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.

2. The prosecution story in brief as per the allegation made in the instant ECIR/complaint reads as under:

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 Bariatu police station, Ranchi Jharkhand under section 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. at Ranchi.

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 deed no.- 6888 of 2021.

It has come during investigation that records available at the C.O. 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 onus of the above properties.

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.

The present petitioner has been 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 but the same was dismissed vide order dated 07.07.2023 by the AJC-I-Cum Special Judge, CBI-Cum- Special Judge under PMLA at Ranchi.

Hence the present petition has been preferred for the grant of bail.

Argument on behalf of the learned counsel for the petitioner:

3. Mr. S. Nagamuthu, learned senior counsel for the petitioner has argued inter alia on the following grounds:

"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 also not available.

iv. The ground of parity has also been taken since one of the co-accused namely, Dilip Kumar Ghosh has been granted bail by the co-ordinate Bench of this Court vide order dated 28.11.2023 passed in B.A. No. 7233 of 2023 and the petitioner is in custody since 07.06.2023."

4. 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.

5. 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:

6. While on the other hand, Mr. Anil Kumar, learned Additional Solicitor General of India for the respondent-Enforcement Directorate has vehemently opposed the prayer for grant of regular bail by taking the following grounds:

"(i) The argument so far as it relates to non-availability of the condition as stipulated under Section 19(1) of the Act, 2002 has already expired the moment the petitioner has been remanded in custody by virtue of an order passed by the order of remand by the competent court of criminal jurisdiction.

(ii) The aforesaid order of remand has not been assailed at any time.

(iii) Since the remand order is not under challenge, hence, it is not available for the petitioner to take the ground that the condition as stipulated under Section 19(1) of the Act is not available so as to come to the conclusion that there is absence of reason to believe about the complicity of the petitioner.

(iv) It has been submitted that 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.

(v) 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.

(vi) So far as the principle of parity is concerned on the ground that one co- accused, namely, Dilip Kumar Ghosh has been granted bail by the co- ordinate Bench of this Court vide order dated 28.11.2023 passed in B.A. No. 7233 of 2023, the case of the said Dilip Kumar Ghosh is entirely on different ground since as would be evident from the ECIR that the Dilip Kumar Ghosh was working under the dictate of Amit Agarwal, the petitioner herein, who is the beneficiary and owner of M/s Jagatbandhu Tea Estate Pvt. Ltd., therefore, the fact of the case of the petitioner is different to that of the fact of the said Dilip Kumar Ghosh, the co-accused, hence, the principle of parity will not be applicable."

Analysis:

7. This Court has heard the learned counsel for the parties, gone across the ECIR.

8. This Court before appreciating the argument advanced on behalf of the parties, deems it fit and proper to discuss herein some of the provision of law 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.

The Act 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 also to prosecute the persons indulging in the process or activity connected with the proceeds of crime.

The issues were debated threadbare in the United Nation Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, Basle Statement of Principles enunciated in 1989, the FATF established at the summit of seven major industrial nations held in Paris from 14th to 16th July, 1989, the Political Declaration and Noble Programme of Action adopted by United Nations General Assembly vide its Resolution No. S-17/2 of 23.2.1990, the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998, urging the State parties to enact a comprehensive legislation. This is evident from the introduction and Statement of Objects and Reasons accompanying the Bill which became the 2002 Act. The same reads thus:

“INTRODUCTION

Money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. To obviate such threats international community has taken some initiatives. It has been felt that to prevent money-laundering and connected activities a comprehensive legislation is urgently needed. To achieve this objective the Prevention of Money-laundering Bill, 1998 was introduced in the Parliament. The Bill was referred to the Standing Committee on Finance, which presented its report on 4th March, 1999 to the Lok Sabha. The Central Government broadly accepted the recommendation of the Standing Committee and incorporated them in the said Bill along with some other desired changes.

STATEMENT OF OBJECTS AND REASONS

It is being realised, world over, that money-laundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threat are outlined below:—

(a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected activities and confiscation of proceeds derived from such offence.

(b) the Basle Statement of Principles, enunciated in 1989, outlined basic policies and procedures that banks should follow in order to assist the law enforcement agencies in tackling the problem of money- laundering.

(c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money- laundering. The recommendations were classified under various heads. Some of the important heads are—

(i) declaration of laundering of monies carried through serious crimes a criminal offence;

(ii) to work out modalities of disclosure by financial institutions regarding reportable transactions;

(iii) confiscation of the proceeds of crime;

(iv) declaring money-laundering to be an extraditable offence; and

(v) promoting international co-operation in investigation of money- laundering.

(d) the Political Declaration and Global Programme of Action adopted by United Nations General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia, calls upon the member States to develop mechanism to prevent financial institutions from being used for laundering of drug related money and enactment of legislation to prevent such laundering.

(e) the United Nations in the Special Session on countering World Drug Problem Together concluded on the 8th to the 10th June, 1998 has made another declaration regarding the need to combat money- laundering. India is a signatory to this declaration."

9. It is thus 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.

10. 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;]”

11. 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.

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 or indirectly be derived or obtained as a result of any criminal activity relatable to the scheduled offence.

