08.04.2025 Sandeep Kumar Nayak S/o Shri Kirti Chand Nayak Aged About 42 Years R/o v. Directorate Of Enforcement Through Investigation Officer Enforcement Directorate
Case Details
Page 1 of 23 2025:CGHC:16439 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR MCRC No. 642 of 2025 Reserved on : 28.02.2025 Delivered on : 08.04.2025 Sandeep Kumar Nayak S/o Shri Kirti Chand Nayak Aged About 42 Years R/o Village Dantu Tahsil And P.S. Kasmaar District - Bokaro Jharkhand --- Applicant Versus Directorate Of Enforcement Through Investigation Officer Enforcement Directorate (FEMA/ PMLA) Raipur (C.G.) --- Respondent For Applicant : Mr. Manish Nigam, Advocate. For Respondent : Dr. Saurabh Kumar Pande, Special Public Prosecutor. Hon'ble Shri Justice Narendra Kumar Vyas CAV ORDER 1. This is first bail application filed under Section 483 of the Bhartiya Nayay Suraksha Sanhita, 2023 for grant of regular bail to the applicant, who has been arrested on 25.01.2023 in connection with Crime No. ECIR/RPZO/09/2022 dated 29.09.2022 registered at Police Station- Directorate of Enforcement, Zonal Office, Raipur (C.G.) for the offence punishable under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (for short “the PMLA, 2002”). 2. The case of the prosecution, in brief, is that on 12.07.2022, FIR No. 129/2022 was registered by Kadugodi Police Station, ARUN KUMAR DEWANGAN Digitally signed by ARUN KUMAR DEWANGAN Date: 2025.04.08 16:58:52 +0530 Page 2 of 23 Whitefield, Bengaluru under Sections 186, 204, 353 & 120B of IPC against one Suryakant Tiwari & other persons on the basis of complaint filed by Deputy Director of Income Tax, Foreign Assets Investigation Unit-I Bengaluru alleging that as part of conspiracy, during course of search by Income Tax department on 30.06.2022, Suryakant Tiwari had obstructed the officials from carrying their official duties and destroyed crucial incriminating documents and digital evidence about the alleged illegal extortion on Coal Transportation, payments collected by Suryakant Tiwari and his associates. 3. It is also case of the prosecution that on 13.09.2022, OM in F. No. 22-IT was forwarded by Central Board of Direct Taxes (for short “CBDT”) to the Directorate of Enforcement containing the
Facts
FIR No. 129/2022 Police Station- Kadugodi along with a report on the investigation conducted by the Income Tax Department on M/s Jay Ambey Group of Raipur (Suryakant Tiwari Group). In the report, it has been mentioned that during search operations on 30.06.2023 by Income Tax Department on the premises of Suryakant Tiwari and his associates, evidence was gathered related to a syndicated being operated and coordinated by Suryakant Tiwari whereby additional unauthorized cash to the tune of Rs. 25 per ton of coal was being collected over and above the legal amount against Coal Delivery Orders. It has also been alleged that pursuant to the Order F.No.4138- 47/Sankhikiya/Coal bhandaran/N.Kra 2020 dated 15.07.2020 issued by the State Government the dispatch rules of coal mines Page 3 of 23 by authorities have been changed from online process to introduction of manual verification. The said notification was issued under the signatures of Sameer Vishnoi, IAS who was the Director, Geology & Mining as well as MD of CMDC. It is also case of the prosecution that it is only after the said notification Suryakant Tiwari in conspiracy with certain other persons started obtaining an illegal levy of Rs. 25 per ton of coal for issuance of delivery order for coal transportation. The handwritten diaries maintained by one Rajnikant Tiwari who is brother of Suryakant Tiwari contained entries of incoming and outgoing amounts of unaccounted cash generated, inter alia from illegal levy on coal transport revealed profits of more than Rs. 500 crores in 16 months from different kinds of levies. On 29.09.2022, ECIR/RPZ0/09/2022 was registered by Directorate of Enforcement, Raipur Zonal Office for commission of offence under Sections 120 (B) & 384 of IPC being a part of FIR No. 129/2022. Role of the present applicant: 4. The role of the present applicant is that the present applicant was working as an Assistant Mining Officer and posted at Surajpur from 2019 to 2022 i.e. during the period when coal levy scam was undertaken by Suryakant Tiwari and associates. The applicant in his statement recorded under Section 50 of the PMLA, 2002 has stated that one Rahul Singh who was employee of Suryakant Tiwari used to send him various messages containing name of company, DO No., date, Grade, Page 4 of 23 Quantity, Mines etc. and on the basis of which Rahul Singh extorted money in Surajpur for coal transportation on behalf of Suryakant Tiwari. He also admitted that he was told by Rahul Singh in July, 2020 that he will