Jharkhand High Court
Amit Kumar Agarwal vs Directorate Of Enforcement on 25 April, 2025
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
2025:JHHC:12446
IN THE HIGH COURT OF JHARKHAND AT RANCHI
B.A. No. 8321 of 2024
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Amit Kumar Agarwal, aged about 53 years, son of Sri Vijay Kumar
Agarwal, resident of HB-165, Salt Lake, Sector-3, P.O. Vidhan Nagar, P.S.
Vidhan Nagar South, District-24 Pargana North (West Bengal).
... ... Petitioner
Versus
Directorate of Enforcement, Government of India, Pee Pee Compound,
Kaushalya Chambers-II, Ranchi Sub Zonal Office, P.O.-G.P.O., P.S.-
Hindpidhi, District-Ranchi.
... ... Opposite Party
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Ms. Meenakshi Arora, Sr. Advocate
Mr. Jatin Sahgal, Advocate
Mr. Rohit Ranjan Sinha, Advocate
Ms. Amrita Sinha, Advocate
Mr. Abhishek Agarwal, Advocate
Mr. Raymon Singh, Advocate
Mr. Kumar Baig, Advocate
Mr. Kumar Rahul, Advocate
For the Opp. Party : Mr. Amit Kumar Das, Advocate
Mr. Saurav Kumar, Advocate
-----------
th
C.A.V. on 28 March, 2025 Pronounced on 25/04/2025
1. The instant application has been filed under Section 439 and 440 of the Code
of Criminal Procedure, 1973 praying for grant of bail in ECIR Case No.01 of
2023 [arising out of ECIR/RNZO/18/2022 dated 21.10.2022 arising out of
Bariatu P.S. Case No.141 of 2022] for offences punishable under Section 3
read with Section 70 and punishable under Section 4 of the Prevention of
Money Laundering Act, 2002, hereinafter referred to as the Act, 2002.
Prosecution story and Factual Matrix
2. The prosecution story in brief as per the allegation made in the instant
ECIR/complaint reads as under:
3. An ECIR bearing No. 18/2022 was recorded on the basis of the FIR bearing
No. 141 of 2022 dated 04.06.2022, lodged at Bariyatu police station, Ranchi
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Jharkhand under sections 420, 467 and 471 of IPC, 1860, against Pradeep
Bagchi on the basis of complaint of one Sri Dilip Sharma, Tax Collector,
Ranchi Municipal Corporation for submission of forged papers i.e. Aadhar
Card, Electricity Bill and Possession letter for obtaining holding number
0210004194000A1 and 0210004031000A5. Investigation revealed that by
submitting the forged documents, a holding number was obtained in name of
Pradeep Bagchi for property at Morabadi Mouza, Ward No. 21/19, Ranchi
having an area of the plot measuring 455.00 decimals approx.
4. Investigation further revealed that the above property belonged to Late B.M.
Laxman Rao which was given to the Army and had been in the possession of
the Defence, in occupation of the Army since independence. Investigation
reveals that by way of creating a fake owner (Pradeep Bagchi) of the above
said property, it was sold to one company M/s Jagatbandhu Tea Estate Pvt.
Ltd for which the consideration amount was shown Rs. 7 crores which was
highly under value and out of this amount Rs. 7 crores payment amounting to
Rs. 25 lakhs only were made into the account of said Pradeep Bagchi and rest
of the money was falsely shown to be paid through cheques in the sale deed
being deed no.- 6888 of 2021.
5. It has come during investigation that records available at the Circle Officer
Bargain, Ranchi along with the office of Registrar of Assurances, Kolkata
have been altered and records have been modified. The survey of Circle
Office Bargain as well as Registrar of Assurances, Kolkata transpires that
documents have been tempered to create fictitious owner of the above
properties.
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6. The Enforcement Directorate upon completion of investigation filed the
prosecution complaint under section 45 read with 44 of PML Act being ECIR
Case no. 01/2023 against the present petitioner and consequently. the trial
court vide order dated 19.06.2023 has taken the cognizance of the aforesaid
offence.
7. The present petitioner was arrested on 07.06.2023 under section 19 of PML,
Act 2002 accordingly the petitioner had preferred the Misc. Cri. Application
No. 1915 of 2023 for grant of his bail which was dismissed vide order dated
07.07.2023 by the learned AJC-I-Cum Special Judge, CBI-Cum-Special
Judge under PMLA at Ranchi, against which he moved before this Court by
filing bail application being B.A. No. 7343 of 2023, which was also dismissed
vide order dated 01.03.2024.
8. After dismissal of the bail application, the petitioner moved against the order
dated 01.03.2024 before the Hon'ble Supreme Court by filing SLP (Cr.) No.
6584 of 2024, which was also dismissed as withdrawn.
9. However, after his prayer for bail having been rejected, he moved before this
Court by filing the writ petition being W.P.(Cr) No. 793 of 2024 wherein he
initially challenged his arrest dated 07.06.2023 as also the remand order dated
09.06.2023 but in course of argument the prayer has been confined only with
respect to remand order dated 09.06.2023 passed by learned Special Judge,
PMLA, Ranchi in ECIR 01/2023.
10. The Division Bench of this Court while dismissing the said writ petition has
observed that the petitioner has not been able to make out a case for showing
interference in remand order dated 09.06.2023.
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11. It needs to refer herein that the petitioner has renewed his prayer for bail by
filing Misc. Cri. Application No.2409 of 2024 before the Special Judge for
grant of his bail which was dismissed vide order dated 04.09.2024 passed by
the learned AJC-I-Cum Special Judge, PMLA at Ranchi.
12. Hence the present application has been preferred for the grant of bail.
Argument on behalf of the learned counsel for the petitioner:
13. Ms. Meenakshi Arora, learned senior counsel for the petitioner has argued
inter alia on the following grounds:
(i) If the entire ECIR will be taken into consideration, there is no reason to
believe which is the primary requirement for making arrest of a person
said to be involved in commission of offence under the Act, 2002 as per
the provision of Section 19(1) of the Act, 2002.
(ii) Further, at the time of arrest the condition stipulated under Section
19(1) of the PML Act, 2002 has not been followed and the ground of
arrest has not been provided, in writing, as required to be provided
under the provision of Section 19(1) of the PML Act, 2002 coupled
with the judgment rendered by Hon'ble Apex Court in the case of
Pankaj Bansal vs. Union of India and Ors., [2023 SCC OnLine SC
1244 : (2024) 7 SCC 576]; V. Senthil Balaji Vs. State Represented by
Deputy Director & Ors. [(2024) 3 SCC 51; Prabir Purkayastha Vs.
State (NCT of Delhi) [2024 SCC OnLine 934; Arvind Kejriwal Vs.
Directorate of Enforcement [2024 SCC OnLine SC 1703] and in
addition thereto the judgment rendered in the case of
Vihaan Kumar v. State of Haryana, 2025 SCC OnLine SC 269.
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(iii) Further, submission has been made that the condition precedent for
arrest under the PML Act, 2002 is that at the time of arrest the reason
for arrest is to be communicated to the concerned but herein no such
reason has been communicated and hence the very arrest of the
petitioner is per se illegal and in that view of the matter the order of
arrest is fit to be quashed and set aside and in consequence thereof,
appellant may be directed to be released from judicial custody.
(iv) Further, it has been incorrectly stated at paragraph no.8.9 in the
Prosecution Complaint that the co-accused Dilip Kumar Ghosh in his
statement dated 27.2.2023 recorded under Section 50 PMLA (RUD
No.77) stated that Jagatbandhu Tea Estate Pvt. Ltd. is his company and
Amit Kumar Agarwal. It is humbly submitted that this statement in the
Prosecution Complaint is not a true one as the co-accused Dilip Kumar
Ghosh never made such a statement to ED.
(v) There is neither any material to connect M/s. Jagatbadhu Tea Estate
Pvt. Ltd. and M/s. Rajesh Auto Merchandise Pvt. Ltd. as related entities
nor is there any material to show the accused petitioner as the beneficial
owner of M/s. Jagatbandhu Tea Estate Pvt. Ltd.
(vi) Further, M/s. Rajesh Auto Merchandise Private Limited was
incorporated on 21.3.2005 with the Registrar of Companies, Kolkata
(West Bengal). This company belongs to Agarwal Family. After the
resignation of the petitioner from the directorship of this company, at
present, the brothers of the petitioner namely Mr. Amar Agarwal and
Mr. Rajesh Agarwal are the directors of the said company. Though the
accused Dilip Kumar Ghosh being close friend of the petitioner, was
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director of this company from 26.03.2019 to 08.09.2021, he had/has no
stake in the Company and the Company exclusively belongs to the
Agarwal Family.
(vii) Admittedly, the accused petitioner is a stakeholder in M/s. Rajesh Auto
Merchandise Pvt. Ltd. and M/s. Aurora Studio Pvt. Ltd. but he had/has
no stake of whatsoever nature in M/s. Jagatbandhu Tea Estate Pvt. Ltd.
except long friendship of about 30 years with Mr. Dilip Ghosh who is a
director of M/s. Jagatbandhu Tea Estate Pvt.
(viii) Since, the accused petitioner has no connection whatsoever with the
said Property and does not have any stake in M/s. Jagatbandhu Tea
Estate Pvt. Ltd., no presumption can be drawn for acquisition of the
said Property by the accused petitioner in the name of M/s. Jagatbandhu
Tea Estate Pvt. Ltd. being beneficial owner of the said company.
(ix) There is no document/material available on record to implicate the
petitioner for forging and manipulating the title deeds being Deed of
Sale No. 4369 dated 11.10.1932 of the property in question in the office
of Registrar of Assurances at Kolkata.
(x) There is nothing on record to suggest, even remotely, that any
conversation and/or communication and/or correspondence was ever
exchanged between the petitioner on the one hand and accused Pradeep
Bagchi and other accused persons on the other hand, who were
involved in forging the title deeds of the said Property to project title of
the said Property as that of accused Pradeep Bagchi. Nor is there any
allegation and/or material on record to suggest that there was any
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monetary transaction between the petitioner and the other accused
persons.
(xi) Further, there is no material on record to show that the petitioner was
involved in obtaining holding numbers by accused Pradeep Bagchi by
submitting the forged documents. Furthermore, there is no material
available on record to show, even remotely that any proceeds of crime
have been generated by the petitioner.
(xii) Even, if all the allegations levelled against the petitioner in the
prosecution complaint are accepted at its face value and in its entirety
and appreciated in their proper perspective, in accordance with law
settled by Hon'ble Apex Court, the same does not make out any case as
defined under Section 3 punishable under Section 4 of the PML Act.
(xiii) Learned counsel for the petitioner based upon the aforesaid ground has
submitted that the learned court while considering the prayer for bail
ought to have taken into consideration all these aspects of the matter
both legal and factual but having not done so, serious error has been
committed.
(xiv) Learned senior counsel for the petitioner has also raised the ground of
custody and submitted that the petitioner is in custody since 07.06.2023
i.e., for about 22 months.
14.Further submission has been made in the aforesaid view of the matter as per
the ground agitated, it is a fit case where the petitioner is to be given the
privilege of bail.
Argument on behalf of the learned counsel for the respondent:
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15. While on the other hand, Mr. Amit Kumar Das, learned counsel for the
respondent-Enforcement Directorate has vehemently opposed the prayer for
grant of regular bail by taking the following grounds:
(i) It is incorrect on the part of the petitioner to take the ground that the
reason for arrest has not been communicated rather the reason for arrest
has been communicated along with the exhaustive grounds, the day
when the petitioner was arrested, which would be evident from
Annexure appended with the counter affidavit, wherein the entire
details has been furnished regarding the culpability said to be the
reason to believe for arrest of the present petitioner.
(ii) It has been submitted that in the said communication the petitioner had
put his signature in each page with date and on the last page, he has
noted that 'read and understand' 'I have read my ground of arrest
completely and also communicated to Mr. Dilip Ghosh." and below
therein has put his signature with date i.e., 07.06.2023.
In view thereof, submission has been made that the petitioner
has been communicated with the reason of arrest, the day when he was
taken into custody i.e., on 07.06.2023. Hence, the provision of Section
19(1) of the PML Act, 2002 has fully been complied with. Further,
when the petitioner was produced before the Special Judge, PMLA on
08.06.2023, he did not complain regarding non-supply of grounds of
arrest or about any ill-treatment against the arrest.
(iii) The learned Special Judge has specifically recorded in order dated
08.06.2023 that the information of arrest has been given to their family
members and at the time of passing of order learned counsel for the
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petitioner, namely, Bidhyut Chourasia and Abhishek Agarwal were also
present.
(iv) The arrest of the petitioner, therefore, is in consonance with the
interpretation made by Hon'ble Apex Court in the case of Vijay
Madanlal Choudhary and Ors. Vs. Union of India and Ors. (supra);
Pankaj Bansal vs. Union of India and Ors. (supra); V. Senthil Balaji
Vs. State Represented by Deputy Director & Ors. (supra); Prabir
Purkayastha Vs. State (NCT of Delhi) [2024 SCC OnLine SC 934] or
in the case of Arvind Kejriwal Vs. Directorate of Enforcement (supra),
so far as the stipulation made under Section 19(1) of the PML Act,
2002 pertaining to communication of reason for ground of arrest is
concerned.
