Jammu & Kashmir High Court
Naresh Kumar Gulia vs Directorate Of Enforcement And Anr on 15 July, 2025
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Sr. No. 73 Suppl
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
(Through Virtual mode)
Bail application no. 51/2025 with
CrlM No. 331/2025
Naresh Kumar Gulia .....Appellant(s)/Petitioner(s)
Through: Mr. Adwait Singh Sirohi, adv with
Mr. Hemant Mishra, adv and
Mr. Abid Khan, adv
vs
Directorate of Enforcement and anr. ..... Respondent(s)
Through: Mr. Vishal Sharma, DSGI
Coram: HON'BLE MR. JUSTICE MOHD. YOUSUF WANI, JUDGE
JUDGMENT
15.07.2025
1. Through the medium of the instant petition having been filed under
the provisions of Section 482 of Bhartiya Nagarik Suraksha Sanhita,
2023, (hereinafter referred to as the “BNSS” for short), the petitioner has
sought the grant of pre-arrest bail in his favour in respect of the case No.
ECIRO/SRZO/922 U/ss 3 & 4 of Prevention of Money Laundering Act
2002, (hereinafter referred to as the “PMLA” for short), registered with
respondent No.1 on the grounds, inter alia that he is a law abiding and
peace loving citizen of India having deep roots and commanding great
respect in the society; that he is presently residing at House No. 63 Ghati
River Valley, Dhoran Goan, Dehradun alongwith his family since June,
2019 in connection with the higher studies of his children, having his
permanent address as VPO Lath The-Gohana, Sonipat, Haryana; that he is
having clear antecedents at his credit and has never been involved in any
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case till the time the respondent No.1 implicated him falsely and frivolously
in ECIR/02/SRZO/2022 U/ss 3 and 4 of PMLA, despite himself being a
victim of the alleged crime; that the main accused whose names came first
in the basic complaint filed before the District Magistrate, Leh namely A.R
Mir and Ajay Kumar Choudhary have already been granted bail which fact
entitles him to be treated with parity; that all the evidence referred to by the
respondent no.1 is documentary in nature and as such there is no need of
his custodial interrogation in the case; that the investigation in the case has
been pending since long and the final charge report is yet to be filed; that he
knew about the registration of the case with the Directorate of respondent
No.1 only on 25.01.2025 when the personnel from ED conducted a raid at
his house in Dehradun as he had been named by one of the co-accused; that
till the filing of the application he did not receive any notice or information
for association with the Investigation Agency; that he was not knowing that
his brother with whom he is not having cordial relationship was being
investigated for a crime; that it was subsequently learnt by him that
adjudicating Authority on 14.01.2025, on the basis of some summons dated
14.12.2024 purportedly issued against him for his appearance through
video conferencing (VC) before him on 27.12.2024, which notice he never
received, had passed ex-parte attachment order without application of mind
and appreciation of facts; that he is ready and willing to associate during
investigation of the case and to make his statements in respect of the
required issues; that he is a Matriculate of 1997 who joined the Indian Army
on 28.04.1998 from Rohtak BRO and during his service period rendered
services at so many places including Jabalpur, Jammu, Leh, Delhi, UN
Peace keeping force (Congo) and after rendering the services for 18 years,
finally took VRS on 31.01.2016 when he was holding the rank of Hawaldar;
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that in the year 2017 he was approached by the owner of a Company
namely “Emollient Coin” to work with the same, as an employee
(promoter); that he was offered to serve the Company on account of his past
administrative experience from military career; that he also attended
various meetings and seminars for which he was paid by the Company; that
he was also required to invested some amount and to also associate/refer
some of his friends and relatives with the business concern of the company;
that he invest a sum of Rs. 10/- lacs from his retirement fund and besides
prevailed upon some of his acquaintances to also join the business of the
company; that he had no relation in terms of ownership with “The Emollient
Coin Ltd” bearing registration no. 10987434 being incorporated on
28.09.2017 with its Registered office at 90, Paul Street old street Shoreditch
London, UK with Henry Maxwell R/o 110, Theydon Street Walthamstow,
London U.K; that a case FIR No. 16/2020 dated 05.03.2020 came to be
registered against A.R Mir & Ajay Kumar Choudhary at Police station Leh,
Ladakh U/s 420 IPC corresponding to Section 318 of the BNSS; that it is
wrongly alleged that he represents the “Emollient company Ltd” as
promoter in India and abroad with Mr. Channi Singh as promoter in North
India; that it is also wrongly alleged that the said company was dissolved