The aforesaid explanation has been inserted in the statute book by way of Act 23 of 2019.

12. 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.

13. 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.

14. 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.”

15. 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.

16. 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.]”

17. 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, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering.

18. 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.

19. The punishment for money laundering has been provided under Section 4 of the Act, 2002.

20. Section 50 of the Act, 2002 confers power upon the authorities regarding summons, production of documents and to give evidence. For ready reference, Section 50 of the Act, 2002 reads as under:

“50. Powers of authorities regarding summons, production of documents and to give evidence, etc.—(1) The Director shall, for the purposes of section 13, have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit in respect of the following matters, namely:—

(a) discovery and inspection;

(b) enforcing the attendance of any person, including any officer of a [reporting entity] and examining him on oath;

(c) compelling the production of records;

(d) receiving evidence on affidavits;

(e) issuing commissions for examination of witnesses and documents; and

(f) any other matter which may be prescribed.

(2) The Director, Additional Director, Joint Director, Deputy Director or Assistant Director shall have power to summon any person whose attendance he considers necessary whether to give evidence or to produce any records during the course of any investigation or proceeding under this Act.

(3) All the persons so summoned shall be bound to attend in person or through authorised agents, as such officer may direct, and shall be bound to state the truth upon any subject respecting which they are examined or make statements, and produce such documents as may be required.

(4) Every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of section 193 and section 228 of the Indian Penal Code (45 of 1860).

(5) Subject to any rules made in this behalf by the Central Government, any officer referred to in sub-section (2) may impound and retain in his custody for such period, as he thinks fit, any records produced before him in any proceedings under this Act:

Provided that an Assistant Director or a Deputy Director shall not—

(a) impound any records without recording his reasons for so doing; or

(b) retain in his custody any such records for a period exceeding three months, without obtaining the previous approval of the [Joint Director].”

21. 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.

22. 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 activity connected 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.”

23. The implication of Section 50 has also been taken into consideration. Relevant paragraph, i.e., paragraphs-422, 424, 425, 431, 434 reads as under:

“422. The validity of this provision has been challenged on the ground of being violative of Articles 20(3) and 21 of the Constitution. For, it allows the authorised officer under the 2002 Act to summon any person and record his statement during the course of investigation. Further, the provision mandates that the person should disclose true and correct facts known to his personal knowledge in connection with the subject matter of investigation. The person is also obliged to sign the statement so given with the threat of being punished for the falsity or incorrectness thereof in terms of Section 63 of the 2002 Act. Before we proceed to analyse the matter further, it is apposite to reproduce Section 50 of the 2002 Act, as amended. -----:

424. By this provision, the Director has been empowered to exercise the same powers as are vested in a civil Court under the 1908 Code while trying a suit in respect of matters specified in sub-section (1). This is in reference to Section 13 of the 2002 Act dealing with powers of Director to impose fine in respect of acts of commission and omission by the banking companies, financial institutions and intermediaries. From the setting in which Section 50 has been placed and the expanse of empowering the Director with same powers as are vested in a civil Court for the purposes of imposing fine under Section 13, is obviously very specific and not otherwise.

425. Indeed, sub-section (2) of Section 50 enables the Director, Additional Director, Joint Director, Deputy Director or Assistant Director to issue summon to any person whose attendance he considers necessary for giving evidence or to produce any records during the course of any investigation or proceeding under this Act. We have already highlighted the width of expression “proceeding” in the earlier part of this judgment and held that it applies to proceeding before the Adjudicating Authority or the Special Court, as the case may be. Nevertheless, sub-section (2) empowers the authorised officials to issue summon to any person. We fail to understand as to how Article 20(3) would come into play in respect of process of recording statement pursuant to such summon which is only for the purpose of collecting information or evidence in respect of proceeding under this Act. Indeed, the person so summoned, is bound to attend in person or through authorised agent and to state truth upon any subject concerning which he is being examined or is expected to make statement and produce documents as may be required by virtue of sub-section (3) of Section 50 of the 2002 Act. The criticism is essentially because of subsection (4) which provides that every proceeding under sub-sections (2) and (3) shall be deemed to be a judicial proceeding within the meaning of Sections 193 and 228 of the IPC. Even so, the fact remains that Article 20(3) or for that matter Section 25 of the Evidence Act, would come into play only when the person so summoned is an accused of any offence at the relevant time and is being compelled to be a witness against himself. This position is well-established. The Constitution Bench of this Court in M.P. Sharma had dealt with a similar challenge wherein warrants to obtain documents required for investigation were issued by the Magistrate being violative of Article 20(3) of the Constitution. This Court opined that the guarantee in Article 20(3) is against “testimonial compulsion” and is not limited to oral evidence. Not only that, it gets triggered if the person is compelled to be a witness against himself, which may not happen merely because of issuance of summons for giving oral evidence or producing documents. Further, to be a witness is nothing more than to furnish evidence and such evidence can be furnished by different modes. The Court went on to observe as follows:

“Broadly stated the guarantee in article 20(3) is against “testimonial compulsion”. It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. The phrase used in Article 20(3) is “to be a witness”. A person can “be a witness” not merely by giving oral evidence but also by producing documents or making intelligible gestures as in the case of a dumb witness (See section 119 of the Evidence Act) or the like. “To be a witness” is nothing more than “to furnish evidence”, and such evidence can be furnished through the lips or by production of a thing or of a document or in other modes. So far as production of documents is concerned, no doubt Section 139 of the Evidence Act says that a person producing a document on summons is not a witness. But that section is meant to regulate the right of cross- examination. It is not a guide to the connotation of the word “witness”, which must be understood in its natural sense, i.e., as referring to a person who furnishes evidence. Indeed, every positive volitional act which furnishes evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in article 20(3) is “to be a witness” and not to “appear as a witness”. It follows that the protection afforded to an accused in so far as it is related to the phrase “to be a witness” is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been levelled which in the normal course may result in prosecution. Whether it is available to other persons in other situations does not call for decision in this case.”

(emphasis supplied)

431. In the context of the 2002 Act, it must be remembered that the summon is issued by the Authority under Section 50 in connection with the inquiry regarding proceeds of crime which may have been attached and pending adjudication before the Adjudicating Authority. In respect of such action, the designated officials have been empowered to summon any person for collection of information and evidence to be presented before the Adjudicating Authority. It is not necessarily for initiating a prosecution against the noticee as such. The power entrusted to the designated officials under this Act, though couched as investigation in real sense, is to undertake inquiry to ascertain relevant facts to facilitate initiation of or pursuing with an action regarding proceeds of crime, if the situation so warrants and for being presented before the Adjudicating Authority. It is a different matter that the information and evidence so collated during the inquiry made, may disclose commission of offence of money-laundering and the involvement of the person, who has been summoned for making disclosures pursuant to the summons issued by the Authority. At this stage, there would be no formal document indicative of likelihood of involvement of such person as an accused of offence of money- laundering. If the statement made by him reveals the offence of money- laundering or the existence of proceeds of crime, that becomes actionable under the Act itself. To put it differently, at the stage of recording of statement for the purpose of inquiring into the relevant facts in connection with the property being proceeds of crime is, in that sense, not an investigation for prosecution as such; and in any case, there would be no formal accusation against the noticee. Such summons can be issued even to witnesses in the inquiry so conducted by the authorised officials. However, after further inquiry on the basis of other material and evidence, the involvement of such person (noticee) is revealed, the authorised officials can certainly proceed against him for his acts of commission or omission. In such a situation, at the stage of issue of summons, the person cannot claim protection under Article 20(3) of the Constitution. However, if his/her statement is recorded after a formal arrest by the ED official, the consequences of Article 20(3) or Section 25 of the Evidence Act may come into play to urge that the same being in the nature of confession, shall not be proved against him. Further, it would not preclude the prosecution from proceeding against such a person including for consequences under Section 63 of the 2002 Act on the basis of other tangible material to indicate the falsity of his claim. That would be a matter of rule of evidence.

434. It is, thus, clear that the power invested in the officials is one for conducting inquiry into the matters relevant for ascertaining existence of proceeds of crime and the involvement of persons in the process or activity connected therewith so as to initiate appropriate action against such person including of seizure, attachment and confiscation of the property eventually vesting in the Central Government."

24. It is evident from the observation so made as above that the purposes and objects of the 2002 Act for which it has been enacted, is not limited to punishment for offence of money-laundering, but also to provide measures for prevention of money-laundering. It is also to provide for attachment of proceeds of crime, which are likely to be concealed, transferred or dealt with in any manner which may result in frustrating any proceeding relating to confiscation of such proceeds under the 2002 Act. This Act is also to compel the banking companies, financial institutions and intermediaries to maintain records of the transactions, to furnish information of such transactions within the prescribed time in terms of Chapter IV of the 2002 Act.

25. 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 any criminal activity relatable to the scheduled offence” will come under the fold of the proceeds of crime.

26. 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.

27. 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-371-374. For ready reference, the said paragraphs are being referred as under:

“371. The relevant provisions regarding bail in the 2002 Act can be traced to Sections 44(2), 45 and 46 in Chapter VII concerning the offence under this Act. The principal grievance is about the twin conditions specified in Section 45 of the 2002 Act. Before we elaborate further, it would be apposite to reproduce Section 45, as amended. The same reads thus:

“45. Offences to be cognizable and non-bailable.—(1) [Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless’]

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where 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 co-accused of money-laundering a sum of less than one crore rupees], may be released on bail, if the Special Court so directs:

Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by—

(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.

[(1A) Notwithstanding anything contained in the Criminal Procedure Code, 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 addition to the limitations under the Criminal Procedure Code, 1973 (2 of 1974) or any other law for the time being in force on granting of bail.

[Explanation.—For the removal of doubts, it is clarified 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 Criminal Procedure Code, 1973 (2 of 1974), 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.]”

372. Section 45 has been amended vide Act 20 of 2005, Act 13 of 2018 and Finance (No. 2) Act, 2019. The provision as it obtained prior to 23.11.2017 read somewhat differently. The constitutional validity of Sub-section (1) of Section 45, as it stood then, was considered in Nikesh Tarachand Shah. This Court declared Section 45(1) of the 2002 Act, as it stood then, insofar as it imposed two further conditions for release on bail, to be unconstitutional being violative of Articles 14 and 21 of the Constitution. The two conditions which have been mentioned as twin conditions are:

(i) that there are reasonable grounds for believing that he is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail.

