government employees, namely, Bhanu Pratap Prasad (ex-Revenue Sub-Inspector, Baragain) and Manoj Kumar Yadav (who was posted as Clerk at Shahar Anchal while the forgery was done) in tampering with original records and falsifying them by making deceitful entries in name of one Samrendra Chandra Ghoshal as per the instructions of the above stated accused persons. Apart from this, the task of making entries in R-2 registers (a register in which mutation records are entered) was completed by Bipin Singh with the help of Manoj Kumar Yadav, a staff of Sahar Anchal, Ranchi. The index registers were manipulated by the accused person Afshar Ali.

18.In lieu of providing this assistance, both persons, namely, Bhanu Pratap Prasad and Manoj Kumar Yadav acquired proceeds of crime amounting to Rs. 5 lacs in cash. This fact has been admitted by Bhanu Pratap Prasad in his statement. Further, this fact is also corroborated by the WhatsApp chat between the accused person Md. Saddam Hussain and Priya Ranjan Sahay wherein, the payment amounting to Rs. 5 lacs to Bhanu Pratap Prasad have been mentioned in respect of said 4.83 acres property.

19.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 Assurances, 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.

20.In addition to preparation of fake deed no. 3954/1974, the accused persons namely Bipin Singh, Bhanu Pratap Prasad, Afshar Ali and the present petitioner, namely, Md. Irshad, and others in connivance with each other entered the property admeasuring 4.83 acres in the name of Samrendra Chandra Ghoshal on page no. 139 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 I. The work of entering the name of Samrendra Chandra Ghoshal was done at the residence of the accused person Md. Saddam Hussain and for this work, Rs. 5 lakhs were paid to Bhanu Pratap Prasad through the accused person Bipin Singh.

21.In his statement dated 24.04.2024 recorded u/s 50 of PMLA, 2002, the accused person and present petitioner 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 Md. Saddam Hussain during search dated 13.04.2023 in ECIR:RNZO/18/2022 which has been discussed above.

22.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.

23.The bank account scrutiny of the accused persons namely Sanjit Kumar, Tapas Ghosh, Md. Irshad (the present petitioner), and Irshad Akhtar reveals interconnected transactions amongst the accused 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.

24.Investigation reveals that a page in Register II kept with Bhanu Pratap Prasad was earlier opened in the name of a Raiyat, namely, Jitua Bhogta, S/o Tetra Bhogta (identity unknown). The names of Jitua Bhogta as well as Tetra Bhogta were encircled in red ink and the name of one Samrendra Chandra Ghoshal and Jitendra Chandra Ghoshal were written in place of Jitua Bhogta and Tetra Bhogta respectively by the accused persons thereby making this property as general property which became saleable.

25.It is alleged that the present accused person was directly involved in writing fake deeds to acquire landed properties which are proceeds of crime. He wrote fake deed no. 3985 of 1940 in his own handwriting. In addition to this, he also wrote a separate fake deed no. 2376 of 1940 which is part of the above stated 4.83 acres property and deed no. 3954 of 1974 (for above stated 4.83 acres property having value of Rs. 22,61,84,553/-). The accused person Md. Irshad also made fake entries in the original Panji II registers for above stated 4.83 acres property, in association with Bhanu Pratap Prasad, Md. Saddam Hussain, Bipin Singh and others. He also wrote backdated fake mutation correction slips related to the above stated 4.83 acres property in the name of Samrendra Chandra Ghoshal.

26.The scrutiny of his Axis bank accounts bearing nos. 918010066076941 and 913110039978433 reveals a payment of Rs. 8,74,500/- through the accused persons, namely, Md. Saddam Hussain, Afshar Ali and others. In addition to this, frequent cash deposits have also been identified which corroborate the association of these persons.

27.Based on the above, the Directorate of Enforcement registered ECIR Case No. 06of 2023 in ECIR / RNZO / 25 / 2023 dated 26.06.2023 and accordingly the Supplementary Prosecution Complaint was filed.

28.Meanwhile, the present petitioner was taken into custody on 09.05.2024, accordingly, he, preferred Miscellaneous Criminal Application No. 1907 of 2024, but the same was rejected on 10.07.2024, hence, the instant bail application.

Argument on behalf of the learned counsel for the petitioner

29.Mr. R.S. Mazumdar, learned senior counsel appearing for the petitioner has taken the following grounds that: -

(i) 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 and 4 of the P.M.L. Act, 2002.