give him information of DOs which are to be cleared and accordingly, Rahul Singh used to send him the details on Whatsapp messages mentioned “Clear” after that he used to send NOC to SECL. He has also stated that “Clear” in the messages means that Rahul Singh had received money @ Rs. 25/tonne from the companies whose DOs were to be cleared. Rahul Singh messaged him when he had received money for the clearance of DO from the DO holder and only then he used to issue the NOC. Rahul Singh confirmed the modus operandi told by the applicant regarding collection of cash @ Rs. 25/ tonne. Rahul Singh in his statement inter-alia disclosed that when any coal transporter used to visit Mining Office, Surajpur regarding clearance of DO, he was informed by the applicant to contact with Rahul Singh and the DO will be cleared only after making payment @ Rs. 25/per ton to Rahul Singh and contact number of Rahul Singh was also provided by the applicant to the coal transporter/businessmen. When the payment @ Rs. 25/ton against the coal transportation was received, message was passed to the applicant by Roshan Singh for clearance of DOs. From the above, it is clear that the DOs were cleared by the applicant only after receipt of message from Rahul Singh, who used to send message for clearance of DO only after receipt of illegal levy on coal transportation. Thus, the applicant has Page 5 of 23 knowingly and willingly assisted the extortion syndicate in committing the predicate crime of extortion and also in generation of proceeds of crime. 5. The record of the case would show that the applicant filed an application for grant of regular bail before the learned PMLA Court, Raipur (C.G.) seeking enlargement on regular bail. Learned Special Judge vide order dated 14.07.2023, dismissed the bail application filed by the applicant by observing that there is involvement of the applicant in crime in question. This order has been assailed by the applicant before this Court by filing the instant bail application under Section 483 of the Bhartiya Nayay Suraksha Sanhita, 2023. 6.
Legal Reasoning
prima facie made out against the applicant. He would further submit that the right to fair trial being a facet of the Right to Life and Liberty under Article 21 of the Constitution of India can only be violated by procedure established by law, which procedure must be just, fair, and reasonable. He would further submit that Hon'ble the Supreme Court has already enlarged similarly placed accused person namely Shiv Shankar Nag on bail. He would further submit that continued incarceration of the applicant, based on absolutely no admissible material, has severely damaged his reputation and risks the livelihood and well-being of his family as held by Hon’ble the Supreme Court in case of Manish Sisodia Vs. Directorate of Enforcement [(2024) INSC 595], Prem Prakash Vs. Union of India [(2024) INSC 637], as such, the applicant deserves to be enlarged on bail. He would further submit that the applicant is in jail since 25.01.2023 and the trial of the case is likely to take more time for its conclusion and applicant is ready and willing to abide by any condition that may be imposed upon him and would pray for grant of bail to the applicant. 10. On the other hand, learned counsel for the Enforcement Directorate referring to the ECIR would submit that the role of the present applicant is that applicant who was posted as Page 9 of 23 Assistant Mining Officer at Surajpur from 2019 to 2022 through Rahul Singh extorted money in Surajpur for coal transportation on behalf of Suryakant Tiwari who had received money @ Rs. 25/tonne from the companies whose DOs were to be cleared. Rahul Singh in his statement inter-alia disclosed that when any coal transporter used to visit Mining Office, Surajpur regarding clearance of DOs, he was informed by the applicant to contact with Rahul Singh and the DOs will be cleared only after making payment @ Rs. 25 per ton to Rahul Singh and contact number of Rahul Singh was also provided by the applicant to the coal transporter/businessmen. He has further stated that DOs were cleared by the applicant only after receipt of message from Rahul Singh, who used to send message for clearance of DO only after receipt of illegal levy on coal transportation. Thus, the applicant has knowingly and willingly assisted the extortion syndicate in committing the predicate crime of extortion and also in generation of proceeds of crime. 