Punjab-Haryana High Court
Harsh Yadav vs Directrorate Of Enforcement on 16 January, 2025
Neutral Citation No:=2025:PHHC:011209
CRM M-60553-2024 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
233 CRM M-60553-2024 (O&M)
Date of Decision: 16.01.2025
Harsh Yadav ... Petitioner
Versus
Directorate of Enforcement ... Respondent
CORAM : HON'BLE MR. JUSTICE N.S.SHEKHAWAT
Present : Mr. R.S. Rai, Senior Advocate and
Mr. Anand Chiber, Senior Advocate
Ms. Rubina Virmani, Advocate
Mr. Shikhar Sarin, Advocate
Mr. Arjun S. Rai, Advocate
Ms. Prachi Gupta, Advocate
for the petitioner.
Mr. Zoheb Hossain, Special Counsel (through V.C.) with
Mr. Lokesh Narang, Senior Panel Counsel
for the respondent.
N.S.SHEKHAWAT, J. (Oral)
1. The petitioner has filed the instant petition under Section
483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 with a prayer to
grant a regular bail in ECIR No. ECIR/04/STF/2019 dated 31.05.2019
under Sections 3 and 4 of the Prevention of Money Laundering Act,
2002, (hereinafter to be referred as ‘the PMLA 2002’) registered by
the Directorate of Enforcement, New Delhi.
2. Learned senior counsel appearing on behalf of the
petitioner has vehemently argued that the petitioner had no concern
with the commission of the offence, as alleged by the prosecution and
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has been falsely involved in the present case without any due cause
and reason. He further contends that in the present case, the ECIR was
recorded by the Directorate of Enforcement-respondent on
31.05.2019. The investigation was initially initiated against Amit
Kumar, Sanjay Singh, Archana Sharma, M/s Zatak Softech Private
Limited, M/s Farma Glow, M/s Sanjay Enterprises, M/s Archit
Biotech and M/s Amit Enterprises under the PMLA, 2002 on the basis
of ‘Narcotics Control Bureau’ (NCB), Crime Case No. 18/2018 dated
02.08.2018 invoking scheduled offences under Sections 22, 23 and 29
of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985
(hereinafter to be referred as ‘the NDPS Act, 1985‘).
3. As per the investigation, the proceeds from illegal export
and sale of psychotropic substances to individuals outside India
amounting to Rs. 23.32 crores, were received in the bank accounts of
the M/s Zatak Softech Private Limited (hereinafter to be referred as
‘M/s ZSPL’), M/s Sanjay Enterprises, Amit Kumar and Archana
Sharma. These funds were disguised as payments for software
services to Jesch LLC, USA. Certain psychotropic substances covered
under the NDPS Act 1985 were illegally exported by Amit Kumar
alongwith other medicines after receiving online orders on various
websites created by him. The illegal export of psychotropic
substances was done by Amit Kumar through his firm M/s Farma
Glow in which he and his wife Archana Sharma were the partners.
