1 - Manoj Kumar Soni S/o Sh. Narayan Prasad Soni Aged About 52 Years v. 1 - Directorate Of Enforcement, Through Assistant Director, E.D., Raipur Zonal Office, Raipur, District
Case Details
1 2025:CGHC:3612 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ORDER RESERVED ON 13.12.2024 ORDER DELIVERED ON 21.01.2025 MCRC No. 6676 of 2024 1 - Manoj Kumar Soni S/o Sh. Narayan Prasad Soni Aged About 52 Years R/o 48, Khushi Watika, Amlidih, Raipur, Chhattisgarh - 492006 ... Applicant versus 1 - Directorate Of Enforcement, Through Assistant Director, E.D., Raipur Zonal Office, Raipur, District- Raipur, C.G. ... Respondent(s) For Applicant For Respondent : Shri Akshat Gupta, Advocate : Dr. Saurabh Kumar Pandey, Advocate (HON’BLE SHRI JUSTICE ARVIND KUMAR VERMA) C A V ORDER The applicant has come up before this Court under Section 483 of the Bhartiya Nagrik Suraksha Sanhita [BNSS] 2023 read with Section 45 of the PMLA on behalf of the applicant originating from Case File bearing No. ECIR/RPZO/04/2023 dated 14.10.2023 registered with Enforcement Directorate Office [ED] for the offence punishable under Section 3 read with Section 4 of the Prevention of Money Laundering 2 Act, 2002. FACTUAL ASPECTS 2. Facts of the case as revealed against the applicant is that he was an ITS Officer of 1995 batch and was on deputation in the State of Chhattisgarh since 16.06.2014 as the Special Secretary in the Secretariat, Govt. of CG. Earlier the applicant was serving as Special Secretary of Food, Civil Supplies and Consumer protection Department for the State of Chhattisgarh and was assigned the additional charge of Managing Director of the CG State Cooperative Marketing Federation Limited (MARKFED) on 20.10.2022 and on 04.06.2023, he was given another additional charge as MD of Chhattisgarh State Civil Supplies Corporation. The details of his arrest are as follows: (i) The applicant was arrested on 30.04.2024 in the subject ECIR without necessary sanction from the concerned government authority. Thereafter the applicant was remanded to police custody of the ED till 04.05.2024 and again was in custody from 10.05.2024 and 15.05.2024. thereafter the applicant was remanded to judicial custody time and again and is now incarcerated in judicial custody at Raipur Central Jail. (ii) The applicant has the following criminal cases pending against him: 1. Income Tax Prosecution Complaint dated 21.08.2023 in the alleged scheduled offence under Section 277 of the Income Tax Act and Sections 181,191,193,417 and 418 of IPC. 3 2. ECIR/RPZO/04/2023 dated 14.10.2023 in the subject ECIR under Section 3 read with 4 of the PMLA 3. FIR No. 01/2024 dated 16.01.2024 at police station ACB/EOW, Raipur under ?Sections 120-B and 409 IPC and Section 13(2)/11 of the PC Act, 2018. (iii) On 18.07.2023, on search being carried out by the officials of the Income Tax Department at various premises including the residential premises of the applicant in terms of Section 132 of the IT Act, cash of Rs. 1,05,000/- was found and certain jewellery and 3 gold coins worth Rs. 1,81,500/- was seized apart from certain documents and digital devices. On 21.08.2023, the Income Tax Department filed a complaint case interalia arraigning the applicant and seven other persons as accused for the alleged commission of the offences under Section 277 of the IT Act and Sections 181, 191,193,196, 200, 383, 384, 415, 417, 418, 420/34 and 120-B of IPC. (iv) the applicant was neither given an assessment proceedings initiated against him nor had issued any show cause notice. There is allegation of cheating and extortion in the IT complaint against the applicant. On 14.10.2023, the ED had registered the subject ECIR based on the scheduled offences. On 20.10.2023, the ED had carried out search under Section 17 of the PMLA in his residential premises and on finding the house locked, it was sealed and summons was affixed outside his resident. Thereafter summons under Section 50 of the PMLA directing 4 his personal appearance on 20.10.2023 was issued and sent to the office of the Chief Secretary, Govt. of CG. Thereafter the ED issued repeated summons to the applicant for his appearance. On 4.11.2023, the applicant filed certain objections to the IT complaint inter alia on the maintainability which were dismissed by the competent court on 26.12.2023. The applicant filed a writ petition before the High Court seeking quashing of the subject ECIR and the incidental proceedings arising out fo the ECIR. This petition was registered as Cr.M.P. No. 2750 of 2023. (v) The ED issued a letter dated 09.01.2024 under Section 66 (2) of the PMLA to the ACB/EOW seeking registration of FIR in respect of the same allegations and transactions which formed the subject mater of the IT complaint. On 16.01.2024, the ACB/EOW, Raipur registered FIR bearing No. 01/2024 for commission of the offence under Sections 120- B and 409 IPC and Sections 13(1)(a) and 13(2) read with Section 11of the Prevention of Corruption Act, 2018 against the applicant. On 08.02.2024, the competent court took cognizance of someof the offences alleged in the IT complaint. Pertinently, the learned court declined cognizance ofhte offences under Sections 196,200,383,384,420,120-B,34 IPC and took cognizance on the offences under Sections 181,191,193,417 and 418 of IPC in which Sections 417 and 418 are scheduled offences. Since the ACB/EOW had
Facts
registered the FIR inter alia against the applicant, he sought to withdraw 5 the petition filed before this Court seeking quashing of the ECIR as well as the CIR No. 01/2024. (vi) On 22.03.2024, the applicant filed petition under Section 482 Cr.P.C seeking quahsingof the ECIR and FIR No. 01/2024 wherein on 15.04.2024, notice wa issued to the respondents including the ED. On 19.04.2024, the ED registered an addendum ECIR based on the FIR No. 01/2024 registered by ACB/EOW which in turn was registered on the ED’s own complaint letter dated 09.01.2024. The petition of the applicant was pending for arguments on interim relief and the ACB had filed its objections, summon was issued to him for appearing before the ACB for recording his statement on 30.04.2024. He was issued another summon by the ED for his appearance on 30.04.2024 and his statement was recorded under Section 50 of the PMLA. Thereafter, the applicant was produced before the Special PMLA Court and remanded to ED custody till 04.05.2024 which was further extended twice till 10.05.2024 and on 02.05.2024, the ED opened the residential premises of the applciant and conducted search proceedings. (vii) On 28.06.2024, after completion of investigation, the ED filed its prosecution complaint in the subject ECIR before the learned trial court against the applicant. On 14.08.2024, the applicant preferred application under Section 483 of the BNSS read with Section 45 of the PMLA before the learned trial court seeking grant of regular bail in the ECIR. On 24.08.2024, the ED filed reply to the bail application and on 03.09.2024, the bail application dated 14.08.2024 was dismissed by the trial court vide order dated 3.09.2024. Hence he has filed the instant 6 application seeking grant of regular bail. SUBMISSION ON BEHALF OF THE APPLICANT 3.
