Bijay Ketan Sahoo vs Enforcement Directorate
2023 Latest Caselaw 5583 Ori

                  IN THE HIGH COURT OF ORISSA AT CUTTACK

                                 ABLAPL No.3541 of 2023

               Bijay Ketan Sahoo                       ....         Petitioner
                                                      Mr.H.K. Mund, Advocate

                                           -versus-

               Enforcement Directorate,         ....            Opp. Party
               Bhubaneswar
                                    Mr.Gopal Agarwal, special counsel for
                                                Enforcement Directorate

                        CORAM:
                        JUSTICE CHITTARANJAN DASH
                                       ORDER

Order No. 10.05.2023

04. 1. Heard learned counsel for the Petitioner and the State.

2. As alleged on receipt of a reliable information about acquisition and possession of assets disproportionate to his known sources of income by the Petitioner and his wife and other family members an enquiry was taken up by the Vigilance. During enquiry it revealed that the Petitioner is the son a petty businessman and the wife of the Petitioner is the daughter of a retired M.E. School Teacher. While the Petitioner initially joined service as U.D. Clerk in Central Excise and Customs in the year 1993, he subsequently joined in Odisha Administrative Service in the year 2005. The wife of the Petitioner joined State Government Service in Odisha Finance Service in the year 1999 and both the Petitioner and his wife worked in various capacities in their respective department. The // 2 //

enquiry further revealed that the Petitioner and his wife have acquired six numbers of plots and flats and had constructed a triple storied building at Chandrasekharpur, Bhubaneswar in the name of the mother in law of the Petitioner who had no independent source of income. The total assets acquired by the Petitioner and his wife in the shape of plots, buildings, household articles, gold and diamond jewellery is valued at Rs.6,79,86,000/- approximately. The enquiry enquiry also revealed that the approximate income of both of them from salary, loan, sale of properties and other incomes amounted to Rs.2,50,000,00/- and they had incurred expenses of Rs.75.00 lakhs approximately under the heads of consumer expenses, educational expenses, payment of insurance premiums, stamp duty, registration fee, loan repayment etc. It was, therefore, alleged that the Petitioner and his wife possessed disproportionate asset worth of Rs.5,00,50,486/- and thus intentionally enriched themselves illicitly in furtherance of their common intension in the said act and were assisted by the mother of the Petitioner namely Debaki Prusty (since dead) thus making themselves liable for the offence under Section 13(1)(b) of the P.C. Act, 1988 read with Section 34 IPC.

3. After the preliminary investigation, the E.D. filed a complaint in the court of learned District and Sessions Judge-cum-Special Judge, PMLA, Bhubaneswar alleging commission of offence under Section 3 of the PML Act on the basis of the complaint case (PML No.11 of 2022) the case was registered in the said court. The learned Special Judge PMLA, Bhubaneswar issued summon to the

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Petitioner for his appearance. Apprehending that the Petitioner may be remanded to the custody, he moves in the present.

4. It is submitted by the learned counsel for the Petitioner, inter alia, that the offence alleged being a scheduled offence, it is premature to seek appearance of the Petitioner before the learned court held the same to be a scheduled offence; further the Petitioner and his wife are two different entities since both of them are public servants and have their own income and expenditure and cannot be taken together for the purpose of the offence alleged. It is further case of the Petitioner that a joint trial of two public servants for the commission of the aforesaid offence on the ground that they are spouses is not envisaged in law. Therefore, the registration of and investigation into the scheduled offence is vitiated and the present proceeding under the PMLA is not maintainable in law. According to learned counsel, the pre requisite for filing the complaint U/s 3 of PMLA is that the officer competent to investigate the offence under the PMLA has to make out a prima facie case on the basis of material that possession to the effect is proceeds of crime. In the case in hand nothing is borne out that the material in possession is proceeds of crime. Resultantly, without the existence of the proceeds of crime there cannot be commission of offence of money laundering Therefore, no prima facie case is made out in the complaint under Section 3 of the PML Act so as to face the rigour of Section 45 of the PMLA.. Learned counsel for the Petitioner relied upon the decisions in the case of Mahdoom Bava v. CBI in Crl. Appeal No.853 of 2023, Siddarth v. State of U.P. and another

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(2022 (1) SCC 676) and Satender Kumar Antil v. CBI in support of his contentions.