on 05.03.2019; that it is also wrongly alleged that another company “M/s
Tech Coin Ltd” was registered on 25.03.2019 to run the Ponzi scheme of
fake crypto currency “Emollient/Tech Coin” which company was also
dissolved on 12.01.2021 thereby cheating hundreds of people; that it is
wrongly alleged that he and the other two co-accused have lured innocent
public to purchase self-generated Emollient fake crypto currency by taking
cash or money transferred into the bank accounts under the control of
suspects; that it is also wrongly alleged that they exchanged their bit coins
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with the said crypto-currency through their mobile applications with the
assurance of 10% monthly returns with the locking period of 10 months to
be extended to 20 months with offer of 7% commission on the public
investment; that it is also wrongly alleged that the afore-named Ajay
Kumar and A.R Mir as Directors of Company “Annie Multi Trade Private
Limited” had also opened an account with the J&K Bank at Jammu and
parked the proceeds obtained under the aforesaid Ponzi scheme with
intention to purchase plots/land; that it is also wrongly alleged without any
documentary proof that he received Rs.2.05 Crores from Sh. Ajay Kumar
Choudhary (co-accused) out of the business income from “The Emollient
Coin Ltd”; that it is also wrongly alleged that huge amount in Crores was
credited to their bank accounts out of the money received from the public by
cheating them under the “The Emollient Coin scheme”; that the house
which was raided by the Directorate of the respondent No.1 was not
belonging to him at that time; that no statement recorded U/s 50 of the
PMLA is admissible against the accused; that no incriminating evidence
has been found by the investigating agency against him and instead fake and
concocted stories have been hatched regarding the receipt of cash by him
and his brother just as an eyewash to falsely implicate and make him a
scape goat to shield the actual culprits; that he is not involved in any
alleged act of money laundering and has only been made a scapegoat for the
crimes done by the others despite himself being the victim of
the crime; that he had already filed a similar application before the High
Court of Delhi which came to be withdrawn by him with liberty to approach
this jurisdictional Court; that he was never named in the basic
complaint/FIR; that other co-accused have already been granted regular and
anticipatory bail which justifies his equal treatment on parity; that he is
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willing to surrender his passport before the adjudicating authority or any
other authority as directed by the court; that he shall be greatly prejudiced in
terms of his fundamental rights of life and liberty in case he is being arrested
on false and frivolous grounds; that since he is deeply rooted in the society
as such there is no question of his misusing the concession of bail and that
he shall abide by any conditions that may be imposed by this Court.
2. The respondent No.1 i.e., Enforcement Directorate has very
vehemently resisted the bail application on the grounds that all the
averments, grounds and submissions made by the petitioner in the bail
application are absolutely false, vague, non-specific, baseless and concocted
warranting outright rejection of the petition. That the petitioner is not a
senior citizen as alleged as his Date of Birth (DOB) is 4 th June 1981 which
reveals him of the age of 46 years only. That the petitioner cannot seek
parity as the case of each individual accused is to be considered and
appreciated in its own backdrop. That the petitioner has been evading
investigation and has demonstrably failed to co-operate with authorities.
That despite being served with multiple summons he has persistently
sought to elude the legal process thereby indicating clear intention to
frustrate the course of justice. That the petitioner is involved in heinous and
multi-dimensional economic scam, as such, cannot claim extra ordinary
concession of pre-arrest bail. That the petitioner cannot raise the issue on
admissibility or otherwise of the evidence being collected by the
Investigating Agency at the initial stage of investigation as being the concern
of the trial. That the petitioner is the actual master mind who was the
promoter and managed the company “The Emollient Coin Ltd” for running
the business of selling a fake “crypto currency” and “Emollient Coin” and
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chain multi-level marketing business. That he also designed and managed
fake mobile applications “Emollient Coin” for the said fraud scheme which
was under his control. That however, the said company was deliberately
struck off and dissolved on 05.03.2019, whereafter with ill intention he
incorporated another company “M/s Tech Coin Ltd” registration no.