(ii) The allegation against the petitioner is that he, being the influential person, has cooperated in the illegal transfer of the land pertaining to the land in question, i.e., 4.83 acres at Mauza Gari, Khata No.53, Plot Nos.31, 32, 33, 35, 36 and 37, save and except the said allegation, there is no allegation against the petitioner.

(iii) It has been contended that even accepting the material collected in course of inquiry based upon which the ECIR has submitted before the competent Court of criminal jurisdiction which pertains to forgery in making the document for the purpose of illegal transfer of the land which is Khasmahal Land and in that view of the matter, if once the land registered under the provision of Transfer of Property Act by taking aid of the Indian Registration Act, remedy available for registration or cancellation of the said deed which is under Section 82 and 83 of Registration Act, therefore, it is not a case where commission of any criminality is being alleged.

(iv) It has been contended that the scheduled offences in the present case are 420, 467, 476 of Indian Penal Code of the predicate case

being Sadar P.S. Case No. 272 of 2023 and petitioner is not an accused of the predicate absence of any offence accusation for the predicate offence, petitioner is not named and in guilty under the Prevention of Money Laundering Act, 2002.

(v) It has been contended that as far as banking transaction with the co-accused is concerned, the same do not suggest that the said amount was received by the petitioner in lieu of the alleged act.

Moreso, frequent cash deposit is not indicative of the fact that petitioner is involved in the alleged offence.

(vi) It has been contended that the prime allegations in the scheduled offence are with respect to forging of documents and there is no allegation against the petitioner that he used any document so as to believe it to be genuine. Moreover, the allegation with respect to planting of fake deeds in the records of office of Registrar of Assurances, Kolkata is against the co-accused persons. Hence, no offence under Section 468, 471 of Indian Penal Code is made out against the petitioner. Moreso, it has nowhere been alleged that petitioner had fraudulently induced any person to deliver any property so as to attract the offence of cheating against the petitioner.

(vii) It has been contended that the involvement of the petitioner as per the prosecuting agency is primarily through the angle of conspiracy, though, Section 120B of Indian Penal Code is not incorporated in the predicate offence which led to institution of Sadar P.S. Case No. 272 of 2023.

(viii) The ground of parity has also been taken, since, it has been contended that the co-accused, namely, Hemant Soren who was made accused in original prosecution complaint, has already been granted bail by a co-ordinate Bench of this Hon'ble Court vide order dated 28.06.2024 passed in B.A. No. 4892 of 2024.

(ix) The ground of mens rea has also been taken by making reference that there was no intention of the petitioner to commit an offence said to attract the money laundering.

(x) The reliance of some of the paragraphs of the judgment of "Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.", reported in (2022) SCC OnLine SC 929 has been made as under

paragraphs-235, 239, 243, 252, 253, 388, 400 and 401. The purpose for putting reliance upon these paragraphs are that the very object and intent of the P.M.L. Act is that the twin conditions are to be fulfilled which is to be considered at the time of grant of bail from the angle as to whether the accused was possessed the requisite mens rea.

(xi) Herein, if the entire ECIR will be taken into consideration, there is no mens rea and in that view of the matter, it is a fit case for grant of bail.

(xii) It has been contended that as per the provision of Section 436-A, it should not be construed as a mandate that an accused should not be granted bail under P.M.L. Act till he has suffered incarceration for the specified period.

(xiii) It has been submitted that the petitioner in the present case is in custody since 09.05.2024 and as such, taking into consideration the involvement of the petitioner even it will be considered from the ECIR, there is no ingredient of commission of any predicate offence of the schedule offence and as such, the petitioner may be granted the privilege of bail.

Argument on behalf of the learned counsel for the respondent/ Directorate of Enforcement

30. Per contra, Mr. Amit Kumar Das, the learned counsel appearing for the OP-Directorate of Enforcement has vehemently opposed the prayer for bail by taking the ground that it is incorrect on the part of the petitioner that he is innocent and having no connection with the commission of crime, rather, it has come in course of recording the statement under Section 50 of the P.M.L. Act of the petitioner as also the other persons who have been summoned that everything has been found to be managed by the petitioner having the political clout.

31.The contention has been made that the P.M.L. Act is also to attract against the beneficial owner, in view of the provision of Section 2(fa) of the P.M.L. Act, 2002.