373. According to the petitioners, since the twin conditions have been declared to be void and unconstitutional by this Court, the same stood obliterated. To buttress this argument, reliance has been placed on the dictum in State of Manipur.

374. The first issue to be answered by us is: whether the twin conditions, in law, continued to remain on the statute book post decision of this Court in Nikesh Tarachand Shah and if yes, in view of the amendment effected to Section 45(1) of the 2002 Act vide Act 13 of 2018, the declaration by this Court will be of no consequence. This argument need not detain us for long. We say so because the observation in State of Manipur in paragraph 29 of the judgment that owing to the declaration by a Court that the statute is unconstitutional obliterates the statute entirely as though it had never been passed, is contextual. In this case, the Court was dealing with the efficacy of the repealing Act. While doing so, the Court had adverted to the repealing Act and made the stated observation in the context of lack of legislative power. In the process of reasoning, it did advert to the exposition in Behram Khurshid Pesikaka and Deep Chand7 including American jurisprudence expounded in Cooley on Constitutional Limitations and Norton v. Shelby County.”

28. 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.

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. For ready reference, paragraph-17 of the said judgment reads as under:

“17. As well settled by now, 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. It is needless to say 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.”

29. 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.

30. 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.

31. 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 [LQ/SC/2015/1678] 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.

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. 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.”

32. The Hon’ble Apex Court in the case of Tarun Kumar vs. Assistant Director Directorate of Enforcement (supra) has again reiterated the implication of Sections 45 and the principle of parity at paragraphs-17 and 18. The issue of parity has been considered by the Hon’ble Apex Court at paragraph-18 by making observation therein that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. For ready reference, paragraph-17 and 18 read as under:

“17. As well settled by now, 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. It is needless to say 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.

18. The submission of learned Counsel Mr. Luthra to grant bail to the appellant on the ground that the other co-accused who were similarly situated as the appellant, have been granted bail, also cannot be accepted. It may be noted that parity is not the law. While applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration. It is not disputed in that the main accused Sh. Kewal Krishan Kumar, Managing Director of SBFL, and KMP of group companies and the other accused Devki Nandan Garg, owner/operator/controller of various shell companies were granted bail on the ground of infirmity and medical grounds. The co-accused Raman Bhuraria, who was the internal auditor of SBFL has been granted bail by the High Court, however the said order of High Court has been challenged by the respondent before this Court by filing being SLP (Crl.) No. 9047 of 2023 and the same is pending under consideration. In the instant case, the High Court in the impugned order while repelling the said submission made on behalf of the appellant, had distinguished the case of Raman Bhuraria and had observed that unlike Raman Bhuraria who was an internal auditor of SBFL (for a brief period statutory auditor of SBFL), the applicant was the Vice President of Purchases and as a Vice President, he was responsible for the day-to-day operations of the company. It was also observed that the appellant's role was made out from the financials, where direct loan funds have been siphoned off to the sister concerns of SBFL, where the appellant was either a shareholder or director. In any case, the order granting bail to Raman Bhuraria being under consideration before the coordinate bench of this Court, it would not be appropriate for us to make any observation with regard to the said order passed by the High Court.”

33. So far as the ground taken that the judgement rendered by the Hon’ble Apex Court in Satender Kumar Antil vs. CBI and Anr., (2022) 10 SCC 51 [LQ/SC/2022/823 ;] be also taken into consideration wherein that Hon'ble Apex Court 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 [LQ/SC/2021/3291 ;] : (2022) 1 SCC (Cri) 153] [LQ/SC/2021/3291 ;] . The same is reproduced as under : (Satender Kumar Antil case [Satender Kumar Antil v. CBI, (2021) 10 SCC 773 [LQ/SC/2021/3291 ;] : (2022) 1 SCC (Cri) 153] [LQ/SC/2021/3291 ;] , 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 Senior Counsel 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 [LQ/SC/2021/2934 ;] : (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.

(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.

… ”

34. However, the Hon'ble Apex Court recently in the case of Gurwinder Singh vs. State of Punjab and Anr., 2024 SCC OnLine SC 109, 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.”

35. 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 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 offence 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.

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.

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.

41. So far as the reason to believe as provided under Section 19(1) or the twin condition as available under Section 45 of the Act is concerned, this Court in order to come to the conclusion as to whether the condition stipulated in these sections have been followed or not, is required to consider the statement of the present petitioner which is mentioned at para-8.10 of the complaint submitted by the Enforcement Directorate. For ready reference, the same is being reproduced as under:

“8.10 Amit Kumar Agarwal (Accused no.3) –

• In his statement dated 07.06.2023 given under section 50 of PMLA (RUD No. 74) he was confronted with the cash deposits into the account of Jagatbandhu Tea Estates Pvt Ltd and subsequent transfer into the account of Rajesh Auto Merchandise Pvt Ltd to which he tried to conceal the reality of laundering of POC through the company Jagatbandhu Tea Estates Pvt Ltd and provided misleading answers for projecting the transactions untainted. He further stated that he is still holding the shares of Rajesh Auto Merchandise Pvt Ltd and has been the director of this company till last year. He further stated that Dilip Kumar Ghosh also was a director of Rajesh Auto Merchandise Pvt Ltd.