Amit Kumar and Archana Sharma were the directors in M/s ZSPL and
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the company was used as facade of an IT Company to camouflage the
illicit trafficking of psychotropic substances. Amit Kumar prepared
forged and fabricated documents for illegal exports of psychotropic
substances and used the fake/forged stamps of different Government
Departments. Amit Kumar also created a bogus agreement between
Jesch LLC, USA and M/s ZSPL. On the basis of the said fake
agreement, the bills were raised by M/s ZSPL in the name of Jesch
LLC, USA for providing software services and in the guise of
providing software services, the proceeds of illegal export and sale of
psychotropic substances amounting to Rs. 23.32 crore was received
from Jesch LLC, USA by M/s ZSPL, M/s Sanjay Enterprises, Amit
Kumar and Archana Sharma. Even, Sanjay Singh, driver of Amit
Kumar also aided in the commission of the scheduled offences and
the proceeds of crime were also received in Sanjay Singh’s
proprietary concern M/s Sanjay Enterprises. The proceeds of crime
were layered through multiple bank transfers among their personal
bank accounts and those of their business entities and were thereafter
integrated by Amit Kumar, Archana Sharma and Sanjay Singh in the
mainstream business activities of the entities owned/controlled by
them. Parts of the proceeds of crime were also utilized by Amit
Kumar & Archana Sharma through acquisition of immovable
properties. It was also alleged that complaint in ECIR was filed before
the Court on 23.02.2022 and the cognizance of the offence of money
laundering against all the 12 accused, namely M/s Farma Glow,
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M/s Sanjay Enterprises, M/s Amit Enterprises, Amit Kumar, Sanjay
Singh, Archana Sharma, Arti Sharma, Ragini Sharma, Pankaj Kumar
Sharma, M/s Suryakant Sharma and Amit Sharma, vide order dated
29.03.2022. A property, i.e. IT Office premises bearing No.343,
Tower-B3, 3rd Floor, Spaze-I, Tech Park, Sector-49, Gurugram,
Haryana registered in the name of Arti Sharma was attached vide
PAO dated 31.08.2020 as direct proceeds of crime. The Adjudicating
Authority, confirmed the attachment on 25.02.2021 and the
possession was taken by the Directorate of Enforcement under
Section 8(4) of the PMLA 2002, on 31.03.2021. The respondent
received a letter dated 25.08.2021 from maintenance agency of IT
Spaze Park stating that the seal affixed by the respondent on the
property had been removed by someone. Upon enquiry, the Manager
of Spaze IT Park had mentioned in the respondent’s enquiry letter
dated 16.09.2021 that the present petitioner had de-sealed the Unit
No.343 on 25.08.2021. The respondent-ED also sent an officer at the
said property on 18.07.2024. As per the visit report, it was found that
said property has been leased out to a company namely M/s Eminent
Land and Investment Planner Pvt. Ltd. The officer enquired from the
maintenance agency of IT Spaze Park and he was informed that the
said property has been leased out by Smt. Babita Yadav, mother of
petitioner Harsh Yadav. The respondent further alleged that with
regard to the incident of breaking of the seal affixed by the
respondent-ED, one FIR No.246 dated 25.08.2024 under Sections
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188, 448 and 453 of IPC, Police Station Sector-50 Gurugram was got
registered by respondent-ED. Thereafter, on 10.09.2024, the petitioner
was summoned under section 50 of the PMLA, 2002 for examination.
During the course of interrogation, it was revealed that the petitioner
was aware of the fact that the said property, i.e., Unit No.343, Tower-
B3, 3rd Floor, Spaze-I, Tech Park, Sector-49 Gurugram, had been
purchased from the money derived by illicit trafficking of
psychotropic substances. Even, the petitioner was completely aware
of the fact that the said property had been attached by the
respondent-ED and the possession had also been taken by the ED by
way of sealing and affixation of eviction notice and notice for taking
possession. During the course of examination under section 50 of the
PMLA 2002, it was also found that mobile phone of the petitioner
contained multiple incriminating documents and the screenshots of
the same were submitted by him under Section 50 of the PMLA,
2002.
4. The statement of the petitioner was recorded under
Section 50 of the PMLA, 2002 and it has been disclosed that the
petitioner had control over the property and he had further rented it
out to Nishant Sirohi. He disclosed that his mother was owner of the
property on paper only and he used to handle the collection of rent for
the property. The value of the above mentioned property bearing
No.343, Tower-3B, 3rd Floor, Spaze-1, Tech Park, Sector-49,
Gurugram and of the property bearing No.12-B Floor, Spaze IT Park,
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Gurugram, is Rs.85,60,000/- each. The petitioner was gaining rent
from Nishant Sirohi to the extent of Rs.30,000/- per month since
December 2022, which also amounts to proceeds of crime.