11. He would further submit that the learned Special Judge (PMLA), Raipur vide order dated 14.07.2023 while dismissing the bail application filed by the applicant has observed that there is involvement of the applicant in the crime in question which has not been rebutted by the applicant while making this submission before this Court and would pray for rejection of bail petition. He would further submit that the applicant is unable to fulfill the twin conditions of Section 45 of the PMLA, 2002 as from the above factual matrix, it is quite vivid that the possibility of the accused Page 10 of 23 being not guilty of the offence of money laundering is highly impossible. To substantiate the submission, he would refer to paragraph 135 of the judgment rendered by Hon’ble the Supreme Court in case of Vijay Madanlal Chaudhary & others Vs. Union of India & others [2022 SCC OnLine SC 929]. He would further submit that the applicant with proceed of crime and having deep roots in the society, is in a position to influence witnesses. He has referred to the judgment of Hon'ble Allahabad High Court in case of Pankaj Grover v. ED [Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 7661 of 2021] wherein Hon’ble the High Court has held that the accused in economic offences/ PMLA cases are in possession of huge proceeds of crime and may use those to influence witnesses. Further the Court also held that since such offences are committed mostly by influential persons, there is a high likelihood of their using influence to tamper with evidence and influence witnesses. He would further submit that economic offence constitutes a separate class of offence and in the present case, the amount involved in the offence of money laundering is Rs. 540 crores approximately and in view of well settled position of law that economic offence constitutes a separate class of offence and bail should not normally be granted in such cases and would pray for rejection of bail petition. 12. To substantiate his submission, he would refer to the judgment rendered by Hon’ble the Supreme Court in case of Page 11 of 23 Nimmagadda Prasad Vs. CBI, reported in (2013) 7 SCC 466, State of Bihar Vs. Amit Kumar reported in (2017) 13 SCC 751, Gautam Kundu Vs. Manoj Kumar reported in (2015) 16 SCC 1, Mohd. Arif Vs. Directorate of Enforcement, Govt. of India, BLAPL No. 8882/2021 (decided on 31.05.2022), Soumya Chaurasia Vs. Directorate of Enforcement Special Leave Petition (Crl.) No. 8847/2023, Y.S. Jaganmohan Reddy Vs. CBI [Criminal Appeal No. 730/2013 arising out of SLP (Crl.) No. 3404/2013], State of Gujarat Vs. Mohanlal Jitamalji Porwal & others [(1987) 2 SCC 364] & Neeru Yadav Vs. State of U.P. & another [AIR (SC) (CRI) 2015 (0) 412]. 13. I have heard learned counsel for the parties and perused the documents placed on record including ECIR with utmost satisfaction. 14. From the above discussion, the point to be emerged for determination by this Court is :- “Whether the applicant fulfills twin conditions of Section 45 of the PMLA, 2002 for grant of bail”? 15. From bare perusal of the second prosecution complaint dated 30.01.2023, it is quite vivid that prima facie the Enforcement Directorate has collected evidence of offence of money laundering against the present applicant though its correctness is required to be adjudicated during trial. 16. Further submission of learned counsel for the applicant is that the applicant remained in jail since 25.01.2023 i.e. for about two years, therefore, he should be released on bail on account of Page 12 of 23 long incarceration period. This cannot be considered and deserves to be rejected as the applicant being Assistant Mining Officer was very much responsible for affairs of the Government regarding transportation of mines and minerals and he has knowingly and willingly assisted the extortion syndicate in committing the predicate crime of extortion and also in generation of proceeds of crime, which prima facie establishes his involvement in the crime in question. As such, there is some evidence which is against him. Hon’ble the Supreme Court in case of Y. Vs. State of Rajasthan & another [(2022) 9 SCC 269] has held in paragraph 8 to 14 as under:- “8. This Court has, in a catena of judgments, outlined the considerations on the basis of which discretion under Section 439, CrPC has to be exercised while granting bail. In Gurcharan Singh v. State (Delhi Administration), (1978) 1 SCC 118 this Court hasheld as to the various parameters which must be considered while granting bail. This Court held as follows: “24. ...Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out.” 9. The above factors do not constitute an exhaustive list. The grant of bail requires the consideration of various factors which ultimately depends upon the specific facts and Page 13 of 23 circumstances of the case before the Court. There is no strait jacket formula which can ever be prescribed as to what the relevant factors could be. However, certain important factors that are always considered, interalia, relate to prima facie involvement of the accused, nature and gravity of the charge, severity of the punishment, and the character, position and standing of the accused [see State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21]. 