32.It has been contended that the Directorate of Enforcement has filed Prosecution Complaint under section 45 r/w section 44 of the PMLA against the accused persons.

33.Further a supplementary Prosecution Complaint was filed against Md. Saddam Husain, Afshar Ali @ Afsu Khan,, Bipin Kumar Singh, Priya Ranjan Sahay, Anand Tirkey @ Antu Tirkey, Irshad Akhtar, Sanjit Kumar, Tapas Ghosh, the present petitioner, namely, Md. Irshad and Manoj Kumar Yadav on 07.06.2024 and the cognizance of the same was taken on 12.06.2024.

34.Thereafter, another supplementary Prosecution Complaint was filed against the accused persons, namely, Shekhar Prasad Mahto, Kumar Rajarshi @ Raunak Singh and Bijendra Singh and the cognizance of the same has been taken by the learned trial Court on 19.09.2024.

35.The land since is situated in the territorial jurisdiction of the State of Jharkhand, hence, the authority as defined under Section 49/51 of the P.M.L. Act, 2002 having jurisdiction to initiate a proceeding in case of any predicate/schedule offence within the territory of the State of Jharkhand is competent enough to initiate inquiry and accordingly, the inquiry has been initiated by Assistant Director of the Directorate of Enforcement.

36. So far, the contention as has been raised that all the scheduled offences cannot be said to be attracted under the P.M.L. Act is concerned, as has been aggrieved on behalf of the petitioner, the same at this stage, cannot be looked into, rather, the same is to be looked into at the stage of trial.

37.It has been contended that the present petitioner, namely, Md. Irshad is directly involved in preparation of fake deed and falsification of original government registers which are criminal activities relating to schedule offences under PMLA, 2002. He is knowingly involved with the accused persons, namely, Afshar Ali, Md. Saddam Hussain, Bipin Singh, Bhanu Pratap Prasad and others in processes and activities relating to acquisition of landed properties which are proceeds of crime in the instant case. By way of his involvement and assistance, he has acquired proceeds of crime from the abovenamed accused persons, a portion of which is also identified in his bank accounts. He is also a party with the abovenamed accused persons in using and projecting the fake deeds as untainted property in a concealed manner to acquire landed properties.

38.Thus, Md. Irshad has committed acts which constitute the offence of Money Laundering as defined under section 3 of PMLA, 2002 and therefore it is not fit case where bail can be granted. Analysis

39.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.

40.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. The issues were debated threadbare in the United Nation Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basle Statement of Principles enunciated in 1989, the FATF established at the summit of seven major industrial nations held in Paris from 14th to 16thJuly, 1989, the Political Declaration and Noble Programme of Action adopted by United Nations General Assembly vide its Resolution No. S-17/2 of 23.2.1990, the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10thJune, 1998, urging the State parties to enact a comprehensive legislation. This is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act. The same reads thus:

"INTRODUCTION

Money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. To obviate such threats international community has taken some initiatives. It has been felt that to prevent money-laundering and connected activities a comprehensive legislation is urgently needed. To achieve this objective the Prevention of Money-laundering Bill, 1998 was introduced in the Parliament. The Bill was referred to the Standing Committee on Finance, which presented its report on 4th March, 1999 to the Lok Sabha. The Central Government broadly accepted the recommendation of the Standing Committee and incorporated them in the said Bill along with some other desired changes.

STATEMENT OF OBJECTS AND REASONS

It is being realised, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threat are outlined below:--

(a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected activities and confiscation of proceeds derived from such offence.

(b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money-laundering.

(c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material forcomprehensive legislation to combat the problem of money-

laundering. The recommendations were classified under various heads. Some of the important heads are--

(i) declaration of laundering of monies carried through serious crimes a criminal offence;

(ii) to work out modalities of disclosure by financial institutions regarding reportable transactions;

(iii) confiscation of the proceeds of crime;

(iv) declaring money-laundering to be an extraditable offence; and

(v) promoting international co-operation in investigation of money- laundering.

(d) the Political Declaration and Global Programme of Action adopted by United Nations General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia, calls upon the member States to develop mechanism to prevent financial institutions from being used for laundering of drug related money and enactment of legislation to prevent such laundering. (e) the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998 has made another declaration regarding the need to combat money-laundering. India is a signatory to this declaration."

41. It is thus 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.

42. 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;]"

43.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.

44.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. The aforesaid explanation has been inserted in the statute book by way of Act 23 of 2019.

45.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 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.