(v) Further submission has been made has the Hon'ble Apex Court in the
case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and
Ors. (supra) has laid down that the arrest will be said to be illegal if the
reason for arrest will not be communicated. Further, in the case of
Pankaj Bansal vs. Union of India and Ors. (supra) it has been laid
down that written communication is required to be served to the
concerned but that has been held to be applicable from the date of
judgment since the word 'henceforth' has been used therein. Here, the
judgment in the case of Pankaj Bansal vs. Union of India and Ors.
(supra) has come on 03.10.2023 but the arrest of the present petitioner
was made on 07.06.2023, which is much prior to the pronouncement of
the judgment rendered in the case of Pankaj Bansal vs. Union of India
and Ors. (supra) but even ignoring the same the facts and
circumstances of the case, the reason for arrest since has already been
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served the day when the petitioner was arrested i.e., on 07.06.2023,
hence, it is incorrect on the part of the petitioner to take the ground that
the mandate of the Hon'ble Apex Court clarifying the mandate of
Section 19(1) of the PML Act, 2002 has not been followed.
(vi) If the entire ECIR will be taken into consideration there is ample
allegation of commission of predicate offence, hence, it is incorrect on
the part of the petitioner to take the ground that there is no reason to
believe of commission of offence under the Act, 2002.
(vii) Investigation under PMLA reveals that several accused persons
including the petitioner hatched the conspiracy to acquire the property
by making fake deed no. 4369/1932 and obtaining a preconceived
report with the assistance of the then Deputy-Commissioner who sent
his subordinate staff to verify the forged sale deed planted in the
records of Registrar of Assurances, Kolkata. This property was in
possession of the Defence for which the accused persons entered into
conspiracy including the present Petitioner.
(viii) The holding number was issued to show that the possession of the said
land is in the name of Pradeep Bagchi and based upon which, title of
the said land was cleared with the connivance of then DC Mr. Chhavi
Ranjan(co-accused) by relying upon the report which is based upon a
forged deed planted in Registrar of Assurance Office, Kolkata and the
same was done under the instruction of the Petitioner. Petitioner
acquired the property in the name of one of the companies i.e. M/s
Jagatbandhu Tea Estate Pvt. Ltd. and acquired the land being aware
about the conspiracy to acquire the property by making fake deed no.
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4369/1932 and obtaining a preconceived report to verify the forged sale
deed planted in the records of the Registrar of Assurances, Kolkata.
(ix) Further, the proceeds of crime are generated wherein a forged deed is
relied upon and the transaction was entered into a minuscule rate
wherein no actual payment of amount was done. The said act of the
petitioner makes his intention and knowledge evidently clear as the
Petitioner made the company a front to acquire the said property and
evidence shows that the Petitioner and Dilip Ghosh have close
associations.
(x) So far as the non-fulfilment of the condition as stipulated under Section
45 of the Act, 2002 is concerned, the same is also not having substance
in view of the fact that the twin conditions, i.e., the Public Prosecutor
has been given an opportunity to oppose the application for such
release; and where the Public Prosecutor opposes the application, the
court is satisfied that there are reasonable grounds for believing that he
is not guilty of such offence and that he is not likely to commit any
offence while on bail, is well been found to be fulfilled if the entire
ECIR along with the conduct of the petitioner will be taken into
consideration.
(xi) So far as the period of custody as agitated by learned senior counsel for
the petitioner is concerned, it has been submitted that as per settled
proposition of law which has been settled by the Hon'ble Apex Court
that the long incarceration (herein about 22 month) or delay in trial
alone cannot be ground to release the petitioner on bail, rather in case
of scheduled offences/special offences the seriousness of the matter
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should have been taken in to consideration by the Court concerned
while enlarging the petitioner on bail.
16. The learned counsel for the ED on the basis of the aforesaid score has
submitted that since the issue of prayer for bail of the petitioner has already
been adjudicated by this Court on merit in B.A.No.7343 of 2023 and there is
no fresh ground available and further the petitioner by way of filing the writ
petition being W.P.(Cr) No. 793 of 2024 had challenged his arrest dated
07.06.203 as also the remand order dated 09.06.2023 but in course of
argument the prayer has been confined only with respect to remand order
dated 09.06.2023 but the same was dismissed by the Division Bench of this
Court, therefore it is not required to again adjudicate the prayer for bail of the
petitioner a fresh, as such instant application may be dismissed.
Analysis:
17. This Court has heard learned counsel for the parties, considered the argument
advanced on behalf of parties and the pleadings available on record as also the
documents appended therewith and the judgments relied upon by the parties
and other materials available on record.
18. This Court before appreciating the argument advanced on behalf of the
parties, deems it fit and proper to discuss herein the admitted factual aspects
of the instant case.
19. An ECIR bearing No. 18/2022 was recorded on the basis of the FIR bearing
No. 141 of 2022 dated 04.06.2022, lodged at Bariyatu police station, Ranchi
Jharkhand under sections 420, 467 and 471 of IPC, 1860, against Pradeep
Bagchi for submission of forged papers in order to obtain holding number
0210004194000A1 and 0210004031000A5. Further, Investigation revealed
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that by submitting the forged documents, a holding number was obtained in
name of Pradeep Bagchi for property at Morabadi Mouza, Ward No. 21/19,
Ranchi having an area of the plot measuring 455.00 decimals approx.
20. Investigation further revealed that by way of creating a fake owner (Pradeep
Bagchi) of the above said property, it was sold to one company M/s
Jagatbandhu Tea Estate Pvt. Ltd for which the consideration amount was
shown Rs. 7 crores which was highly under value and out of this amount Rs.
7 crores payment amounting to Rs. 25 lakhs only were made into the account
of said Pradeep Bagchi and rest of the money was falsely shown to be paid
through cheques.
21. It has come during investigation that records available at the Circle Officer
Bargain, Ranchi along with the office of Registrar of Assurances, Kolkata
have been altered and records have been modified to create fictitious owner of
the above properties.
22. The Enforcement Directorate upon completion of investigation filed the
prosecution complaint under section 45 read with 44 of PML Act being ECIR
Case no. 01/2023 against the present petitioner by showing his alleged
involvement in the said offence and consequently the present petitioner was
arrested on 07.06.2023. Accordingly, the trial court vide order dated
19.06.2023 has taken the cognizance of the aforesaid offence.
23. Thereafter, petitioner had preferred the Misc. Cri. Application No. 1915 of
2023 for grant of his bail which was dismissed vide order dated 07.07.2023
by the learned AJC-I-Cum Special Judge, CBI-Cum- Special Judge under
PMLA at Ranchi, against which he moved before this Court by filing bail
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application being B.A. No. 7343 of 2023, which was also dismissed vide
order dated 01.03.2024.
24. After dismissal of the bail application, the petitioner moved against the order
dated 01.03.2024 before the Hon'ble Supreme Court by filing SLP (Cr.) No.
6584 of 2024, which was also dismissed as withdrawn.
25. However, after his prayer for bail having been rejected, he moved before this
Court by filing the writ petition being W.P.(Cr) No.793 of 2024 wherein he
challenged his order of arrest dated 07.06.2023 as also the remand order dated
09.06.2023 but in course of argument prayer has been confined with respect
to remand order dated 09.06.2023. The said writ petition was dismissed vide
order dated 19.03.2025 and while dismissing the said writ petition the Court
has observed that the petitioner has not been able to make out a case for
showing interference in remand order dated 09.06.2023.
26. Further, the petitioner has renewed his prayer for bail by filing Misc. Cri.
Application No.2409 of 2024 before special Judge for grant of his bail which
was dismissed vide order dated 04.09.2024 passed by the learned AJC-I-Cum
Special Judge, PMLA at Ranchi. Hence the present application has been
preferred for the grant of bail.
27. Thus, from the aforesaid factual aspect it is evident that earlier present
petitioner had moved before this Court by filing bail application being B.A.
No. 7343 of 2023, which was dismissed by this court on merit vide order
dated 01.03.2024 and after dismissal of the bail application, the petitioner
moved against the order dated 01.03.2024 before the Hon'ble Supreme Court
by filing SLP (Cr.) No. 6584 of 2024, which was also dismissed as
withdrawn.
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28. At the outset, it needs to refer herein that the learned counsel for the
respondent ED has contended that since the prayer for bail has already been
adjudicated by this Court and all the issues which have been raised herein by
the learned counsel for the petitioner, has already been considered by this
court while dismissing the said bail application, further no new ground is
available herein, therefore it is not required to consider the prayer for bail of
the petitioner a fresh. The learned counsel for the respondent ED has further
contended that SLP being SLP (Cr.) No. 6584 of 2024, which has preferred
against the said order has also been dismissed as withdrawn.
29. In the aforesaid context this Court thinks fit that for proper appreciation of the
present application it would be better to refer relevant paragraphs of the order
dated 01.03.2024 passed in B.A. No. 7343 of 2023 by which the bail of the
present petitioner had been rejected. The relevant paragraph of aforesaid order
is being quoted as under:
"36. Now coming to the ground as has been raised on behalf of the
petitioner, i.e.,
i. The condition as stipulated under Section 19(1) of the Act, 2002 has
not been complied with.
ii. If the entire ECIR will be taken into consideration, there is no reason
to believe which is the primary requirement for making arrest of a person
said to be involved in commission of offence under the Act, 2002 as per
the provision of Section 19(1) of the Act, 2002.
iii. The condition as stipulated under Section 45 of the Act, 2002 is not
available.
37. This Court, in order to appreciate the aforesaid argument, is of the
view that so far as the condition stipulated under Section 19(1) of the
Act, 2002 is concerned, it is not the ground of the petitioner that before
arrest in view of the provision of Section 19(1) of the Act, 2002 there was
no communication of reason of arrest.
The Section 19(1) provides that the power to arrest is there under
Section 19(1) of the Act, 2002 which is to be exercised by communicating
the order in writing after arrest as soon as possible.
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38. The aforesaid provision has been clarified so far as the condition that
what is the meaning of 'as soon as' by the Hon'ble Apex Court in the
case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and Ors.
(supra) wherein at paragraph 458 it has been observed by the Hon'ble
Supreme Court that after arrest, as soon as may be, the person should be
informed about the grounds for such arrest and so long as the person has
been informed about grounds of his arrest that is sufficient compliance of
mandate of Article 22(1) of the Constitution. Moreover, the arrested
person before being produced before the Special Court within twenty-
four hours or for those purposes of remand on each occasion, the Court
is free to look into the relevant records made available by the Authority
about the involvement of the arrested person in the offence of money-
laundering.
39. Further the Hon'ble Apex Court in Pankaj Bansal vs. Union of India
and Ors., 2023 SCC OnLine SC 1244 has been pleased to hold that the
written communication is to be given prior to arrest which is to be made
under Section 19(1) of the Act, 2002 by using the word that henceforth
the written communication is to be given to the appellant who is to be
arrested under Section 19(1) of the Act, 2002.
40. This Court is making reference of these judgments even though the
petitioner has not argued and that is not the case of the petitioner, i.e.,
there is no communication of communicating the reason of arrest. It is
corroborative from the fact that the petitioner, after arrest under Section
19(1) has been remanded but the said order of remanded has not been
assailed before any forum which suggest that the petitioner is having no
grievance so far as the alleged non-compliance of the provision of
Section 19(1) of the Act, 2002 is concerned"
30. It is thus evident from the perusal of the aforesaid paragraphs that this Court
while referring the ratio of the judgment rendered by the Hon'ble Apex Court
in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India and
Ors.(supra) and Pankaj Bansal vs. Union of India and Ors has observed that
even though the petitioner has not argued and that is not the case of the
petitioner, i.e., there is no communication of communicating the reason of
arrest. It is corroborative from the fact that the petitioner, after arrest under
Section 19(1) has been remanded but the said order of remand has not been
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assailed before any forum which suggest that the petitioner is having no
grievance so far as the alleged non-compliance of the provision of Section
19(1) of the Act, 2002 is concerned. Further, this Court while taking into
consideration the various paragraph of the prosecution complaint has
observed that reason to believe as provided under Section 19(1) or the twin
condition as available under Section 45 of the Act is followed therein.
31. Thus, as would be evident from paragraphs 36 to 40, wherein this Court has
made as observation that the order of remand has not been challenged ever
prior to filing of the bail application which itself is suggestive of the fact the
petitioner was having no grievance with respect to the non-compliance of
provision of Section 19(1) of the PML Act, 2002.
32. It is further admitted fact that the petitioner has moved to the Hon'ble Apex
Court by filing SLP (Cr.) No. 6584 of 2024, making the prayer for bail by
invoking the jurisdiction conferred under Article 132 of the Constitution of
India, but the same was dismissed as withdrawn. For ready reference, the
relevant part of the order is quoted as under:
"UPON hearing the counsel the Court made the following
ORDER
1.The learned counsel for the petitioner, at the outset, seeks permission to
withdraw the present Special Leave Petition.
2. Permission as sought for is granted.
3. The Special Leave Petition is, accordingly, dismissed as withdrawn”.
33. It is further evident that when prayer for bail of the present petitioner having
been rejected, he moved before this Court by filing the writ petition being
W.P.(Cr) No. 793 of 2024 wherein he challenged his order of arrest dated
07.06.2023 as also the remand order dated 09.06.2023 but in course of
17 B.A. No. 8321 of 2024
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argument prayer has been confined with respect to remand order dated
09.06.2023. The Division Bench during hearing of the aforesaid matter has
taken into consideration all the aspects of the matter and had dismissed the
said writ petition.