Legal Reasoning
applicant. He submits that without prejudice the applicant is prima facie not guilty of the offence of money laundering and the entire case against him is based upon allegations of extortion and illegal collection of money from the rice millers in the State of CG. He contended that the entire case and allegations are unfounded and baseless. 10. The crux of the case by the ED is that the applicant was assisting the co-accused Roshan Chandrakar in running an alleged extortion racket wherein an amount of Rs. 40/- (Rs. 20+20/-) per quintal was extorted from the custom milled rice out of the special incentive price of Rs. 120/- payable by the State Government to the custom rice millers. A 14 sinister plan to collect illegal kickback amount was allegedly hatched by the said Roshan Chandrakar and the applicant in conspiracy with other office bearers of the state as well as District Rice millers association however none of them have been implicated. It is further contended that the offence of extortion under sections 383 and 384 IPC has not been found to be made out even prima facie by the competent court. He submits that in the alleged predicate offence ie. ACB/EOW FIR No. 01.2024, no offence under Sections 383 and 384 IPC was registered and therefore the offence of extortion is not made out against the applicant. He submits that no proceedings have been initiated under Section 8 of the PC Act against the persons who have allegedly paid the commission. The statements recorded by the ED under Section 50 of the PMLA shows that ‘diktat’ was allegedly given by another person (Ram Gopal Agrawal) however he has not been made an accused. Similarly role of collection of alleged kickback amount was attributed to one Pramod Agrawal though he has not been made accused. He submits that only recovery of unaccounted money of Rs. 47.60. lacs has been made from the possession of one Manoj Agrawal and Rs. 7.30 lacs from Sunil Ubhrani but but none of them has been made accused. 11. It is therefore submitted by the counsel for the applicant that it is a clear case of pick and choose method adopted by the ED which is completely against the principles of fair investigation. Without prejudice the allegations are made and various other persons who ought to have been arraigned as accused such as rice millers, office bearers of the 15 District Rice Millers Association are not made accused. He has placed his reliance in the matter of Sanjay Jain Vs.ED (2024) SCC OnLine Del. 1656, wherein it has been observed as under: 95. Similarly in Ramesh Manglani vs. ED, 2023 SCC OnLine Del 3234, this Court has held as under:- ―56. Insofar as the ED not having arrested similarly placed co-accused persons; and not even having arraigned some other persons evidently connected with the offending transactions as accused in the prosecution complaint, though these aspects would not be dispositive of a bail plea one way or the other, they are also not wholly irrelevant and the „doctrine of parity‟ is not immaterial. As held by this court in Ashish Mittal (supra) considering the nature of the offence, where the gravamen of the offence is that several persons acting in concert have siphoned- off and ‗laundered' monies, it is manifestly arbitrary for the ED to have made selective arrests and arraignments. It has also been brought to the notice of this court that Sanjay Godhwani, who may be viewed as one of the main accused in this case, has been granted bail by the learned trial court vide order dated 09.05.2023 in Bail Application No. 688/2023 ―... on merits as well as on medical grounds...‖. This circumstance must also weigh in favour of the petitioner being granted bail, considering that his role in the allegedly offending transactions is evidently far more peripheral than that of co- accused, Sanjay Godhwani.‖ (emphasis supplied) 96. This being the position, the petitioner is also entitled to the benefit of the fact that the main accused, as well as, some other accused have not 16 been arrested and bail has already been granted to other co-accused. 97. Further, the investigation qua the petitioner is complete and the prosecution complaint, as well as, supplementary complaint already stands filed. However, no chargesheet has been filed in the RC despite an ongoing investigation by CBI for more than 02 years. The petitioner in custody since 06.10.2022 and the maximum sentence that can be awarded for the offence is 07 years in the event he is found guilty.” He therefore submits that in view of the above, the applicant satisfies the burden under Section PMLA and the threshold of ‘broad probabilities’ that the applicant has committed an offence under PMLA is not satisfied and the applicant ought to be released on bail. 12. Learned counsel for the applicant contended that the applicant has no knowledge about the alleged scam. He had neither demanded nor received any unaccounted amount from any rice miller and was not involved in the alleged proceeds of crime. He further submits that despite the allegation that the incentive amount was increased from Rs. 40/- to Rs. 120/-, for payment of commission which had given way to corruption in the MARKFED, the pricing has not changed even after the change in the government which clearly shows that either the current regime is also complicit and part of the alleged custom rice milling scame in the State or the allegations made by the agencies are fictitious and imaginary. 13. He submits that the applicant had received the alleged proceeds of the crime, is incorrect and contrary to the ED’s case in the 17 prosecution complaint. It is alleged by the ED that a sum of Rs. 147 crores was collected from the rice millers which is the proceeds of crime. He submits that the ED has failed to establish the trail of money alleged to the proceeds of crime from various rice millers to the applicant. As per the statement of the rice millers recorded under Section 50 of the PMLA, the alleged extortion money was given to the co-accused Roshan Chandrakar. It is submitted that the arrest of the applicant is illegal and mala fide in as much as he was picked up from the ACB office when he appeared before the ACB to join investigation in the predicate offence and thereafter he was arrested. 14. He contended that the entire case is based on the allegation that he was running an extortion racket and had received huge amount of extortion money. However, there is no substantive evidence against the applicant. He further contended that the applicant was given the charge of MD, MARKFED in the month of October 2022 and therefore he had no role in the said alleged offence. The allegation that the applicant purposely kept bills of rice millers pending till they paid the alleged kickback amount, with regard to this he contended that on the one hand, it is alleged that the applicant had directed the DMOs to forward the bills of only those rice millers who had paid the kickback amount and on the other hand, it is alleged that he used to keep the bills pending at MARKFED till the amount was paid. It is a settled law that in case of contradictions in the statements of the persons recorded under Section 50 of the PMLA and are inconsistent with each other on material 18 aspects then such contradictions and inconsistencies will be one of the factors that will ensure to the benefit of the bail applicant while ascertaining the broad probabilities. He has placed his reliance in the matter of Sanjay Jain Vs. Directorate of Enforcement (2024) SCC OnLine Del 1656, wherein it has been held as under: 56. The principle that emerges from Vijay Madanlal Choudhary (supra), as well as the above decisions as regards the statement recorded under Section 50 of the Act is that such statements are recorded in a proceeding which is deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code and is admissible in evidence. The said statements are to be meticulously appreciated only by the Trial Court during the course of the trial and there cannot be a mini-trial at the stage of bail. However, when the statements recorded under Section 50 of PMLA are part of the material collected during investigation, such statements can certainly be looked into at the stage of considering bail application albeit for the limited purpose of there are broad ascertaining whether probabilities, or reasons to believe, that the bail applicant is not guilty. Meaning thereby, the statements under Section 50 of the PMLA have to be taken at their face value, but in case any such statement is patently self-contradictory or two separate statements of the same witness are inconsistent with each other on material aspects, then such contradictions and inconsistencies will be one of the factors that will enure to the benefit of the bail applicant whilst ascertaining the broad probabilities, though undoubtedly the probative value of the statement(s) of the witnesses and their credibility or reliability, will be analyzed by the trial court only at the stage of trial for arriving 19 at a conclusive finding apropos the guilt of the applicant.” 15. He submits that from perusal of the statements of the rice millers and other persons whose statements are being relied upon by the ED, they have been tutored by the ED for making similar statements as similar words and phrases have been used by all the rice milers. It is further contended that their statements were not recorded in the presence of Assistant Director of the Investigating Officer ie. the competent authority, which is a clear violation of the provisions of Section 50 of the PMLA. It is further contended by the counsel for the applicant that there is no recovery made form the applicant and it prima facie shows a strong possibility of falsity of the case against the applicant. The statements recorded under Section 50 of the PMLA are yet to be tested in trial and their statements have no evidentiary value. He has referred to the judgment of Prem Prakash Vs. ED in SLP (Crl.) No. 5416 of 2024 date 28.08.2024, in which it has been held as under: 37. Being a co-accused with the appellant, his statement against the appellant assuming there is anything incriminating against the present appellant will not have the character of substantive evidence. The prosecution cannot start with such a statement to establish its case. We hold that, in such a situation, the law laid down under Section 30 of the Evidence Act by this Court while dealing with the confession of the co-accused will continue to apply. In Kashmira Singh vs. State of Madhya Pradesh, [1952] SCR 526, this Court neatly summarized the principle as under:- “…. The proper way to approach a case of this kind is, first, to marshal the evidence 20 against the accused excluding the confession altogether from consideration and see whether, if it is believed, a conviction could safely be based on it. If it is capable of belief independently of the confession, then of course it is not necessary to call the confession in aid. But cases may arise where the judge is not prepared to act on the other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction. In such an event the judge may call in aid the confession and use it to lend assurance to the other evidence and thus fortify himself in believing what without the aid of the confession he would not be prepared to accept.” Hence, insofar as Afshar Ali’s statement is concerned, the Investigating Agency will have to first marshal the other evidence and can at best look at the statement for lending assurance. Independently, the statement of Afshar Ali does not prima facie indicate anything about the role of the appellant in the forgery of sale deed and other documents or being involved in the offence of money laundering. 16. Next contention of the counsel for the applicant is that there is n independent witness or material to suggest that he issued any instructions to the DMO and the employees of MARKFED to keep the bills of those rice millers pending who had not paid the extortion amount. He contended that so far as the alleged delay in clearance of the bills is concerned, it is submitted that the department had to clear thousands of invoices and the pendency of the invoices of the rice 21 milers is a part of regular business process. The custom milling comprises of two charges-1. Custom milling charges which comes from receipt of sale proceeds of the rice deposited with the FCI/CGSCSC and 2) miller incentive charges which comes from the State fund. 17. In order to clear the payments, money should be available in both the funds. Till March 2023, only 1/3rd of the total funds for payment of the first instalment was available with MARKFED and the additional grant was released by the State Government in the month of April 2023. No mala fide can be attributed to the applicant merely on the ground that some invoices of the rice millers were pending. He contended that the only material which the ED has placed reliance is the statements recorded under Section 50 of the PMLA apart from the inadmissible diary entries. It is a settled law that the same cannot be considered at the stage of bail inasmuchas opportunity to cross-examine is given tot he applicant.