46.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.

47.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."

48. 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.

49. 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 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.]"

50. 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.

51. 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.

52. The punishment for money laundering has been provided under Section 4 of the Act, 2002. 30. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready reference, Section 50 of the Act, 2002 is quoted as under:

"50. Powers of authorities regarding summons, production of documents and to give evidence, etc.--(1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:-- (a) discovery and inspection; (b) enforcing the attendance of any person, including any officer of a [reporting entity] and examining him on oath; (c) compelling the production of records; (d) receiving evidence on affidavits; (e) issuing commissions for examination of witnesses and documents; and (f) any other matter which may be prescribed. (2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act. (3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required. (4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860). (5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act: Provided that an Assistant Director or a Deputy Director shall not-- (a) impound any records without recording his reasons for so doing; or (b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the [Joint Director]."

53. 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" (supra) 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.

54. The interpretation of the condition which is to be fulfilled while arresting the person involved in the predicate offence has been made as

would appear from paragraph 265. For ready reference, relevant paragraphs are being referred as under:

"265. To put it differently, the section as it stood prior to 2019 had itself incorporated the expression "including", which is indicative of reference made to the different process or activity connected with the proceeds of crime. Thus, the principal provision (as also the Explanation) predicates that if a person is found to be directly or indirectly involved in any process or activity connected with the proceeds of crime must be held guilty of offence of moneylaundering. If the interpretation set forth by the petitioners was to be accepted, it would follow that it is only upon projecting or claiming the property in question as untainted property, the offence would be complete. This would undermine the efficacy of the legislative intent behind Section 3 of the Act and also will be in disregard of the view expressed by the FATF in connection with the occurrence of the word "and" preceding the expression "projecting or claiming" therein. This Court in Pratap Singh v. State of Jharkhand, enunciated that the international treaties, covenants and conventions although may not be a part of municipal law, the same be referred to and followed by the Courts having regard to the fact that India is a party to the said treaties. This Court went on to observe that the Constitution of India and other ongoing statutes have been read consistently with the rules of international law. It is also observed that the Constitution of India and the enactments made by Parliament must necessarily be understood in the context of the present-day scenario and having regard to the international treaties and convention as our constitution takes note of the institutions of the world community which had been created. In Apparel Export Promotion Council v. A.K. Chopra, the Court observed that domestic Courts are under an obligation to give due regard to the international conventions and norms for construing the domestic laws, more so, when there is no inconsistency between them and there is a void in domestic law. This view has been restated in Githa Hariharan, as also in People's Union for Civil Liberties, and National Legal Services Authority v. Union of India."

55. The implication of Section 50 has also been taken into consideration. Relevant paragraph, i.e., paragraphs-422, 424, 425, 431, 434 read as under:

"422. The validity of this provision has been challenged on the ground of being violative of Articles 20(3) and 21 of the Constitution. For, it allows the authorised officer under the 2002 Act to summon any person and record his statement during the course of investigation. Further, the provision mandates that the person should disclose true and correct facts known to his personal knowledge in connection with the subject matter of investigation. The person is also obliged to sign the statement so given with the threat of being punished for the falsity or incorrectness thereof in terms of Section 63 of the 2002 Act. Before we proceed to analyse the matter further, it is apposite to reproduce Section 50 of the 2002 Act, as amended. -----:

424. By this provision, the Director has been empowered to exercise the same powers as are vested in a civil Court under the 1908 Code while trying a suit in respect of matters specified in sub-section (1).

This is in reference to Section 13 of the 2002 Act dealing with powers of Director to impose fine in respect of acts of commission and omission by the banking companies, financial institutions and

intermediaries. From the setting in which Section 50 has been placed and the expanse of empowering the Director with same powers as are vested in a civil Court for the purposes of imposing fine under Section 13, is obviously very specific and not otherwise.