34. The contention of the learned counsel for the respondent ED is that since the
prayer for bail of the present petitioner has already been decided and further
the petitioner in W.P.(Cr) No. 793 of 2024 has confined his prayer only with
respect to remand order dated 09.06.2023 and the same has also been
adjudicated by the Division Bench, therefore it is not required to rehear the
issue of legality of arrest dated 07.06.2023 due to the reason that the prayer
with respect to the issue of arrest has consciously been not agitated by
confining the prayer made in the said petition restricting the petition only to
the issue of legality and propriety of remand. However, since it is a case for
consideration of issue of bail wherein this point has again been agitated,
hence, in the ends of justice, the same is being considered herein.
35. Before adverting into the merit of the case this Court thinks fit to discuss the
provision of law particularly Section 19 as contained under the Act, 2002 with
its object and intent as also the legal proposition as settled by the Hon’ble
Apex Court in various judgments.
36. The Act 2002 was enacted to address the urgent need to have a
comprehensive legislation inter alia for preventing money-laundering,
attachment of proceeds of crime, adjudication and confiscation thereof
including vesting of it in the Central Government, setting up of agencies and
mechanisms for coordinating measures for combating money-laundering and
18 B.A. No. 8321 of 2024
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also to prosecute the persons indulging in the process or activity connected
with the proceeds of crime.
37. It is evident that the Act 2002 was enacted in order to answer the urgent
requirement to have a comprehensive legislation inter alia for preventing
money-laundering, attachment of proceeds of crime, adjudication and
confiscation thereof for combating money-laundering and also to prosecute
the persons indulging in the process or activity connected with the proceeds of
crime.
38. It needs to refer herein the definition of “proceeds of crime” as provided
under Section 2(1)(u) of the Act, 2002 which reads as under:
“2(u) “proceeds of crime” means any property derived or obtained, directly
or indirectly, by any person as a result of criminal activity relating to a
scheduled offence or the value of any such property 3[or where such
property is taken or held outside the country, then the property equivalent in
value held within the country] 4[or abroad];
[Explanation.–For the removal of doubts, it is hereby clarified that
“proceeds of crime” include property not only derived or obtained from the
scheduled offence but also any property which may directly or indirectly be
derived or obtained as a result of any criminal activity relatable to the
scheduled offence;]”
39. It is evident from the aforesaid provision by which the “proceeds of crime”
means any property derived or obtained, directly or indirectly, by any person
as a result of criminal activity relating to a scheduled offence or the value of
any such property or where such property is taken or held outside the country,
then the property equivalent in value held within the country or abroad.
40. In the explanation it has been referred that for the removal of doubts, it is
hereby clarified that “proceeds of crime” include property not only derived or
obtained from the scheduled offence but also any property which may directly
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or indirectly be derived or obtained as a result of any criminal activity
relatable to the scheduled offence.
41. It is, thus, evident that the reason for giving explanation under Section 2(1)(u)
is by way of clarification to the effect that whether as per the substantive
provision of Section 2(1)(u), the property derived or obtained, directly or
indirectly, by any person as a result of criminal activity relating to a scheduled
offence or the value of any such property or where such property is taken or
held outside the country but by way of explanation the proceeds of crime has
been given broader implication by including property not only derived or
obtained from the scheduled offence but also any property which may directly
or indirectly be derived or obtained as a result of any criminal activity
relatable to the scheduled offence.
42. The “property” has been defined under Section 2(1)(v) which means any
property or assets of every description, whether corporeal or incorporeal,
movable or immovable, tangible or intangible and includes deeds and
instruments evidencing title to, or interest in, such property or assets,
wherever located.
43. The schedule has been defined under Section 2(1)(x) which means schedule
to the Prevention of Money Laundering Act, 2002. The “scheduled offence”
has been defined under Section 2(1)(y) which reads as under:
“2(y) “scheduled offence” means–
(i) the offences specified under Part A of the Schedule; or
(ii) the offences specified under Part B of the Schedule if the total value
involved in such offences is [one crore rupees] or more; or
(iii) the offences specified under Part C of the Schedule.”
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44. It is evident that the “scheduled offence” means the offences specified under
Part A of the Schedule; or the offences specified under Part B of the Schedule
if the total value involved in such offences is [one crore rupees] or more; or
the offences specified under Part C of the Schedule.
45. The offence of money laundering has been defined under Section 3 of the Act,
2002 which reads as under:
“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 [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.
[Explanation.– For the removal of doubts, it is hereby clarified that,–
(i) a person shall be guilty of offence of money-laundering if such person is found
to have directly or indirectly attempted to indulge or knowingly assisted or
knowingly is a party or is actually involved in one or more of the following
processes or activities connected with proceeds of crime, namely:–
(a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
(e) projecting as untainted property; or
(f) claiming as untainted property,
in any manner whatsoever;
(ii) the process or activity connected with proceeds of crime is a continuing
activity and continues till such time a person is directly or indirectly enjoying the
proceeds of crime by its concealment or possession or acquisition or use or
projecting it as untainted property or claiming it as untainted property in any
manner whatsoever.]”
46. It is evident from the aforesaid provision that “offence of money-laundering”
means 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 proceeds of crime including its concealment,
21 B.A. No. 8321 of 2024
2025:JHHC:12446possession, acquisition or use and projecting or claiming it as untainted
property shall be guilty of offence of money-laundering.
47. It is further evident that the process or activity connected with proceeds of
crime is a continuing activity and continues till such time a person is directly
or indirectly enjoying the proceeds of crime by its concealment or possession
or acquisition or use or projecting it as untainted property or claiming it as
untainted property in any manner whatsoever.
48. The punishment for money laundering has been provided under Section 4 of
the Act, 2002.
49. Section 50 of the Act, 2002 confers power upon the authorities regarding
summons, production of documents and to give evidence.
50. The various provisions of the Act, 2002 along with interpretation of the
definition of “proceeds of crime” has been dealt with by the Hon’ble Apex
Court in the case of Vijay Madanlal Choudhary and Ors. Vs. Union of India
and Ors., (2022) SCC OnLine SC 929 wherein the Bench comprising of three
Hon’ble Judges of the Hon’ble Supreme Court have decided the issue by
taking into consideration the object and intent of the Act, 2002. The definition
of “proceeds of crime” as under paragraph-251.
51. The interpretation of the condition which is to be fulfilled while arresting the
person involved in the predicate offence has been made as would appear from
paragraph-265. For ready reference, relevant paragraphs are being referred as
under:
“265. To put it differently, the section as it stood prior to 2019 had itself
incorporated the expression “including”, which is indicative of reference
made to the different process or activity connected with the proceeds of crime.
Thus, the principal provision (as also the Explanation) predicates that if a
person is found to be directly or indirectly involved in any process or activity22 B.A. No. 8321 of 2024
2025:JHHC:12446connected with the proceeds of crime must be held guilty of offence of money-
laundering. If the interpretation set forth by the petitioners was to be
accepted, it would follow that it is only upon projecting or claiming the
property in question as untainted property, the offence would be complete.
This would undermine the efficacy of the legislative intent behind Section 3 of
the Act and also will be in disregard of the view expressed by the FATF in
connection with the occurrence of the word “and” preceding the expression
“projecting or claiming” therein. This Court in Pratap Singh v. State of
Jharkhand, enunciated that the international treaties, covenants and
conventions although may not be a part of municipal law, the same be
referred to and followed by the Courts having regard to the fact that India is a
party to the said treaties. This Court went on to observe that the Constitution
of India and other ongoing statutes have been read consistently with the rules
of international law. It is also observed that the Constitution of India and the
enactments made by Parliament must necessarily be understood in the context
of the present-day scenario and having regard to the international treaties
and convention as our constitution takes note of the institutions of the world
community which had been created. In Apparel Export Promotion
Council v. A.K. Chopra, the Court observed that domestic Courts are under
an obligation to give due regard to the international conventions and norms
for construing the domestic laws, more so, when there is no inconsistency
between them and there is a void in domestic law. This view has been restated
in Githa Hariharan, as also in People’s Union for Civil Liberties,
and National Legal Services Authority v. Union of India.”
52. The predicate offence has been considered in the aforesaid judgment wherein
by taking into consideration the explanation as inserted by way of Act 23 of
2019 under the definition of the “proceeds of crime” as contained under
Section 2(1)(u), whereby and whereunder, it has been clarified for the purpose
of removal of doubts that, the “proceeds of crime” include property not only
derived or obtained from the scheduled offence but also any property which
may directly or indirectly be derived or obtained as a result of any criminal
activity relatable to the scheduled offence, meaning thereby, the words “any
property which may directly or indirectly be derived or obtained as a result of
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any criminal activity relatable to the scheduled offence” will come under the
fold of the proceeds of crime.
53. So far as the purport of Section 45(1)(i)(ii) is concerned, the aforesaid
provision starts from the non-obstante clause that notwithstanding anything
contained in the Code of Criminal Procedure, 1973, no person accused of an
offence under this Act shall be released on bail or on his own bond unless –
(i) the Public Prosecutor has been given an opportunity to oppose the
application for such release; and
(ii) where the Public Prosecutor opposes the application, the court is
satisfied that there are reasonable grounds for believing that he is not
guilty of such offence and that he is not likely to commit any offence
while on bail
Sub-section (2) thereof puts limitation on granting bail specific in sub-
section (1) in addition to the limitations under the Code of Criminal
Procedure, 1973 or any other law for the time being in force on granting of
bail.
The explanation is also there as under sub-section (2) thereof which is
for the purpose of removal of doubts, a clarification has been inserted that the
expression “Offences to be cognizable and non-bailable” shall mean and shall
be deemed to have always meant that all offences under this Act shall be
cognizable offences and non-bailable offences notwithstanding anything to
the contrary contained in the Code of Criminal Procedure, 1973, and
accordingly the officers authorised under this Act are empowered to arrest an
accused without warrant, subject to the fulfilment of conditions under section
19 and subject to the conditions enshrined under this section.
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54. The fact about the implication of Section 45 has been interpreted by the
Hon’ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union of
India and Ors.(supra) at paragraphs-. For ready reference, the said paragraphs
are being referred as under:
“387………….The provision post the 2018 Amendment, is in the nature of no
bail in relation to the offence of money laundering unless the twin conditions
are fulfilled. The twin conditions are that there are reasonable grounds for
believing that the accused is not guilty of offence of money laundering and that
he is not likely to commit any offence while on bail. Considering the purposes
and objects of the legislation in the form of the 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 plainly clear that it is a special
legislation to deal with the subject of money laundering activities having
transnational impact on the financial systems including sovereignty and
integrity of the countries. This is not an ordinary offence. To deal with such
serious offence, stringent measures are provided in the 2002 Act for prevention
of money laundering and combating menace of money laundering, including
for attachment and confiscation of proceeds of crime and to prosecute persons
involved in the process or activity connected with the proceeds of crime. In
view of the gravity of the fallout of money laundering activities having
transnational impact, a special procedural law for prevention and regulation,
including to prosecute the person involved, has been enacted, grouping the
offenders involved in the process or activity connected with the proceeds of
crime as a separate class from ordinary criminals. The offence of money
laundering has been regarded as an aggravated form of crime “world over”. It
is, therefore, a separate class of offence requiring effective and stringent
measures to combat the menace of money laundering.
412. 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 rigours of Section 45 of the
2002 Act 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.”
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55. Subsequently, the Hon’ble Apex Court in the case of Tarun Kumar vs.
Assistant Director Directorate of Enforcement, (2023) SCC OnLine SC
1486 by taking into consideration the law laid down by the Larger Bench of
the Hon’ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs. Union
of India and Ors.(supra), it has been laid down that since the conditions
specified under Section 45 are mandatory, they need to be complied with. The
Court is required to be satisfied that there are reasonable grounds for
believing that the accused is not guilty of such offence and he is not likely to
commit any offence while on bail.
56. It has further been observed that as per the statutory presumption permitted
under Section 24 of the Act, the Court or the Authority is entitled to presume
unless the contrary is proved, that in any proceedings relating to proceeds of
crime under the Act, in the case of a person charged with the offence of
money laundering under Section 3, such proceeds of crime are involved in
money laundering. Such conditions enumerated in Section 45 of PML Act
will have to be complied with even in respect of an application for bail made
under Section 439 Cr. P.C. in view of the overriding effect given to the PML
Act over the other law for the time being in force, under Section 71 of the
PML Act.
57. The Hon’ble Apex Court in the said judgment has further laid down that the
twin conditions as to fulfil the requirement of Section 45 of the Act, 2002
before granting the benefit of bail is to be adhered to which has been dealt
with by the Hon’ble Apex Court in Vijay Madanlal Choudhary and Ors. Vs.
Union of India and Ors.(supra) wherein it has been observed that the accused
is not guilty of the offence and is not likely to commit any offence while on
bail.
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58. In the judgment rendered by the Hon’ble Apex Court in Vijay Madanlal
Choudhary and Ors. Vs. Union of India and Ors. (supra) as under
paragraph-284, it has been held that the Authority under the 2002 Act, is to
prosecute a person for offence of money-laundering only if it has reason to
believe, which is required to be recorded in writing that the person is in
possession of “proceeds of crime”. Only if that belief is further supported by
tangible and credible evidence indicative of involvement of the person
concerned in any process or activity connected with the proceeds of crime,
action under the Act can be taken forward for attachment and confiscation of
proceeds of crime and until vesting thereof in the Central Government, such
process initiated would be a standalone process.