[Parasmal Lodha Vs. Directorate of Enforcement (2017) SCC OnLine Del 8676; Chandra Prakash Khandelwal Vs. Directorate of Enforcement 2023 SCC OnLine Del 1094 and Sanjay Jain Vs. Directorate of Enforcement (2024) SCC OnLine Del 1656]. 18. Even otherwise, the statements relied upon by the ED are the ones where the persons have implicated themselves as well in so far as the commission of the alleged offences are concerned and as such are in the nature of co-accused persons. As per settled law, statement of a co-accused person is an extremely weak piece of evidence and cannot be treated as substantive evidence against the other co-accused 22 persons. Therefore all the statements recorded under Section 50 of the PMLA sought to be relied upon by the ED to substantiate its allegations against the applicant are inadmissible and ought not have formed the basis for denial of bail. He has placed his reliance in the matters of Prem Prakash Vs. ED, SLP (Crl.) No. 5416 of 2024 dated 28.08.2024 ; Haricharan Kurmi Vs State of Bihar, AIR 1964 SC 1184 and Parasmal Lodha Vs. Directorate of Enforcement (2017) SCC OnLine Del 8676. In Haricharan Kurmi (supra), it has been held as under: “13. As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co- accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbuttv(1) a confession can only be used to "lend assurance to other evidence against a co- accused". In In re. Peryaswami Noopan,(2) Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the co-accused sufficient, if,. believed, to support his conviction, then the kind of confession 23 described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King(1) the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of s. 30, the fact remains that it is not evidence as defined by s. 3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must (1) (1911) I.L.R. 38 Cal. 559 at p. 588. (2) (1913) I.L.R. 54 Mad. 75 at p. 77. (3) (1949) 76 I.A. 147 at p. 155. begin with other evidence adduced by the prosecution and after it has formed its opinion with 24 regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in s. 30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh(1) where the decision of the Privy Council in Bhuboni Sahu's(2) case has been cited with approval. 16. Considering the evidence from this point of view, we must first decide whether the evidence other than the confessional statements of the co- accused persons, particularly Ram Surat, on whose confession the High Court has substantially relied, is satisfactory and tends to prove the prosecution case. It is only if the said evidence is satisfactory and is treated as sufficient by us to hold the charge proved against the two appellants, that an occasion may arise to seek for an assurance for our conclusion from the said confession. Thus considered, there can be no doubt that the evidence about the discovery of blood stains on which the prosecution relies is entirely insufficient to justify the prosecution charge against both the appellants. In our opinion, it is impossible to accede to the argument urged before us by Mr. Singh that the said evidence can be said to prove the prosecution case. In fact, the judgment of the High Court shows that it made a finding against the appellants substantially because it thought that the confessions of the co- accused persons could be first considered and the rest of the evidence could be treated as corroborating the said confessions. We are, therefore, satisfied that the High Court was not right in confirming the conviction of the two appellants under s. 396 ,of the Indian Penal Code.” 25 19. It is further contended by the learned counsel for the applicant that the applicant satisfies the triple test. As has been held in catena of judgments including P.Chidambaram Vs. CBI 2020 13 SCC 337, that while dealing with the bail application it is not in dispute that ‘three factors’ or the ‘triple test’ must be seen /satisfied viz. (I) flight risk; (ii) likelihood of tampering with evidence and (iii) likelihood of influencing witnesses. Pertinently all the three facts are satisfied by the applicant and as such the applicant may be granted bail. 20. He contended that the applicant does not have the propensity to evade the process of law. In fact there has been allegation by the ED that the applicant is a flight risk. There is no such allegation so far by the ED seeking his judicial/police custody. Even during investigation, the applicant had duly appeared before the IO. He contended that the ED has built a false narrative of non-cooperation by the applicant. The ED purposely and with mala fide intent issued repeated summons to the applicant. and therefore, as per settled law that mere cooperation of a witness in response to the summons issued under Section 50 of the Act of 2022 would not be enough to render him/her liable to be arrested under Section 19 of the Act and has referred to the decision of the Apex Court in the matter of Pankaj Bansal Vs. Union of India & Others, 2023 SCC OnLine SC 1244, in which it has been held as under: “29. In this regard, we may note that Article 22(1) of the Constitution WP (Crl.) No. 2465 of 2017, decided on 01.12.2017 = 2017 SCC OnLine Del 12108 2017 Cri LJ (NOC 301) 89 = 2017 (1) AIR Bom R (Cri) 929 26 provides, inter alia, that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest. This being the fundamental right guaranteed to the arrested person, the mode of conveying information of the grounds of arrest must necessarily be meaningful so as to serve the intended purpose. It may be noted that Section 45 of the Act of 2002 enables the person arrested under Section 19 thereof to seek release on bail but it postulates that unless the twin conditions prescribed thereunder are satisfied, such a person would not be entitled to grant of bail. The twin conditions set out in the provision are that, firstly, the Court must be satisfied, after giving an opportunity to the public prosecutor to oppose the application for release, that there are reasonable grounds to believe that the arrested person is not guilty of the offence and, secondly, that he is not likely to commit any offence while on bail. To meet this requirement, it would be essential for the arrested person to be aware of the grounds on which the authorized officer arrested him/her under Section 19 and the basis for the officer’s ‘reason to believe’ that he/she is guilty of an offence punishable under the Act of 2002. It is only if the arrested person has knowledge of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 of the Act of 2002, is meant to serve this higher purpose and must be given due importance. 21. Contention of the learned counsel for the applicant is that the applicant is an ITS Office and a public servant, has never been convicted for any offence and that the applicant is not a flight risk. Therefore, there is no scope for any doubt or apprehension about the 27 applicant’s availability in the future. There is no likelihood of tampering with evidence or influencing the witnesses. Another paramount consideration for grant of bail is that there is no likelihood of the applicant to tamper with the evidence. He submits that the investigation is concluded and the prosecution complaint has been filed. The allegation that the applicant is intimating witnesses on the basis of an uncorroborated statement by co-accused in the predicate offence, Ms. Pritika Pooja Kerketta, who has not even been named as a witness in the list of witnesses filed by the ED along with the Prosecution Complaint dated 28.06.2024 and as such, she is not a witness at all and therefore there arises no question of the applicant influencing/intimidating her as a witness. He further contended that the applicant has been relieved from his post by the Government of CG and repatriated to his parent department vide order dated 22.12.2023 and therefore the applicant is not in a position where he could influence the witnesses. He has placed his reliance upon the decision of the Apex Court in Prem Prakash Vs. ED in SLP (Crl.) Bo. 5416 Of 2024 , it has been held as under: “37. Being a co-accused with the appellant, his statement against the appellant assuming there is anything incriminating against the present appellant will not have the character of substantive evidence. The prosecution cannot start with such a statement to
Arguments
Contention of Shr Gupta learned counsel for the applicant is that the proceedings in respect of the alleged scheduled offences are not maintainable and therefore the proceedings in the ECIR are completely without jurisdiction. The existence of a scheduled offence is a sine qua non for an offence under the PMLA to be made out. He contended that the prosecution complaint filed by the ED itself is not maintainable in asmuch as the proceedings/investigation in respect of the alleged predicate offences are not maintainable and without jurisdiction. 4. He further contended that the IT complaint filed before the learned Chief Judicial Magistrate, Raipur itself is not maintainable for the reason that it has been filed by the Deputy Director of Income Tax who is not the competent statutory authority to file the complaint. He has placed his reliance upon the judgment of the Apex Court in Babita Lila & Another Vs. Union of India (2016) 9 SCC 647, wherein it has been observed as under: “….A Division Bench of this Court similarly considered the jurisdiction of the Deputy Director of Income Tax to make a complaint under Section 195(1)(b), CrPC in respect of false statements given on oath during a search operation conducted under the Income Tax Act, 1961. The discussion in this case was primarily concerned with whether the Deputy Director would be the competent appellate authority authorized to make a complaint under 7 Section 195(4), CrPC. However, the Division Bench, referring to Lalji Haridas, made an ancillary observation that such search operation is deemed to be a “judicial proceeding” under Section 193, CrPC, and that the relevant Income Tax authority would be deemed to be a civil court for the purpose of Section 195, CrPC. This is as per the express provision made to the effect under Section 196 of the 1961 Act. for identifying interpretation 61. As adverted to hereinabove, Section 195 of the Code read as a whole unambiguously impose restrictions in the matter of lodgement of complaint qua the offences as mentioned in sub-section (1)(b) thereof in particular and therefore as a corollary, the any court/authority/forum contemplated thereby to be competent has to be in furtherance of the restraint and not in casual relaxation thereof. Consequently, therefore the exposition of the provisions of the corresponding substantive law which designs the forums or authorities and confers original and appellant jurisdiction has also to be in aid of the underlying objectives of the restrictions stipulated. Any postulation incompatible with the restrictive connotations would be of mutilative bearing thereon and thus frustrate the purpose thereof, a consequence not approvable in law. To reiterate, Section 195 of the Code clearly carves out an exception to the otherwise conferred jurisdiction on a court under Section 190 to take cognizance of an offence on the basis of the complaints/information from the sources as enumerated therein. 