425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression "proceeding" in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of subsection (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself. This position is well-established. The Constitution Bench of this Court in M.P. Sharma had dealt with a similar challenge wherein warrants to obtain documents required for investigation were issued by the Magistrate being violative of Article 20(3) of the Constitution. This Court opined that the guarantee in Article 20(3) is against "testimonial compulsion" and is not limited to oral evidence. Not only that, it gets triggered if the person is compelled to be a witness against himself, which may not happen merely because of issuance of summons for giving oral evidence or producing documents. Further, to be a witness is nothing more than to furnish evidence and such evidence can be furnished by different modes. The Court went on to observe as follows: "Broadly stated the guarantee in article 20(3) is against "testimonial compulsion". It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is "to be a witness". A person can "be a witness" not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See section 119 of the Evidence Act) or the like. "To be a witness" is nothing more than "to furnish evidence", and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross examination. It is not a guide to the connotation of the word "witness", which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial

compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is "to be a witness" and not to "appear as a witness". It follows that the protection afforded to an accused in so far as it is related to the phrase "to be a witness" is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case." (emphasis supplied)

431. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money laundering. If the statement made by him reveals the offence of money laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence.

434. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate

action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government."

56.It is evident from the observation so made as above that the purposes and objects of the 2002 Act for which it has been enacted, is not limited to punishment for offence of money-laundering, but also to provide measures for prevention of money-laundering. It is also to provide for attachment of proceeds of crime, which are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceeding relating to confiscation of such proceeds under the 2002 Act. This Act is also to compel the banking companies, financial institutions and intermediaries to maintain records of the transactions, to furnish information of such transactions within the prescribed time in terms of Chapter IV of the 2002 Act.

57.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.

58.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

(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.

59. 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.

60. The fact about the implication of Section 45 has been interpreted by the Hon'ble Apex Court in "Vijay Madanlal Choudhary" (supra) at paragraphs-372-374. For ready reference, the said paragraphs are being referred as under:

"372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub-section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are: (i) that there are reasonable grounds for believing that he is not guilty of such offence; and (ii) that he is not likely to commit any offence while on bail.

373. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur.

374. The first issue to be answered by us is: whether the twin conditions, in law, continued to remain on the statute book post decision of this Court in Nikesh Tarachand Shah and if yes, in view of the amendment effected to Section 45(1) of the 2002 Act vide Act 13 of 2018, the declaration by this Court will be of no consequence. This argument need not detain us for long. We say so because the observation in State of Manipur in paragraph 29 of the judgment that owing to the declaration by a Court that the statute is

unconstitutional obliterates the statute entirely as though it had never been passed, is contextual. In this case, the Court was dealing with the efficacy of the repealing Act. While doing so, the Court had adverted to the repealing Act and made the stated observation in the context of lack of legislative power. In the process of reasoning, it did advert to the exposition in BehramKhurshidPesikaka and Deep Chand including American jurisprudence expounded in Cooley on Constitutional Limitations and Norton v. Shelby County."

61.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"

(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 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. For ready reference, paragraph-17 of the said judgment is quoted as under:

"17. 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 17 A.B.A. No. 10671 of 2023 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."

62.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" (supra) wherein it has been observed that the accused is not guilty of the offence and is not likely to commit any offence while on bail.

63.In the judgment rendered by the Hon'ble Apex Court in "Vijay Madanlal Choudhary" (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. 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" (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 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.

64.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. 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.

65.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. For ready reference, paragraph-30 of the said judgment reads as under:

"30. 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. Section 65 requires that the provisions of CrPC 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. 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."

66.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 provisions of PML Act.

67.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.

68.Relevant paragraphs of supplementary 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 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

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 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 war 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 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 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".-----

During the course of investigation, the Call Detail Records (CDRs) for mobile number 85xxxxxx78 belonging to Afshar Ali and mobile numbers 94xxxxxx55 and 93xxxxxx35 belonging to Md. Saddam Hussain was obtained and scrutinised. The scrutiny of CDR of the said numbers reveals that on 13.05.2022 to 14.05.2022, Afshar Ali and Md. Saddam Hussain were in Kolkata.

------

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.

9.48 The scrutiny of the Axis Bank Account No. 918010066076941 maintained in the name of Md. Irshad reveals frequent transactions with accused persons namely Md. Saddam Hussain, Afshar Ali and others amounting to Rs. 12,25,000 mostly in a period of one year.--

10. Gist of the statements recorded during course of investigation under PMLA 2002 Md. Irshad (accused no. 14) His statement was recorded under section 50 of PMLA, 2002 on 24.04.2024 and 26.04.2024. His statement reveals about his direct involvement in writing fake deed no 3954 of 1974. 3985/1940 und several other deeds. In his statement, he has also accepted his involvement in making fake entries in Register II and R27 register

in relation to properties admeasuring 4.83 acres at Mauja Gari, Cheshire Home Road, Ranchi. He has also accepted cash dealings and his bank account transactions with co-accused persons namely Md. Saddam Hussain, Afshar Ali and others.