11903739 dated 25th March 2019 with its registered office at the same place
of the “The Emollient Coin Ltd”. That in Sept., 2019 the value of the said
fake coin was deliberately driven down by the applicant before the
completion of locking period and the said mobile application suddenly
stopped working in the month of October/November 2019, thereby cheating
hundreds of gullible people who lost their hard earned money, however, the
said company was also dissolved on 12.01.2021. That the petitioner along
with various team leaders namely Ajay Kumar Choudhary and A. R Mir had
organized various seminars and at many places in India including J&K and
Ladakh and also in other countries including Vietnam, Philippines, and
Cambodia to entice the people into the said Ponzi Scheme. That the
petitioner and other co-accused dishonestly lured hundreds of innocent
people not only from India but also from South Asian countries to purchase
self-generated fake crypto Emollient Coin by taking cash or money
transferred into the bank accounts under the control of suspects or exchange
their “bit coin” with the said “crypto coin” through their mobile application
with the assurance of returns up to 40% with the locking period of 10
months to be extendable to 20 months with the promise of commission up
to 7% on the investment made by the subscribers. That during the course of
investigation searches under section 17 of PMLA were conducted at six
premises of Shri Ajay Kumar Choudhary, A. R Mir, Mrs. Tashi Lambo and
Shri Naresh Gulia on 02.08.2024 and various documents were seized during
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the course of such searches across Jammu, Leh and Sonipat (Haryana). That
the evidence was scrutinized and modus operandi unearthed. It is stated that
in respect of retention of seizure of cash, digital devices and bank accounts,
an OA bearing No.1311/2024 dated 29.08.2024 was filed before the learned
Adjudicating Authority under PMLA, New Delhi on 30.8.2024 which was
confirmed by the learned Adjudicating Authority on 06.01.2025. That during
the course of search, the petitioner was not available at his address i.e., Gali
No. 24, Mayur Vihar, Sec-21, Sonipat, Haryana. That during the course of
such search dated 02.08.2024, cash amount of Rs. 91/- lac has been seized
under the Panchnama. That the co-accused Mr. Ajay Kumar Choudhary
and A. R Mir during their statements admitted the handing over of the cash
to the petitioner through the desired mode. That during the course of
investigation it has been established that petitioner is in possession of
proceeds of crime to the tune of Rs. 6.05 Crores who despite receiving two
summons for recording his statement U/s 50 of the PMLA is intentionally
and deliberately avoiding his association, for siphoning of the proceeds of
crime accumulated by him. That the petitioner is not co-operating in the
investigation which is causing injustice to the innocent people who invested
their hard earned money bonafidely in the said bogus “Crypto
currency/Emollient Coin” Ponzi scheme of the petitioner. That petitioner has
wrongly invoked the jurisdiction of this court seeking of pre-arrest bail as
he has failed to establish the proximity between his act and the jurisdiction
of this court invoked by him. That the bar imposed U/s 45 of the PMLA
under the twin conditions is applicable in case of regular bail and as such the
said twin conditions are deemed to be imported with great force in an
anticipatory bail application. That the proceeds of crime generated by
offences committed by all the accused have been traced out to the tune of
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Rs. 6.05 crores which specifically involved the petitioner to the tune of
Rs.57/- lacs as said amount was found to have been transferred by Shri A.R
Mir and Ajay Kumar Choudhary from the bank account of M/s Annie
Multitrade Pvt. Ltd to the nominated accounts of the petitioner as per his
directions. That there are more than 2000 people in Leh alone who have
been cheated through the scam under investigation. That the petitioner has
been absconding and his last known whereabouts were in Thailand as per the
investigation conducted by the respondent. That he has not joined the
investigation despite receiving the summons from the respondent and thus
their exists strong suspicion that he is not within the territorial limits of
India. That the petitioner’s presence in custody is imperative for the logical
and result oriented investigation.
3. I have heard the learned counsel for the parties and considered their
submissions. The law referred to and relied upon from both the sides has
also been perused.
4. The facts of the prosecution case are that based on a compliant
received from the Additional District Magistrate, Leh, an FIR No. 16/2020
dated 05.03.2020 was registered under Section 420 of IPC, 1860 by the
Police at Police Station, Leh against Mr. A.R. Mir S/o Aziz Mir, Mr. Ajay
Kumar Choudhary S/o Satpal Choudhary & Others. That as per the said
FIR, an inquiry was conducted by the committee constituted by District
Magistrate Leh against Mr. A. R. Mir and his agents who were running an
Emollient coin business from the office located at Anjuman Moin-Ul-
complex opposite SNM Hospital, Leh which was sealed by the said
committee for cheating many innocent individuals by assuring them to
double their investment. That an FIR No. 16/2020 dated 05.03.2020 was
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registered under Section 420 of IPC which is a scheduled offence under Part-
A, Paragraph 1 of Scheduled to PMLA, 2002, an ECIR bearing No.