5. It was further alleged by the respondent-ED that the
petitioner was associated with Arti Sharma and Archana Sharma, the
main accused in the present case since 2018-2019. Thus, by way of
taking/attempting to take illegal possession of the properties, knowing
well that the above properties were direct proceeds of crime generated
from the scheduled offences of illicit drug trafficking and had been
attached and taken possession thereof by the respondent-ED under the
PMLA 2002, the petitioner had also actively indulged in dissipation
of the proceeds of crime acquired from the offence of drug trafficking
by Amit Kumar and Archana Sharma in the present case. Even, the
petitioner was utilizing the proceeds of crime to his benefit by
illegally possessing the above properties and had illegally given the
attached property on rent to Nishant Sirohi. Apart from that, he had
projected the property as untainted property by way of giving it
further on rent and the petitioner was involved in various processes
and activities connected to proceeds of crime, as defined under
Section 2(1)(u) generated out of the scheduled offences including its
possession, concealment, use as well as projecting or claiming it as
untainted property. Thus, the petitioner had committed offence of
money laundering as defined under Section 3 of the PMLA 2002,
which was made punishable under Section 4 of the PMLA 2002.
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6. Learned senior counsel has vehemently argued that the
petitioner had no concern with the business, financial affairs, various
transactions and business activities of the 12 accused, namely,
M/s Farma Glow, M/s Sanjay Enterprises, M/s Amit Enterprises, Amit
Kumar, Sanjay Singh, Archana Sharma, Arti Sharma, Ragini Sharma,
Pankaj Kumar Sharma, M/s Suryakant Sharma and Amit Sharma. In
fact, he had been falsely involved only by alleging that he had broken
the seals of the property, which was attached by the respondent-ED
and consequently, one FIR No.246 dated 25.08.2024 under Sections
188, 448 and 453 of IPC, Police Station Sector-50 Gurugram
(Annexure P-6) was registered against him. It was also further alleged
that the petitioner had leased out the said property to one Nishant
Sirohi and was receiving the rent @ Rs.30,000/- per month since
December 2022. Except that no other role has been assigned to the
petitioner and no offence, as alleged is made out against the petitioner.
7. Learned senior counsel for the petitioner further submits
that the property in question, i.e., property bearing No.343, Tower-B3,
3rd Floor, Spaze-I, Tech Park, Sector-49, Gurugram, was leased out in
June 2018 by Arti Sharma to Unnativesh India Pvt. Ltd., wherein,
Babita Yadav, mother of petitioner is a Director. The petitioner or his
mother had no idea that the property had been purchased by Arti
Sharma by using proceeds of crime of any scheduled offences. As per
the lease agreement, the parties had followed due procedure and the
petitioner handed over few security cheques of rent to Arti Sharma.
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After few months, Arti Sharma offered to sell the property to the
mother of the petitioner and she agreed to purchase property in the
name of her company Unnativesh India Pvt. Ltd. Rs. 30 lakh were
paid as part payment to Arti Sharma for said property and an
agreement to sell dated 14.12.2018 was entered into between mother
of the petitioner and Arti Sharma. It was agreed between the parties
that the above lease shall come to an end upon the execution of
agreement to sell and Arti Sharma shall return the advance cheques
which were given to her at the time of execution of lease deed. Thus,
possession was acquired from Arti Sharma by the mother of the
petitioner in a legal manner. At that time, Arti Sharma or any of her
family members were not facing any case of Enforcement Directorate.
Even, the petitioner and his family members had no connection with
Arti Sharma and her family and they were completely unaware about
the activities of Arti Sharma as well as also of the facts as to how
those persons had purchased said property. Even, an agreement to sell
dated 14.12.2018 and a receipt (Annexure P-1) were executed in this
regard.
8. The possession of the property was taken over by the
mother of the petitioner on 14.12.2018 vide possession letter
(Annexure P-2). Arti Sharma failed to return the cheques to the
petitioner and stated that she would return after some time. However,
Arti Sharma later on misused the cheques and filed cases under
Section 138 of the Negotiable Instruments Act 1881 against the
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company of the mother of the petitioner at Haldwani Courts, District
Nainital and the mother of the petitioner was wrongly arrayed as an
accused in the criminal complaint (Annexure P-3). Thus, the mother
of the petitioner was compelled to compound the cases by paying the
amounts in the said complaints as warrants were issued against her by
a Court.
9. Learned senior counsel further vehemently argues that at
the time of entering into lease agreement, agreement to sell and
receipt dated 14.12.2018 with regard to the property in question, no
ECIR was pending against Archna Sharma, Amit Sharma and others.