Process and activity connected with proceeds of crime and role of the accused persons in offence of money laundering - Md. Irshad (accused no. 14) The accused person was directly involved in writing fake deeds to acquire landed properties which are proceeds of crime. He wrote fake deed no. 3985 of 1940 in his own handwriting (for a property admeasuring 6.34 acres, part of which, plot no. 989 and 99% are in possession of the accused person Hemant Soren). In addition to this, he also wrote a separate fake deed no. 2376 of 1940 which is part of the above stated 4.83 acres property and deed no. 3954 of 1974 (for above stated 4.83 acnes property having value of Rs. 22,61,84,553/-). The accused person Md. Irshad also made fake entries in the original Panji II registers for above stated 4.53 acres property, in association with Bhanu Pratap Prasad, Md. Saddam Hussain, Bipin Singh and others. He also wrote backdated fake mutation correction slips related to the above stated 4.83 acres property in the name of Samrendra Chandra Ghoshal. The scrutiny of his Axis bank accounts 918010066076941 and 913110039978433 reveals a payment of Rs. 8,74,500 through the above-named accused persons namely Md. Saddam Hussain, Afshar Ali and others. In addition to this, frequent cash deposit have also been identified which corroborates the association of these persons.

Thus, the said Md. Irshad is directly involved in preparation of fake deed and falsification of original government registers which are criminal activities relating to schedule offences under PMLA, 2002. The said Md. Ishad is knowingly involved with the accused persons namely Afshar Ali, Md. Saddam Hussain, Bipin Singh, Bhannu Pratap Prasad and others in process and activities relating to acquisition of landed properties which are proceeds of crime in the instant case. By way of his involvement and assistance, he has acquired proceeds of crime from the above- named accused persons, a portion of which is also identified in his bank accounts. He is also a party with the above-named accused persons in using and projecting the fake deeds as untainted property in a concealed manner to acquire landed properties Thus, the said Md. Irshad has committed acts which constitute the offence of Maney Laundering as defined under section 3 of PMLA 2002.

69. It has come in the prosecution complaint that Bhanu 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 P.S. The information shared under section 66(2) of PMLA,

2002 is an integral part of the FIR 272/2023. On the basis of FIR no. 272/2023, the ECIR: RNZO/25/2023 was recorded for further investigation under PMLA, 2002.

70. As per the prosecution complaint during the 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 forgeries and falsification of government records in relation to various properties including properties ad-measuring 4.83 acres situated at mauja Gari, Chesire Home Road, Ranchi and another property admeasuring 6.43 acres at Bariatu, Ranchi which was acquired by the above-stated syndicate of Bhanu Pratap Prasad, Afshar Ali and others was also identified.

71.It has revealed that an organised racket is operating in Ranchi and its vicinity which is involved in making fake deeds, falsifying and tempering with original government records in order to create fictious ownership in respect of some properties. The network of this syndicates extends to certain persons operating at Kolkata who have access to the official records available at the Registrar of assurances at Kolkata.

72. It has come during investigation that the further enquiry with the Registrar of Assurances, Kolkata, has revealed that the above sale deeds/property documents 3985 of 1940 in relation to the above stated property situated at Khata no. 234, Mauja Baragain, Ranchi under Khewat No. 10 and 3954 of 1974 in relation to the said 4.83 acres property at Chesire Home Road, Ranchi are fake and the has further clarified that no entries regarding both deeds exists in their index registers which implies that the deeds/property documents are fake and therefore, they have not been indexed which is a proof of the authenticity of registry of any property deed.

73.it has surfaced during investigation that the accused persons namely Afshar Ali, Md Saddam Hussian, Shekhar Khushwaha were involved in the preparation of such fake deeds which was written by the present applicant/petitioner, namely, Md. Irshad in lieu of money. During investigation, the statement of the petitioner was also recorded u/s 50 of PMLA, 2002 on 24.04.2024 in which he admitted to have written the above stated deeds and further acknowledged his handwriting in which

the said deed was written. In addition to these various other fake deeds which were recovered from his possession were also identified to be written by him in his own handwriting.

74. It has come during investigation in addition to preparation of fake deed no. 3954/1974, the applicant/petitioner, namely, Md. Irshad and his accomplices, namely, Bipin Singh, Bhanu Pratap Prasad, Afshar Ali, and others in connivance with each other also entered the detail of the property admeasuring 4.83 acres in the name of Samrendra Chandra Ghoshal in Government records, i.e, on page no. 139 of register II, volume I maintained with Baragain Anchal, Ranchi.