59. The Hon’ble Apex Court in the case of Gautam Kundu vs. Directorate of
Enforcement (Prevention of Money-Laundering Act), Government of India
through Manoj Kumar, Assistant Director, Eastern Region, (2015) 16 SCC
1 has been pleased to hold at paragraph -30 that the conditions specified under
Section 45 of PMLA are mandatory and need to be complied with, which is
further strengthened by the provisions of Section 65 and also Section 71 of
PMLA. Section 65 requires that the provisions of CrPC shall apply insofar as
they are not inconsistent with the provisions of this Act and Section 71
provides that the provisions of 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 CrPC would apply only if they are not inconsistent with the provisions of
this Act.
60. 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
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Section 439 CrPC. That coupled with the provisions of 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. For
ready reference, paragraph-30 of the said judgment reads as under:
“30. The conditions specified under Section 45 of PMLA are mandatory and
need to be complied with, which is further strengthened by the provisions of
Section 65 and also Section 71 of PMLA. Section 65 requires that the
provisions of CrPC shall apply insofar as they are not inconsistent with the
provisions of this Act and Section 71 provides that the provisions of 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 CrPC 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 CrPC. That coupled with the provisions of 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.”
61. Further, the Hon’ble Apex Court in Satender Kumar Antil vs. CBI and Anr.,
(2022) 10 SCC 51 has passed the order that if the investigation has been
completed and if there is full cooperation of the accused persons, there may
not be any arrest. The Hon’ble Apex Court categorised the offences in
different group for purpose of bail. The reference may be taken from
Paragraph -2 of the aforesaid judgment which reads as under:
“2. After allowing the application for intervention, an appropriate order
was passed on 7-10-2021 [Satender Kumar Antil v. CBI, (2021) 10 SCC
773 : (2022) 1 SCC (Cri) 153] . The same is reproduced as under :
(Satender Kumar Antil case [Satender Kumar Antil v. CBI, (2021) 10 SCC
773 : (2022) 1 SCC (Cri) 153] , SCC pp. 774-76, paras 2-11)“2. We have been provided assistance both by Mr S.V. Raju, learned
Additional Solicitor General and Mr Sidharth Luthra, learned Senior28 B.A. No. 8321 of 2024
2025:JHHC:12446Counsel and there is broad unanimity in terms of the suggestions made by
the learned ASG. In terms of the suggestions, the offences have been
categorised and guidelines are sought to be laid down for grant of bail,
without fettering the discretion of the courts concerned and keeping in
mind the statutory provisions.
3. We are inclined to accept the guidelines and make them a part of the
order of the Court for the benefit of the courts below. The guidelines are
as under:
‘Categories/Types of Offences
(A) Offences punishable with imprisonment of 7 years or less not
falling in Categories B & D.(B) Offences punishable with death, imprisonment for life, or
imprisonment for more than 7 years.
(C) Offences punishable under Special Acts containing stringent
provisions for bail like NDPS (Section 37), PMLA (Section 45), UAPA
[Section 43-D(5)], Companies Act, [Section 212(6)], etc.(D) Economic offences not covered by Special Acts.
REQUISITE CONDITIONS
(1) Not arrested during investigation.
(2) Cooperated throughout in the investigation including appearing
before investigating officer whenever called.
(No need to forward such an accused along with the charge-sheet
(Siddharth v. State of U.P. [Siddharth v. State of U.P., (2022) 1 SCC 676 :
(2022) 1 SCC (Cri) 423] )
CATEGORY A
After filing of charge-sheet/complaint taking of cognizance
(a) Ordinary summons at the 1st instance/including permitting
appearance through lawyer.
(b) If such an accused does not appear despite service of summons,
then bailable warrant for physical appearance may be issued.
(c) NBW on failure to appear despite issuance of bailable warrant.
(d) NBW may be cancelled or converted into a bailable
warrant/summons without insisting physical appearance of the accused, if
such an application is moved on behalf of the accused before execution of
the NBW on an undertaking of the accused to appear physically on the
next date/s of hearing.
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(e) Bail applications of such accused on appearance may be decided
without the accused being taken in physical custody or by granting interim
bail till the bail application is decided.
CATEGORIES B/D
On appearance of the accused in court pursuant to process issued bail
application to be decided on merits.
CATEGORY C
Same as Categories B and D with the additional condition of
compliance of the provisions of Bail under NDPS (Section 37), Section 45
of the PMLA, Section 212(6) of the Companies Act, Section 43-D(5) of the
UAPA, POSCO, etc.
…”
62. However, the Hon’ble Apex Court recently in the case of Gurwinder Singh
vs. State of Punjab and Anr., 2024 SCC OnLine SC 109, in the matter of
UAP Act 1967 has observed that the conventional idea in bail jurisprudence
vis-à-vis ordinary penal offences that the discretion of Courts must tilt in
favour of the oft-quoted phrase – ‘bail is the rule, jail is the exception’ – unless
circumstances justify otherwise – does not find any place while dealing with
bail applications under UAP Act and the ‘exercise’ of the general power to
grant bail under the UAP Act is severely restrictive in scope. For ready
reference, relevant paragraph of the said judgment is being referred as under:
“28. The conventional idea in bail jurisprudence vis-à-vis ordinary penal
offences that the discretion of Courts must tilt in favour of the oft-quoted
phrase – ‘bail is the rule, jail is the exception’ – unless circumstances justify
otherwise – does not find any place while dealing with bail applications under
UAP Act. The ‘exercise’ of the general power to grant bail under the UAP
Act is severely restrictive in scope. The form of the words used in proviso to
Section 43D (5)- ‘shall not be released’ in contrast with the form of the words
as found in Section 437(1) CrPC – ‘may be released’ – suggests the intention
of the Legislature to make bail, the exception and jail, the rule.”
63. The reason for making reference of this judgment is that in the Satender
Kumar Antil vs. CBI and Anr (supra)’s judgment, the UAPA has also been
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brought under the purview of category ‘c’ wherein while laying observing
that in the UAPA Act, it comes under the category ‘c’ which also includes
money laundering offences wherein the bail has been directed to be granted if
the investigation is complete but the Hon’ble Apex Court in Gurwinder Singh
vs. State of Punjab and Anr. (supra) has taken the view by making note that
the penal offences as enshrined under the provision of UAPA are also under
category ‘c’ making reference that jail is the rule and bail is the exception.
64. In the backdrop of the aforesaid legal provisions and settled law this court is
now adverting to merit of the case.
Issue of legality of Arrest
65. Now coming to the ground as has been raised on behalf of the petitioner that
at the time of arrest the condition stipulated under Section 19(1) of the PML
Act, 2002 has not been followed and the ground of arrest has not been
provided, in writing, as required to be provided under the provision of Section
19(1) of the PML Act, 2002and hence the very arrest of the petitioner is per se
illegal and in that view of the matter the order of arrest is fit to be quashed
and set aside and in consequence thereof, appellant may be directed to be
released from judicial custody.
66. Per contra, the learned counsel for the ED respondent has submitted that it is
incorrect on the part of the petitioner to take the ground that the reason for
arrest has not been communicated rather the reason for arrest has been
communicated along with the exhaustive grounds, the day when the petitioner
was arrested, which would be evident from Annexure R-3 appended with the
counter affidavit, wherein the entire details has been furnished regarding the
culpability said to be the reason to believe for arrest of the present petitioner.
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67. In the aforesaid context it needs to refer herein the core of the Section 19 the
Act 2002, for ready reference the same is being quoted as under:
19. power to arrest.–(1) if the director, deputy director, assistant
director or any other officer authorised in this behalf by the central
government by general or special order, has on the basis of material in
his possession, reason to believe (the reason for such belief to be
recorded in writing) that any person has been guilty of an offence
punishable under this act, he may arrest such person and shall, as soon
as may be, inform him of the grounds for such arrest.
(2) the director, deputy director, assistant director or any other officer
shall, immediately after arrest of such person under sub-section (1),
forward a copy of the order along with the material in his possession,
referred to in that sub-section, to the adjudicating authority, in a sealed
envelope, in the manner as may be prescribed and such adjudicating
authority shall keep such order and material for such period, as may be
prescribed.
(3) every person arrested under sub-section (1) shall, within twenty-four
hours, be taken to a 78[special court or] judicial magistrate or a
metropolitan magistrate, as the case may be, having jurisdiction:
provided that the period of twenty-four hours shall exclude the time
necessary for the journey from the place of arrest to the 79[special court
or] magistrate’s court.
68. It is evident from perusal of the Section 19 of PMLA which gives the power
to arrest if the officer concerned has “reason to believe” on the basis of
material in his possession, that the person is guilty. As per Section 19 the
arrest has to be on the basis of material in possession with the ED, there is
reason to believe that the accused is guilty of the offence, with the reason
recorded in writing and the grounds for arrest should be communicated with
the accused.
69. As discussed herein above the entire PML Act, 2002 fell for consideration
before the three-Judge Bench of the Hon’ble Apex Court in the case of Vijay
Madanlal Choudhary & Ors. Vs. Union of India & Ors. (supra) wherein the
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provision of Section 19(1) has also been taken into consideration, which
would be evident from paragraphs, which reads as under:
371. The next issue is : Whether it is necessary to furnish copy of ECIR to the
person concerned apprehending arrest or at least after his arrest? Section
19(1) of the 2002 Act postulates that after arrest, as soon as may be, the person
should be informed about the grounds for such arrest. This stipulation is
compliant with the mandate of Article 22(1) of the Constitution. Being a
special legislation and considering the complexity of the inquiry/investigation
both for the purposes of initiating civil action as well as prosecution, non-
supply of ECIR in a given case cannot be faulted. The ECIR may contain
details of the material in possession of the authority and recording satisfaction
of reason to believe that the person is guilty of money laundering offence, if
revealed before the inquiry/investigation required to proceed against the
property being proceeds of crime including to the person involved in the
process or activity connected therewith, may have deleterious impact on the
final outcome of the inquiry/investigation. So long as the person has been
informed about grounds of his arrest that is sufficient compliance of mandate
of Article 22(1) of the Constitution. Moreover, the arrested person before being
produced before the Special Court within twenty-four hours or for that
purposes of remand on each occasion, the court is free to look into the relevant
records made available by the authority about the involvement of the arrested
person in the offence of money laundering. In any case, upon filing of the
complaint before the statutory period provided in the 1973 Code, after arrest,
the person would get all relevant materials forming part of the complaint filed
by the authority under Section 44(1)(b) of the 2002 Act before the Special
Court.
372. Viewed thus, supply of ECIR in every case to the person concerned is not
mandatory. From the submissions made across the Bar, it is noticed that in
some cases ED has furnished copy of ECIR to the person before filing of the
complaint. That does not mean that in every case same procedure must be
followed. It is enough, if ED at the time of arrest, contemporaneously discloses
the grounds of such arrest to such person. Suffice it to observe that ECIR
cannot be equated with an FIR which is mandatorily required to be recorded
and supplied to the accused as per the provisions of the 1973 Code. Revealing
a copy of an ECIR, if made mandatory, may defeat the purpose sought to be
achieved by the 2002 Act including frustrating the attachment of property
(proceeds of crime). Non-supply of ECIR, which is essentially an internal
document of ED, cannot be cited as violation of constitutional right.
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Concededly, the person arrested, in terms of Section 19 of the 2002 Act, is
contemporaneously made aware about the grounds of his arrest. This is
compliant with the mandate of Article 22(1) of the Constitution.
70. It is evident from the aforesaid consideration as referred in the aforesaid
judgment that once the person is informed of the grounds of arrest, that would
be sufficient compliance with the mandate of Article 22(1) of the Constitution
and it is not necessary that a copy of the ECIR be supplied in every case to the
person concerned, as such, a condition is not mandatory and it is enough if
ED discloses the grounds of arrest to the person concerned at the time of
arrest.
71. It needs to refer herein the judgment which has come in the case of V. Senthil
Balaji Vs. State Represented by Deputy Director & Ors. (supra) which was
passed on 07.08.2023 wherein consideration has been given with respect to
the issue of Section 19(1) holding therein that that after forming a reason to
believe that the person has been guilty of an offence punishable under PMLA,
the officer concerned is at liberty to arrest him, while performing his
mandatory duty of recording the reasons, and that the said exercise has to be
followed by way of an information being served on the arrestee of the
grounds of arrest.
72. Subsequent thereto, the matter has again come before the Hon’ble Apex Court
in the case of Pankaj Bansal Vs. Union of India & Ors (supra), wherein the
factual aspect pertaining to the said case was that no written communication
was made and only on the basis of oral communication of reason of arrest, the
said Pankaj Bansal has taken into custody, which would be evident from
discussion of the factual aspect, which would be evident from following
paragraphs of the judgment, which reads as under:
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“2. The genesis of these appeals is traceable to FIR No. 0006 dated 17-4-
2023 registered by the Anti-Corruption Bureau, Panchkula, Haryana,
under Sections 7, 8, 11 and 13 of the Prevention of Corruption Act, 1988,
read with Section 120-BIPC for the offences of corruption and bribery
along with criminal conspiracy. The names of the accused in this FIR
are:
“(i) Mr Sudhir Parmar (the then Special Judge, CBI and ED,
Panchkula);
(ii) Mr Ajay Parmar [nephew of Mr Sudhir Parmar and Deputy Manager
(Legal) in M3M Group];
(iii) Mr Roop Bansal (promotor of M3M Group); and
(iv) other unknown persons.”