ECIR/SRZO/02/2022 dated 25.03.2022 was recorded and investigation
under PMLA, 2022 was initiated. That the District Police Office Leh
(Ladakh) vide its letter dated 07.03.2022 informed that the scheduled
offence has generated proceeds of crime by way investments made by 2508
investors to the tune of Rs. 7,34,36,267/- Crore (approx.). That, during the
course of investigation, Proceeds of Crime are estimated to the tune of Rs.
16.81 Crore. That the estimation has been calculated as per the material in
shape of bank account statements, ITRs and statement recorded under
Section 50 of Prevention of Money Laundering Act, 2002. That the
petitioner is the actual master mind who was the promoter and managed the
company “The Emollient Coin Ltd” for running the business of selling a
fake “crypto currency” and “Emollient Coin” and chain multi-level
marketing business. That he also designed and managed fake mobile
applications “Emollient Coin” for the said fraud scheme which was under
his control. That however, the said company was deliberately struck off and
dissolved on 05.03.2019, whereafter with ill intention he incorporated
another company “M/s Tech Coin Ltd” registration no. 11903739 dated 25th
March 2019 with its registered office at the same place of the “The
Emollient Coin Ltd”. That in Sept., 2019 the value of the said fake coin was
deliberately driven down by the applicant before the completion of locking
period and the said mobile application suddenly stopped working in the
month of October/November 2019, thereby cheating hundreds of gullible
people who lost their hard earned money, however, the said company was
also dissolved on 12.01.2021. That the petitioner along with various team
leaders namely Ajay Kumar Choudhary and A. R Mir had organized various
10seminars and at many places in India including J&K and Ladakh and also
in other countries including Vietnam, Philippines, and Cambodia to entice
the people into the said Ponzi Scheme. That the petitioner and other co-
accused dishonestly lured hundreds of innocent people not only from India
but also from South Asian countries to purchase self-generated fake crypto
Emollient Coin by taking cash or money transferred into the bank accounts
under the control of suspects or exchange their “bit coin” with the said
“crypto coin” through their mobile application with the assurance of returns
up to 40% with the locking period of 10 months to be extendable to 20
months with the promise of commission up to 7% on the investment made
by the subscribers. That during the course of investigation searches under
section 17 of PMLA were conducted at six premises of Shri Ajay Kumar
Choudhary, A. R Mir, Mrs. Tashi Lambo and Shri Naresh Gulia on
02.08.2024 and various documents were seized during the course of such
searches across Jammu, Leh and Sonipat (Haryana). That the evidence was
scrutinized and modus operandi unearthed. It is stated that in respect of
retention of seizure of cash, digital devices and bank accounts, an OA
bearing No.1311/2024 dated 29.08.2024 was filed before the learned
Adjudicating Authority under PMLA, New Delhi on 30.8.2024 which was
confirmed by the learned Adjudicating Authority on 06.01.2025. That during
the course of search, the petitioner was not available at his address i.e., Gali
No. 24, Mayur Vihar, Sec-21, Sonipat, Haryana. That during the course of
such search dated 02.08.2024, cash amount of Rs. 91/- lac has been seized
under the Panchnama. That the co-accused Mr. Ajay Kumar Choudhary
and A. R Mir during their statements admitted the handing over of the cash
to the petitioner through the desired mode. That during the course of
investigation it has been established that petitioner is in possession of
11proceeds of crime to the tune of Rs. 6.05 Crores who despite receiving two
summons for recording his statement U/s 50 of the PMLA is intentionally
and deliberately avoiding his association, for siphoning of the proceeds of
crime accumulated by him. That the petitioner is not co-operating in the
investigation which is causing injustice to the innocent people who invested
their hard earned money bonafidely in the said bogus “Crypto
currency/Emollient Coin” Ponzi scheme of the petitioner. That petitioner has
wrongly invoked the jurisdiction of this court seeking of pre-arrest bail as
he has failed to establish the proximity between his act and the jurisdiction
of this court invoked by him. That the bar imposed U/s 45 of the PMLA
under the twin conditions is applicable in case of regular bail and as such the
said twin conditions are deemed to be imported with great force in an
anticipatory bail application. That the proceeds of crime generated by
offences committed by all the accused have been traced out to the tune of
Rs. 6.05 crores which specifically involved the petitioner to the tune of
Rs.57/- lacs as said amount was found to have been transferred by Shri A.R
Mir and Ajay Kumar Choudhary from the bank account of M/s Annie
Multitrade Pvt. Ltd to the nominated accounts of the petitioner as per his
directions. That there are more than 2000 people in Leh alone who have
been cheated through the scam under investigation.