62. Viewed in this context, in our estimate, the notification issued under Section 118 of the Act cannot be conceded an overriding effect over the scheme of the statute designating the appellate forums more particularly in absence of any order, circular, notification of any authority thereunder to that effect. The Deputy Director of Income Tax for that matter, as the framework of the Act would reveal, has not been acknowledged to be the 8 appellate forum from any order or the decision of the assessing officer/I.T.O., notwithstanding several other provisions with regard to conferment of various powers and assignments of duties on the said office. In the teeth of such mindful and unequivocal module of the Act, recognition of the Deputy Director of Income Tax to be a forum to whom an appeal would ordinarily lie from any decision or action of the assessing officer/income tax officer would not only be inferential but would also amount to unwarranted judicial legislation by extrinsic additions and doing violence to the language of the law framed. On the contrary, acceptance of the Deputy Commissioner (Appeals) as the forum to which an appeal would ordinarily lie from an order/decision of the assessing officer/I.T.O., would neither be inconsistent with nor repugnant to any other provision of the Act and certainly not incompatible with the legislative scheme thereof. Mere silence in Section 246 of the Act about any decision or order other than those enumerated in sub-section (1) thereof as appealable /decision to the Deputy Commissioner (Appeals), does not ipso fact spell legislative prohibition in that regard and in our comprehension instead signifies an affirmative dispensation. XXXX XXXX XXXX 67. The Parliament has unmistakably designated the Deputy Commissioner (Appeals) to be the appellate forum from the orders as enumerated under Section 246(1) of the Act. This however, in our view, as observed hereinabove does not detract from the recognition of this authority to be the appellate forum before whom appeals from the decisions of an assessing officer or of an officer of the same rank thereto would generally and ordinarily lie even in the contingencies not referred to in particular in sub section 1 of Section 246. This is more so, to reiterate, in absence of any provision under the Act envisaging the Deputy Director of Income Tax to be an appellate forum in any 9 eventuality beyond those contemplated in Section 246(1) of the Act. Neither the hierarchy of the income tax authorities as listed in Section 116 of the Act nor in the notification issued under Section 118 thereof, nor their duties, functions, jurisdictions as prescribed by the cognate provisions alluded heretobefore, permit a deduction that in the scheme of the legislation, the Deputy Director of Income Tax has been conceived also to be an appellate forum to which appeals from the orders/decisions of the I.T.Os./assessing officers would ordinarily lie within the meaning of Section 195(4) of the Code. The Deputy Director of Income Tax (Investigation)-I Bhopal, (M.P.), in our unhesitant opinion, therefore cannot be construed to be an authority to whom appeal would ordinarily lie from the decisions/orders of the I.T.Os. involved in the search proceedings in the case in hand so as to empower him to lodge the complaint in view of the restrictive preconditions imposed by Section 195 of the Code. The complaint filed by the Deputy Director of Income Tax, (Investigation)-I, Bhopal (M.P.), thus on an overall analysis of the facts of the case and the law involved has to be held as incompetent.” 5. It is next contended by the learned counsel for the applicant that without considering the objections raised by him, cognizance has been taken of some of the offences as alleged in the IT complaint ie. under Section 277 of the IT Act, 1961 and Sections 181,191,193,417 and 418 IPC. He contended that the learned CJM, Raipur had not taken cognizance of the ofences under Sections 200,383,384,420,120-B/34 and the alleged offences under Sections 383 and 384 IPC. 6. He contended that the FIR No. 01/2024 was registered on the basis of the complaint sent by the ED to the ACB/EOW by abusing the 10 provisions of Section 66 of the PMLA in order to register the scheduled offence under the PMLA and to create its jurisdiction. He submits that the practice of registration of an FIR by the ED by misusing Section 66 of the PMLA for the sole purpose of creating its own jurisdiction, is impermissible and must be deprecated. This complaint was sent by the ED to the ACB/EOW after objections being raised by the accused persons in the IT complaint. The FIR was allegedly investigated and thereafter without obtaining necessary sanction under Section 17A of the PC Act from the concerned government is illegal. However, in the reply, the ACB has stated that the sanction was obtained. He contended that the FIR was registered without conducting any preliminary enquiry even though the information of the alleged offences was received by the ACB/EOW on 17.01.2024. the offenceof extortion under Section 383 and 384 IPC or 420 IPC were not invoked in the FIR as such prima facie according to the ACB/EOW, no offences of extortion or cheating are made out against the applicant. 7. He contended that the entire case against the applicant is based on extortion and the learned trial court after considering all the allegations and material on record, did not find any offence under Section 383 and 384 against the applicant and as such did not take cognizance of these offences. He contended that in respect of the ACB FIR, the same was registered/investigated without obtaining sanction under Section 17-A of the PC Act. It is further submitted that Section 409 IPC is not a scheduled offence and Section 120-B IPC cannot be a 11 scheduled offence when it is linked to another scheduled offence. He has placed his reliance in the matter of Pavana Dibbur Vs. ED (2023) SCC OnLine SC1568, wherein it has been held that : ….Unless there is an allegation regarding a conspiracy to commit any scheduled offence, the prosecution under the PMLA cannot lie. Relying upon the proviso to Section 120A of IPC, the learned senior counsel submitted that an illegal act or a legal act by illegal means, in furtherance of an agreement, committed by any person is a sine qua non for attracting the offence of conspiracy under Section 120B of IPC. If Section 120B of IPC can be treated as a standalone offence to attract prosecution under the PMLA, by that logic, a complaint under the PMLA can be filed where the allegation is of criminal conspiracy to commit an offence which is not a scheduled offence. Therefore, she submits that the complaint against the appellant deserves to be quashed.” 8. Further contention of the learned counsel for the applicant is that a sanction from the concerned government as envisaged under Section 197 Cr.P.C. or 218 of the BNSS is a necessary precondition for the Court to take cognizance of the offence alleged to have been committed by a public servant. The sanction for prosecuting a public servant must be obtained prior to taking cognizance of the offence of money laundering under Section 3 of the PMLA. He has referred to the judgment of the Supreme Court in the matter of Enforcement Directorate Vs. Bibhu Prasad Acharya, 2024 SCC OnLine SC 381, which reads as under: 5. Section 197 (1) of CrPC (which corresponds to 12 Section 218 of Bhartiya Nagrik Suraksha Sanhita, 2023) reads thus: “197. Prosecution of Judges and public servants.— (1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction — (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government; (b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: [Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of Article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression “State Government” occurring therein, the expression “Central Government” substituted.] [Explanation.—For the removal of doubts it is hereby declared that no sanction shall be required in case of a public servant accused of any offence alleged to have been committed under section were 13 166A, section 166B, section 354, section 354A, section 354B, section 354C, section 354D, section 370, section 375, section 376 [section 376A, section 376AB, section 376C, section 376D, section 376DA, section 376DB] or section 509 of the Indian Penal Code (45 of 1860).] 6. The object of Section 197(1) must be considered here. The object is to protect the public servants from prosecutions. It ensures that the public servants are not prosecuted for anything they do in the discharge of their duties. This provision is for the protection of honest and sincere officers. However, the protection is not unqualified. They can be prosecuted with a previous sanction from the appropriate government…..” 9. He contended that the trial court has taken cognizance of the offence in the prosecution complaint despite the fact that no sanction had been obtained from the Central Government to prosecute the
Decision
establish its case. We hold that, in such a situation, the law laid down under Section 30 of the Evidence Act by this Court while dealing with the confession of the co- 28 accused will continue to apply.” 22. In the matter of Haricharan Kurmi Vs. State of Bihar reported in AIR 1964 SC1184, it has been held as under: “13.As we have already indicated. this question has been considered on several occasions by judicial decisions and it has been consistently held that a confession cannot be treated as evidence which is substantive evidence against a co-accused person. in dealing with a criminal case where the prosecution relies upon the confession of one accused person against another accused person, the proper approach to adopt is to consider the other evidence against such an accused person, and if the said evidence appears to be satisfactory and the court is inclined to hold that the said evidence may sustain the charge framed against the said accused person, the court turns to the confession with a view to assure itself that the conclusion which it is inclined to draw from the other evidence is right. As was observed by Sir Lawrence Jenkins in Emperor v. Lalit Mohan Chuckerbuttv(1) a confession can only be used to "lend assurance to other evidence against a co-accused". In In re. Peryaswami Noopan,(2) Reilly J. observed that the provision of s. 30 goes not further than this : "where there is evidence against the co-accused sufficient, if,. believed, to support his conviction, then the kind of confession described in s. 30 may be thrown into the scale as an additional reason for believing that evidence." In Bhuboni Sahu v. King(1) the Privy Council has expressed the same view. Sir. John Beaumont who spoke for the Board observed that a confession of a co-accused is obviously evidence of a very weak type. It does not indeed come within the definition of "evidence" contained in s. 3 of the Evidence Act. It is not required to be given on oath, nor in the presence of the accused, and it cannot be tested by cross- 29 examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the court cannot start with the confession of a co-accused person; it must (1) (1911) I.L.R. 38 Cal. 559 at p. 588. It must begin with other evidence adduced by the prosecution and after it has formed its opinion with regard to the quality and effect of the said evidence, then it is permissible to turn to the confession in order to receive assurance to the conclusion of guilt which the judicial mind is about to reach on the said other evidence. That, briefly stated, is the effect of the provisions contained in S.30. The same view has been expressed by this Court in Kashmira Singh v. State of Madhya Pradesh(1) where the decision of the Privy Council in Bhuboni Sahu's(2) case has been cited with approval. XXXX XXXXX XXXX 16. Considering the evidence from this point of 30 view, we must first decide whether the evidence other than the confessional statements of the co- accused persons, particularly Ram Surat, on whose confession the High Court has substantially relied, is satisfactory and tends to prove the prosecution case. It is only if the said evidence is satisfactory and is treated as sufficient by us to hold the charge proved against the two appellants, that an occasion may arise to seek for an assurance for our conclusion from the said confession. Thus considered, there can be no doubt that the evidence about the discovery of blood stains on which the prosecution relies is entirely insufficient to justify the prosecution charge against both the appellants. In our opinion, it is impossible to accede to the argument urged before us by Mr. Singh that the said evidence can be said to prove the prosecution case. In fact, the judgment of the High Court shows that it made a finding against the appellants substantially because it thought that the confessions of the co-accused persons could be first considered and the rest of the evidence could be treated as corroborating the said confessions. We are, therefore, satisfied that the High Court was not right in confirming the conviction of the two appellants under S.396 of the Indian Penal Code. 23. In yet another decision of Sanjay Jain Vs. Directorate of Enforcement, (2024) SCC OnLine Del. 1656, it has been held that : “62. Thus, the confessional statement of a co- accused under Section 50 of the PMLA is not a substantive piece of evidence and can be used only for the purpose of corroboration in support of other evidence to lend assurance to the Court in arriving at a conclusion of guilt.” 