Even, the petitioner was never aware of any such cases nor about any
activities, which later led to the registration of the case. Still further,
by this time, the petitioner and his mother had regularly reached out
to Arti Sharma for execution of the sale deed, in terms of the
agreement to sell dated 14.12.2018, for which, Arti Sharma, had
already received a sum of Rs. 30,00,000/- from the petitioner and his
mother. Arti Sharma refused to honour the agreement to sell and
consequently, the mother of the petitioner was constrained to file suit
for specific performance for execution of the sale deed in favour of
the Company, on payment of the remaining sale consideration in the
Court of Civil Judge (Senior Division) Gurugram (Annexure P-4).
The notices were issued to Arti Sharma by the Court of Civil Judge
(Junior Division), Gurugram, vide order dated 18.02.2021 (Annexure
P-5).
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10. Learned senior counsel has further argued that the
petitioner had no idea that the property had been attached by the
respondent-ED or the property had been barred from any use as the
ED officials had visited the property in question and had witnessed
the Company being operated from the said premises. Even, the
attachment notice was pasted on other property, which is also under
dispute in the civil suit between the mother of the petitioner and Arti
Sharma. Further, the property in question was leased out by
M/s Unnativesh India Private Limited to Nishant Sirohi, for which,
the Company was getting the monthly rent. However, the monthly
rent can never be termed as tainted money or proceeds of crime. Later
on, respondent-ED got one FIR No.246 dated 25.08.2024 under
Sections 188, 448 and 453 of IPC, Police Station Sector-50 Gurugram
(Annexure P-6) registered against the petitioner.
11. Ultimately, the petitioner was called for questioning
under Section 50 of the PMLA Act 2002 on 10.09.2024 with regard to
ECIR/4/STF/2019 and the petitioner appeared before the
respondent-ED as he was sure that he had no connection with the
alleged scheduled offences nor he or his family members were aware
about the activities of Arti Sharma and her associates and had never
received any proceeds of crime. Learned senior counsel further
submits that the petitioner had no concern with any alleged
placement, layering or integration of proceeds of crime as alleged in
the ECIR. The transactions between Arti Sharma, the petitioner/his
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mother were completely independent of the crime. Moreover, the
petitioner had always cooperated with the respondent-ED and had
tendered all the documents required by them. Learned senior counsel
has further argued that the petitioner was illegally arrested by the
respondent-ED on 11.09.2024 only on the basis of his own
statements, which were taken under duress. However, even on the
basis of the statements made by the petitioner himself, no offence of
money laundering was made out against the present petitioner. The
petitioner was neither named nor arrayed as accused in the FIR of the
scheduled offences, not named in the ECIR and had been prosecuted
only for breaking the seals of the attached properties, which as per his
bonafide impression was already owned by him. Thus, even the arrest
by the respondent-ED was wholly unwarranted and illegal. Apart
from that, the respondent-ED had failed to show that the petitioner
may abscond or may not appear before the authorities as he always
cooperated with the respondent-ED. Even, the petitioner was the
bonafide occupier of the property, for which, the mother of the
petitioner had already filed a civil suit before the Court of Civil
Judge, Junior Division, Gurugram for specific performance and Arti
Sharma had filed a written statement in the said suit. However, even
Arti Sharma did not mention anything about the attachment. Thus, the
petitioner was in possession of the property and the funds had been
procured from legal and genuine transactions for purchasing the said
property. The proceeds of crime, if any, remained in possession of Arti
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Sharma and her family members. He further contends that the
petitioner had been booked for the offences under Section 188, 448
and 453 of IPC, however, none of these offences are scheduled
offences and the petitioner was illegally arrested in the present case.