5. Mr. Gopal Agarwal, learned counsel appearing for the ED on the contrary took this Court through the definition of the offence under Section 3 of the PML Act punishable under Section 4 of the Act pending before the court of Sessions Judge-cum-Special Judge, PMLA, Bhubaneswar.

6. Traversing the submission of the learned counsel for the Petitioner Mr. Agarwal submitted that the FIR is based on the commission of scheduled offence as defined under Section 2(1)(y) under the PML Act, 2002 and accordingly the ED registered ECIR against the Petitioner and others akin to the provision of PML Act, 2002. It is further submitted that after investigation, prosecution complaint No.11 of 2022 has been registered by the ED under Section 45 read with Section 44 of the PML Act for commission of offence under Section 3 thereof. According to learned counsel the offence of money laundering is an independent offence regarding the process or activity connected with the proceeds of crime and that the person is not prosecuted for the schedule offence by invoking the provision and the PML Act but only when he derives or obtained property as a criminal activity relating to or in relation to a schedule offence. He further submitted that apprehension of the Petitioner that on his appearance he will be remanded to custody as is the practice followed by the Special Court, PMLA is unfounded and is without any basis. According to the learned counsel, the judgments passed by the Apex Court in the case of Mahdoom Bava v. CBI in Crl. Appeal No.853 of 2023, Siddarth v. State of U.P.

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and another (2022 (1) SCC 676) and Satender Kumar Antil v. CBI are not applicable to the facts and circumstances of the present case in as much as those judgments have not dealt with specifically the Section 45 of the PML Act 2002 nor it is considered in the said judgments by the Apex Court.

Learned counsel, however, put emphasis on the decision of the Apex Court wherein the position of law relating to the anticipatory bail has been laid down by the constitution bench in the case of Vijay Madanlal Choudhury v. Union of India more specifically in the context of the PMLA in paragraphs 137 to 141 and under paragraphs 141 at page 458 holding that 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. Accordingly he summed up his contention that the Petitioner directly as well as indirectly indulged in and knowingly assisted and became a party/activity connected with the "proceeds with crime" and his guilty of the offence of money laundering.

7. The submission of learned counsel for the Petitioner as regards the offence as scheduled offence and the cognizance taken by the court on the basis of the registration of the ECIR are matters need to be addressed by the court in seisin over the matter.

8. Prima facie the allegations appearing as reveals from the submission of the parties as well as the documents placed is one

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under Section 3 of the PML Act, 2002 punishable under Section 4 of the Act. The submissions made in respect to various principles enunciated by the Apex Court as a guide to deal with an application under Section 438 Cr.P.C. need no further elaboration which the court, of course, has to look into. Coming to the case in the present it is found that the properties described to have been acquired and possessed which primarily comes within the definition of "proceeds of crime" in various analogy of the definition under the Act thereby makes the Petitioner amenable to the offence. Prima facie, therefore, the case stands against the Petitioner since he is involved in acquisition of the properties in dealing with the "proceeds with crime".

9. Keeping in view the submission of the parties made herein and the material emanates there from as placed before this Court, further keeping in view the provision as to presumption as contained in Section 24 of the Act and the statutory bar placed under Section 45 of the PML Act as well as the dictum of the Apex Court in the case of Vijay Madanlal Choudhury v. Union of India in SLP (Civil) NO.28394 of 2021 and batch and The Directorate of Enforcement vrs M.Gopal Reddy & Anr in SLP(Crl) No. 8260/2021) while this court is not inclined to accept the prayer for anticipatory bail, it is directed that in the event the Petitioner appears before the Special Court in seisin over the matter and move for grant of regular bail, the same shall be considered on its own merit, keeping in view the developments in law vis-à-vis the facts emerges in the case in hand in their proper prospective and further that the custodial interrogation of the Petitioner was not required

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during entire process of investigation so far which the Petitioner too has cooperated as acknowledged by the opposite party too and dispose of in accordance with law without being influenced or prejudice of any observation made herein.

10. The ABLAPL is disposed of.

(Chittaranjan Dash) Judge

KC Bisoi

KRUSHNA Digitally by KRUSHNA signed

CHANDR CHANDRA BISOI Date: 2023.05.12 A BISOI 17:13:14 +05'30'