• In his statement dated 10.06.2023 (RUD No. 76), he accepted that Bikash Jana and Dipak Kumar Sah who deposited huge cash in the bank account of Jagatbandhu Tea Estates Pvt Ltd are his employees and further accepted that he pays them salary. He was further confronted with the email id of Jagatbandhu Tea Estates Pvt Ltd which is mentioned as rajeshauto@gmail.com in its account opening form of IDFC First bank to which he stated that all work of Jagatbandhu Tea Estates Pvt Ltd is done by employees of his company and thus for doing work efficiently and conveniently the email id was mentioned as rajeshauto@gmail.com. Thus, it is seen that the accused person is repeatedly giving misleading answers in an attempt to conceal the activities linked to the laundering of proceeds of crime in assistance with Dlip Kumar Ghosh and Jagatbandhu Tea Estates Pvt Ltd.

• In his earlier statement he had stated that the transactions between of Jagatbandhu Tea Estates Pvt Ltd and Rajesh Auto Merchandise Pvt Ltd were borrowing and loans. In his statement dated 11.06.2023 (RUD No. 75), he was asked about any documents which could prove loans or borrowing between the above two companies. He could not produce any such documents.

• During investigation it reveal that between period 02.09.2021 to 14.09.2021, Dilip Kumar Ghosh was removed as a director from seven companies belonging to Amit Kumar Agarwal and on 01.10.2021 the property was registered in the name of Jagatbandhu Tea Estates Pvt Ltd. When the accused Amit Kumar Agarwal was asked about the reasons of removing Dilip Kumar Ghosh as director of his companies he concealed the main intention of showing Dilip Kumar Ghosh as a separate entity and furnished misleading answers and stated that he felt that there was no need of Mr. Dilip Kumar Ghosh as director in his companies and as such he removed him.

From the above statements of Amit Kumar Agarwal and Dilip Kumar Ghosh it is evident that Dilip Kumar Ghosh is one of the associate and a trusted confident of Amit Kumar Agarwal, who assisted him in his activities linked to money laundering.”

42. It is evident from the prosecution complain dated 12.06.2023 that the petitioner was actually a party with other accused persons of the case in the activities connected with the acquisition of proceeds of crime amounting to Rs of 20,75,84,200 in form of landed property measuring 4.55 acres (455 decimals) at MS Plot no. 557, Mauja Morabadi whose present market vaule is Rs 41,51,68,390/- (as per the revised rates effective from 01.08.2021).

43. The present petitioner acquired the said property in the name of M/s Jagatbandhu Tea Estate Pvt. Ltd represent by his employee and a close confidant Dilip Kumar Ghosh who acted as an authorised person in the property deed No 6888 dated 01.10.2021 between Pradeep Bagchi and Jagatbandhu Tea Estates Pvt. Ltd.

44. It is further evident that during the period 16.10.2020 to 25.07.2022, an amount of Rs. 4,69,80,000 was deposited Into IDFC First Bank account no. 10060532973 of Jagatbandhu Tea Estate Pvt. Ltd which was subsequently transferred to the companies linked to petitioner which suggests that the petitioner is the beneficial owner of M/s Jagatbandhu Tea Estate Pvt. Ltd.

45. It is further revealed that the property was acquired by keeping the company M/s Jagatbandhu Tea Estate Pvt. Ltd whose beneficial owner is Amit Kumar Agarwal. The directors of M/s Jagatbandhu Tea Estate Pvt. Ltd. are Dilip Kumar Ghosh and his wife Mrs. Sutapa Ghosh. Dilip Kumar Ghosh is also an employee and a very close confidant of Amit Kumar Agarwal. 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 Kanar Agarwal and his brothers namely Amar Kumar Agarwal and Rajesh Agarwal (herein referred as Agarwal group of companies). Dilip Kumar Ghosh has previously been associated with several companies linked to Amit Kumar Agarwal.

46. It has come in the investigation that 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.

47. The seizure of these documents’ evidences 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 of be the directors of several 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.

48. It is alleged that cessation of Dilip Kumar Ghosh from the directorship from the above companies of the Agarwal group was thoughtful move driven by a deliberate and the conspiracy between Amit Kumar Agarwal and Dilip Kumar Ghosh 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.

49. The email ID of the directors in the KYC of Jagatbandhu Tea Estates Pvt. Ltd., Dilip Kumar Ghosh has given as sanyuktvanijya@gmail.com and that of Mrs. Sutapa Ghosh is rajeshauto@gmail.com. In the MCA data email address of Sanayukt Vanijya Pvt. Ltd (Corporate Identification Number (CIN)074999WB2012PTC175051) has been given as rajeshauto@gmail.com.

50. Thus, it is evident 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 Amit Kumar Agarwal) and SanayuktVanijyaPvt. 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 solely under the control of Amit Kumar Agarwal.

51. It is, thus, evident on the basis of the aforesaid material collected that there is reason to believe of commission of offence said to be committed under the provisions of the Act, 2002.