5. Keeping in view the perusal of the instant bail application, the
objections filed in rebuttal and the consideration of the rival arguments
advanced on both the sides, this Court in the light of law on the subject is
convinced that it may not meet the ends of justice in case the petitioner is
granted the extra ordinary concession of pre-arrest bail, which is aimed at to
12protect only those who genuinely apprehend their arrest on false and
frivolous grounds.
6. Originally, concept of pre-arrest bail was conceived after confronting
with the situations in the society whereunder on account of political and
other rivalries and differences, arrests used to be managed and facilitated
on account of frivolous charges. With widened scope of the concept of the
liberty under the judicial pronouncements, the concession of pre-arrest bail
came to be extended also to those whose involvement was no doubt prima
facie established in the crime but no need was felt to have them in custody
for their interrogation. Thus, pre-arrest bail used to be extended to those
accused regarding whom no apprehension of their misuse of the concession
of bail by non-cooperation during investigation or their absconding at the
trial or threatening of the prosecution witnesses was felt. Such concession of
pre-trial bail used to be extended in the cases where the procedural law or
any special statute did not place an immediate embargo on the grant of bail.
7. No doubt the Hon’ble Apex Court in its judgment cited as
“Siddharam Satlingappa Mhetre vs. State of Maharashtra” decided on
02.12.2010, Air 2011 SC 312, has interpreted the law on the subject of
the anticipatory bail with a very outlook and while interpreting concept
of the liberty guaranteed under Article 21 of the Constitution of our
country in a flexible and broader sense, so much so that the Hon’ble
Apex court held the earlier law on the subject as laid down in Chain Lal
vs. State of Madhya Pradesh (1976) 4 SCC 572; Salau-ud-din Abdul
Samad Heikh vs. State of Maharastra AIR 1996 SC 1042; K. L. Verma
vs. state and another 1996 (7) SCALE 20; Sunita Devi vs. State of Bihar
and another AIR @)% SC 498; 2005 AIR (Criminal) 112; Adri Dharan
13Das vs. state of West Bengal AIR 2005 SC 1057 and Naresh Kumar
Yadoo vs. Ravinder Kumar and others 2008 AIR (SC 218) decided on
23rd October 2007, as per incuriam.
8. The Hon’ble Apex Court in the above referred judgment Siddharam
Satlingappa Mhetre laid down the following factors and parameters for
consideration while dealing with anticipatory bail:
a) The nature and gravity of the accusation and the exact role
of the accused must be properly comprehended before arrest
is made;
b) The antecedents of the applicant including the fact as to
whether the accused has previously undergone
imprisonment on conviction by a court in respect of any
cognizable offence;
c) The possibility of the applicant to flee from justice;
d) The possibility of the accused’s likelihood to repeat similar
or the other offences.
e) Whether the accusations have been made only with the
object of injuring or humiliating the applicant by arresting
him or her;
f) Impact of grant of anticipatory bail particularly in cases of
large magnitude affecting a very large number of people;
g) The courts must evaluate the entire available material
against the accused very carefully. The court must also
clearly comprehend the exact role of the accused in the case.
The cases in which accused is implicated with the help of
section 34 and 149 of the Indian Penal Code, the court
should consider with even greater care and caution because
over implication in the cases is a matter of common
knowledge and concern;
h) While considering the prayer for grant of anticipatory bail, a
balance has to be struck between two factors namely, no
prejudice should be caused to the free, fair and full
investigation and there should be prevention of harassment,
humiliation and unjustified detention of the accused;
i) The court to consider reasonable apprehension of tampering
of the witness or apprehension of threat to the complainant;
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j) Frivolity in prosecution should always be considered and it
is only the element of genuineness that shall have to be
considered in the matter of grant of bail and in the event
of there being some doubt as to the genuineness of the prosecution in
the normal course of events, the accused is entitled to an order of bail.