24. He contended that it is a clear case of pick and choose by the ED. the ED has picked Ms. Pooja Pritika Kerketta to get her false statement 31 to implicate the applicant and though her statements are also self incriminatory where she has confessed to her own alleged wrong doing. It is further contended that there is allegation against the applicant that he had directed G.S.Painkara, Pritika Pooja Kerketta, Raj Kumar Bawne and Chandra Shekhar Chauhan to file a written complaint retracting their deposition before the Income Tax Department which is completely false. The veracity of the statement will have to be tested during trial and ought not be held against the applicant at this preliminary stage of consideration for grant of bail. It is submitted that the applicant had directed several DMOs and employees of MARKFED to delete any conversation with him from their phones, is false and baseless. The apprehension regarding the applicant being a flight risk or tampering with evidence or influencing witnesses can be taken care of by imposing suitable conditions on the applicant while granting bail to which he undertakes to adhere scrupulously. He has placed his reliance in the matter of Bibhav Kumar Vs. State of NCT of Delhi, W.P.(CRL) 1827/2024 & CRL.M.A. 17736/2024, dated 01st July 2024, wherein it has been observed as under: “6. It is true that the petitioner herein has not challenged the dismissal of the abovesaid application by the learned Magistrate, which he should have challenged before the learned Sessions Court as per the provisions of law, before approaching this Court. However, this Court is also of the opinion that it is not the non-compliance of Section 41A of Cr.P.C. alone which has been challenged before this Court, but also the manner in which he was arrested, the malafide of arrest 32 and breach of his fundamental rights. Additionally, reliefs such as payment of compensation and taking action against the erring officers who have arrested him without giving him a notice under Section 41A of Cr.P.C. have also been prayed for.” 25. Lastly, it has ben contended that the applicant has been suffering from diabetes and hypertension for which he is undergoing treatment at AIIMS, Raipur since 2019. It is submitted that the applicant had also undergone a pyloplasty surgery on account of reduced kidney function as also he is suffering from cervical spondylitis. He submits that since the applicant is suffering from several health issues, under the proviso to Section 45 of the PMLA and therefore he is entitled to the benefit of the proviso. 26. In the matter of Azad Vs. State of GNCT of Delhi and Another, 2023 SCC OnLine Del 1769 wherein it has been held that : 44. The other connecting evidence against the accused persons are the recoveries effected from them in pursuant to their disclosure statements. As already noted in para no. 4 of this order, that part of robbed cash amount, both cheque books, two stamps of complainant's firm and one photocopy of Aadhar Card of his wife were recovered from the possession of the accused persons. The accused have failed to explain as to how the stamps, cheque books and photocopy of Aadhar Card of complainant's wife came into their possession which are his (PW-1) personal/private property over which no one else can have access. Not even a suggestion has been put to the witnesses to confront the recoveries effected from the accused persons. The cash recovered from the accused persons have already been released 33 on superdari in favour of PW1 vide order dated 17.07.2017 passed by Ld.MM. The argument of defence counsels that no independent witness has joined the proceedings is without any force as these days no public person CRL.A. 593/2022, CRL.A. 354/2022 & CRL.A. 367/2022 Page 14 Neutral Citation Number: 2023:DHC:2166 wants to join the police or court proceedings may be due to apprehension that they themselves might not get entangled in any criminal case in future.” 27. Thus, considering the long period of pre-trial incarceration already undergone by the applicant, these aspects would no longer be a weighty factor in the determination of grant of bail. It has been time and again reiterated by the Apex Court that the right to speedy trial is a facet of the fundamental right to life of an accused under Article 21 of the Constitution of India. He has referred to the judgment of Manish Sisodia Vs. CBI and ED (2023) SCC OnLine SC 1393, which reads as under: “27. However, we are also concerned about the prolonged period of incarceration suffered by the appellant – Manish Sisodia. In P. Chidambaram v. Directorate of Enforcement48, the appellant therein was granted bail after being kept in custody for around 49 days, relying on the Constitution Bench in Shri Gurbaksh Singh Sibbia and Others v. State of Punjab, (1980) 2 SCC 565. and Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case. Ultimately, the consideration has to be 34 made on a case to case basis, on the facts. The primary object is to secure the presence of the accused to stand trial. The argument that the appellant therein was a flight risk or that there was a possibility of tampering with the evidence or influencing the witnesses, was rejected by the Court. Again, in Satender Kumar Antil v. Central Bureau of Investigation and Another, (2022) 10 SCC 51 this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab (2005) 7 SCC 387 and Kashmira Singh v. State of Punjab, (1977) 4 SCC 291 to emphasize that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. 49 In P. Chidambaram v. Central Bureau of Investigation, (2020) 13 SCC 337, the appellant therein was granted bail after being kept in custody for around 62 days. This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorized officers to ensure fairness, objectivity and accountability. Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused himself. In our opinion, Section 436A should not be construed as a mandate that an accused should not be granted bail under the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra and Others (2021) 2 SCC 427, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as 35 tenacious as tenacious can be. 29. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years.” 28. He further contended that time and again it has been reiterated by the Apex Court that in cases where the fundamental right to speedy trial of the accused is violated, the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applied irrespective of the nature of the crime. He has referred to the decision of the Apex 36 Court in the matter of Javed Gulam Nabi Shaikh Vs. State of Maharashtra, 2024 SCC OnLine SC 1693 wherein it has been observed that : 7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects: (i) The appellant is in jail as an under-trial prisoner past four years; (ii) Till this date, the trial court has not been able to even proceed to frame charge; and (iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses. XXXX XXXX XXXX 9.Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment. 10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote: “What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R V . Rose , (1898) 18 Cox] : "I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed 37 on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial." 29. He contended that the bail application of the accused cannot be rejected on the ground of severity of the offence or due to bar contained in Section 45 of the PMLA in cases where there is a violation of the right of the accused to speedy trial coupled with long period of pre-trial incarceration as has been held in Manish Sisodia (supra), wherein it has been held that : “44. The learned Special Judge and the learned Single Judge of the High Court have considered the applications on merits as well as on the grounds of delay and denial of right to speedy trial. We see no error in the judgments and orders of the learned Special Judge as well as the High Court in considering the merits of the matter. In view of the observations made by this Court in the first order, they were entitled to consider the same. However, the question that arises is as to whether the trial court and the High Court have correctly considered the observations made by this Court with regard to right to speedy trial and prolonged period of incarceration. The courts below have rejected the claim of the appellant applying the triple test as contemplated under Section 45 of the PMLA. In our view, this is in ignorance of the observations made by this Court in paragraph 28 of the first order wherein this Court specifically observed that right to bail in cases of delay coupled with incarceration for a long period should be read into Section 439 Cr.P.C. and Section 45 of the PMLA.” 30. If the trial gets protracted and it is clear that the case will not be decided within a forseeable time, the accused person is entitled for bail. In several cases, the Apex Court has been pleased to grant bail solely 38 on the ground of delay in trial coupled with long pre-trial incarceration, despite the alleged gravity of the offences and despite the restrictions continued in the special statutes of grant of bail in Section 45 of the PMLA. Therefore, learned counsel for the applicant submits that the applicant may be granted bail by imposing certain conditions. SUBMISSIONS OF THE RESPONDENT/ED 31. In reply, Dr. Saurabh Kumar Pandey, learned counsel for the respondent/ED submits that an ECIR bearing No. RPZO/04/.2023 was reocrded on the basis of a Prosecution Complaint dated 21.08.2023 filed by the Deputy Director of Income Tax before the Chief Judicial Magistrate, Raipur wherein it is inter alia alleged that Kailash Rungta, Parasmal Chopra and Roshan Chandrakar who are President, Vice President and Treasurer respectively of the Chhattisgarh State Rice Millers Association along with the present applicant, who was the then Managing Dirctor of CG State Marketing Federation ltd. (MARKFED), Ms. Pritika Pooja Kerketta DMO ,Korba and other connected persons have conspired with each other and illegally collected cash from the rice millers in the State of CG for clearing their bills at the rate of Rs. 20/- per installment for each quintal of paddy processed and thus they have committed the offences under Sections 120-B, 384,417,418 and 420 IPC. 32. During investigation, the ACB/EOW had lodged FIR No.01/2024 dated 16.01.2024 against the applicant and other co-accused persons 39 under sections 120-b and 409 of IPC and 11 and 13 of the Prevention of Corruption Act,1988. Later on, the ACB had added Section 384 IPC in their ongoing investigation in the aforesaid FIR No. 01/2024 which is also a scheduled offence under the PMLA Act. The instant ECIR was recorded on the basis of said prosecution complaint filed against the applicant for the commission of the offence of money laundering as defined under Section 3 and punishable under Section 4 of the PMLA,2002. 33. Contention of Shri Pandey, learned counsel for the respondent is that the present applicant has played the role in the commission of offence of Money Laundering under Section 3 of the PMLA and was arrested on 30.04.2024. Thereafter the ED remanded the accused till 04.05.2024. the arrestee was produced before the Special Court on 10.05.2024 and thereafter he was in custody till 14.05.2024. The Prosecution Complaint has been filed against the applicant and others on 28.06.2024 for the offence on money laundering as defined under Section 3 & 4 of the PMLA, 2002 and since then, the applicant is in judicial custody. 34. Shri Pandey submits that the specific role of the present applicant is that he worked as MD, MARKFED during the relevant period and had actively assisted the co-accused Roshan Chandrakar in collecting the extortion amount form rie millers in Chhattsigarh @ 20/- per quintal from January 2023 to July 2023 for passing their custom milling and special incentive bills. Investigation has revealed that the applicant being the 40 MD had issued directions to all the DMOs and employees of MARKFED to clear the bi8lls of only those rice millers who paid the extortion amounts. The applicant had intentionally kept the filed pending of some rice millers who refused to pay the extortion amount. Investigation has further revealed that the applicant had directed all the DMOs and employees of MARKFED to delete all the chats and call history from their mobiles after the income tax department had conducted search. 