Learned counsel further contends that even it has been admitted case
of the respondent-ED that the petitioner had been in possession of the
property, which was allegedly attached and the property was never
confiscated. By referring to the ratio laid down by the Hon’ble
Supreme Court in the matter of Vijay Madanlal Choudhary and
others Vs. Union of India and others 2022, SCC Online SC 929,
learned senior counsel has argued that even confirmation of
attachment would not amount to confiscation and ultimately, no order
of confiscation has been pasted for the property in question. Thus, the
petitioner has been wrongly arrested in the present case. Learned
senior counsel further contends that Amit Sharma applied for the
concession of bail and vide order dated 31.05.2022 (Annexure P-12),
he was granted the concession of regular bail by the Court of
Sessions Judge-cum-Special Judge, Gurugram. Similarly, other
accused in the ECIR, namely, Arti Sharma, Ragini Sharma and
Suryakant Sharma had approached the Special Judge under the
PMLA, 2002 for grant of regular bail and their petition was allowed
vide order dated 09.09.2022 (Annexure P-13). The respondent-ED
never challenged the orders (Annexures P-12 and P-13), whereby, the
bail has already been allowed to the main accused in the present case.
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12. Learned senior counsel has further contended that the
mother of the petitioner is undergoing treatment for cancer and being
the only son, the petitioner is taking care of his mother. He has a wife
and a seven month old child at home, who need his support for proper
care of both of them. He is the only person, who is taking care of all
the family members and his case deserves sympathetic consideration
by this Court.
13. On the other hand, learned counsel appearing on behalf
of the respondent submits that Amit Kumar, accused had found a
scheme to seal the tainted origin of immovable properties by
transferring them in the name of his relatives and three properties
located at Spaze-I, Tech Park in Gurugram were acquired directly
from proceeds of crime. These properties were subsequently attached
vide two separate attachment orders, which were confirmed by
Adjudicating Authority and these properties are IT Office Premises
bearing No. 13A, Tower-B3, Floor-0, Spaze-I, Tech Park, Sector-49,
Gurugram, Haryana, IT Office premises bearing No. 343, Tower-B3,
3rd Floor, Spaze-I, Tech Park, Sector 49, Gururam, Haryana and 12-B,
Floor-0, Spaze 1 Tech Park, Sohna Road, Gurugram, Haryana. The
prosecution complaint was filed before the Special Court on
23.02.2022 and the cognizance of offence of money laundering was
taken against 12 accused, namely, namely M/s Farma Glow, M/s
Sanjay Enterprises, M/s Amit Enterprises, Amit Kumar, Sanjay Singh,
Archana Sharma, Arti Sharma, Ragini Sharma, Pankaj Kumar
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Sharma, M/s Suryakant Sharma and Amit Sharma. Even,
subsequently the prosecution complaint was also filed on 16.07.2024
and it was requested that the property located at 12-B, Floor-0, Spaze
I Tech Park, Sohna Road, Gurugram, Haryana may be confiscated.
The possession of attached property at IT Office, bearing No. 343,
Tower-B3, 3rd Floor, Spaze-I, Tech Park, Sector 49, Gurugram
registered in the name of Arti Sharma was taken by the ED on
31.03.2021 and on 25.08.2021, a communication was received from
the maintenance agency of IT Spaze Park that the seal affixed by the
respondent had been removed by one person and it was also
discovered that the petitioner desealed the property. Even an officer
visited the spot on 18.07.2024 and it was found that the property had
been leased out by the petitioner to Nishant Sirohi for a sum of
Rs. 30,000/- per month. Even, another property was in possession of
Harsh Yadav, petitioner and was given on rent for a sum of
Rs. 40,000/- per month. Thus, the petitioner had desealed the
properties and was questioned under Section 50 of the PMLA, 2002.
After recording his statement under Section 50 of the PMLA, 2002, it
was revealed that the petitioner and his mother were completely
aware that the property situated at Unit No. 343, Tower-B-3, 3rd Floor,
Spaze-I, Tech Park, Sector 49, Gurugram was a direct proceed of
crime and the ED had attached the said property. Even, his phone was
impounded and various incriminating evidence was recovered from
the same. Still further, the search and seizure action under Section 17
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of the PMLA 2002 was carried out at his residential premises and
certain incriminating documents were recovered from there. From the
accounts of the petitioner and his mother, it is found that they had
earned income as rent, i.e., the generated proceeds from the attached
proceeds of crime and their bank accounts clearly reflected the receipt
of rent payment from Nishant Sirohi. Thus, the total rent earned by
the petitioner/mother amounting to Rs. 4,40,000/- and a
supplementary complaint qua the petitioner and two others was filed
on 08.11.2024. Thus, there was ample material on record to show the
commission of offence of money laundering by the petitioner and the
petition deserves to be dismissed by this Court.