52. Now coming to the ground of parity. Law the well settled that the principle of parity is to be applied if the case of the fact is exactly to be similar then only the principle of parity in the matter of passing order is to be passed but if there is difference in between the facts then the principle of parity is not to be applied.

53. It is further settled connotation of law that Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail and by only simple saying that another accused has been granted bail is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. Reference in this regard may be taken from the judgment as rendered by the Hon’ble Apex Court in Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230, [LQ/SC/2021/2722 ;] wherein, it has been held as under:

“25. We are constrained to observe that the orders passed by the High Court granting bail fail to pass muster under the law. They are oblivious to, and innocent of, the nature and gravity of the alleged offences and to the severity of the punishment in the event of conviction. In Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 [LQ/SC/2014/1357] :] , this Court has held that while applying the principle of parity, the High Court cannot exercise its powers in a capricious manner and has to consider the totality of circumstances before granting bail. This Court observed : (SCC p. 515, para 17)

“17. Coming to the case at hand, it is found that when a stand was taken that the second respondent was a history-sheeter, it was imperative on the part of the High Court to scrutinise every aspect and not capriciously record that the second respondent is entitled to be admitted to bail on the ground of parity. It can be stated with absolute certitude that it was not a case of parity and, therefore, the impugned order [Mitthan Yadav v. State of U.P., 2014 SCC OnLine All 16031] clearly exposes the non-application of mind. That apart, as a matter of fact it has been brought on record that the second respondent has been charge-sheeted in respect of number of other heinous offences. The High Court has failed to take note of the same. Therefore, the order has to pave the path of extinction, for its approval by this Court would tantamount to travesty of justice, and accordingly we set it aside.

26. Another aspect of the case which needs emphasis is the manner in which the High Court has applied the principle of parity. By its two orders both dated 21-12-2020 [Pravinbhai Hirabhai Koli v. State of Gujarat, 2020 SCC OnLine Guj 2986] , [Khetabhai Parbatbhai Makwana v. State of Gujarat, 2020 SCC OnLine Guj 2988] , the High Court granted bail to Pravin Koli (A-10) and Kheta Parbat Koli (A-15). Parity was sought with Sidhdhrajsinh Bhagubha Vaghela (A-13) to whom bail was granted on 22-10-2020 [Siddhrajsinh Bhagubha Vaghela v. State of Gujarat, 2020 SCC OnLine Guj 2985] on the ground (as the High Court recorded) that he was “assigned similar role of armed with stick (sic)”. Again, bail was granted to Vanraj Koli (A-16) on the ground that he was armed with a wooden stick and on the ground that Pravin (A-10), Kheta (A-15) and Sidhdhrajsinh (A-13) who were armed with sticks had been granted bail. The High Court has evidently misunderstood the central aspect of what is meant by parity. Parity while granting bail must focus upon the role of the accused. Merely observing that another accused who was granted bail was armed with a similar weapon is not sufficient to determine whether a case for the grant of bail on the basis of parity has been established. In deciding the aspect of parity, the role attached to the accused, their position in relation to the incident and to the victims is of utmost importance. The High Court has proceeded on the basis of parity on a simplistic assessment as noted above, which again cannot pass muster under the law.”

54. Similarly, the Hon'ble Apex Court in Tarun Kumar Versus Assistant Director Directorate of Enforcement (supra) wherein at paragraph 18, as has been quoted and referred above, it has been held that parity is not the law and while applying the principle of parity, the Court is required to focus upon the role attached to the accused whose application is under consideration.

In has further been held in the said judgment that the principle of parity is to be applied in the matter of bail but equally it has been laid down therein that there cannot be any negative equality, meaning thereby, that if a co-accused person has been granted bail without consideration of the factual aspect or on the ground said to be not proper, then, merely because the co- accused person has been directed to be released on bail, the same will not attract the principle of parity on the principle that Article 14 envisages positive equality and not negative equality. For ready reference, relevant paragraph, i.e., paragraph-19, of the aforesaid judgment reads as under:

“19. It is axiomatic that the principle of parity is based on the guarantee of positive equality before law enshrined in Article 14 of the Constitution. However, if any illegality or irregularity has been committed in favour of any individual or a group of individuals, or a wrong order has been passed by a judicial forum, others cannot invoke the jurisdiction of the higher or superior court for repeating or multiplying the same irregularity or illegality or for passing similar wrong order. Article 14 is not meant to perpetuate the illegality or irregularity. If there has been a benefit or advantage conferred on one or a set of people by any authority or by the court, without legal basis or justification, other persons could not claim as a matter of right the benefit on the basis of such wrong decision.”

55. This Court in order to come to the conclusion as to whether the case of the petitioner is at par with Dilip Kumar Ghosh who has been granted bail by the co-ordinate Bench of this Court, needs to consider the allegation as has been surfaced in course of interrogation of the witness as accused persons as available in the ECIR for the purpose of clarification regarding the commission of the Act by Dilip Kumar Ghosh and the petitioner.

56. This Court deems it fit and proper to refer herein the following paragraphs so as to come to the conclusion that whether the accountability of Dilip Kumar Ghosh in commission of predicate offence attracting the ingredient of Section 3 of the Act, 2002 is at par with the case of Amit Agarwal, the petitioner herein.