35. This way, the applicant had actively and knowingly assisted co- accused Roshan Chandrakar in generating and acquiring proceeds of crime which constitute offence of Money Laundering under Section 3of the PMLA, 2002 and punishable under Section 4 of the PMLA. The applicant had filed the application under Section 483 ov the BNSS read with Section 45 of the PMLA before the trial court seeking grant of regular bail in the subject ECIR which was dismissed after considering the facts and evidence against the applicant which clearly establishes his role in the offence of money laundering. The applicant has failed to satisfy the twin conditions as per Section 45 of the PMLA, therefore the special court has rightly rejected the bail application. 36. Further contention of the counsel for the applicant is that there was every likelihood that if the applicant was enlarged on bail, there is no surety that the applicant will not repeat the said offence and influence the witnesses and tamper with the evidences. He further contended that although the investigation against the applicant is concluded but till date the POC worth Rs. 19 crores (approx.) has only been attached out of 41 147 crores and the investigation with regard to the role of other persons involved in the offence of money laundering as well as for tracing remaining POC is underway. Therefore the applicant has to mandatorily satisfy the twin conditions enumerated in Section 45 of the PMLA for grant of bail. 37. It is further contended that the instant ECIR was initially recorded on the basis of scheduled offences under Sections 120-B, 384,417,418 and 420 IPC invoked in the Prosecution Complaint filed by the Income Tax Department. It is contended that on 16.01.2024, EOW Raipur had registered an FIR No. 01/2024 in the same mater against the applicant and other accused persons. Since Sections 120-B IPC an Sections 11 and 13 of the Prevention of Corruption Act, 1988 invoked in the said FIR are scheduled offence under the pMLA, this FIR was incorporated in the ongoing PMLA investifation by issuing an addendum on 19.04.2024, Later on, ACT/EOW had added Section 384 IPC which is also a scheduled offence under the PMLA. 38. It is contended that the ED is legally mandated under PMLA to share information about the commission of any offence surfaced during its investigation with such authority who are competent to investigate such offence and had shared the information with the CG Police under Section 66 of the PMLA about the commission of the offence of extortion from rice millers by the applicant and other co-accused persons. The police after due diligence and verification of the information shared by the ED registered FIR. Since investigation into the FIR lodged by EOW, 42 Raipur is still going on, the case ought not be made on merits at this juncture for deciding the bail application especially when no charge sheet has not yet filed by the EOW. 39. He contended that the existence of even one scheduled offence is enough for initiating investigation under the money laundering Act/ Apart from the Prosecution Complaint of the Income Tax Department, scheduled offence in the form of FIR No. -01/2024 exists wherein Sections 120-B and 384 IPC and Sections 11 & 13 of the PC Act are scheduled offences and investigation in these offences are going on. It is contended that no facts were suppressed by the ED in its prosecution complaint and that cognizance order in the prosecution complaint case of Income Tax Department was not in its knowledge at the time of filing of the prosecution complaint dated 28.06.2024. 40. He has reiterated that the ECIR is not a statutory document but only an internal document which was amended so that newly registered FIR by ACB/EOW may be incorporated in the ongoing investigation under the PMLA. The registration of FIR is in compliance of the provisions of law. The Apex Court has duly upheld in the matter Vijay Madanlal Choudhary Vs. Union of India SLP (Crl.) NO. 4634/2014, and observed as under: 60. As a matter of fact, prior to amendment of 2015, the first proviso acted as an impediment for taking such urgent measure even by the authorized officer, who is no less than the rank of Deputy Director. We must hasten to add that the nuanced distinction must be kept in mind that to 43 initiate “prosecution” for offence under Section 3 of the Act registration of scheduled offence is a prerequisite, but for initiating action of “provisional attachment” under Section 5 there need not be a pre-registered criminal case in connection with scheduled offence. This is because the machinery provisions cannot be construed in a manner which would eventually frustrate the proceedings under the 2002 Act. Such dispensation alone can secure the proceeds of crime including prevent and regulate the commission of offence of money- laundering. The authorized officer would, thus, be expected to and, also in a given case, justified in acting with utmost speed to ensure that the proceeds of crime/property is available for being proceeded with appropriately under the 2002 Act so as not to frustrate any proceedings envisaged by the 2002 Act. In case the scheduled offence is not already registered by the jurisdictional police or complaint filed before the Magistrate, it is open to the authorized officer to still proceed under Section 5 whilst contemporaneously sending information to the jurisdictional police under Section 66(2) of the 2002 Act for registering FIR in respect of cognizable offence or report regarding non- cognizable offence and if the jurisdictional police fails to respond appropriately to such information, the authorized officer under the 2002 Act can take recourse to appropriate remedy, as may be permissible in law to ensure that the culprits do not go unpunished and the proceeds of crime are secured and dealt with as per the dispensation provided for in the 2002 Act. Suffice it to observe that the amendment effected in 2015 in the second proviso has reasonable nexus with the object sought to be achieved by the 2002 Act. the 2002 Act of 34. He further contended that it has been clearly held that as Section 45 of the PMLA uses a generic expression “Bail” without any specific 44 reference to any kind of bail, no exception can be made with respect of applicability of the rigors of Section 45 to the different kinds of bail. It has been observed in Vijay Madanlal (supra) as under: 137. Another incidental issue that had been raised is about the non- application of rigors of Section 45 of the 2002 Act in respect of anticipatory bail filed under Section 438 of the 1973 Code. This submission presumably is linked to the observation in paragraph 42 in the case of Nikesh Tarachand Shah643. Similar argument was considered in The Asst. Director Enforcement Directorate vs. Dr. V.C. Mohan 644. We are in agreement with the observation in this decision that it is one thing to say that Section 45 of the 2002 Act refers to a scheduled offence under the general law, but, as noted earlier, the offence under this Act in terms of Section 3 is specific to involvement in any process or activity connected with the proceeds of crime which is generated as a result of criminal activity relating to a scheduled offence. It is also true that Section 45 does not make specific reference to Section 438 of the 1973 Code, but it cannot be overlooked that sub-section (1) opens with a non- obstante clause and 643 Supra at Footnote No.3 644 Criminal Appeal No.21 of 2022, decided on 4.1.2022 clearly provides that anything contained in the 1973 Code (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond, unless the stipulations provided therein are fulfilled. On account of the non-obstante clause in Section 45(1) of the 2002 Act, the sweep of that provision must prevail in terms of Section 71 of the 2002 Act. Further, the expression “anticipatory bail” is not used either in the 1973 Code or the 2002 Act. The relief granted in terms of Section 438 of the 1973 Code is one of directing release of the person on “bail” in case of his arrest; and such a relief has been described in judicial pronouncements as Section 45(1) uses generic anticipatory bail. 45 expression “bail” without reference to any provision of the 1973 Code, such as Sections 437, 438 and 439 of the 1973 Code. Concededly, Section 65 of the 2002 Act states that the provisions of the 1973 Code shall apply to the provisions under the Act insofar as they are not inconsistent with the provisions of the 2002 Act. Further, Section 71 of the Act gives overriding effect to the Act. Section 45 of the Act begins with a non-obstante clause, thus excluding the application of the 1973 Code in matters related to “bail”. XXXX XXXX XXXXX 141. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and 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.” 35. It is contended that the action of search under PMLA is merely a tool for investigation and is one of many such tools granted to ED by the Act which are employed to collect evidences during investigation. The possibility of parking the proceeds of crime at a secret place through layering cannot be denied. The applications filed by the applicant to retract the statements recorded are nothing but a deceptive tactic being employed by the applicant without any evidence to create some sort of defence for himself. The applicant had filed application under Section 439 Cr.P.C. read with Section 45 of the PMLA before the learned trial court seeking grant of regular bail in the subject ECIR. Learned trial 46 court dismissed the bail application which clearly established the role of the applicant in the offence of money laundering. Since the applicant has failed to satisfy the twin conditions as per Section 45 of the PMLS the learned PMLA Court has rightly rejected his bail application. 36. It is contented that the search under Section 17 of the PMLA was conducted at the premises of the applicant on 02.05.2025 in the presence of the wife of the applicant and two independent witnesses. Further it has been contended that the economic crimes are serious offences and have deep rooted conspiracies which had affected the fibre of country’s economic structure. These are committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequent to the community. It has serious repercussion on the development of the country as a whole and thereby posing serious threat to the financial health of the country. Thereofre the legislature has enacted special condition under the PMLA tog rant of bail in addition to the provision under Cr.P.C. Even Article 21 of the Constitution of India allows for curtailing right of citizen as per procedure of law. Moreover, a person is eligible to be released on bail under PMLA only if such person satisfies the twin conditions prescribed under Section 45 of the PMLa. One of the conditions prescribed by Section 45 pertains to the finding by the court that the accused is “not guilty of the offence of Money Laundering” and that he is not likely to commit any offence while on bail. 47 37. Next contention of the learned counsel for the respondent is that the applicant has not at all gone through any prolonged incarceration nor is the trial delayed. Since there are only two accused in the prosecution complaint filed before the Court and both the accused are in judicial custody, the trial is likely to commence very soon and attain its finality within a reasonable time. 38. It is further contended that the conduct of the applicant towards the investigation and legal procedure must be taken into account while considering his bail application. The applicant has remained absconding for a long time and evaded multiple summons issued to him under Section 50 of the PMLA. He had also influenced Ms. Pooja Pritika Kerketta, DMO not to join the investigation as he knew that the applicant would implicate him in the offence of money laundering. 39. It is submitted that the The Apex Court in the case of Gautam Kundu Vs. Directorate of Enforcement (2015) 16 SC 1, while dealing with the provisions of bail under Section 45 of the PMLA held as under: “28. Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of the PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the 48 provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. Section 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA: (i) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) That the Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. 30. The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the 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 Cr.P.C. 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 of Cr.P.C. That coupled with the provisions of 49 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.” 