14. I have heard learned counsel for the parties and perused
the record.
15. From a perusal of the record, it is apparent that ECIR was
recorded by the respondent ED on 31.05.2019 and the investigation
was initially initiated against Amit Kumar, Sanjay Singh, Archana
Sharma, M/s Zatak Softech Private Limited, M/s Farma Glow, M/s
Sanjay Enterprises, M/s Archit Biotech and M/s Amit Enterprises
under the PMLA, 2002 on the basis of ‘Narcotics Control Bureau’
(NCB), Crime Case No. 18/2018 dated 02.08.2018 invoking
scheduled offences under Sections 22, 23 and 29 of the NDPS Act
1985 and it was alleged that the proceeds of illegal exports and sale of
psychotropic substances amounting to Rs. 23.32 crores were received
in the bank accounts of M/s JSPL, M/s Sanjay Enterprises, Amit
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Kumar and Archana Sharma. The illegal export of psychotropic
substances was done by Amit Kumar through his firm M/s Farma
Glow in which he and his wife Archna Sharma were the partners.
Even, the complaint in ECIR was filed before the Court on 23.2.2022
and the cognizance of the offence of money laundering was taken
against 12 accused, namely M/s Farma Glow, M/s Sanjay Enterprises,
M/s Amit Enterprises, Amit Kumar, Sanjay Singh, Archana Sharma,
Arti Sharma, Ragini Sharma, Pankaj Kumar Sharma, M/s Suryakant
Sharma and Amit Sharma, vide order dated 29.03.2022. Still further, a
property of Arti Sharma was attached vide PAO dated 31.08.2020 as
direct proceeds of crime and the Adjudicating Authority had
confirmed the attachment on 25.02.2021 and the possession was taken
by the respondent-ED under Section 8(4) of the PMLA 2002 on
31.03.2021. However, the petitioner had allegedly de-sealed the
property and had leased out the property illegally to a company,
namely, M/s Eminent Land and Investment Planner Private Limited. It
was further alleged that with regard to the incident of breaking of the
seal affixed by the respondent-ED, one FIR No. 246 dated 25.08.2024
under Sections 188, 448 and 453 of IPC, Police Station Sector 50
Gurugram was got registered by the respondent against the present
petitioner. It was further alleged that the petitioner was aware of the
fact that the said property had been purchased from the money
derived by illicit trafficking of psychotropic substances. It was also
further alleged that the mobile phone of the petitioner contained
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multiple incriminating documents and the screenshots of the same
were submitted by him under Section 50 of the PMLA 2002.
However, it is also an admitted case that the petitioner had no concern
with the business, financial affairs, various transactions and business
activities of 12 accused, namely M/s Farma Glow, M/s Sanjay
Enterprises, M/s Amit Enterprises, Amit Kumar, Sanjay Singh,
Archana Sharma, Arti Sharma, Ragini Sharma, Pankaj Kumar
Sharma, M/s Suryakant Sharma and Amit Sharma. The only
allegation against him that he had broken the seals of the property,
which was attached by respondent-ED and one FIR No. 246 dated
25.08.2024 under Sections 188, 448 and 453 of IPC, Police Station
Sector 50 Gurugram was registered against him and he had leased out
the said property to one Nishant Sirohi and had been receiving the
rent at the rate of Rs. 30,000/- per month since December 2022 and
except that no other role has been assigned to the petitioner.