75.Thus, it is evident that the petitioner in actively involved in the above- stated conspiracies hatched by the accused persons in order to acquired landed properties fraudulently and further sell them at exorbitant rates.

76.Further from the scrutiny of the HDFC Bank account bearing no. 99909939637436 in the name of the petitioner, namely, Md. Irshad reveals frequent cash deposits amounting to Rs. 5,10,000/- in a span of only 15 days.

77.Further, it has been mentioned in prosecution complaint that during the course of the investigation, the CDRs of the petitioner and his accomplices were analysed for the period 14.03.2021 to 13.03.2023. The scrutiny of the CDR of Md. Saddam Hussain reveals that around 149 calls have been made with the petitioner. Further, the scrutiny of the CDR of Afshar Ali reveals that a total of 1120 calls have been made with the petitioner. Hence, it is evident that the petitioner is an active member of the syndicate indulged in acquiring properties on the basis of fake deeds.

78. From the above facts and relevant paragraph of the prosecution complaint, it prima facie appears that the petitioner, namely, Md. Irshad is directly involved in the preparation of fake deeds and falsification of original government registers which are criminal activities relating to schedule offences under PMLA, 2002.

79.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.

80.At this juncture it will be purposeful to discuss the core of section 3 of PML Act, 2002. Section 3 of the Act 2002, addresses itself to three things (i) person; (ii) process or activity; and (iii) product. Insofar as persons covered by Section 3 are concerned, they are, (i) those who directly or indirectly attempt to indulge; or (ii) those who knowingly assists; or (iii) those who are knowingly a party; or (iv) those who are actually involved. Insofar as process is concerned, the Section identifies six different activities, namely (i) concealment; (ii) possession; (iii) acquisition; (iv) use; (v) projecting; or (vi) claiming as untainted property, any one of which is sufficient to constitute the offence. Insofar as product is concerned, Section 3 identifies "proceeds of crime" or the property representing the proceeds of crime as the product of the process or activity.

81.It is evident that as per Section 3, there are six processes or activities identified therein. They are, (i) concealment; (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 illegal mining activities are laundered through diverse methods, one of which Involves making incremental cash deposits in their bank accounts. This is done in a piecemeal manner with the intention of presenting the tainted property as untainted.

82.Keeping in mind these essential elements that make up the molecular structure of Section 3, this Court adverts in to 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.

83.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" (supra). In Rohit Tandon v. Directorate of Enforcement, (2018) 11 SCC 46, 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.

84.Further the offence of money laundering as contemplated in Section 3 of the PMLA has been elaborately dealt with by the three Judge Bench in "Vijay Madanlal Choudhary" (supra), in which it has been observed that Section 3 has a wider reach. The offence as defined captures every process and activity in dealing with the proceeds of crime, directly or indirectly, and is not limited to the happening of the final act of integration of tainted property in the formal economy to constitute an act of money laundering. Of course, the authority of the Authorised Officer under the Act to prosecute any person for the offence of money laundering gets triggered only if there exist proceeds of crime within the meaning of Section 2(1)(u) of the Act and further it is involved in any process or activity.

85.Not even in case of existence of undisclosed income and irrespective of its volume, the definition of "Proceeds of Crime" under Section 2(1)(u) will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence. The property must qualify the definition of "Proceeds of Crime" under Section 2(1)(u) of the Act. As observed, in all or whole of the crime property linked to scheduled offence need not be regarded as proceeds of crime, but all properties qualifying the definition of "Proceeds of Crime" under Section 2(1)(u) will necessarily be the crime properties.

86.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 the scheduled offence. Clause (u) also clarifies that even the value of any such property will also be the proceeds of crime.

87.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 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.

88.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.

89.The three Judge Bench the Hon'ble Apex Court in the case of "Rohit Tandon" (supra) 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

90.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.

91.As discussed above, the "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 and 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.

92.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 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.

93. 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. Reference in this regard may be taken from the judgment as rendered by the Hon'ble Supreme Court in the case of Tarun Kumar (supra).

94.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.

95.Further contention has been raised that a prosecution complaint against the petitioner has already been filed and, thus, investigation is complete and therefore, no purpose would be served in keeping the petitioner in judicial custody.