10. At the stage of granting bail the Court is not required to enter into a detailed analysis of the evidence in the case. Such an exercise may be undertaken at the stage of trial. 11. Once bail has been granted, the Appellate Court is usually slow to interfere with the same as it pertains to the liberty of an individual. A Constitution Bench of this Court in Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767 observed as follows: “3. ... It is for this reason that the Apex Court has evolved, as a matter of self-discipline, certain norms to guide it in the exercise of its discretion in cases where special leave petition are filed against orders granting or refusing bail or anticipatory bail....We reiterate this policy principle laid down by the bench of this Court and hold that this Court should not ordinarily, save in exceptional cases, interfere with orders granting or refusing bail or anticipatory bail, because these are matters in which the High Court should normally be the final arbiter.” (emphasis supplied) 12. The above principle has been consistently followed by this Court. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 this Court held as under: “9. We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released Page 14 of 23 xxx xxx on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. xxx 10. It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of nonapplication of mind, rendering it to be illegal.....” 13. In Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 this Court followed the holding in Prasanta Kumar Sarkar (supra) and held as follows: “17. Where a court considering an application for bail fails to consider relevant factors, an appellate court may justifiably set aside the order granting bail. An appellate court is thus required to consider whether the order granting bail suffers from a non-application of mind or is not borne out from a prima facie view of the evidence on record. It is thus necessary for this Court to assess whether, on the basis of the evidentiary record, there existed a prima facie or reasonable ground to believe that the accused had committed into account also the seriousness of the crime and the severity of the punishment...” 14. Recently, a three Judges’ Bench of this Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & Anr. in Criminal Appeal No. 632 of 2022, has reiterated the factors that the Court must consider at the time of granting bail under Section 439 CrPC, as well as highlighted the circumstances where this Court may interfere when bail has been granted in violation of the requirements under the abovementioned section. This Court observed as follows: “27. We may, at the outset, clarify that power to grant bail under Section 439 of CrPC, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court of the Sessions Court must grant bail after the application of a judicial mind, following well- established principles, and not in a cryptic or mechanical the crime, taking manner.” 17. This Court has already rejected the bail application of other co- Page 15 of 23 accused persons who are also senior Government Officers. This Court while rejecting their bail application has recorded prima facie involvement of the Government servants, therefore, considering the prima facie involvement of the applicant as also the role played by the applicant, the present bail application deserves to be rejected. Even otherwise, the law has been well settled by Hon’ble the Supreme Court that while considering the bail application, the Court is not required to weigh the evidence collected by the investigating agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witness being tempered with, the large interest of the public/state etc. Hon’ble the Supreme Court in case of Saumya Chourasiya Vs. Directorate of Enforcement [Criminal Appeal No. 3840 of 2023, decided on 14.12.2023] has held at paragraphs 18 & 19 as under:- “18. The object of the PMLA hardly needs to be delineated. The said Act has been enacted to prevent money laundering and to provide for confiscation of property derived from, or involved in, money laundering and for the matters connected therewith and incidental thereto. As per Section 2(1)(p), “Money Laundering” has the meaning Page 16 of 23 assigned to it in Section 3. The offence of Money Laundering has been defined in Section 3, which is punishable under Section 4 of the said Act. Section 45 makes the offences under the PMLA to be cognizable and non bailable. As regards the twin conditions for the