3. Significantly, prior to this FIR, between the years 2018 and 2020, 13
FIRs were gotten registered by allottees of two residential projects of the
IREO Group, alleging illegalities on the part of its management. On the
strength of these FIRs, ED recorded Enforcement Case Information
Report No. GNZO/10/2021 dated 15-6-2021 (hereinafter “the first
ECIR”) in connection with the money laundering offences allegedly
committed by the IREO Group and Lalit Goyal, its Vice-Chairman and
Managing Director. Neither in the FIRs nor in the first ECIR were M3M
Group or the appellants herein arrayed as the accused. Further, no
allegations were levelled against them therein. On 14-1-2022, ED filed
Prosecution Complaint No. 01/2022, titled “Enforcement
Directorate v. Lalit Goyal and others“, against seven named accused,
under Section 200CrPC read with Sections 44 and 45 PMLA. Notably,
M3M Group and the appellants did not figure amongst those named
accused. The number of FIRs had also increased from 13 to 30, as per
this complaint. This case was numbered as COMA/01/2022, titled
“Enforcement Directorate v. Lalit Goyal and others“, and was pending in
the Court of Sudhir Parmar, Special Judge. At that stage, the Anti-
Corruption Bureau, Panchkula, received information that Sudhir Parmar
was showing favouritism to Lalit Goyal, the owner of IREO Group, and
also to Roop Bansal and his brother, Basant Bansal, the owners of M3M
Group. This led to the registration of FIR No. 0006 dated 17-4-2023. On
12-5-2023, ED issued summons to M3M India Pvt. Ltd., calling upon it to
provide information and documents pertaining to transactions with
certain companies. Thereafter, on 1-6-2023, ED raided the properties of
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M3M Group and effected seizures of assets and bank accounts. Roop
Bansal was arrested by ED on 8-6-2023 apropos the first ECIR.
4. Apprehending that action would be taken against them also in the
context of the first ECIR, Pankaj Bansal and Basant Bansal secured
[Basant Bansal v. State (NCT of Delhi), (2023) 2 HCC (Del)
700] , [Pankaj Bansal v. State (NCT of Delhi), 2023 SCC OnLine Del
3590] interim protection from the Delhi High Court in Bail Applications
Nos. 2030 and 2031 of 2023. By separate orders dated 9-6-2023 [Basant
Bansal v. State (NCT of Delhi), (2023) 2 HCC (Del) 700] passed therein,
the Delhi High Court noted that Pankaj Bansal and Basant Bansal had
not been named in the first ECIR and that ED had not yet been able to
implicate them in any of the scheduled offences under the 2002 Act.
Further, the High Court noted that Pankaj Bansal had not even been
summoned by ED in that case. The High Court accordingly granted them
interim protection by way of anticipatory bail, subject to conditions, till
the next date of hearing i.e. 5-7-2023. Special Leave Petitions (Crl.) Nos.
7384 and 7396 of 2023 were filed by ED assailing the orders dated 9-6-
2023 [Basant Bansal v. State (NCT of Delhi), (2023) 2 HCC (Del)
700] , [Pankaj Bansal v. State (NCT of Delhi), 2023 SCC OnLine Del
3590] , [Basant Bansal v. State (NCT of Delhi), (2023) 2 HCC (Del) 700]
before this Court and the same are stated to be pending.
5. In the meanwhile, on the basis of FIR No. 0006 dated 17-4-2023, ED
recorded another ECIR viz. ECIR/GNZO/17/2023, on 13-6-2023
(hereinafter “the second ECIR”) against:
(i) Mr Sudhir Parmar;
(ii) Mr Ajay Parmar;
(iii) Mr Roop Bansal; and
(iv) others who are named in the FIR/unknown persons.
6. However, summons were issued by ED to Pankaj Bansal and Basant
Bansal on 13-6-2023 at 6.15 p.m. in relation to the first ECIR, requiring
them to appear before ED on 14-6-2023 at 11.00 a.m. Though the copy of
the summons placed before this Court pertains to Pankaj Bansal alone,
the email dated 13-6-2023 of the Assistant Director of ED, bearing the
time 6.15 p.m., was addressed to both Pankaj Bansal and Basant Bansal
and required their compliance with the summons on 14-6-2023 at 11 a.m.
While Pankaj Bansal and Basant Bansal were at the office of ED at
Rajokri, New Delhi, in compliance with these summons, Pankaj Bansal
was served with fresh summons at 4.52 p.m. on 14-6-2023, requiring him
36 B.A. No. 8321 of 2024
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to be present before another investigating officer at 5.00 p.m. on the same
day. This summons was in connection with the second ECIR. There is lack
of clarity as to when summons in relation to the second ECIR were served
on Basant Bansal. According to ED, he was served the summons on 13-6-
2023 itself and refused to receive the same. However, it is an admitted
fact that Basant Bansal was also present at ED’s office at Rajokri, New
Delhi, on 14-6-2023 at 11.00 a.m. It is also not in dispute that, while he
was there, Basant Bansal was arrested at 6.00 p.m. on 14-6-2023 and
Pankaj Bansal was arrested at 10.30 p.m. on the same day. These arrests,
made in connection with the second ECIR, were in exercise of power
under Section 19(1) PMLA. The arrested persons were then taken to
Panchkula, Haryana, and produced before the learned Vacation
Judge/Additional Sessions Judge, Panchkula. There, they were served
with the remand application filed by ED.
10. It was the specific case of the father and son in their writ petitions
before the High Court that their arrest under the provisions of PMLA was
a wanton abuse of power/authority and an abuse of process by ED, apart
from being blatantly illegal and unconstitutional. They also asserted that
ED acted in violation of the safeguards provided in Section 19 PMLA. In
this milieu, they made the following prayers:
“In view of the facts and circumstances mentioned above, it is, therefore,
respectfully prayed that this Hon’ble Court may kindly be pleased to issue
appropriate writ(s), order(s) and/or direction(s) to:
A. Read down and/or read into as well as expound, deliberate upon and
delineate the ambit, sweep and scope of Section 19(1) PMLA in
consonance with the principles, inter alia, enunciated by the Hon’ble
Supreme Court in Vijay Madanlal Choudhary v. Union of India [Vijay
Madanlal Choudhary v. Union of India, (2023) 12 SCC 1 : 2022 SCC
OnLine SC 929 : (2022) 10 Scale 577] and hold that:
(i) The expression “material in possession” occurring therein must be
confined, circumscribed and limited to legally admissible evidence of
sterling quality and unimpeachable character on the basis whereof
“reasons to believe” could be recorded in writing that the arrestee is
“guilty” of the offence under Section 4 PMLA;
(ii) The word “guilt” occurring therein would qualify a higher yardstick
than a mere suspicion and the learned Court at the stage of remand is
required to apply its judicial mind to the grounds as well as necessity for
arrest as, inter alia, held in Arnesh Kumar v. State of Bihar [Arnesh37 B.A. No. 8321 of 2024
2025:JHHC:12446Kumar v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449]
and as accorded imprimatur in Satender Kumar Antil v. CBI [Satender
Kumar Antil v. CBI, (2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1] ;
(iii) The expression “communicate” occurring therein would definitely
entail physical communication and furnishing the grounds of arrest to the
arrestee in the context of the obligation for “reason for such belief to be
recorded in writing” read with Rules 2(1)(g) and 2(1)(h) of the PMLA
Rules, 2005 (the Arrest Rules) which postulates the meaning of the word
“order” to include the grounds of such arrest.”
73. The Hon’ble Apex Court in the aforesaid pretext has laid down the
proposition to communicate the reasons for arrest in writing by making
reference of word ‘henceforth’. For ready reference, the relevant paragraph is
quoted as under:
39. We may also note that the language of Section 19 PMLA puts it
beyond doubt that the authorised officer has to record in writing the
reasons for forming the belief that the person proposed to be arrested is
guilty of an offence punishable under the 2002 Act. Section 19(2)
requires the authorised officer to forward a copy of the arrest order
along with the material in his possession, referred to in Section 19(1), to
the adjudicating authority in a sealed envelope. Though it is not
necessary for the arrested person to be supplied with all the material that
is forwarded to the adjudicating authority under Section 19(2), he/she
has a constitutional and statutory right to be “informed” of the grounds
of arrest, which are compulsorily recorded in writing by the authorised
officer in keeping with the mandate of Section 19(1) PMLA. As already
noted hereinbefore, it seems that the mode of informing this to the
persons arrested is left to the option of ED’s authorised officers in
different parts of the country i.e. to either furnish such grounds of arrest
in writing or to allow such grounds to be read by the arrested person or
be read over and explained to such person.
45. On the above analysis, to give true meaning and purpose to the
constitutional and the statutory mandate of Section 19(1) PMLA of
informing the arrested person of the grounds of arrest, we hold that it
would be necessary, henceforth, that a copy of such written grounds of
arrest is furnished to the arrested person as a matter of course and
without exception. The decisions of the Delhi High Court in Moin Akhtar
Qureshi [Moin Akhtar Qureshi v. Union of India, 2017 SCC OnLine Del38 B.A. No. 8321 of 2024
2025:JHHC:1244612108] and the Bombay High Court in Chhagan Chandrakant
Bhujbal [Chhagan Chandrakant Bhujbal v. Union of India, 2016 SCC
OnLine Bom 9938 : (2017) 1 AIR Bom R (Cri) 929] , which hold to the
contrary, do not lay down the correct law. In the case on hand, the
admitted position is that ED’s investigating officer merely read out or
permitted reading of the grounds of arrest of the appellants and left it at
that, which is also disputed by the appellants. As this form of
communication is not found to be adequate to fulfil compliance with the
mandate of Article 22(1) of the Constitution and Section 19(1) PMLA, we
have no hesitation in holding that their arrest was not in keeping with the
provisions of Section 19(1) PMLA. Further, as already noted supra, the
clandestine conduct of ED in proceeding against the appellants, by
recording the second ECIR immediately after they secured interim
protection in relation to the first ECIR, does not commend acceptance as
it reeks of arbitrary exercise of power. In effect, the arrest of the
appellants and, in consequence, their remand to the custody of ED and,
thereafter, to judicial custody, cannot be sustained.
74.However, in the said case, the arrest of the said Bansal duo has been held to
be invalid.
75.The argument has been advanced by Mr. Das, learned counsel appearing for
the respondent-ED that the reason for invalidating the arrest of the Pankaj
Bansal in the said judgment is that there was no communication of reason to
arrest although it was said that orally it was communicated and while
coming to the conclusion that henceforth the written communication is to be
there the arrest of the said Pankaj Bansal has been held to be invalid.
76.Subsequent to the said judgment, the judgment has come in the case of Ram
Kishor Arora Vs. Directorate of Enforcement [2023 SCC OnLine SC
1682]. The Hon’ble Apex Court while taking in to consideration the
judgment passed by Vijay Madanlal Choudhary v. Union of India (supra)
has observed that the law laid down by the three-Judge Bench in Vijay
Madanlal Choudhary that Section 19(1) PMLA has a reasonable nexus
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with the purposes and objects sought to be achieved by the PML Act and
that the said provision is also compliant with the mandate of Article 22(1) of
the Constitution of India, any observation made or any finding recorded by
the Division Bench of lesser number of Judges contrary to the said ratio laid
down in Vijay Madanlal Choudhary would be not in consonance with the
jurisprudential wisdom expounded by the Constitution Benches. For ready
reference the relevant paragraph is being quoted as under :
16. In view of the aforestated proposition of law propounded by
the Constitution Benches, there remains no shadow of doubt that
the law laid down by the three-Judge Bench in Vijay Madanlal
Choudhary [Vijay Madanlal Choudhary v. Union of India, (2023)
12 SCC 1 : 2022 SCC OnLine SC 929] that Section 19(1) PMLA has
a reasonable nexus with the purposes and objects sought to be
achieved by the PML Act and that the said provision is also
compliant with the mandate of Article 22(1) of the Constitution of
India, any observation made or any finding recorded by the
Division Bench of lesser number of Judges contrary to the said
ratio laid down in Vijay Madanlal Choudhary [Vijay Madanlal
Choudhary v. Union of India, (2023) 12 SCC 1 : 2022 SCC OnLine
SC 929] would be not in consonance with the jurisprudential
wisdom expounded by the Constitution Benches in cases referred
above. The three-Judge Bench in Vijay Madanlal Choudhary [Vijay
Madanlal Choudhary v. Union of India, (2023) 12 SCC 1 : 2022
SCC OnLine SC 929] having already examined in detail the
constitutional validity of Section 19 PMLA on the touchstone of
Article 22(1) and upheld the same, it holds the field as on the date.
77.Further, The Hon’ble Apex Court in the aforesaid judgment while taking in
to consideration the judgment passed in the case of Pankaj Bansal Vs.
Union of India & Ors (supra), come out with a view that Since by way of
safeguard a duty is cast upon the officer concerned to forward a copy of the
order along with the material in his possession to the adjudicating authority
immediately after the arrest of the person, and to take the person arrested to
the court concerned within 24 hours of the arrest, in our opinion, the
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reasonably convenient or reasonably requisite time to inform the arrestee
about the grounds of his arrest would be twenty-four hours of the arrest.
However, the Hon’ble Apex Court refused to invalidate the arrest of said
Ram Kishor Arora. For ready reference, the relevant paragraph of the
judgment is quoted as under:
21. In view of the above, the expression “as soon as may be” contained
in Section 19 PMLA is required to be construed as — “as early as
possible without avoidable delay” or “within reasonably convenient” or
“reasonably requisite” period of time. Since by way of safeguard a duty
is cast upon the officer concerned to forward a copy of the order along
with the material in his possession to the adjudicating authority
immediately after the arrest of the person, and to take the person
arrested to the court concerned within 24 hours of the arrest, in our
opinion, the reasonably convenient or reasonably requisite time to
inform the arrestee about the grounds of his arrest would be twenty-four
hours of the arrest.
