Chhattisgarh High Court: In a bail application filed by the applicant under Section 438 of the Criminal Procedure Code, 1973 (‘CrPC’) for the grant of anticipatory bail, Narendra Kumar Vyas, J., opined that in the present case, statement of the applicant recorded under Section 50(2) of the PMLA, his prima facie involvement was reflected. The material collected by the Enforcement Directorate had also not been rebutted, which prima facie reflected the involvement of the applicant. The Court opined that the applicant was unable to fulfil the twin conditions required for grant of bail under the Prevention of Money Laundering Act, 2002 (‘PMLA’) was equally applicable for the grant of anticipatory bail, which had not been satisfied by the present applicant. Thus, considering the gravity of offence, possibility of witnesses tampering and prima facie considering that the applicant was unable to satisfy the twin conditions of Section 45 of the PMLA, the Court rejected the bail application filed under Section 438 of the CrPC.
Background
On 30-06-2022, search and seizure investigation under Section 132 of the Income Tax Act, 1961 was conducted on 30-06-2022 at a hotel room of the main accused, Suryakant Tiwari, wherein certain incriminating materials were found. Based on such materials, a complaint was filed by the Income Tax Department alleging offences under Sections 186, 204 and 353 read with 120-B of the Penal Code, 1860 (‘IPC’), and accordingly, the FIR was registered.
Thereafter, further investigation was conducted and on 13-10-2022, main accused was summoned and arrested. The diaries were recovered from the possession of Soumya Chourasiya and the main accused, which revealed the cash transaction between both of them. It was also alleged that the main accused had tampered and destroyed the important documents and electronic gadgets. Further, it was also alleged that the main accused along with his brother, who was the present applicant in this case and his associates were involved in criminal conspiracy to run a parallel system of collecting illegal levy on coal and were doing illegal and unaccounted cash movements as per instructions of the main accused.
Further, all the associates of main accused had admitted in their statements recorded before the Income Tax Officials that on the instructions of the main accused, they were doing illegal levy collection and proceeds received from such action were being used for taking undue advantage and influence public servants by corrupt and illegal means.
The present applicant was an active member of the extortion syndicate and he was the focal point where all the extorted cash was deposited, stored and dispatched for utilisation. Large amount of cash was also used to purchase immovable assets in the name of the present applicant and many hand written entries in the diaries were made by the present applicant. He knowingly and actively participated in the extortion racket and acted as the accountant who managed the illegal cash. After the main accused, only the present applicant could verify the bills raised by various vendors, contractors, etc.
Thus, the applicant in apprehension of being arrested in connection the offence punishable under Sections 186, 204, 353, 120-B, 384 of the IPC and Section 3 and 4 of the PMLA, filed the present bail application.
Analysis, Law, and Decision
The point to be considered before this Court were as follows:
1. Whether non-arresting of the applicant entitled him to get anticipatory bail as per Section 19 of the Prevention of Money Laundering Act, 2002
The Court relied on Manish Sisodia v. CBI, 2023 SCC OnLine SC 1393 and opined that an authority, on basis of the material in their possession and reason to believe that any person had been guilty of an offence punishable under the PMLA, might arrest such person. The authorities while conducting the investigation had not opted for this option which was available with them, but did not mean that the right of arrest to a person who was involved in the commission of offence under PMLA had came to an end. The Court opined that this right could be exercised by them as and when the reasons were available with them for arresting.
Thus, the applicant could not claim anticipatory bail on the strength that he joined the investigation and during the investigation, though the authorities had power to arrest but they did not arrest him.
2. Whether the twin conditions for the grant of bail under Section 45 of the PMLA were available on record to release the applicant by granting anticipatory bail.
The Court relied on Enforcement Directorate v. M. Gopal Reddy, 2022 SCC OnLine 1862 and Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439, P. Chidambaram v. Enforcement Directorate, (2019) 9 SCC 24 and opined that the material collected by the investigation prima facie reflected that many hand written entries in the diaries were made by the present applicant. He knowingly and actively participated in the extortion racket and also, acted as an accountant who managed the illegal cash. The Court further observed that the present applicant was the brother and a close associate of the main accused, who was the main mastermind behind the illegal coal levy scam and had strong links with politicians and businessmen in the State of Chhattisgarh.
The Court opined that in the present case, statement of present applicant recorded under Section 50(2) of the PMLA, prima facie involvement of the applicant was reflected. The material collected by the Enforcement Directorate had also not been rebutted, which prima facie reflected the involvement of the applicant. The Court opined that the applicant was unable to fulfil the twin conditions required for grant of bail under the PMLA was equally applicable for the grant of anticipatory bail, which had not been satisfied by the present applicant.
Thus, considering the gravity of offence, possibility of witnesses tampering and prima facie considering that the applicant was unable to satisfy the twin conditions of Section 45 of the PMLA, the Court rejected the bail application filed under Section 438 of the CrPC. The Court further clarified that the observations made in the present judgment would not influence the Trial Court on the merits and case would proceed in accordance with law and should be decided on the basis of evidence led before it.
[Rajnikant Tiwari v. Enforcement Directorate, 2023 SCC OnLine Chh 4626, Order dated 02-11-2023]
Advocates who appeared in this case :
For the Applicant: Siddharth Aggarwal, Senior Advocate with Harshwardhan Parganiha, Saloni Verma, Advocate;
For the Respondent: Sourabh Kumar Pande, Advocate
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