grant of bail contained in Section 45(1), it has been held by the Three-Judge Bench in Vijay Madanlal (supra) that the underlying principles and rigours of Section 45 of the Act must come into play and without exception ought to be reckoned to uphold the objectives of the Act, which is a special legislation providing for stringent regulatory measures for combating the menace of money laundering. the 19. Though it is true that the Court while considering an application seeking bail is not required to weigh the evidence collected by investigating agency meticulously, nonetheless the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of the punishment prescribed for the alleged offences, the character of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the time of trial, reasonable apprehension of the witness being tempered with, the large interest of the public/ state etc. Though the findings recorded by the Court while granting or refusing to grant bail would be tentative in nature, nonetheless the Court is expected to express prima facie opinion while granting or refusing to grant bail which would demonstrate an application of mind, particularly dealing with the serious economic offences.” 18. Further contention of learned counsel for the applicant that the applicant is remained in custody for about two years, therefore, he should be released on bail, cannot be considered in view of the gravity of offence and prima facie involvement of the applicant in the commission of offence. Hon’ble the Supreme Court in case of Satyendar Kumar Jain Vs. Directorate of Enforcement [Criminal Appeal No. 1638 of 2024, decided on 18.03.2024] has held at paragraph 28 to 34 as under:- “28. From the above stated facts there remains no shadow of doubt that the appellant- Satyendar Kumar Jain had conceptualized idea of accommodation entries against cash and was responsible for the accommodation entries totalling to Rs. 4.81 crores (approx.) received through the Page 17 of 23 Kolkata based entry operators in the bank accounts of the four companies i.e. M/s. Akinchan Developers Pvt. Ltd., M/s. Paryas Infosolution Pvt. Ltd., M/s. Indo Metalimpex Pvt. Ltd. and M/s. Mangalayatan Projects Pvt. Ltd., by paying cash and the said companies were controlled and owned by him and his family. Though it is true that a company is a separate legal entity from its shareholders and directors, the lifting of corporate veil is permissible when such corporate structures have been used for committing fraud or economic offences or have been used as a facade or a sham for carrying out illegal activities. 29. It has also been found that the appellants - Ankush Jain and Vaibhav Jain had assisted the appellant-Satyendar Kumar Jain by making false declarations under the IDS each of them declaring alleged undisclosed income of Rs.8.26 crores in order to protect Satyendar Kumar Jain. Though it was sought to be submitted by the learned counsel for the appellants that the said declarations under IDS having been held to be “void” in terms of Section 193 of FA, 2016 by the income tax authorities, the same could not be looked into in the present proceedings, the said submission cannot be accepted. The declarations made by the appellants-Ankush Jain and Vaibhav Jain under IDS have not been accepted by the Income Tax authorities on the ground that they had misrepresented the fact that the investments in the said companies belonged to the said appellants, which in fact belonged to Mr. Satyendar Kumar Jain. The appellants could not be permitted to take advantage of their own wrongdoing of filing the false declarations to mislead the Income Tax authorities, and now to submit in the present proceedings under PMLA that the said declarations under the IDS were void. The declarations made by them under the IDS though were held to be void, the observations and proceedings recorded in the said orders passed by the Authorities and by the High Court cannot be brushed aside merely because the said declarations were deemed to be void under Section 193 of the Finance Act, 2016. The said proceedings clearly substantiates the case of the respondent ED as alleged in the Prosecution Complaint under the PMLA. 30. Having regard to the totality of the facts and circumstances of the case, we are of the opinion that the appellants have miserably failed to satisfy us that there are reasonable grounds for believing that they are not guilty of the alleged offences. On the contrary, there is sufficient material collected by the respondent-ED to show that they are prima facie guilty of the alleged offences. 