22. In Vijay Madanlal Choudhary [Vijay Madanlal Choudhary v. Union
of India, (2023) 12 SCC 1 : 2022 SCC OnLine SC 929] , it has been
categorically held that so long as the person has been informed about the
grounds of his arrest, that is sufficient compliance with mandate of
Article 22(1) of the Constitution. It is also observed that the arrested
person before being produced before the Special Court within twenty-
four hours or for that purposes of remand on each occasion, the Court is
free to look into the relevant records made available by the authority
about the involvement of the arrested person in the offence of money-
laundering. Therefore, in our opinion the person arrested, if he is
informed or made aware orally about the grounds of arrest at the time of
his arrest and is furnished a written communication about the grounds of
arrest as soon as may be i.e. as early as possible and within reasonably
convenient and requisite time of twenty-four hours of his arrest, that
would be sufficient compliance of not only Section 19 PMLA but also of
Article 22(1) of the Constitution of India.
23. As discernible from the judgment in Pankaj Bansal case [Pankaj
Bansal v. Union of India, (2024) 7 SCC 576] also noticing the
inconsistent practice being followed by the officers arresting the persons
under Section 19 PMLA, directed to furnish the grounds of arrest in
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writing as a matter of course, “henceforth”, meaning thereby from the
date of the pronouncement of the judgment. The very use of the word
“henceforth” implied that the said requirement of furnishing grounds of
arrest in writing to the arrested person as soon as after his arrest was
not mandatory or obligatory till the date of the said judgment. The
submission of the learned Senior Counsel Mr Singhvi for the appellant
that the said judgment was required to be given effect retrospectively
cannot be accepted when the judgment itself states that it would be
necessary “henceforth” that a copy of such written grounds of arrest is
furnished to the arrested person as a matter of course and without
exception. Hence, non-furnishing of grounds of arrest in writing till the
date of pronouncement of judgment in Pankaj Bansal case [Pankaj
Bansal v. Union of India, (2024) 7 SCC 576] could neither be held to be
illegal nor the action of the officer concerned in not furnishing the same
in writing could be faulted with. As such, the action of informing the
person arrested about the grounds of his arrest is a sufficient compliance
of Section 19 PMLA as also Article 22(1) of the Constitution of India, as
held in Vijay Madanlal [Vijay Madanlal Choudhary v. Union of India,
(2023) 12 SCC 1 : 2022 SCC OnLine SC 929] .
78.Thereafter, the Hon’ble Apex Court has considered the issue of Section
19(1) in the case of Prabir Purkayastha Vs. State (NCT of Delhi) (supra)
wherein the Hon’ble Apex Court has passed the order of release of said
Prabir Purkayastha, the appellant in the said case, on the ground that no
reason said to be in writing was communicated even though the law has been
laid down in the case of Pankaj Bansal Vs. Union of India & Ors (supra)
as referred in paragraphs 29 and 30 which is being referred as under:
29. Hence, we have no hesitation in reiterating that the requirement to
communicate the grounds of arrest or the grounds of detention in writing
to a person arrested in connection with an offence or a person placed
under preventive detention as provided under Articles 22(1) and 22(5) of
the Constitution of India is sacrosanct and cannot be breached under any
situation. Non-compliance of this constitutional requirement and
statutory mandate would lead to the custody or the detention being
rendered illegal, as the case may be.
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30. Furthermore, the provisions of Article 22(1) have already been
interpreted by this Court in Pankaj Bansal [Pankaj Bansal v. Union of
India, (2024) 7 SCC 576] laying down beyond the pale of doubt that the
grounds of arrest must be communicated in writing to the person
arrested of an offence at the earliest. Hence, the fervent plea of the
learned ASG that there was no requirement under law to communicate
the grounds of arrest in writing to the appellant-accused is noted to be
rejected.
79.Again, in the case of Arvind Kejriwal Vs. Directorate of Enforcement
(supra) the view has been taken for communication of reason of arrest and it
has been observed by the Hon’ble Apex Court that the written “grounds of
arrest”, though a must, does not in itself satisfy the compliance requirement.
The authorized officer’s genuine belief and reasoning based on the evidence
that establishes the arrestee’s guilt is also the legal necessity. As the “reasons
to believe” are accorded by the authorised officer, the onus to establish
satisfaction of the said condition will be on the DoE and not on the arrestee.
The Hon’ble Apex Court while taking in to consideration the judgment
rendered by the Hon’ble Apex Court in Vijay Madanlal Choudhary (supra)
is a decision rendered by a three Judge Bench, hence after formulating the
questions of law has referred the matter for consideration by a larger Bench.
For ready reference the relevant paragraphs are being quoted as under:
11. Arrest under Section 19(1) of the PML Act may occur prior to the
filing of the prosecution complaint and before the Special Judge takes
cognizance.11 Till the prosecution complaint is filed, there is no
requirement to provide the accused with a copy of the ECIR.12 The ECIR
is not a public document. Thus, to introduce checks and balances, Section
19(1) imposes safeguards to protect the rights and liberty of the arrestee.
This is in compliance with the mandate of Article 22(1) of
the Constitution of India.
12. V. Senthil Balaji v. State13 similarly states that the designated officer
can only arrest once they record “reasons to believe” in writing, that the
person being arrested is guilty of the offence punishable under the PML
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Act. It is mandatory to record the “reasons to believe” to arrive at the
opinion that the arrestee is guilty of the offence, and to furnish the
reasons to the arrestee. This ensures an element of fairness and
accountability.
16. Recently, in Prabir Purkayastha v. State (NCT of Delhi),15 this Court
reiterated the aforesaid principles expounded in Pankaj Bansal (supra).
The said principles were applied to the pari materia provisions16 of
the Unlawful Activities (Prevention) Act, 1967. The Court explained that
Section 19(1) of the PML Act is meant to serve a higher purpose, and also
to enforce the mandate of Article 22(1) of the Constitution. The right to
life and personal liberty is sacrosanct, a fundamental right guaranteed
under Article 21 and protected by Articles 20 and 22 of the Constitution.
Reference was made to the observations of this Court in Roy V.D. v. State
of Kerala17 that the right to be informed about the grounds of arrest flows
from Article 22(1) of the Constitution and any infringement of this
fundamental right vitiates the process of arrest and remand. The fact that
the chargesheet has been filed in the matter would not validate the
otherwise illegality and unconstitutionality committed at the time of
arrest and grant of remand custody of the accused. Reference is also
made to the principle behind Article 22(5) of the Constitution. Thus, this
Court held that not complying with the constitutional mandate under
Article 22(1) and the statutory mandate of the UAPA, on the requirement
to communicate grounds of arrest or grounds of detention, would lead to
the custody or detention being rendered illegal.
28. Providing the written “grounds of arrest”, though a must, does not in
itself satisfy the compliance requirement. The authorized officer’s genuine
belief and reasoning based on the evidence that establishes the arrestee’s
guilt is also the legal necessity. As the “reasons to believe” are accorded
by the authorised officer, the onus to establish satisfaction of the said
condition will be on the DoE and not on the arrestee.
80.It is, thus, evident from the cumulative consideration of the judgment
rendered by Hon’ble Apex Court, as referred above, that the law under
statutory provision as contained under Section 19(1) of the PML Act, 2002
is that the reason is to be communicated to the person concerned then only
the arrest would be said to be valid.
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81.We are conscious that in any nature of arrest the mandatory requirement is to
be fulfilled. Herein, the mandatory requirement as per Article 19(1) of the
PML Act, 2002 coupled with the judgment as referred hereinabove by laying
down the ratio to communicate the reason for arrest in writing and as such
we have to consider as to whether the said statutory command in the facts
and circumstances of the present case has been followed or not, if yes, then
the arrest cannot be held to be invalid and if no, then certainly the arrest
would be held to be invalid.
82.Now, adverting to the factual aspect of the present case and on consideration
of the submissions advanced on behalf of petitioner that no written
communication has been furnished to the petitioner at the time of arrest, we
have gone through communication dated 07.06.2023 wherefrom it is evident
that detail/exhaustive reason has been given. The petitioner has put his
signature on each and every page and even in the last page he has given a
remark that ‘read and understand’ “‘I have read my ground of arrest
completely and also communicated to Mr. Dilip Ghosh.”
83.Thereafter, on 08.06.2023 the Petitioner was produced before Learned
Special Court (PMLA), Ranchi. The opposite party produced the remand
application along with grounds of arrest, order of arrest, arrest memo,
medical report and search memo under section 51 of Cr.P.C. before the
Learned Special Court (PMLA), Ranchi which is also evident from its order
dated 08.06.2023. The Learned court, after examining the remand
application and all the material produced before it, remanded the accused
person in the Judicial Custody.
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84.It is further evident that based upon the said communication when the
petitioner was placed before the competent court of learned Special Judge
for the purpose of seeking remand, an order was passed on 09.06.2023
wherein it has been referred that the petitioner has no complaint whatsoever
and even the communication has been made regarding reason for arrest has
been provided to the family also.
85.It needs to refer herein that the legality of arrest is questioned herein when a
competent court has passed an order of remand after passing a detailed order
of remand by going through the materials produced before it relating to the
arrest of the petitioner. Further the order of remand has been challenged after
lapse of one and a half years that too when prayer for bail application has
already been rejected by this Court by passing an order against which SLP
although was filed but it was withdrawn.
86.The question is that when remand itself was not challenged at the threshold
then why the petitioner has chosen to prefer bail and once the petitioner has
chosen to prefer application seeking bail, which implies that he has accepted
the order of remand and it appears from the endorsement made by the
petitioner that he was even knowing the entire reason of his arrest. As such,
there is nothing to suggest that the arrest of the accused person was affected
in violation of the of provision of Section 19 of the PMLA or that the same
was otherwise illegal as the I.O. had not only recorded the reasons of his
belief before the arrest but the said grounds were also informed to the
Accused/Petitioner.
87.On the basis of discussion made herein above it is evident from the record
that the Petitioner was informed about the ground of arrest immediately by
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the Enforcement Directorate with his acknowledgement. Further, it is also an
admitted position that within 24 hours of the arrest, the arrestee was supplied
with the remand application which virtually contains all the grounds of arrest
and therefore the legal requirement of informing the grounds of arrested “as
soon as may be” also stood fulfilled both as per the statutory requirement
under S. 19(1) of the PMLA as well as the constitutional mandate under
Article 22(1) of the Constitution of India. The Hon’ble Supreme Court in the
case of Pankaj Bansal (supra) had made the requirement of furnishing
grounds of arrest in writing, only prospective, by using the word
“henceforth”. The same has also been clarified by the Hon’ble Supreme
Court in Ram Kishor Arora (supra) at Para 23. Hence, the law as it
prevailed on the date of arrest was complied with.
88.We are conscious with the fact that the moment a person is being arrested
that infringes the fundamental right of personal liberty as provided under
Article 21 of the Constitution of India and as such without any valid reason
the personal liberty of the person cannot be infringed.
89.This Court, in view of the discussions made hereinabove and taking into
consideration the endorsement given by the petitioner in the order
communicating the reason of arrest, is of the view that the mandatory
provision as contained under Section 19(1) of the PML Act, 2002, and the
ratio laid down in the case of Vijay Madanlal Choudhary & Ors. Vs. Union
of India & Ors. (supra), and other judgments of the Hon’ble Apex Court
which has been referred herein in preceding paragraphs, has been followed
by the respondent.
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90.Thus, on the basis of discussion made hereinabove it is evident that the
remand application was provided to the petitioner’s counsel and there is no
objection raised during the time of remand. Further, the law as it prevailed
on the date of arrest was complied with by the Respondent. However, it is
also an admitted position that within 24 hours of the arrest, the arrestee was
supplied with the remand application which virtually contains all the
grounds of arrest.
91.Therefore, this Court is of the view that the argument which has been
advanced on behalf of the learned counsel for the petitioner is not tenable
based upon the discussion made hereinabove.
Issue of culpability of the present petitioner:
92.While disposing the bail application being B.A. No. 7343 of 2023, this Court
has already gone through the culpability of the present petitioner but since
herein the learned counsel for the petitioner by way of filing 3rd
supplementary affidavit has contended that at paragraph no.8.9 in the
Prosecution Complaint the co-accused Dilip Kumar Ghosh in his statement
dated 27.2.2023 recorded under Section 50 PMLA (RUD No.77) stated that
Jagatbandhu Tea Estate Pvt. Ltd. is his company and Amit Kumar Agarwal
but this statement in the Prosecution Complaint is not a true one as the co-
accused Dilip Kumar Ghosh never made such a statement to ED.
93.In the aforesaid context this Court adverting to the various paragraph of the
prosecution complaint particularly paragraph 8.9, and supplementary
affidavit and supplementary counter affidavit which have been appended
with the present petition.