96.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.

97.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.

98.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.

99.At this juncture it would be apposite to refer the decision of Hon'ble Supreme Court rendered in the case of Virupakshappa Gouda v. 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."

100. 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.

101. 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 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.

102. Sub-section (1)(ii) of Section 45 of the Act, 2002, provides that if 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, meaning thereby, the parameter which is to be followed by the concerned Court that satisfaction is required to be there for believing

that such accused person is not guilty of such offence and is not likely to commit of offence while on bail.

103. Section 45(2) provides to consider the limitation for grant of bail which is in addition the limitation under the Code of Criminal Procedure, 1973, i.e., limitation which is to be considered while granting the benefit either in exercise of jurisdiction conferred to this Court under Section 438 or 439 of Cr.P.C. is to be taken into consideration.

104. 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 has been provided under Section 45(1) of the Act, 2002.

105. This Court, based upon the imputation as has been discovered in course of investigation, is of the view that what has been argued on behalf of the petitioner that proceeds cannot be said to be proceeds of crime but as would appear from the preceding paragraphs, money has been transferred it into the account of the present petitioner by the co- accused.

106. 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"

(supra), 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 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."

107. 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 that have been recorded and 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.

108. 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 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."

109. Thus, on the basis of the discussion made hereinabove it appears that the petitioner is knowingly involved with the accused persons, namely, Afshar Ali, Md. Saddam Hussain, Bipin Singh, Bhanu Pratap Prasad and others in processes and activities relating to the acquisition of landed properties which are proceeds of crime in the instant case. By way of his involvement and assistance, he has acquired proceeds of crime from the above-named accomplices, a portion of which is also identified in his bank accounts. He is also a party with the above-named accused persons in using and projecting the fake deeds as untainted property in a concealed manner to acquire landed properties.

110. This Court, on the basis of aforesaid discussions, factual aspects as also the legal position, is of the view that there is no reason to believe by this Court that the petitioner is not involved in managing the money said to be proceeds of crime.

111. 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.

Issue of Parity

112. 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.

113. 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 of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied.

114. 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 the grant of bail on the basis of parity has been established. Reference in this regard may be taken from the judgment as 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 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."

115. The Hon'ble Apex Court in "Tarun Kumar" (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.

116. It has further been held in the paragraph 19 of the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co-accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. For ready reference, relevant paragraph, i.e., paragraph-19, of the aforesaid judgment reads as under:

"19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision."

117. Now this Court is adverting into facts of instant 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 the case of co-accused and petitioner of B.A no.4892 of 2024.

118. 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 said petitioner about using the State machinery for his own benefit and to frustrate the investigation but herein against the present applicant/petitioner it has come in the investigation that he was involved in preparation of fake deeds, falsification of government records and

tampering with revenue registers to acquire and dispose of landed properties as a member of syndicate and further proceeds of crime have also been identified in the bank account of present petitioner .

119. Thus, the allegation against the present petitioner is entirely different and as per the prosecution complaint it is evident that the petitioner along with other accused persons was involved in preparation of fake deed as admitted by co-accused Afsar Ali mentioned at para 9.20 of the prosecution complaint. Further as per para 9.35 & 9.38 of the prosecution complaint where CDR has been reproduced, the petitioner was in touch with other co-accused and also as per para 9.45, 9.46 & 9.48 of the prosecution complaint the substantial amount was transferred in the account of this petitioner, which clearly shows that the petitioner was involved in assisting other accused in acquiring proceeds of crime and has also received proceeds of crime in his account.

120. In the aforesaid backdrop 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.

121. 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 application issue of parity herein.

122. Further, it is required to refer herein that the Money Laundering is an economic offence and economic offences comes under the garb 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."

123. 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 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."

124. 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.

125. This Court, in view of the aforesaid material available against the petitioner, is of the view, that in such a grave nature of offence, which is

available on the face of the material, applying the principle of grant of bail wherein the principle of having prima facie case is to be followed, the nature of allegation since is grave and as such, it is not a fit case of grant of bail.

126. Having regard to the entirety of the facts and circumstances of the case, this Court is of the opinion 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.

127. For the foregoing reasons, having regard to facts and circumstances, as have been analysed hereinabove, since the petitioner has failed to make out a special 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.

128. 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.

129. 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.)

Sudhir Dated: 21 /03/2025 Jharkhand High Court, Ranchi AFR