16. It is also an admitted fact that the above referred
accused, namely, Amit Sharma has been granted the concession of
regular bail by the Court of Special Judge under the PMLA, 2002,
Gurugram, vide order dated 31.05.2022 (Annexure P-12). Still
further, all other main accused, namely, Arti Sharma, Ragini Sharma
and Suryakant Sharma have also been granted the concession of
regular bail by the Court of Special Judge under PMLA 2002
Gurugram on 09.09.2022 (Annexure P-13). While granting the
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concession of bail to Arti Sharma, Ragni Sharma and Suryakant, the
Special Court, PMLA, had made the following observations:-
“38. In the present case one of the crucial component to
be determined by this Court is as to whether the
conditions prescribed under section-45 of “Prevention of
Money Laundering Act 2002″ are necessary to be
complied with before enlarging the applicants/accused
on bail and secondly, whether the applicants/accused
have been able to meet out the above mentioned
conditions or not.
39. In this regard the most important element to be taken
into consideration is that during the course of
enquiry/investigation the accused were not arrested by
the respondent/complainant. With regard to arrest of an
accused, Section-19(1) of the “Prevention of Money
Laundering Act 2002″ provides that;
“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.
40. A bare perusal of above mentioned provision shows
that a Director, Deputy Director, Assistant Director or
any other officer of the complainant is authorized to
arrest an accused only when he has the reason to believe
(to be recorded in writing) that the accused has been
guilty of an offence punishable under this Act.
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41. The necessary corollary of the above mentioned
provision shows that if the officer of “Directorate of
Enforcement” is not convinced, on the basis of material
in possession, and they do not have a belief that the
accused is guilty of an offence punishable under this Act,
they cannot arrest a persons. The applicants/accused
were not arrested in this case, which shows that the
officers of respondent/complainant, who were
investigating the present case, were not convinced that
there were reasons to believe that the accused were
guilty of an offence punishable under “Prevention of
Money Laundering Act 2002″.
42. In the light of above mentioned factual matrix of the
instant case, if provisions comprised under section-45 of
the Act are looked-into it transpires that in those cases
where the Public Prosecutor opposes the bail application
the Court has to satisfy itself that there are reasonable
grounds for believing that the accused are not guilty of
such an offence and that they are not likely to commit
any offence while on bail.
43. As far as the first component of section-45(ii) is
concerned, once the complainant itself was not
convinced that the accused was guilty of an offence
punishable under “Prevention of Money Laundering Act
2002″, and therefore, did not arrest the
applicants/accused during the course of investigation,
there exist a reasonable ground for believing that the
applicants/accused satisfies the first component of
section-45(ii) of “Prevention of Money Laundering Act
2002″.
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44. As far as the second component, i.e. they are not
likely to commit any offence while on bail, is concerned,
in this context it is relevant to note that there is nothing
on record to show that there is any reasonable ground to
believe that if released on bail the applicants/accused are
likely to indulge in similar kind of offence.
45. In this regard it is also relevant to mention here that
in the case of ‘Vikram Kumar Seth Vs. Directorate of
Enforcement, Jalandhar, CRMM-35565 of 2021 (O&M)’,
the Hon’ble Punjab & Haryana High Court has
observed that it is well settled principle of law that when
the investigation is complete and the charge-sheet is filed
in the Court, and conclusion of the trial is likely to take a
long time, a persons/accused like the petitioner, who is
aged about 53 years, can be released on bail, subject to
his furnishing bail/surety bonds and with a condition that
his passport shall remain deposited with the
Court/Prosecuting Agency and he will not leave the
country without seeking prior permission of the Court.
46. In the case of ‘Arun Sharma Vs. Union of India and
others, CRWP No.971 of 2016′, the Hon’ble Punjab &
Haryana High Court has observed that “the application
of section 45(i) is therefore to be read in the context of
section 19(3) of “Prevention of Money Laundering Act
2002″ in respect of an arrested person brought in
custody before Court. Second proviso to section 45(i)
creates a bar on taking cognizance except upon a
complaint in writing by an authorized officer. This
insertion of further bar by way of a proviso instead of
creating a separate independent section, clearly
presupposes consideration of application for release on
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bail or bond under section 45 of only such a person, who
is already arrested and is in custody at a stage prior to
stage of taking cognizance upon filing of a complaint.”