40. From perusal of the Section 45 of PMLA, 2002, it is inferred that the legislature imposed two twin conditions for grant of bail. a) that there should be reasonable grounds for believing that he is not guilty of such offence and (b) that he is not likely to commit any offence while on bail. 41. It is further relevant to submit that the application has to be looked from the prism of twin conditions laid down in the statute itself under Section 45 of thePMLA 2002. These twin conditions are in addition to what limitations have already been described for grant of bail in Cr.P.C. In the case of Vijay Madanlal Choudhary Vs. Union of India (SLP Cr.4634/2014), it has been reproduced as under: “133. This Court has been restating this position in several decisions, including Gautam Kundu639 and Amit Kumar640. Thus, while considering the application for bail under Section 45 of the 2002 Act, the Court should keep in mind the abovementioned principles governing the grant of bail. The limitations on granting bail as 638 Supra at Footnote No.255 639 Supra at Footnote No.207 640 Supra at Footnote No.258 prescribed under Section 45 of the 2002 Act are in addition to the limitations under the 1973 Code.” 50 42. Further in the case of Sajjan Kumar Vs. Directorate of Enforcement (MANU/DE2155/2022) has held that “in the matter of lregular bail, Court must consider aspects including but not limited to, the larger interest of the State or public-another factor relevant would be the gravity of alleged offence and/or nature of allegations levelled- Economic offences constitute a class apart and need to be visited with a different approach , given their severity and magnitude” 43. Similarly, in the matter of Abdul Gafoor @ Kunhumon Vs. Assistant Director, Directorate of Enforcement in bail application No. 2840 of 2022 decided by the High Court of Kerala on 27.05.2022, has ordered as follows: “ I have no hesitation to hold that the twin conditions as amended in Section 45(1) in 2018 have now become referable and reliable to the offences punishable under PMLA and an accused charged with an offence under the Act still has to satisfy those conditions notwithstanding the judgment of the Apex Court in Nikesh Shah (supra). the rigours of The bail application accordingly, stands dismissed.” 44. He further contended that till date the POC worth Rs. 19 crores out of Rs. 147 crores has been attached till date. The investigation for tracing rest of the POC as well as role of other persons involved in the money laundering offence is going on. The judgment cited by the learned counsel for the applicant in the case of Sanjay Chandra Vs. 51 CBI has no applicability in the instant case because the applicant has the history of destroying the evidence and influencing the witnesses with purpose of frustration the ongoing investigation. From the conduct of the applicant related to non-compliance of summons as well as destroying of evidence and influencing other concerned persons for not joining the investigation clearly shows his non-cooperative attitude and complete disregard for the rule of law and if he is enlarged on bail, it is likely that he will not keep himself present during trial. 45. It is next contended that this Court in the case of Alok Agrawal Vs. Directorate of Enforcement bearing M.Cr.C. No. 6533 of 2019 dated 03.01.2021, has discussed about the seriousness of the offence of money laundering and its impact on the economy of the country. It has been very categorically stated that the allegations in the Enforcement case Information Report/Prosecution Complaint is a matter of final outcome of the trial but the burden of proof under Section 24 of the PMLA, 2002 with regard tot he said money is not proceeds of crime and is always on the accused person. The relevant para from the above mentioned judgment is produced as under : It is true that at present there may or may not be direct or indirect attempts to indulge the applicant in any process of activity connected with the proceeds of crime, there is no attempt on the part of the applicant to disclose the source of the large sums of money handled by him. There is no denying the fact that allegations have been made that the said money was the proceeds of crime and by depositing or investing the same in his wife's account and in the 52 business of his wife and brother, the applicant has attempted to project the same as untainted money. The said allegations may be the subject matter of final outcome of the trial, but having been made, the burden of proof that the said money is not the proceeds of crime and, therefore, shifted to the applicant under Section 24 of the PML Act, 2002. For the sake of reference, Sections 3 and 24 of the PML Act are extracted herein below :- “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 4[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.” “24. Burden of Proof. - In any proceeding relating to proceeds of crime under this Act, (a) in the case of a person charged with the offence of money- laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crim e are involved in money- laundering; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money- laundering.” 46. Further contention of learned counsel for the applicant is that the applicant is a high ranking government officials and is familiar with the basis procedure of law enforcement agency. On several occasions, summons were issued to him but he did not appear and in contrast to what has been projected by the applicant, nil seizure of any unaccounted cash and POC from any premise does not absolve an 53 accused from the guilt. The possibility of parking the Proceeds of Crime at a secret place/through layering cannot be denied. 47. During investigation, plethora of evidences in the form of seized material from search and the submission made under Section 50 of the PMLA has been gathered with squarely proves the guilt of the applicant in the offence of money laundering. As such the applicant fails to satisfy the twin conditions mandated under Section 45 of the PMLA, 2002. 48. It is thus contended by the learned counsel for the respondent that by virtue of Section 50 of the PMLA, statements given under this Section are inadmissible as evidence in the court of law. Further the attempt of applicant to weigh the evidences given by Ms. Pooja Pritika Kerketta, Bhaumik Baghel and others should not be allowed at this juncture as it is an established principle that while deciding the bail applications, the courts are not supposed to conduct a mini trial by evaluating each and every piece of evidence. Considering the seriousness of the offence and deep involvement of applicant in the offence is enough to dismiss the bail application. The purpose and object of the legislation in the form 2002 Act and the background in which it had been enacted owing to the commitment made to the international bodies and on their recommendations, it is clear that it is a special legislation to deal with the subject of money laundering activity having transnational impact on the financial system including sovereignty and integrity of the countries. This is not an ordinary offence. To deal with such serious offence, stringent measures are 54 provided in the Act of 2002 for prevention of money laundering, including attachment and confiscation of proceeds of crime and to prosecute the persons involved in the process or activity connected with the proceeds of crime. 49. It has been contended by the learned counsel for the respondent that Section 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA : (1) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) that the court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. As is clear from the Prosecution Complaint filed by the Directorate, it is clear that the applicant was involved in the offence of Money Laundering. 50. He further contended that it has been clearly held that as Section 45 of the PMLA uses a generic expression “Bail” without any specific reference to any kind of bail, no exception can be made with respect of applicability of the rigors of Section 45 to the different kinds of bail. It has been observed in Vijay Madanlal (supra) as under: 55 137. Another incidental issue that had been raised is about the non- application of rigors of Section 45 of the 2002 Act in respect of anticipatory bail filed under Section 438 of the 1973 Code. This submission presumably is linked to the observation in paragraph 42 in the case of Nikesh Tarachand Shah643. Similar argument was considered in The Asst. Director Enforcement Directorate vs. Dr. V.C. Mohan 644. We are in agreement with the observation in this decision that it is one thing to say that Section 45 of the 2002 Act refers to a scheduled offence under the general law, but, as noted earlier, the offence under this Act in terms of Section 3 is specific to involvement in any process or activity connected with the proceeds of crime which is generated as a result of criminal activity relating to a scheduled offence. It is also true that Section 45 does not make specific reference to Section 438 of the 1973 Code, but it cannot be overlooked that sub-section (1) opens with a non- obstante clause and 643 Supra at Footnote No.3 644 Criminal Appeal No.21 of 2022, decided on 4.1.2022 clearly provides that anything contained in the 1973 Code (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond, unless the stipulations provided therein are fulfilled. On account of the non-obstante clause in Section 45(1) of the 2002 Act, the sweep of that provision must prevail in terms of Section 71 of the 2002 Act. Further, the expression “anticipatory bail” is not used either in the 1973 Code or the 2002 Act. The relief granted in terms of Section 438 of the 1973 Code is one of directing release of the person on “bail” in case of his arrest; and such a relief has been described in judicial pronouncements as Section 45(1) uses generic anticipatory bail. expression “bail” without reference to any provision of the 1973 Code, such as Sections 437, 438 and 439 of the 1973 Code. Concededly, Section 65 of the 2002 Act states that the provisions of the 1973 Code shall apply to the provisions under the Act insofar as they are not inconsistent with the 56 provisions of the 2002 Act. Further, Section 71 of the Act gives overriding effect to the Act. Section 45 of the Act begins with a non-obstante clause, thus excluding the application of the 1973 Code in matters related to “bail”. XXXX XXXX XXXXX 141. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and 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.” 51. It is next contended that the economic offences constitute a class apart and need to be visited with different approach therefore in Y.S.Jagan Mohan Reddy Vs. CBI (2013) 7 SCC 439, the Apex Court has held 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 offence having deep rooted conspiracies and involving huge loss of public funds needs 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.” 52. In yet another decision of the Apex Court ie. State of Gujarat Vs. Mohanlal Jitamalji Porwal & Others, (1987) 2 Scc 364, it has been specifically held that : “...5. The Community or the State is not a person- 57 non-grata whose cause may be treated with disdain. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books. 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. 53. Further contention of the counsel for the applicant is that the applicant was one of the main accused of the scam and by using his official authority as MD, MARKFED, assisted co-accused Roshan Chandrakar in creating a system which forced the rice millers to give extortion amount for clearance of their bills. He contended that even if the applicant is not the beneficiary of POC, he may be accused of the offence of money laundering if he knowingly assists in any process of activity connected with POC. In the instant case, the applicant had knowingly misused his official authority and assisted in implementation of extortion system which caused systematic extortion from rice millers of the State to the tune of Rs. 147 crores approximately. Had the applicant not withheld the bills of rice millers, the other co-accused Roshan Chandrakar would not have been able to force the rice millers to cough up extortion amount. He submits that the applicant has to mandatorily satisfy the rigors of twin condition of bail mandated under Section 45(1) of the PMLA. Considering the grave nature of offence and deep involvement of applicant as established during investigation, the applicant is not entitled for bail and he fails to satisfy the twin 58 conditions under Section 45 of the PMLA as well as triple test for bail. The Apex Court in the mater of Neeru Yadav Vs. State of UP and Another, AIR (SC) (Crl) 2015 (0) 412 made the following observations: “ It is a well settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are: (I) the nature of accusation and the severity of punishment in cases of conviction and thenature of supporting evidence. (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant and Prima facie satisfaction of the Court in support of the charge.” 