JUSTICE v. NARASINGH Date of hearing
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK BLAPL No.10054 of 2024 Soumyakant Mohanty …. Petitioner Directorate of Enforcement Mr. J. Pal, Advocate -versus- …. Opposite Party Mr. G.K. Agarwal, Adv. (Directorate of Enforcement) CORAM: JUSTICE V. NARASINGH Date of hearing :13.12.2024 Date of order :17.12.2024 Order No. 08. 1. Heard Mr. Pal, learned counsel for the Petitioner and Mr. Agarwal, learned counsel for the Directorate of Enforcement. 2. The Petitioner is an accused in connection with Complaint Case (PMLA) No.10 of 2023 pending on the file of learned Sessions Judge, Khurda at Bhubaneswar-cum-Special Court under the Prevention of Money Laundering Act, 2002, for commission of offence alleged under Sections 3 and punishable under Section 4 of PMLA Act, 2002. 3. Learned counsel, on instruction, submits that except the present BLAPL, no other bail application Page 1 of 12 of the Petitioner relating to the aforementioned case is pending in any other Court. 4. Being aggrieved by the rejection of his application for bail U/s.483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) r/w Section 45 of the PMLA Act by the learned Spl. Judge (CBI) Court No.1/PMLA, Bhubaneswar by order dated 31.07.2024 in the aforementioned case, the present BLAPL has been filed. 5.
Facts
The Enforcement Directorate filed a Complaint Case (PMLA) Case No.10 of 2023 in the Special Court under the Prevention of Money Laundering Act, 2002, Bhubaneswar against the present Petitioner cited as Accused No.3 and others under Section 45 read with Section 44 of the Prevention of Money Laundering Act (PMLA), 2002. 6. The allegation against the Petitioner has been stated in Paragraph-9 of the said complaint. The same is extracted hereunder; “9. SPECIFIC ROLE OF THE ACCUSED / CO- ACCUSED/ THE COMMISSTON OF OFFENCE OF MONEY LAUNDERING IN TERMS OF SECTION 3 OF PMLA: ABETTING PERSONS IN Sl. No. 01 Name of the Accused xxx xxx xxx 02 xxx xxx xxx Role of the Accused in the instant case 03 Soumyakant 1.1 Soumyakant Mohanty Page 2 of 12 Mohanty (A- 3) of has cheated numbers of parents with promise to allot seats for admission to MBBS course to their in children different colleges and Medical generated thereby rupees as crores of crime of proceeds relating to commission of scheduled offence under PMLA, 2002. He has also accepted that he has cheated many parents by adopting the aforesaid Modusoperandi. Hence, in the accused came possession such "proceeds of crime". 1.2 The accused have used the said proceeds of crime various for purposes in hidden and manner concealed without disclosing the funds. origin of such Movable and immovable properties acquired out of such proceeds of identified crime were attached and under provisionally PMLA, 2002. Even the properties acquired out of said proceeds of crime and also in money offence were laundering projected in a manner as if obtained legally from legal money. Therefore, involved of Page 3 of 12 such properties were projected as if they are untainted properties. 1.3 Aforesaid deals directly acts committed by accused person is clearly covered the definition of by offence of money- laundering, wherein any person with proceeds of crime in any (whether manner concealment possession or acquisition or use), or whether indirectly, such person shall be guilty of offence of money-laundering. In case, the instant accused has acquired, knowingly possessed, transferred, layered and used the said proceeds of crime obtained or derived by commission of scheduled such a in offences manner as it was untainted money and therefore, he is guilty of offence of money- laundering as per the provisions of section 3 of PMLA, and therefore liable to be punished. person 2002' if xxx xxx xxx 7.
Legal Reasoning
that there is a prima facie case. Hence, in view of the twin stipulations of Section 45 of the PMLA Act, the Petitioner should not be enlarged on bail. 18. In the case of Tarsem Lal (supra) referring to the judgment of Satender Kumar Antil vrs. Central Bureau of Investigation and another reported in (2022) 10 SCC 51, the Apex Court in Paragraph-30 and 33.9 held thus; “30. Once cognizance is taken of the offence punishable under Section 4 PMLA, the Special Court is seised of the matter. After the the ED and other cognizance authorities named in Section 19 cannot exercise the power of arrest of the accused shown in the complaint. The reason is that the accused shown in the Complaint are under the taken, is Page 10 of 12 jurisdiction of the Special Court dealing with the complaint. Therefore, after cognizance of the complaint under 44(1)(b) PMLA is taken by the Court, ED and other authorities named in Section 19 are powerless to arrest an accused named in the complaint. Hence, in such a case, an apprehension that the ED will arrest such an accused by exercising powers under Section 19 can never exist. xxx xxx xxx 33.9. After cognizance is taken of the offence punishable under Section 4 PMLA based on a complaint under Section 44(1)(b), ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint; and” (Emphasized) The law laid down in the Tarsem Lal (supra) has also been reiterated by the Apex Court in the case of Bijay Ketan Sahoo vrs. Enforcement Directorate in Special Leave to Appeal (Crl) No.8325/2024. 19. Applying such principle as admittedly in the case at hand, the Petitioner was not taken into custody by the Enforcement Directorate before the learned Special Court took cognizance, the Petitioner could not have been arrested in this case. 20. The stage at which the Petitioner’s release is resisted, this Court is of the considered view that the twin stipulations of Section 45 of PMLA Act as Page 11 of 12 embargo for consideration of the bail application of the Petitioner do not come into play. 21. As such, this Court directs the Petitioner to be released on bail on such terms to be fixed by the learned Court in seisin. 22. Additionally, it is directed that the Petitioner shall not leave the State of Odisha without express permission of the learned Special Court. 23.