47. The Hon’ble Punjab & Haryana High Court in the
above mentioned case has further observed that in a
situation like this where the accused were not arrested
under section 19 of “Prevention of Money Laundering
Act 2002″ during investigations and were not produced
in custody for taking cognizance, section 88 of Cr.P.C.
shall apply upon appearance of the accused person on
his own volition before the Trial Court to furnish bonds
for further appearances.
48.XXXX XXXX XXXX
49. XXXX XXXX XXXX
50. XXXX XXXX XXXX
51. XXXX XXXX XXXX
52. XXXX XXXX XXXX
53. In the present case the learned Special Public
Prosecutor for the respondent/complainant has also
referred to the principle of law laid down in the case of
‘Ajay Kumar‘ (supra), which provides that the twin
conditions laid down under section-45 of “Prevention of
Money Laundering Act 2002″ stands revived after the
amendment by the legislation. However, in my opinion,
the respondent/complainant is not entitled to draw any
benefit from above mentioned principle of law, in view of
the fact that the applicants/accused were not arrested
during the course of investigation of the present case.
The above said action of the investigating agency leads
to an inference that in the opinion of the investigating
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agency the preconditions meant for arrest of an accused
under “Prevention of Money Laundering Act 2002″, as
enshrined under section-19 of the Act, were not satisfied.
The above scenario leads to an inference that the
respondent/complainant itself was not confident of the
guilt of the applicants/accused.
54.XXXX XXXX XXXX
55. XXXX XXXX XXXX
56. XXXX XXXX XXXX
57. If the facts & circumstances of the instant case are
analyzed in the light of above mentioned precedents, it
transpires that the applicants/ accused were not arrested
during the course of investigation of this case, and there
is no allegation against the applicants/accused that they
had ever absconded. Therefore, in my opinion, in view of
the principles of law laid down in the case of ‘Arun
Sharma‘ (supra), ‘Vikram Kumar Seth‘ (supra) and
‘Thamisharasi’ (supra), the detention of
applicants/accused behind the bars is not likely to serve
any purpose. Hence finding merit in the request for bail
of the applicants/accused, I hold that, the above
mentioned application deserves to be allowed.
58. As a sequel to above mentioned observations, but
without commenting anything on the the merits of the
case, the applications for bail filed by the
applicants/accused are hereby allowed and the
applicants/ accused, namely Smt. Arti Sharma, Smt.
Ragini Sharma & Suryakant Sharma, are admitted to
bail on their furnishing personal bonds in the sum of
Rs.5,00,000/- each with two sureties each, in the like
amount, to the satisfaction of this Court”.
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17. It is an admitted fact that the orders (Annexures P-12 and
P-13), whereby, the concession of regular bail was granted to Amit
Sharma, Arti Sharma, Ragni Sharma and Suryakant Sharma, have not
been challenged by the respondent-ED and they continue to be on
bail. However, while granting the concession of bail, the Special
Judge under the provisions of the PMLA 2002, Gurugram, has
recorded the findings with regard to the applicability of the provisions
of Section 45 of the PMLA 2002 to the cases of the aforesaid accused
and the similar reasons would also apply to the facts of the present
case as the petitioner had no connection with ‘Narcotics Control
Bureau’ (NCB), Crime Case No. 18/2018 dated 02.08.2018 invoking
scheduled offences under Sections 22, 23 and 29 of the NDPS Act,
1985.
18. Thus, the petition is allowed and the petitioner is
admitted to bail on his furnishing personal bonds in the sum of
Rs.5,00,000/- with two sureties, in the like amount, to the satisfaction
of the concerned Special Court. However the above mentioned benefit
of bail shall be subject to compliance of following conditions:-
(i) that the petitioner shall not, directly or indirectly,
make any inducement, threat or promise to any person
acquainted with the facts of the case, so as to dissuade
him from disclosing such facts to the Court or to any
police officer; and23 of 24
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(ii) that the petitioner shall not leave India without prior
permission of the concerned Special Court and shall
deposit his passport in the concerned Special Court”.
16.01.2025 (N.S.SHEKHAWAT)
amit rana JUDGE
Whether reasoned/speaking : Yes/No
Whether reportable : Yes/No
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