31. Though Ms. Arora had faintly sought to submit that the so-called inadvertent mistake committed by the ED with regard the Prosecution Complaint in respect of the role of the appellants Ankush figures mentioned the to in Page 18 of 23 Jain and Vaibhav Jain should not be permitted to be corrected, which otherwise show that the allegations against the appellants were vague in nature, we are not impressed by the said submission. We are satisfied from the explanation put forth in the affidavit filed on behalf of the respondent-ED that it was only an inadvertent mistake in mentioning the figure Rs.1,53,61,166/- in the bracketed portion, which figure was shown by the CBI in its charge- sheet. The said inadvertent mistake has no significance in the case alleged against the appellants in the proceedings under the PMLA. 32. From the totality of facts and circumstances of the case, it is not possible to hold that appellants had complied with the twin mandatory conditions laid down in Section 45 of PMLA. The High Court also in the impugned judgment after discussing the material on record had prima facie found the appellants guilty of the alleged offences under the PMLA, which judgment does not suffer from any illegality or infirmity. 33. The appellants were released on bail for temporary period after their arrest and the appellant-Satyendar Kumar Jain was released on bail on medical ground on 30.05.2022, which has continued till this day. He shall now surrender forthwith before the Special Court. It is needless to say that right to speedy trial and access to justice is a valuable right enshrined in the Constitution of India, and provisions of Section 436A of the Cr.P.C. would apply with full force to the cases of money laundering falling under Section 3 of the PMLA, subject to the Provisos and the Explanation contained therein. 34. In that view of the matter, all the appeals are dismissed.” 19. Now this Court has to examine the issue whether the applicant has fulfilled the twin conditions required for grant of bail under the PMLA, 2002 for that, it is expedient for this Court to extract Section 45 of the PMLA, 2002, which reads as under:- “Section 45 of PMLA, 2002- Offences to be cognizable and non-bailable.— (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless—] (i) the Public Prosecutor has been given an 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 Page 19 of 23 not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by— (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub- section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” 20. From bare perusal of ECIR with regard to the allegations leveled against the present applicant, it is quite vivid that the present applicant has played a specific role in commission of offence. Investigation revealed that the applicant had helped Surykant Tiwari in the offence. The ECIR would further reflect that the present applicant has knowingly and willingly assisted the extortion syndicate in committing the predicate crime of extortion and also in generation of proceeds of crime. It has also recorded in the ECIR that it was not possible to run the extortion racket without the collusion of the mining officers and thus the applicant was knowingly assisted in the offence of money laundering as defined in Section 3 of the PMLA, 2002. Thus, the applicant is unable to fulfill the twin conditions of Section 45 of the PMLA, 2002. 21. Considering the above stated factual legal matrix, it is quite vivid Page 20 of 23 that the applicant is unable to fulfill twin conditions for grant of bail as per Section 45 of the PMLA, 2002 and also considering the submission that the applicant has not prima facie reversed the burden of proof and dislodged the prosecution case which is mandatory requirement to get bail. Hon'ble the Supreme Court in case of Directorate of Enforcement Vs. Aditya Tripathi (Criminal Appeal No. 1401/2023) decided on 12.05.2023 has held at paragraphs 6 & 7 as under:- “6. At the outset, it is required to be noted that respective respondent No. 1 – accused are facing the investigation by the Enforcement Directorate for the scheduled offences and for the offences of money laundering under Section 3 of the PML Act punishable under Section 4 of the said Act. An enquiry/investigation is still going on by the Enforcement Directorate for the scheduled offences in the connection with FIR No. enquiry/investigation against respective respondent No. 1 is going on for the offences under the PML Act, 2002, the rigour of Section 45 of the PML Act, 2002 is required to be considered. Section 45 of the PML Act, 2002 reads as under:- 12/2019. Once, “45. Offences to be cognizable and non-bailable.