"3. BRIEF FACTS OF THE OFFENCE/ ALLEGATION/ CHARGE/ AMOUNT INVOLVED UNDER PMLA

3.3 Investigation revealed that the above-stated two holding Nos. 0210004194000A1 and 0210004031000A were obtained for property - plot no. MS 557, Morabadi Mouza, ward no. 21/19, having an area of 455.00 decimals at Ranchi. It also revealed that the above-stated property was later Sold by the said Pradeep Bagchi (Aadhaar no. 511337882315, PAN (AMBPB1317J) to one company M/s Jagatbandhu Tea Estate Pvt. Ltd (PAN AABCJ3705F, represented by its Director Dilip Kumar Ghosh having Aadhaar no. 912605787465) and it is registered at the office of the SRO Ranchi, bearing deed No 6888, Vol No 919, Page No 525-576, year 2021. From the sale deed of this property registered on 01.10.2021 (RUD No. 7)., it is seen that the declared government value/Market value of the said property is Rs 20,75,84,200/whereas the said property has been sold for an amount of Rs 7,00,00,000 /which is highly undervalued as compared to the declared government rate.

3.4 The sale deed bearing no. 6888 of 2021 between the said Pradip Bagchi and M/s Jagatbandhu Tea Estate Pvt. Ltd, in respect of the above property was executed on 1st October, 2021 (RUD No. 7). The government value/Market Value of the said property in the sale deed is shown as Rs. 20,75,84,200/but the consideration amount of the property has been shown as Rs. 7 crores which are shown to be paid by 11 cheques of IDFC First Bank, account No 10060532973 of M/s Jagatbandhu Tea Estate Pvt. Ltd. Investigation has further revealed that only one part payment amounting to Rs 25,00,000/was made into State bank of India account number 10301956970 of Pradip Bagchi through IDFC First Bank, Cheque No 461153 and rest of the money was falsely shown to be paid in the deed no. 6888 of 2021 through other cheques. Although no further payments were done, the purchasers and sellers have mentioned on page 04 of the sale deed that –

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Thus, it is evident that the declaration of payment of the full amount of Rs 7 (seven) crores by the purchaser and its receipt by the seller is deliberate, thoughtful and planned to give a legitimate appearance to the bogus transactions recorded in the sale deed for acquiring the above said property.

3.5 Investigation conducted into this case has also revealed that the above stated property situated at MS 557, Morabadi Mouza, ward no. 21/19, having an area of 455.00 decimals at Ranchi has been under the possession and occupation of Defence before independence. As per the documents provided by the defence, it is revealed that defence had been paying a monthly rent to one Jayant Karnad, a purported descendant/claimant of B.M Lakshman Rao and his son B.M Mukund Rao. The documents and records collected states that B.M Lakshman Rao died in the year 1946 and B.M. Mukund Rao passed away in the year 1998. Jayant Karnad started receiving rent from the defence as a claimant of the property after B.M Mukund Rao in the year 2008. In the year 2019, Jayant Karnad further sold this property to the following 14 persons by way of 16 deeds at a very negligible amount. Initially Jayant Karnad frivolously managed to get the rent from the defence without any valid succession certificate and later in the year 2009 succeeded to get the land released in his favour from the defence. Investigation reveals that all documents which helped Jayant Karnad to get land from defence and favourable orders from High Court were arranged and provided by an advocate. Jyant Karnad first time received the rent from the army, in the year 2008 amounting to Rs. 417 in his HUF Account 450110110002549 maintained in Bank of India. After this, he received Rs. 50,640/as an arrear of due rent from 1998 to 2008 in account number 4501101000299692204. He has been receiving rent from Defence Estate Office, till 28th December, 2021 in HUF account bearing no 450110110002549 held in Bank of India. Jayant Karnad finally sold the land to 14 different persons for a total sum of Rs. 2.55 crores which was received in his Bank of India account bearing no. 450110110002549 (RUD No. 11 & 12).