9. In its judgment titled Sushila Aggarwal and ors vs. State (NCT of
Delhi) and another decided on 29th January 2020, a larger bench of
Hon’ble Apex Court was pleased to inter-alia lay down the following
guiding principles for consideration of the pre-arrest bail application by
the Courts:
(i) Nothing in Section 438 Cr. P.C. compels or obliges courts to
impose conditions limiting relief in terms of time, or upon
filing of FIR, or recording of statement of any witness, by
the police, during investigation or inquiry, etc. While
considering an application (for grant of anticipatory bail) the
court has to consider the nature of the offence, the role of the
person, the likelihood of his influencing the course of
investigation, or tampering with evidence (including
intimidating witnesses), likelihood of fleeing justice (such as
leaving the country), etc. The courts would be justified and
ought to impose conditions spelt out in Section 437 (3), Cr.
PC [by virtue of Section 438.
(ii) The need to impose other restrictive conditions, would have
to be judged on a case by case basis, and depending upon the
materials produced by the state or the investigating agency.
Such special or other restrictive conditions may be imposed if
the case or cases warrant, but should not be imposed in a
routine manner, in all cases. Likewise, conditions which limit
the grant of anticipatory bail may be granted, if they are
required in the facts of any case or cases; however, such
limiting conditions may not be invariably imposed.
(iii) Courts ought to be generally guided by considerations such
as the nature and gravity of the offences, the role attributed to
the applicant, and the facts of the case, while considering
whether to grant anticipatory bail, or refuse it. Whether to
grant or not is a matter of discretion; equally whether and if
so, what kind of special conditions are to be imposed (or not
imposed) are dependent on facts of the case, and subject to
the discretion of the court.
(iv) Anticipatory bail granted can, depending on the conduct and
behaviour of the accused, continue after filing of the charge
sheet till end of trial. An order of anticipatory bail should not
15
be blanket in the sense that it should not enable the accused
to commit further offences and claim relief of indefinite
protection from arrest. It should be confined to the offence or
incident, for which apprehension of arrest is sought, in
relation to a specific incident. It cannot operate in respect of a
future incident that involves commission of an offence.
(v) An order of anticipatory bail does not in any manner limit or
restrict the rights or duties of the police or investigating
agency, to investigate into the charges against the person who
seeks and is granted pre−arrest bail.
10. Admittedly, while considering the anticipatory bail under section 482
of the BNSS, the court has to primarily satisfy itself regarding the conditions
precedent for seeking such special relief and when such prior conditions are
fulfilled, then the court has to consider all those principles and guiding
rules which are necessary under law for consideration of a regular bail
application., inter alia including the following:
i) The judicial discretion must be exercised with the utmost care
and circumspection.
ii) That the Court must duly consider the nature and the
circumstances of the case including:
a. A reasonable apprehension of the witnesses
being tampered;
b. Investigation being hampered or
c. The judicial process being impeded or subverted.
iii) The liberty of an individual must be balanced against the
larger interests of the society and the State;
iv) The court must weigh in the judicial scales, pros and cons
varying from case to case all along bearing in mind two
paramount considerations viz;
v) Grant of bail quo an offence punishable with death or
imprisonment for life is an exception and not the rule;
vi) The court at this stage is not conducting a preliminary trial but
only seeking whether there is a case to go for trial;
vii) The nature of the charge is the vital factor, the nature of
evidence is also pertinent, the punishment to which the party
may be liable also bears upon the matter and the likelihood
of the applicant interfering with the witnesses or otherwise polluting the
course of justice.
viii) The facts and circumstances of the case play a predominant role.
16
(AIR 1962 SC 253; AIR 1978 SC 179: AIR 1978 429; 2003(ii)
SLJ 389; 2004 (7) SCC 525; 2005 (1) SLJ 189; AIR 2005 SC
716; AIR 2007 SC 32458; AIR 2007 SC 451 and 2007 (ii) SLJ
634.
11. The Hon’ble Apex Court in Gur Bakash Singh vs. State of Punjab
AIR 1980 SC 1632, referred to the following extract from the American
jurisprudence having bearing on the subject of bail, “where the grant of
bail lies within discretion of the court, granting or denial is regulated to
a large extent, by the facts and circumstances of each particular case.