54. Shri Pandey, learned counsel for the applicant further contended that till date under the Prevention of Money Laundering Act revealed that rice millers were the onces who were forced to pay extortion by the co-accused Mr. Roshan Chandrakar with the help of the applicant and without paying extortion amount to him, no bills of rice millers were passed. The rice millers were neither beneficiaryof POC nor are they assisting in any other activity associated with the POC. The investigation in this case is not complete and the role of other persons is being probed. Since the involvement of the applicant is established, the prosecution complaint has been filed. 59 55. Lastly, it has contended by the counsel for the respondent that with regard to the medical condition of the applicant, the Court should put strrong proof of his claim. The jail authorities are well equipped to provide medical facilities to the applicant and there is no material to prove the seriousness of the ailments. CONSIDERATION OF THE APPLICATION FOR BAIL 56. Heard learned counsel for the parties at length and perused the records as well as the documents annexed with utmost circumspection. 57. The crux of the allegation against the applicant is that he was involved in running an extortion racket by way of Rs. 20+20=Rs. 40/- per quintal of custom milled rice out of the special incentive price of Rs. 120/- payable by the State of Chhattisgarh to the custom rice millers. Hence the offence under Section 383/384 of the IPC has been levelled against the applicant. Similarly, the allegation of cheating under Section 420 IPC has been made against the applicant. Though it has been submitted by the counsel for the applicant that there is no direct or specific evidence against the applicant to suggest that he was involved in any of the offence as alleged in the subject ECIR or the prosecution complaint. 58. From the investigation of the ED, it has been revealed that the applicant was one of the key conspirator and main beneficiary of the POC extorted from the rice millers. It has also been revealed that the 60 rice milers were forced for payment of the same under threat that their incentive bills would not be cleared from the MARKFED. As per Section 50(4) of the PML Act, the statements recorded under Section 50 of the PMLA has evidentiary value as the proceedings under Section 50(2) and (3) are deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the IPC, 1860. 59. The applicant is closely connected with POC as he had deputed some persons at certain place and the cash was not physically taken by him but it was initially demanded by the applicant and payment, he conveyed it to the rice millers over phone. It has come in the statements of some of the rice millers who have personally handed over the extortion amount as demanded by the applicant. In Y.S.Jagan Mohan Reddy Vs. Central Bureau of Investigation (2013) 7 SCC 439, it has been observed that 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 country. In Union of India Vs.Hassan Ali Khan (2011) 10 SCC 235, this Court has laid down that what will be the burden of proof when attempt is made to project the proceeds of crime as untainted money. It is held in the said paragraph that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons Under Section 24 of the PML 61 Act, 2002. The same proposition of law is reiterated and followed by the Orissa High Court in the unreported decision of Smt. Janata Jha v. Assistant Director, Directorate of Enforcement (CRLMC No. 114 of 2011 decided on December 16, 2013). Therefore, taking into account all these propositions of law, we feel that the application for bail of the Appellant should be seen at this stage while the Appellant is involved in the economic offence, in general, and for the offence punishable Under Section 4 of the PMLA, in particular. 60. Prima facie it appears that the prosecution has adopted an incompatible stance being both hot and cold in its approach and has acted in a pick and choose manner in the investigation where some of the accused persons were named in the ECIR but they have not been made accused. Though the concerned court took cognizance of some of the offences as alleged in the complaint by the IT. Further cognizance has been taken for the offences under Sections 181,191,193,417 and 418 of IPC. 61. In recent times, India's criminal law jurisprudence has witnessed an increasing emphasis on enacting stringent laws with an aim to curb economic offences, particularly the menace of money laundering. The Prevention of Money Laundering Act (PMLA) exists as an important legislative instrument in this regard. However, the applicability of PMLA, especially its inflexible provisions related to grant of bail, has given rise 62 to debates and deliberations, concerning the balance between ensuring justice and protecting the liberty of an individual. 62. The term bail has been defined in Section 2(1)(b) of the Bharatiya Nagarik Suraksha Sanhita, 2023, as the release of a person accused of or suspected of committing a crime from custody, based on certain conditions set by an officer or court, which require the person to sign a bond or bail bond. It imposes pre-trial conditions on the suspect to ensure they cooperate with the investigation and trial. According to Black's Law Dictionary, bail is a form of security, such as cash or a bond, required by the court to release a prisoner who must appear in court on a later date. Wharton's Law Lexicon describes bail as setting a person at liberty who has been arrested or imprisoned, based on security taken for their appearance at a specified time as well as place. 63. The principle that bail is the rule and jail is the exception is well- established by judicial pronouncements. This principle is in line with Article 21 of the Constitution, which is the cornerstone of the fundamental rights, safeguarding the rights to life and personal liberty of all citizens of India. In Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, it was held that bail aims to ensure the attendance of the accused at trial and should not be used as a punitive measure as it is intended to facilitate the presence of the accused at trial rather than as punishment. In Gurcharan Singh v. State (UT of Delhi) (1978) 1 SCC 118, the Apex Court acknowledged that no rigid formula governs 63 bail matters and that they should be based on the specific facts and circumstances of each case. Similarly, in Sanjay Chandra v. CBI (2012) 1 SCC 40, the Apex Court reiterated that bail's primary purpose is to ensure the accused appears at trial, not to punish him and the object of pre-trial detention should not be punitive. It should be justified only by the necessity to secure the attendance of the accused at trial. 64. The principal object of any criminal legislation is to protect the society by punishing the wrongdoers although no person should be punished without a fair trial. A person is presumed to be innocent until his/her guilt is proved beyond reasonable doubt in a trial before an impartial and competent court of law. It is very important, in the administration of justice, that justice should not only be done, but should manifestly and undoubtedly be seen to be done. However, the right to bail is not an absolute one. The legislation’s like the PMLA, impose stricter conditions for granting bail, reflecting the gravity of the offences they address. 65. The Apex Court has held that while the nature of the offence under PMLA is indeed serious, the right to a speedy trial and the right to liberty cannot be ignored. The question is about the fairness of continued incarceration without a clear timeline for the trial's completion. The Court relied upon the judgment in Javed Gulam Nabi Shaikh v. State of Maharashtra and Another 2024 LiveLaw (SC) 437, in which it was held that – if the State or any prosecuting agency, including the 64 concerned court, lacks the resources to ensure or safeguard the fundamental right to a speedy trial of an accused as guaranteed under Article 21 of the Constitution, then the State or any other prosecuting agency should not oppose a bail application solely on the basis that the crime committed is serious and that Article 21 of the Constitution applies regardless of the severity of the crime. 66. The Apex Court's pronouncements in the case of Manish Sisodia (supra) and Prem Prakash (supra) have significant implications for the interpretation of bail under PMLA. It underscores the need for a balanced approach to be adopted by the courts that considers both the seriousness of the offence and the fundamental rights of the accused, especially when there is delay in trial and incarceration for a long period of time. As the country continues to grapple with complex economic offences, the interpretation of bail provisions under the PMLA are likely to evolve, with the efflux of time. 67. In the present case, it is not acceptable that the applicant was not involved in the offence of money laundering. In fact, the applicant was assisting the co-accused Roshan Chandrakar in running an alleged extortion racket wherein an amount of Rs. 40/- (Rs. 20+20/-) per quintal was extorted from the custom milled rice out of the special incentive price of Rs. 120/- payable by the State Government to the custom rice millers Denial by the applicant itself is not sufficient to consider prima facie that there is no mens rea of the applicant in the said offences. 65 Although the statements of the witnesses are required to be tested at the time of trial, but for the purpose of consideration of bail application, the statements of the witnesses are relevant for consideration of bail application of the applicant. 68. Thus, it cannot be said that there is no involvement of the applicant in the offence in question. The Court after examining the entire documents found substantial material indicating a strong nexus between the applicant and the other accused persons in the commission of the crime. There were documents and evidences that reflected the involvement of the applicant and he is the key conspirator and beneficiary from the said scam. The investigation have revealed that the applicant was involved in the extortion of money from the rice millers which was allegedly used for constituting proceeds of crime. 69. So far as the with regard to the health issue of the applicant is concerned, as such there is no serious ailment. It is further held that if the authorities are adopting adequate measures to prevent deterioration of the health of the accused during the period of custodial internment, then the Court may not interfere. The applicant’s medical record indicates manageable conditions and it has been found that there is no compelling medical reason for granting bail to the applicant. The Court has found substantial material indicating a strong nexus between the applicant and the crime, thereby failing to satisfy the conditions of bail under Section 45 of the PMLA. CONCLUSION 66 70. Thus, the guilt of the accused in the offence of money laundering has been gathered and since, the allegations against the applicant were extremely serious and taking into account, the nature and gravity of the offence and from perusal of the record and in view of the fact that looking to the special and stringent provision under Section 45(1) of the PMLA for grant of bail, in the considered opinion of this Court, prima facie the money trail has been established by the prosecution and therefore, it is not proper to order release of present applicant on regular bail for the reasons mentioned hereinabove. Considering the role of the applicant in obtaining the money through illegal source, which is the proceeds of crime and that there is sufficient evidence collected by the ED to prima facie show the involvement of the applicant in the alleged offences. It is an organized crime having various facets of its complexion, therefore, further considering the nature of offence and material collected during the investigation, this Court is satisfied that there is prima facie evidence for believing that the applicant is involved in the offence, therefore, I am not inclined to release the applicant on bail. 71. In view of the aforesaid discussion, I am of the considered opinion that the prayer for bail made by the applicant under Section 483 of the Bhartiya Nagrik Suraksha Sanhita, 2023 (‘BNSS’) read with Section 45 67 of the PMLA, 2002 for the offences under Section 3 & 4 of the PMLA, 2002, deserves to be and is hereby rejected. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.01.21 08:25:30 -0500