Arguments
It is submitted by learned counsel, Mr. Pal that the Petitioner was taken into custody in the Page 4 of 12 predicate offences on 03.12.2019 and in six of such cases, he has been released on bail. The details of accused in committing the predicate offence has been stated in paragraph-3.3 of the complaint. 8. It is submitted by the learned counsel for the Petitioner, Mr. Pal, that Serial Nos.1, 3, 4, 9 and 10 relate to the present Petitioner in which he has been released on bail and in addition thereto in two other cases also the Petitioner has been released on bail. 9. Referring to the sequence of events, it is submitted by the learned counsel for the Petitioner that the cognizance in the case at hand was taken on 09.08.2023 and the Petitioner was taken to custody by the Enforcement Directorate on 23.04.2024. 10. It is submitted, relying on the judgment of the Apex Court in the case of Tarsem Lal vs. Directorate of Enforcement Jalandhar Zonal Office, (2024) 7 SCC 61, that the Petitioner is entitled to be released on bail notwithstanding the rigors of Section 45 of the PMLA Act. 11. Learned counsel for the Petitioner specifically draws the attention of the Court to Paragraph 33.9 of the Judgment of the Apex Court in the said case under the heading “Operative Conclusions”. For convenience of reference, said paragraph-33.9 is extracted hereunder; Page 5 of 12 “Operative Conclusions 33. Now, we summarise our conclusions as under: xxx xxx xxx 33.9. After cognizance is taken of the offence punishable under Section 4 PMLA based on a complaint under Section 44(1)(b), ED and its officers are powerless to exercise power under Section 19 to arrest a person shown as an accused in the complaint; and” And, learned counsel for the Petitioner also relied on the following judgments; i. Ramkripal Meena vs. Directorate of Enforcement, 2024 SCC OnLine SC 2276. ii. Prem Prakash vs. Union of India through the Directorate of Enforcement, 2024 SCC OnLine SC 2270. iii. V. Senthil Balaji vs. The Deputy Director, Directorate of Enforcement, 2024 SCC OnLine SC 2626. iv. Sanjay Chandra vs. CBI, (2012) 1 SCC 40. v. Javed Gulam Nabi Shaikh vs. State of Maharashtra and another, (2024) 9 SCC 813. Page 6 of 12 12. Per contra, learned counsel for the Enforcement Directorate, Mr. Agarwal, submits that in the case at hand, the bail application of the Petitioner is liable to be rejected in view of the twin conditions as stipulated in Section 45 of the PMLA Act. For convenience of reference Section 45 of the PMLA Act is extracted hereunder; Notwithstanding “45. Offences to be cognizable and non- bailable.-(1) anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless-] (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where Public Prosecutor the opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who is under the age of sixteen years or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees] may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by the Director; or (i) (ii) any Central Government or State Government authorised in officer the of Page 7 of 12 writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. [(1-A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an this Act unless specifically offence under authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in [***] of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 13. And, to fortify his submission, learned counsel for the Enforcement Directorate referred to the written objection and relied on the judgments of the Apex Court in the cases of (i) Directorate of Enforcement vs. Aditya Tripathi, 2023 SCC OnLine SC 619 more particularly paragraphs-13 to 16, (ii) Prem Prakash vs. Union of India through the Directorate of Enforcement , (2024) 9 SCC 787 , paragraphs-18 and 19, (iii) Tarun Kumar vs. Assistant Directorate Enforcement, 2023 SCC Online SC 1486, paragraphs-17, 20 and 21, (iv)Gautam Kundu vs. Directorate of Enforcement, (2015) 16 SCC 1, paragraph 30, (v)Vijay Madanlal Choudhary and others vs. Page 8 of 12 Union of India and others, (2023) 12 SCC 1, paragraphs-285 & 296, (vi) Rohit Tandon vs. Directorate of Enforcement, (2018) 11 SCC 46 (vii) Prasanta Kumar Sarkar vs. Ashis Chatterjee and Others., (2010) 14 SCC 496. 14. It is apt to note that both the learned counsel for the Petitioner as well as Opposite Party have referred to recent judgment of the Apex Court in the case of Prem Prakash (Supra). 15. In the said case the Apex Court quoted with approval the judgment of the Apex Court in the case of Manish Sisodia vs. Directorate of Enforcement, 2024 SCC OnLine SC 1920, wherein the general principle that bail is the rule and jail is the exception was reiterated even in the context of Section 45 of PMLA Act. Such view was reiterated by the Apex Court in the case of V. Senthil Balaji vs. Deputy Director, Directorate of Enforcement, 2024 SCC OnLine SC 2626 relied upon by the learned counsel for the Petitioner. 16. In the instant case, the cognizance has already been taken, as noted and as evident from the objection filed, the Enforcement Directorate was allowed to ”examine and interrogate” the Petitioner by the learned Special Court and accordingly, the Petitioner was examined on 15.03.2022. The Page 9 of 12 Petitioner has been released on bail in the predicate offences, as already noted. 17. Learned counsel, Mr. Agrawal for the Enforcement Directorate submits with vehemence that release in the predicate offences has no bearing while considering an application under the PMLA Act. And, further submits that the factual matrix in the case of Tarsem Lal (Supra) is ex-facie different from the case at hand since, in the said case, the Apex Court was seized of the issue of denial of anticipatory bail on non-appearance consequential to warrant whereas in the case at hand taking of cognizance by the learned Special Court indicates
Decision
Accordingly, the BLAPL stands disposed of. (V. NARASINGH) Judge Orissa High Court, Cuttack, Dated the 17th December, 2024/Santoshi Signature Not Verified Digitally Signed Signed by: SANTOSHI LENKA Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 17-Dec-2024 19:37:52 Page 12 of 12