Since the object of detention order/imprisonment of the accused is to
secure his appearance and submission to jurisdiction and the judgment
of the court, the preliminary enquiry is whether a recognizance or bond
would effect that end. It is thus clear that the question whether to grant
bail or not depends for its answer upon a variety of circumstances, the
cumulative effect of which must enter into the judicial verdict. Any one
single circumstance cannot be treated as of universal validity or
necessarily justifying the grant or refusal of bail.”
12. It has been held in State of Rajasthan Jaipur vs. Balchand AIR
1977 SC 2447 I that it is true that the gravity of the offence involved is
likely to induce the petitioner to avoid the course of justice and must
weigh with the court when considering the question of bail.
13. It is a trite that two paramount considerations viz: likelihood of
accused fleeing from justice and his tampering with prosecution
evidence relate to the ensuring of fair trial of the case in a court of
justice, It is essential that due and proper weightage should be bestowed
on these two factors apart from others. The requirements as to bail are
17
merely to secure the attendance of the accused at the trial (Gurcharan
Singh vs. State (Delhi Administration) AIR 1978 SC 179; G. Nara
Simhula vs. Public Prosecutor Andhra Pradesh AIR 1978 SC 429; Assad
Ullah Khan and Others vs. State of Jammu & Kashmir SLJ 1980 J&K
31; Jeet Ram and etc. etc. vs. State of Himachal Pradesh 2003 Cr. Law
Journal 736).
14. Bail or jail at the pre-trial or post conviction stage belongs to the
blurred area of the criminal justice system and largely hinges on the
hunch of the bench, otherwise called judicial discretion. Personal liberty
deprived when bail is refused is too precious a value of our constitutional
system recognized under Article 21 that the crucial power to negate it is
a great trust exercisable not casually but judiciously with lively concern
for the cost to the individual and the community. After all personal
liberty of an accused or convict is fundamental, suffering lawful eclipse
only in terms of procedure established by law (G. N. Nara Simhula vs.
Public Prosecutor Andhra Pradesh AIR 1978 SC 429).
15. Admittedly the provisions of Section 45 of PMLA restrict granting of
even regular bail to an accused involved in the offences under the Act by
laying down the twin conditions requiring an opportunity of being provided
to the Public Prosecutor to oppose the bail application and after the said
opportunity is provided to the Public Prosecutor 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.
16. It is profitable to reproduce the provision of Section 45 PMLA for the
sake of convenience:-
18
“Section 45. Offences to be cognizable and non-bailable.-
1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973
1(2 of 1974), no person accused of an offence [under this Act] shall be released on
2bail or on his own bond unless–]
(i) the Public Prosecutor has been given a opportunity to oppose
the application for such release; and
(ii) where the Public Prosecutor opposes the application, the court
is satisfied that there are reasonable grounds for believing that he is
not guilty of such offence and that he is not likely to commit any
offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a
woman or is sick or infirm, [or is accused either on his own or along with other
3co-accused of money-laundering a sum of less than one crore rupees] may be
released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any
offence punishable under section 4 except upon a complaint in writing made by–
(i) the Director; or
(ii) any officer of the Central Government or a State Government
authorised in writing in this behalf by the Central Government by a
general or special order made in this behalf by that Government.
4
[(1A) Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer
shall investigate into an offence under this Act unless specifically authorised, by
the Central Government by a general or special order, and, subject to such
conditions as may be prescribed.]
(2) The limitation on granting of bail specified in *** sub-section (1) is in
5
addition to the limitations under the Code of Criminal Procedure, 1973 (2 of
1974) or any other law for the time being in force on granting of bail’.
17. The petitioner is alleged to be involved in heinous offences of
economic nature by being connected with the proceeds of crime. He is
alleged to have cheated thousands of people by luring them to part with their
hard earned money under the false hope and expectation of high percentage
of profit/commission, by dragging them to the bogus “crypto
currency/Emollient Coin” Ponzi Scheme.
18. The petitioner is alleged to have absconded during investigation of the
case and to have not turned up for cooperation with the investigating agency
despite issuance of formal notices under law.
19
19. The presence of the accused in custody before the Investigating
Agency appears to be imperative in the facts and circumstances of the case
for the logical and result oriented investigation in the case.
20. For the fore going discussion, there appears to be no merit in the
application which is dismissed.
(Mohd Yousuf Wani)
Judge
Jammu
15.07.2025
Ayaz
i) Whether the judgment/order is reportable? Yes
ii) Whether the judgment/order is speaking ? Yes
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