— (1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless—] (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take Page 21 of 23 cognizance of any offence punishable under Section 4 except upon a complaint in writing made by— (i) the Director; or (ii) any officer of the Central Government or a State Government authorized in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [* * *] sub- section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.” By the impugned judgment(s) and order(s) and while granting bail, the High Court has not considered the rigour of Section 45 of the PML Act, 2002. 6.1 Even otherwise, the High Court has not at all considered the nature of allegations and seriousness of the offences alleged of money laundering and the offences under the PML Act, 2002. Looking to the nature of allegations, it can be said that the same can be said to be very serious allegations of money laundering which are required to be investigated thoroughly. 6.2 Now so far as the submissions on behalf of the respective respondent No. 1 that respective respondent No. 1 were not named in the FIR with respect to the scheduled offence(s) and/or that all the other accused are discharged/acquitted in so far as the predicated offences are concerned, merely because other accused are acquitted/discharged, it cannot be a ground not to continue the investigation in respect of respective respondent No. 1. An enquiry/investigation is going on against respective respondent No. 1 with respect to the scheduled offences. Therefore, the enquiry/investigation for the scheduled offences itself is sufficient at this stage. 6.3 From the impugned judgment(s) and order(s) passed by the High Court, it appears that what is weighed with the High Court is that chargesheet has been filed against respective respondent No. 1 – accused and therefore, the investigation is completed. However, the High Court has failed to notice and appreciate that the investigation with respect to the scheduled offences under the PML Act, 2002 by the Enforcement Directorate is still going on. Merely because, for the predicated offences the chargesheet might Page 22 of 23 have been filed it cannot be a ground to release the accused on bail in connection with the scheduled offences under the PML Act, 2002. Investigation for the predicated offences and the investigation by the Enforcement Directorate for the scheduled offences under the PML Act are different and distinct. Therefore, the High Court has taken into consideration the irrelevant consideration. The investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is till going on. 7. As observed herein-above, the High Court has neither considered the rigour of Section 45 of the PML Act, 2002 nor has considered the seriousness of the offences alleged against accused for the scheduled offences under the PML Act, 2002 and the High Court has not at all considered the fact that the investigation by the Enforcement Directorate for the scheduled offences under the PML Act, 2002 is still going on and therefore, the impugned orders passed by the High Court enlarging respective respondent No. 1 on bail are unsustainable and the matters are required to be remitted back to the High Court for afresh decision on the bail applications after taking into consideration the observations made hereinabove.” 22. Considering the ECIR and other material placed on record, which prima facie shows involvement of the applicant in crime in question and also considering the judgment of Hon’ble the Supreme Court in case of Saumya Chourasiya (supra) & Satyendar Kumar Jain (supra), it is quite vivid that the applicant is unable to fulfill the twin conditions for grant of bail as provided under Section 45 of the PMLA, 2002. Thus, Point involved in this bail application is answered against the applicant. 23. Further contention of learned counsel for the applicant is that the applicant is government servant, therefore, before prosecuting the applicant under the PMLA, 2002, sanction to prosecute as per Section 218 of the BNSS is necessary, as such the prosecution is illegal, therefore, the applicant is entitled to be Page 23 of 23 released on bail, is being considered by this Court. The submission is misconceived and deserves to be rejected as it is well settled position of law that for act done in violation of the official duty, no sanction is required. In the present case, prima facie, the applicant is involved in crime in question which is not relates to public duty, therefore, sanction to prosecute under Section 218 BNSS is not required. Accordingly, the submission made by counsel for the applicant that without sanction prosecution has been initiated, therefore, the prosecution deserves to be quashed and he may be released on bail, is rejected. 24. Considering the above stated factual and legal matrix, the role played by the applicant, prima facie and also considering the gravity of offence, I am not inclined to enlarge the applicant on bail. 25. Accordingly, the bail application filed under Section 483 of the Bhartiya Nayay Suraksha Sanhita, 2023 is also liable to be and is hereby rejected. 26. The observation made by this Court is not bearing any effect on the trial of the case. Learned trial Court will decide the criminal trial in accordance with evidence, material placed on record, without being influenced by any of the observations made by this Court while deciding the present bail application. Arun Sd/- (Narendra Kumar Vyas) Judge