3.6 As stated above that there were ongoing litigations regarding the possession of this property between Army and the purported claimant Jayant Karnad who had sold the land to 14 persons by way of 16 deeds (RUD No. 115 to KON 130) on strength of the order obtained from the High Court of Jharkhand by concealing and manipulating facts. The accused persons namely Afshar Ali Pradip Bagchi and his accomplices meanwhile prepared a fake deed from the office of the Registrar of Assurances, Kolkata. In the name of Prafulla aa Bagchi F/o Pradip Bagchi (RUD No. 108 & 113). It was projected that his father Prafulla Bagchi had given the land orally to the Army and as on day Pradeep Bagchi is the purported rightful claimant of the property. These persons contacted Prem Prakash for selling this land (Accused in illegal mining case and presently in judicial custody). Prem Prakash Is a power broker and a very influential person who was access to highly placed government officials and ministers in Jharkhand. Prem Prakash is also very close to Mr. Chhavi Ranjan, the Ex-D.C Ranchi and Amit Kumar Agarwal who is also a very influential person in Jharkhand. In connivence with Prem Prakash and Amit Kumar Agarwal, Mr. Chavi Ranjan influenced the officials of Circle office and District Sub Registrar, Ranchi and managed to procure & favourable report (RUD No. 27) for Pradeep Bagchi and the property was subsequently acquired in a dishonest manner by Jagatbandhu Tea Estates Pvt. Ltd. Both persons namely Amit Kumar Agarwal and Prem Prakash weré aware that the owner Pradip Bagchi was a fake person and the deed was false which is evident from the fact that they acquired property worth several crores of rupees by paying only Rs 25 lakhs (which was, in fact, a commission). Instead, Amit Kumar Agarwal, the beneficial owner of M/s Jagatbandhu Tea Estate Pvt. Ltd. knowingly acquired the abovesaid property in the name of Jagatbandhu Tea Estate Pvt. Ltd. Mr. Chhavi Ranjan, then DC of Ranchi assisted these persons to acquire the above property by misusing his official position and overlooking the records available in his office/subordinate offices. Mr. Chhavi Ranjan had knowledge that the abovesaid property is disputed as one dispute between Defence and Jayant Karnad was aiso pending before his disposal i.e. in the court of the District Magistrate, Ranchi which he used to preside during his tenure. Yet on receipt of the application of Pradeep Bagchi, who falsely claimed himself to be the rightful owner of the property, the then Deputy Commissioner, Mr. Chhavi Ranjan assisted Prem Prakash, Amit Kumar Agarwal, Afsar Ali, Saddam Hussain and others verbally directed the Circle officer to visit the office of Registrar of Assurances (Records), Kolkata and verify the original deeds for ascertaining actual owner of the property. Investigation has revealed that the original registers in the records of Registrar of Assurances, Kolkata were already forged/tampered with and falsified In favour of Pradeep Bagchi and the direction to visit Kolkata to verify the records available with Registrar of Assurances was a well-executed plan so that the property could be transferred to Amit Kumar Agarwal through his company Jagat Bandhu Tea Estates Pvt. Ltd.”

57. Further, the statement of Dilip Kumar Ghosh 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 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."

58. It is evident from the preceding paragraph that one of the accused Pradeep Bagchi has obtained two holding numbers by submitting forged Aadhaar Card, forged electricity bill and forged possession letter to the office of the Ranchi Municipal Corporation and after obtaining holding number in respect of the property in question, the said property was sold to M/s. Jagatbandhu Tea Estate Pvt. Ltd., of which the Dilip Kumar Ghosh was a director.

59. From the sale deed of this property registered on 01.10.2021 (RUD No. 7), it is seen that the declared government value/Market value of the said property is Rs 20,75,84,200/whereas the said property has been sold for an amount of Rs 7,00,00,000 /which is highly undervalued as compared to the declared government rate.

60. In his statement which was 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. He further stated 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.

61. Now this court is adverting in to facts of instant to decide the issue of parity in the backdrop of aforesaid settled legal ratio and further taken in to consideration the aforesaid settled position of law, thinks fit to refer herein distinguishable facts in the case of present petitioner to that the case of Dilip Kumar Ghosh, who has been granted bail by this Court vide order dated 28.11.2023 in B.A. No. 7233 of 2023.

"(i) From the record it is evident that property in question was sold in the name of Jagatbandhu Tea Estate Pvt. Ltd. and the present petitioner is the beneficial owner of the said company. “Beneficial owner” has been defined as under Section 2(fa) of the Act, 2002 which means an individual who ultimately owns or controls a client of a reporting entity or the person on whose behalf a transaction is being conducted and includes a person who exercises ultimate effective control over a juridical person.

Taking into consideration the aforesaid definition of the “beneficial owner” and applying the same into the facts of the present case, it is amply clear that the present petitioner has full control over the said company and Dilip Kumar Ghosh is merely a director of the said company and the close associate of the present petitioner.

(ii) Further, it is evident from the statement of Dilip Kumar Ghosh that the work of said company was 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.

(iii) It is also evident from the statement of Dilip Kumar Ghosh 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.

(iv) It is evident from paragraph-16 of the counter affidavit wherein it has been stated that the company, i.e., M/s Jagatbandhu Tea Estate Pvt. Ltd. is solely under the control of Amit Kumar Agarwal."

62. This Court on the basis of the different role committed by Dilip Kumar Ghosh, the accused person who has been granted bail and comparing his accountability with the act of the present petitioner, is of the view that it cannot be said that what has been done by Dilip Kumar Ghosh is identical to the case of the present petitioner as it would be evident from the discussion made in the preceding paragraphs as also by going through the counter affidavit that the said company, i.e., M/s Jagatbandhu Tea Estate Pvt. Ltd. is completely under the control of Amit Kumar Agarwal.

63. It is, thus, 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. Even on the ground of parity as per the discussion made hereinabove, the same on the basis of the role/involvement of the present petitioner in the commission of crime in comparison to that of the said Dilip Kumar Ghosh is quite different.

64. Considering the aforesaid fact and as per the discussion made hereinabove, this Court is of the view that the present application is fit to be dismissed.

65. Accordingly, the instant application stands dismissed.

66. Pending interlocutory application(s), if any, also stands disposed of.

67. It is made clear that views expressed in this order are prima facie for consideration of matter of bail only.