48 B.A. No. 8321 of 2024
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94.It is evident that the statement of Dilip Kumar Ghosh (co-accused) which
was recorded under Section 50 of PMLA Act is mentioned at paragraph-8.9
of the complaint submitted by the Enforcement Directorate. For ready
reference, the same is being reproduced as under:
8.9 Dilip Kumar Ghosh (Accused no.2- Director of M/s Jagatbandhu Tea
Estate Pvt. Ltd.)• In his statement dated 27.02.2023 (RUD No. 77) recorded under
section 50 of PMLA, 2002, the accused Dilip Kumar Ghosh stated that
Jagatbandhu Tea Estate Pvt. Ltd. is his company and Amit Kumar
Agarwal. He stated that tea leaves are plucked from the tea plants of the
company which is spread over 120 acres. He further stated that the tea
estate has nearly 155 labours to whom the wages are paid in cash. On
being asked the reasons of frequent huge cash deposit in the account of
IDFC First Bank of the company Jagatbandhu Tea Estate Pvt. Ltd., he
stated that the same are the sale proceeds of the raw tea leaves sold by
the company at its tea garden. He further provided misleading answers
on being asked why the cash is deposited at salt lake, Kolkata while the
tea is sold at the company’s garden at Jalpaiguri. The accused Dilip
Kumar Ghosh stated that since, the company has no bank account at
Jalpaiguri and due to covid, the cash was not deposited in the bank, he
used to go to Jalpaiguri and transported the cash which was deposited in
the bank in Kolkata. He further stated that the cash was deposited in
cash through Bikash Jana and Deepak Sah who are the employees of
Amit Kumar Agarwal.
• In his statement dated 07.06.2023 (RUD No. 79) recorded under section
50 of PMLA, 2002 he stated that work of his companies is done by the
employees of Amit Kumar Agarwal and the salaries, P. F and E.SI of
those employees are also paid by Amit Kumar Agarwal. He had no
employees at his Salt Lake office where he sits with Amit Kumar
Agarwal.
• In his statement dated 09.06.2023 (RUD No. 80) recorded in Judicial
Custody, under section 50 of PMLA, 2002 it reveals that he had been
directors of several companies of Amit Kumar Agarwal and he had
obtained the directorship of those companies on the directions of Amit
Kumar Agarwal. He further stated that Amit Kumar Agarwal used to take
the decisions regarding those companies. He further stated that he only
knows that Rajesh Auto Merchandise is company of Amit Kumar
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Agarwal and he does not remember whether he was director of this
company or not. He also did not remember about his directorship in
other companies of Amit Kumar Agarwal.
From the above statement it reveals that he is one of the associates
working under Amit Kumar Agarwal and follows his instructions without
even applying his mind and as such he is not aware of the companies of
Amit Kumar Agarwal in which he has remained one of the directors.
• In his statement dated 10.06.2023 (RUD No. 81) he was confronted with
the records showing his directorship in companies of Amit Kumar
Agarwal and he accepted the same. Further he was also confronted with
the mismatch of banking transactions, cash deposited in his accounts
which he stated to be the sale proceeds of tea business and
corresponding turnover of the company declared by him in the balance
sheet, he could not provide any answer to the same.
• In his statement dated 11.06.2023 (RUD No. 82), he was confronted with
the production and sale of tea leaves as per the stock register maintained
at the tea garden of Jagatbandhu Tea Estates Pvt. Ltd. which was
obtained during survey under section 16 of PMLA on 15.05.2023 and
corresponding transactions appearing in bank accounts and balance
sheet of the company. He gave unsatisfactory and misleading answers.
95.It is evident from the preceding paragraph that in his statement dated
27.02.2023 (RUD No. 77) recorded under section 50 of PMLA, 2002, the
accused Dilip Kumar Ghosh stated that Jagatbandhu Tea Estate Pvt. Ltd. is
his company and Amit Kumar Agarwal. He had further stated that the cash
was deposited in cash through Bikash Jana and Deepak Sah who are the
employees of Amit Kumar Agarwal.
96. But the aforesaid fact has been disputed by the learned counsel for the
petitioner by contending that Dilip Kumar Ghosh has never stated the fact
that Jagatbandhu Tea Estate Pvt. Ltd. is his company and Amit Kumar
Agarwal. The learned counsel further contended that M/s. Jagatbandhu Tea
Estate Private Limited was incorporated on 10.05.1994 with the Registrar of
Companies, Kolkata (West Bengal). Accused Dilip Kumar Ghosh and his
wife, Mrs. Sutapa Ghosh were the directors and neither the present petitioner
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nor any of his family members have any stake in the M/s. Jagatbandhu Tea
Estate Pvt. Ltd. Company and this company solely belongs to accused Dilip
Kumar Ghosh. It is further submitted that the accused petitioner has been
projected as the beneficial owner of M/s. Jagatbandhu Tea Estate Pvt. Ltd.
which is absolutely false.
97. In the aforesaid context this Court thinks it fit to refer herein the relevant
paragraph of RUD No.77 which has been translated into English and
appended to the present application by way of filing supplementary affidavit
as annexure 17. The relevant paragraph of translated RUD No.77 is being
quoted as under:
Ques.8: What is your relation with Rajesh auto Marchendise ? Give
details.
Ans.8: Rajesh auto Marchendise is the company of my friend Amit kumar
AgarwalQues.9: What is your relation with Mihijam Banaspati ? Give details.
Ans.9: Mihijam Banaspati is the company of my friend Amit kumar
Agarwal.
Ques.10: Give details of the bank account of the Jagatbandhu Tea estate.
Ans. 10. IDFC and Bandhan Bank.
Ques.11: Give reason of frequent cash deposits in the IDFC First bank
account of the Jagatbandhu Tea Estate.
Ques. 11: The raw tea leaves of Jagatbandhu Tea Estate are sold for
cash at Jalpaiguri and this cash is deposited at IDFC First bank. Raw
tea leaves are weighed at garden and sold for cash through brokers at
garden. Because raw tea leaves cannot be left for long time. If raw leaves
are left for long, they got spoiled. So, through various brokers raw tea
leaves are sold on the basis of rate of that day.
Ques.12: Why the money of selling of tea leaves of Jagatbandhu Tea
estate is deposited in the bank at Kolkata instead of the bank at
Jalpaiguri?
Ans. 12: Jagatbandhu Tea Estate has no bank account at Jalpaiguri and
due to Covid situation cash was not deposited in the bank and I myself51 B.A. No. 8321 of 2024
2025:JHHC:12446used to go to Jalpaiguri and transport the cash. Then all the cash is
deposited in the bank at KolkataQues.13: By whom the cash of Jagatbandhu Tea estate is deposited in
the bank? Give details.
Ans. 13: I send cash to deposit in the bank through Bikash Jana and
Deepak Kumar sau,Ques.14: Give details of Bikash Jana and Deepak Kumar Sau and how
much salaries do they get and who gives their salaries?
Ans. 14: These two people are workers of the company of Amit Kumar
Agarwal Group and they get their salaries from there.
Ques.15: From which office the official work of Jagatbandhu Tea
Estate is done?
Ans. 15. Without paying any rent I use the office of Jagatbandhu Tea
Estate at the 7/7 office space of the Amit Kumar Agarwal Group.
Ans.17: How many directors of Jagatbandhu Tea Estate are there and
what are their salaries?
Ans. 17: There are 2 directors of the Jagatbandhu Tea Estate: Dilip
Kumar Ghosh – salary 50,000-1,00,000 monthly Sutapa Ghosh – salary
50,000 monthly.
Ques.18: The office of your Jagatbandhu Tea Estate is your own or on
rent?
Ans. 18: Without paying any rent I use a 7/7 office space of the Amit
Kumar Agarwal GroupQues. 19: Who fills up the cash deposit form to deposit the cash of the
Jagatbandhu Tea Estate?
Ans. 19: I used to give the money to Bikash Jana and Deepak Sau and
then they used to fill up the deposit form at the office. Who used to fill
up the form at the office I cannot tell that.
Ques. 20: How much money is deposited for I.T.R of Jagatbandhu Tea
Estate?
Ans.20: At this moment I do not remember LT.R. The auditor of my
company is LIHALA & CO.
Ques.21: Except Jagatbandhu Tea Estate, of which company you are the
director?
Ans.21: I do not remember at this moment. I Will inform later.
52 B.A. No. 8321 of 2024
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Ques.22: Provide details of your movable and immovable properties.
Ans.22: 1. Jagatbandhu Tea Estate, Private Limited. 2. one flat and one
office space. 3. Car – Wagonar.
Ques.23: Bikash Jana and Deepak Kumar Sau are employyes of the
company of Amit Kumar Agarwal Group. Then why they use to deposit
Jagatbandhu Tea Estate’s money in bank?
Ans. 23: The people who look after the accounts of the company of
Amit Agarwal Group are the same people who look after accounts of
the Jagatbandhu Tea Estate. Amit Singhania is the Senior Accountant.
He looks after all the accounts whose mobile number – 9304885292.
Ques.24: How much salary do you pay Amit Singhania from the
Jagatbandhu Tea Estate?
Ans.24: From the Jagatbandhu Tea Estate no salary is paid to Amit
Singhania. His salary is paid from the company of Amit Agarwal
Group.
Ques.26: How much Loans from Rajesh Auto Merchandise and Mihijam
Banaspati were taken and when and through which method these loans
were taken?
Ans. 26: I do not remember at this moment. This will be informed later
within 10 days.
Ques.27: Why you do not know the answer of the Ques.26 in spite of
being the director of the Jagatbandhu Tea Estate?
Ans. 27: I cannot remember at this moment.
Ques.28: The deposit receipts of the cash deposits made from 2020 to
2022 in the IDFC bank account number-10060532975 of Jagatbandhu
Tea Estate are being shown to you. Please see the Xerox copies of these
deposit receipts and put your dated signature on these and tell that who
deposited these deposit receipts?
Ans.28: I have seen the deposit receipts of the cash deposits made from
2020 to 2022 in the IDFC bank account number- 10060532975 of
Jagatbandhu Tea Estate and on each receipt I am putting my dated
signature. By seeing the depositor’s signature I have understood that
cash has been deposited in the IDFC bank account number
10060532973 of Jagatbandhu Tea Estate by the employees of Amit
Kumar Agarwal.
Ques.29: It is seen that in the account opening form of the IDFC bank
account of Jagatbandhu Tea Estate that in the place of registered email53 B.A. No. 8321 of 2024
2025:JHHC:12446id [email protected] is registered, in the place of signatory 2
Sutapa Ghosh is written and with director mobile number 9433004062
and email id [email protected] is written. Please tell who the
owner of this mobile number is and why the email id of Rajesh Auto
Merchandise is registered ?
Answer: The owner of Rajesh Auto Merchandise Pvt. Ltd. is Amit
Agarwal and Prasenjit Pal Choudhary is his employee, who works in
the Rajesh Auto Merchandise Pvt. Ltd.. The mobile number
9433004062, registered in the account opening form is of Prasenjit Pal
Choudhary and the email id [email protected] is in the name of
Rajesh Auto Merchandise Pvt. Ltd.. As most of the time I stay outside
Kolkata, the official work is look after by the employees of Rajesh Auto
Merchandise Pvt. Ltd.. So, there email id and mobile number are
provided.
Ques.30: From the above question-answer it is understood that the
owner of Rajesh Auto Merchandise Pvt. Ltd. Mr. Amit Agarwal can see
and control the accounts of the IDFC bank account of Jagatbandhu
Tea Estate through the mobile number and the email id. Please tell its
reason?
Ans. 30: The internet banking of the IDFC bank account of
Jagatbandhu Tea Estate is accessed by the chief accountant Amit
Singhania and he works for Amit Agarwal. So, the email id of Rajesh
Auto Marchendise and the mobile number of Prasenjit Pal Choudhary
are registered. It is noted that the montly salary of Amit Singhania is
paid from Amit Agarwal’s Company.
98. Thus, from perusal of translated copy of RUD -77 it is evident that the co-
accused Dilip Kumar Ghosh has nowhere stated that the present petitioner is
owner of Jagatbandhu Tea Estate ltd. but from the aforementioned statement
it is apparent that present petitioner has close linkup with the said company.
It has come in the said statement of the Dilip Kumar Ghosh that work of his
companies is done by the employees of petitioner Amit Kumar Agarwal and
the salaries, P.F. and E.SI of those employees are also paid by Amit Kumar
Agarwal. Further it has been stated that the Director of M/s Jagatbandhu Tea
Estates namely Dilip Kumar Ghosh is using the office space of the group
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companies of Amit Kumar Agarwal and the address where books of
accounts of the company are maintained is the corporate office is mentioned
at FMI House, F3, Block GP, Sector – V, P.S Bidhannagar, Kolkata, West
Bengal – 700091.
99. It has come in the statement as well as in the investigation that huge cash is
deposited into IDFC bank accounts bearing no. 10060532973 of M/s
Jagatbandhu Tea Estates and the cash depositors are Bikash Jana and
Deepak Sah who are employees of Petitioner i.e., Amit Kumar Agarwal.
Hence, prima facie it appears that the Jagatbandhu Tea Estates is only made
to show it as different legal entities although the control of the same is in the
hands of the present Petitioner.
100. At this juncture this Court thinks fit to refer the pargraph 9.5.1 and 9.5.2 of
the prosecution complaint wherein the nexus of petitioner has been shown
with the Jagatbandhu Tea Estates Pvt. Ltd. The aforesaid paragraph is being
quoted as under:
9.5.1 It has been shown above that Jagatbandhu Tea Estates Pvt. Ltd is only
a front company of Agarwal group and is only an instrument for acquiring
and laundering his proceeds of crime by the directors of Agarwal group of
companies including Amit Kumar Agarwal. It is also evident from the above
table and summary diagram that out of nearly Rs 4.69 crores cash deposited
in bank account of M/s Jagatbandhu Tea Estates Pvt. Ltd, Rs 4.13 crores
was immediately transferred into the bank account of M/s Rajesh Aute
Merchandise Fvt. Ltd. The directors of this company are Rajesh Agarwal
and Amar Kumar Agarwal, brothers of Amit Kumar Agarwal (RUD Nc. 76).