Arguments
Learned counsel for the applicant would submit that the ECIR is an abuse of process of law as the same has been registered against the applicant on false, frivolous, vague and vexation allegations which do not make out any offence against the applicant. He would further submit that the ECIR is based on the subject FIR in Crime No.129/2022 dated 12/07/2022 and CBDT's Office Memorandum in F No. 289/ED/36/2022-IT (Inv.II) dated 13.09.2022 and there is no nexus between the allegation in the subject FIR and the proceedings pending before this Court in ECIR/RPZO/09/2022 dated 29.09.2022. Even there is no whisper of applicant's name in the subject FIR. He would further submit that no ground of arrest in view of Section 19 of the PMLA, 2002 was supplied to the applicant at the time of arrest. Thus, non-compliance of statutory provision will render whole Page 6 of 23 arrest proceedings null and void. He would further submit that neither the complaint nor the subject FIR reveals commission of any offence by the applicant as the applicant is not related to any of the events or irregularities as narrated in the subject FIR. He would further submit that the FIR and complaint which does not name the applicant at all cannot be used as a predicate offence by the respondent to seek remand of the applicant and register an ECIR against him. He would further submit that the complaint does not disclose the commission of any cognizable offence as against the applicant much less the offences punishable under Sections 186, 204, 120-B and 353 of IPC. 7. He would further submit that the respondent authority under the PMLA, 2002 to prosecute any person for offence of money laundering gets triggered only if there exist proceeds of crime within the meaning of Section 2(1)(u) of the PMLA, 2002 and further it is involved in any process or activity, 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) of the PMLA, 2002 will get attracted, unless the property has been derived or obtained as a result of criminal activity relating to a scheduled offence. 8. He would further submit that applicant is a public servant working as Assistant Mining Officer and Section 65 of the PMLA, 2002 clearly mandates that all the provisions of the Cr.P.C. shall be applicable under this Act unless it is inconsistent with the provisions of the PMLA, 2002. Thus, the provisions contained Page 7 of 23 under Section 197 of the Cr.P.C. are salutary in nature whereas the Directorate of Enforcement has never obtained any sanction order for prosecuting the applicant by obtaining sanction for prosecution under Section 197 of the Cr.P.C. He would further submit that Hon’ble the Supreme Court in case of Directorate of Enforcement Vs. Bibhu Prasad Acharya [Criminal Appeal Nos. 4314-4316 of 2024 (order dated 06.11.2024] has categorically held that sanction to prosecute petitioner as public servant was mandatory and prerequisite to take cognizance and thus allowed the petition. In the instant case, the Directorate of Enforcement has never obtained any sanction for prosecuting the applicant under Section 197 of the Cr.P.C., hence the bail may be granted to the applicant on this count alone. 9. He would further submit that the "Proceeds of Crime" being the core of the ingredients constituting the offence of money- laundering, that expression needs to be construed strictly, as such, all properties recovered or attached by the respondent in connection with the criminal activity relating to a scheduled offence under the general law, cannot be regarded as proceeds of crime, therefore, the property must be derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence. For being regarded as proceeds of crime, the property associated with the scheduled offence must have been derived or obtained by a person as a result of criminal activity relating to the concerned scheduled offence. He would further submit that the respondent/Enforcement Directorate has failed to Page 8 of 23 even make any allegation or show how the applicant has claimed or projected the alleged proceeds of crime as untainted, which is an essential ingredient of Section 3 of the PMLA, 2002, therefore, no offence under Section 3 of the PMLA, 2002 is