The accused person Amit Kumar Agarwal held the directorship of this
company for the period 21.03.2005 to 07.07.2022 The other accused and
Director of Mi’s Jagatbandhu Tea Estates namely Dilip Kumar Ghosh was
also the director of Rajesh Autc Merchandise Pvt. Ltd during the period
26.03.2019 to 08.09.2021. Some of the cash deposited into account of M/s
Jagatbandhu Tea Estates was also transferred to one company Aurora
Studio Pvt. Ltd whose present directors are Amit Kumar Agarwal and
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Abanti Agarwal. The accused and the director of M/s Jagatbandhu Tea
Estates, Dilip Kumar Ghosh has been director of the following companies of
Agarwal group.——
9.5.2 The accused Dilip Kumar Gnosh ceased as the director of the above
Companies of Agarwal group during the period 02.09.2021 to 14.09.2021.
Immediately after his cessation, i.e., on 01.10.2021, the defence property got
registered in the name of Jagatbandhu Tea Estates Pvt. Ltd. It is thus
evident that his cessation from the directorship from the above companies of
Agarwal group was deliberate and thoughtful move driven by the
conspiracy between Amit Kumar Agarwal and Dilip Kumar Ghosh to
project him (Dilip Kumar Ghosh) a separate and detached entity from
Agarwal group of companies and acquire the property in possession of
defence indirectly through Jagatbandhu Tea Estates Pvt. Ltd. The email ID
of the directors in the KYC i.e., Dilip Kumar Ghosh is
[email protected] and that of Mrs. Sutapa Ghosh is
[email protected] (RUD No. 81). Thus, it can be seen that the email
ids of Rajesh Auto Merchandise Pvt. Ltd. (a company which is owned by
Rajesh Kumar Agarwal and Amar Kumar Agarwal, brothers of Arnit
Kurnar Agarwal) and Sanayukt Vanijya Pvt. Ltd. has been used in the KYC
of M/s Jagatbandhu Tea Estate Pvt. Ltd. which leads to the conclusion that
M/s Jagatbandhu Tea Estate Pvt. Ltd. is a company which is solely under
the control of Amit Kumar Agarwal.
101. Thus, from the aforesaid paragraph it is evident that nearly Rs 4.69 crores
cash was deposited in bank account of M/s Jagatbandhu Tea Estates Pvt.
Ltd, and Rs 4.13 crores was immediately transferred into the bank account
of M/s Rajesh Aute Merchandise Fvt. Ltd. The directors of this company are
Rajesh Agarwal and Amar Kumar Agarwal, brothers of Amit Kumar
Agarwal (RUD Nc. 76). The accused person Amit Kumar Agarwal held the
directorship of this company for the period 21.03.2005 to 07.07.2022 The
other accused and Director of Mi’s Jagatbandhu Tea Estates namely Dilip
Kumar Ghosh was also the director of Rajesh Autc Merchandise Pvt. Ltd
during the period 26.03.2019 to 08.09.2021. Some of the cash deposited into
account of M/s Jagatbandhu Tea Estates was also transferred to one
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company Aurora Studio Pvt. Ltd whose present directors are Amit Kumar
Agarwal and Abanti Agarwal.
102. Thus, it is evident that for the period from 16.10.2020 to 25.07.2022, nearly
Rs 4.69 crores of cash was deposited in the bank account of M/s
Jagatbandhu Tea Estates Pvt. Ltd, and Rs 4.13 crores was immediately
transferred into the bank account of M/s Rajesh Auto Merchandise Pvt. Ltd.
a company managed and controlled by Amit Kumar Agarwal and his family.
Thus, it is evident that Dilip Kumar Ghosh is merely one of the trusted
employees of Amit Kumar Agarwal.
103. On the basis of the discussion made hereinabove, it is manifestly apparent
from the aforesaid fact that present petitioner has close linkup with the said
company i.e. M/s Jagatbandhu Tea Estates Pvt. Ltd. However, the present
petitioner is the director of the said company or not, is the matter of trial
wherein both the parties are free to lead evidence in this regard.
104. This Court is conscious with the fact that while granting or refusing bail the
Court has to see only the prima-facie case and there is no need to go deep in
appreciation of the evidence. It needs to refer herein that in the case of Rohit
Tandon v. Directorate of Enforcement, (2018) 11 SCC 46, the Hon’ble
Supreme Court observed that the provisions of Section 24 of the PMLA
provide 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
petitioner. Similarly, in the case of Union of India v. Hassan Ali Khan
(2011) 10 SCC 235, it was held that allegations may not ultimately be
established, but having been made, the burden of proof that the money was
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not the proceeds of crime shifted on the accused person under Section 24 of
the PMLA.
105. Further, it is pertinent to mention here that the presumption under Section
24(b) of PMLA can be resorted to even at the stage of consideration of bail
as held by the Hon’ble Apex Court in Vijay Madanlal Chaudhary, (Supra).
Thus, on the basis of discussion made hereinabove it can safely be inferred
that the present petitioner has closely related with the affairs of the said
company i.e M/s Jagatbandhu Tea Estates Pvt. Ltd. However, the said
company is owned by the present petitioner can only be adjudicated in
course of trial because at this stage this Court has only to see the prima facie
case.
106. Thus, on the basis of the aforesaid discussion in the backdrop of settled legal
position it is evident that the address where books of accounts of the
company M/s Jagatbandhu Tea Estate Pvt. Ltd. are maintained is the
corporate office of various companies of Amit Kumar Agarwal and his
brothers namely Amar Kumar Agarwal and Rajesh Agarwal (herein referred
as Agarwal group of companies). Further, during the search conducted at
FKI House, F3, Block GP. Sector Kolkata, West Bengal V. F.S
Bidhannagar, 700091, which is the address where the books of accounts of
the company M/s Jagatbandhu Tea Estate Pvt. Ltd. are maintained, various
documents of M/s Rajesh Auto Merchandise Pvt. Ltd. were seized.
107. The seizure of these documents prima facie indicates that M/s Jagathbandhu
Tea Estate Pvt. Ltd. and M/s Rajesh Auto Merchandise Pvt. Ltd. are unified
entities and collectively overseen and operated by the Agarwal group of
Companies. Dilip Kumar Ghosh used to be the directors of several
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companies of the said Agarwal group and he ceased from the director of the
above companies of Agarwal group during the period 02.09.2021 to
14.09.2021. Immediately after his cessation, i.e. on 01.10.2021, the defence
property was registered in the name of Jagatbandhu Tea Estates Pvt. Ltd.
108. Thus, prima facie it appears that the removal of Dilip Kumar Ghosh from
the directorship from the companies of the Agarwal group was thoughtful
move in order to project Dilip Kumar Ghosh as a separate and detached
entity from the Agarwal group of companies and acquire the property in
possession of defence Indirectly through Jagatbandhu Tea Estates Pvt. Ltd.
109. Further, email ids of Rajesh Auto Merchandise Pvt. Ltd. (a company which
is owned by Rajesh Kumar Agarwal and Amar Kumar Agarwal, (brothers of
Amit Kumar Agarwal) and Sanayukt Vanijya Pvt. Ltd has been used in the
KYC of M/s Jagatbandhu Tea Estate Pvt. Ltd. which leads to the conclusion
that M/s Jagatbandhu Tea Estate Pvt. Itd. is a company which is linked to
Amit Kumar Agarwal.
110. Further, after going through the various paragraphs of prosecution complaint
as well as statement of Dilip Kumar Ghosh which have been referred
hereinabove various questions were made to Dilip Kumar Ghosh pertaining
to the working of Jagthbandhu Tea Estate, details of directors in the
company and the financial relationship between the companies of Amit
Kumar Agarwal. Further, during the statement the following points emerged
which are as follows-
(i) In respect of the cash deposits made by two persons i.e. Bikash Jana
and Deepak Saw in the accounts of the accused company Jagthbandhu
Tea Estate (in whose name the property was acquired), as well as
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about one Amit Singhania, who looks after the accounts of
Jagthbandhu Tea Estate, it was stated by Dilip Ghosh that Bikash
Jana, Deepak Saw as well as Amit Singhania are employees of Amit
Kumar Agarwal and they get their salaries from companies of Amit
Kumar/Agarwal group.
(ii) Further, it was also stated that the office of the accused company M/s
Jagthbandhu Tea Estate is running from the premises of the group
companies of Amit Kumar Agarwal and the said premise is used
without paying any rent.
(iii) Also, in respect of huge cash deposits made between 2020 to 2022 in
IDFC bank account number 10060532975 of Jagtbandhu Tea Estate, it
was stated that the said cash is deposited by the employees of Amit
Kumar Agarwal. The cash which is deposited into account of M/s
Jagatbandhu Tea Estate Pvt. Ltd. was further transferred to the
account of M/s Rajesh Auto Merchandise Pvt. Ltd., a company
managed and controlled by the petitioner Amit Kumar Agarwal with
his brothers Rajesh Kumar Agarwal and Amar Kumar Agarwal.
(iv) Further, in the account opening form of M/s Jagatbandhu Tea Estates
Pvt. Ltd, bearing account no. 10060532975 maintained with IDFC
Bank, the email ID mentioned is [email protected] (which
belong to the companies of the petitioner Amit Agarwal namely M/s
Rajesh Auto Merchandise Pvt. Ltd.) and the mobile number
mentioned is 9433004062 (which belong to Prasanjit Pal Choudhary,
an employee of Amit Kumar Agarwal who works in Rajesh Auto
Merchandise Pvt. Ltd, company of the petitioner).
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(v) The statement of Dilip Kumar Ghosh clearly indicates the company is
running from the premises of Amit Agarwal, the employees of Amit
Agarwal is depositing money in the account of the company and bank
account of the company has also been opened mentioning the email id
relating to the Petitioner. It is thus evident that all operations of the
estate are under his control and managed through the employees of
petitioner.
(vi) Despite not holding the position of a director, the Petitioner is a key
decision-maker in the day-to-day management of Jagatbandhu Tea
Estate, exercising authority through his employees. Furthermore,
various other pieces of evidence linking the Petitioner to the accused
company, M/s Jagatbandhu Tea Estates Pvt. Ltd., are detailed in
paragraphs of the prosecution complaint dated 12.06.2023.
111. Thus, from the aforesaid discussion it is evident that so far as the case of the
present petitioner is concerned, the twin condition as provided under Section
45(1) of the Act, 2002 is not being fulfilled so as to grant the privilege of
bail to the present petitioner.
112. It needs to refer herein that prayer for bail of other co-accused persons
namely, Faiyaz Khan, Tahla Khan and Chhavi Ranjan who were also
involved in alleged offence, has been rejected by this Court vide orders
dated 11.04.2025,12.04.2024 and 22.03.2024 passed in B.A. No. 3421 of
2024, B.A. No. 10296 of 2023 and B.A. No. 9247 of 2023 respectively.
113. Further the co-accused person, namely, Tahla Khan and Chhavi Ranjan had
preferred Special Leave to Appeal (Crl.) No(s).7674 of 2024 and Special
Leave Petition (Criminal) Diary No(s). 38676/2024 before the Hon’ble
61 B.A. No. 8321 of 2024
2025:JHHC:12446
Supreme Court but vide orders dated 25.06.2024 and 27.09.2024
respectively the said SLPs have also been dismissed by the Hon’ble Apex
Court.
114. The ground of custody of 22 months of the petitioner has been taken. There
is no dispute that the question of personal liberty is to be taken care of in
order to follow the mandate of Article 21 of the Constitution of India but
equally it is not in dispute that in a case of like nature, in which the
petitioner has been involved, as per the allegation, balance is to be
maintained in order to have the message to the society that the thing which
has been done by the petitioner, as has been alleged, cannot be considered
merely on the ground of long custody rather the nature of allegation is
required to be seen.
115. Further, the Hon’ble Apex Court while dealing with the offences under UAP
Act 1967, in the case of Gurwinder Singh v. State of Punjab, 2024 SCC
OnLine SC 109 and taking into consideration the ratio of judgment of
Union of India vs. K.A. Najeeb 2021) 3 SCC 713 has observed that mere
delay in trial pertaining to grave offences as one involved in the instant case
cannot be used as a ground to grant bail, for ready reference the relevant
paragraph is being quoted as under:
46. As already discussed, the material available on record indicates the
involvement of the appellant in furtherance of terrorist activities backed
by members of banned terrorist organisation involving exchange of large
quantum of money through different channels which needs to be
deciphered and therefore in such a scenario if the appellant is released
on bail there is every likelihood that he will influence the key witnesses of
the case which might hamper the process of justice. Therefore, mere
delay in trial pertaining to grave offences as one involved in the instant62 B.A. No. 8321 of 2024
2025:JHHC:12446case cannot be used as a ground to grant bail. Hence, the aforesaid
argument on behalf of the appellant cannot be accepted..
116. This Court has considered the aforesaid aspect of the matter and relying
upon the judgment rendered by the Hon’ble Apex Court in the case of
Gurwinder Singh v. State of Punjab (supra) as also the case of the other
co-accused having been rejected and even in some of the cases, the
Hon’ble Apex Court has refused to enlarge them on bail, hence, this
Court, in view of the aforesaid fact and discussion made hereinabove, is
of the view that it is a case where the present application is fit to be
dismissed.
117. Accordingly, the instant application stands dismissed.
118. Pending interlocutory application(s), if any, also stands disposed of.
119. It is made clear that views expressed in this order are prima facie for
consideration of matter of bail only.
(Sujit Narayan Prasad, J.)
Saurabh/-
A.F.R.
63 B.A. No. 8321 of 2024