1. This is an application for grant of anticipatory bail to the petitioner in connection with Special Trial No. (PMLA) 01 of 2017, arising out of ECIR No. PTZO/02/2014 dated 07.01.2014, instituted for offences punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (for short “PMLA”).
2. Short fact of the case is that on Shri Sadhu Saran Gupta (father of the petitioner) by committing offences as scheduled under PMLA has acquired property worth Rs.1,58,88,846/- in his name, in the name of his wife Smt. Shanti Devi and his son Shri Rajesh Kumar (petitioner), from the ill- gotten money. The investigations have revealed that Rajesh Kumar (petitioner) has been directly involved in a process/activity connected with proceeds of crime as he has knowingly assisted Sadhu Saran Gupta and became a party to transactions connected with proceeds of crime by holding part of the proceeds of crime in his own and hence, committed the offence of money laundering, as defined under section 3 of the PMLA, punishable under section 4 of the PMLA 2002.
3. Learned counsel for the petitioner submits that petitioner is innocent and has committed no offence. He further submits that petitioner has been made accused in this case only on suspicion and being son of co-accused Sadhu Saran Gupta. He further submits that during investigation, notice under Section 50 of PMLA was issued to the petitioner and pursuant to that notice, petitioner appeared before the Directorate of Enforcement (for short “E.D.”) on several occasions and submitted relevant papers in support of his defence and made statement in respect of the allegation made in the complaint. The E.D. recorded the statement of the petitioner and collected papers with regard to the income of the petitioner. Though, petitioner submitted all relevant documents relating to his separate establishment in Kolkata (W.B.) since the year 2011, but the E.D. has fixed collective collaboration with co- accused Sadhu Saran Gupta, who happens to be father of the petitioner and without considering the materials and documents submitted by this petitioner, this petitioner and his mother have also been made accused in this case.
4. Learned counsel for the petitioner further submits that during investigation, petitioner fully cooperated with the investigating agency and appeared with all relevant documents before the authority as and when required. The mother of petitioner, Shanti Devi is a kidney patient and for her proper treatment, the petitioner deposited cash in bank account of Sadhu Saran Gupta and this score alone, the petitioner has been made an accused in this case although petitioner explained all these things in his statement under Section 50 of PMLA and also submitted respective documents. He next submits that during investigation, the Investigating agency scrutinized the bank account in the name of M/s Shanti Enterprises, which revealed credits from M/s Kuber Trading New Delhi, M/s Om Agro Raipur, Shree Pawan Kumar, Lakhisarai and the investigation agency sent verification letters for genuineness of transactions which was returned back by postal authorities with remarks not known after which, the agency went silent on these non-existent firms, who credited the aforesaid Bank account although these firms are existent and genuine and all credit transactions are valid in favour of M/s Shanti Enterprises. For the Assessment year 2010-2011 to 2015-2016, value of untainted property was challenged by the mother of the petitioner namely Shanti Devi before the learned Commissioner of Income Tax, Bhagalpur and after considering the fact the appellate authority passed the order in favour of the mother of the petitioner (copy of order is annexed as Annexure P/3 series to this bail application). Learned counsel further submits that the petitioner has no concern with the purchase of untainted property by Sadhu Saran Gupta and Shanti Devi, which is evident in the complaint petition. Lastly, he submits that the petitioner cooperated with the officials of the Enforcement Directorate during the investigation, although the petitioner was not arrested but there is apprehension of his being arrested.
5. Lastly, learned counsel for the petitioner submits that the case of petitioner for grant of pre-arrest bail is squarely covered by the judgment of Hon’ble Supreme Court in the case of Tarsem Lal versus Directorate of Enforcement, reported in 2024 (3) PLJR (SC) 119 wherein Hon’ble Supreme Court has held that once cognizance is taken of the offence punishable under Section 4 of the PMLA, the Special Court is seized of the matter and the ED & other authorities named in Section 19 of the PMLA cannot exercise the power of arrest of the accused shown in the complaint. Hon’ble Supreme Court has further held that once complaint i filed, it will be governed by Section 200 to 205 of Cr.P.C. as none of the said provisions are inconsistent with any of the provisions of the PMLA and the Special Court can direct the accused to furnish Bond in terms of Section 88 of the Cr.P.C. and may also grant on sufficient cause, exemption from personal appearance under Section 205 Cr.P.C. The Judgment of Tarsem Lal (Supra) was followed by the Hon'ble Supreme Court in the case of Vijay Ketan Sahu Vs. Enforcement Directorate bearing SLP (Cr.) No. 8325 of 2024 wherein vide order dated 29.07.2024, the interim order was made absolute with observation that the Special Court may direct the appellant/petitioner to furnish bond for appearance in accordance with Section 88 of the Cr.P.C. Hence, on aforesaid ground, it has been prayed to allow the present anticipatory bail petition.
6. On the other hand, learned counsel appearing on behalf of opposite party/E.D. submits that once an accused appears before the Special Court, he is deemed to be in its custody and as such, the accused must apply for bail under Section 439 of the Cr.P.C. However, on merit of the case, he submits that in course of investigation under PMLA, it was revealed that repayment of loan to the extent of Rs. 16,83,507/- was found to be repaid by way of cash, indirectly, deposited in the bank account of Shri Amit Shaw, Shri Sumit Shaw and M/s Om Agro. Investigation revealed that cash, handed over to Shri Amit Shaw & Shri Sumit Shaw by Shri Rajesh Kumar, was deposited in the bank accounts and layered to the bank account of Smt. Shanti Devi. The transaction, so effected, was utilized to create the FDs. The FDs, on maturity were used for repayment of loan to the extent of Rs. 16,83,507/-. Further, investigation revealed that Shri Rajesh Kumar was not having the source of income for the creation of FD No. 32111457964 dated 29.12.2011 for Rs.5,00,000/- and FD No. 34256775906 amounting to Rs. 7,50,000/- (Total Rs. 12,50,000/-) by way of deposit of cash between 27.11.2011 to 03.01.2012 i.e. within a period of 7 days. The cash available in the hands of Shri Sadhu Saran Gupta was nothing but the proceeds of crime, given the nature of crimes committed by Shri Sadhu Saran Gupta. The proceeds of crime, available in the hands of Shri Sadhu Saran Gupta was layered by Shri Rajesh Kumar, so as to project the same was untainted, and invested in the name of Smt. Shanti Devi, in the form of FDs. Therefore, Rajesh Kumar knowingly assisted his father in commission of offence of money laundering, as defined under Section 3 of the PMLA.
7. Scrutiny of the Income Tax Returns filed in the name of Sri Rajesh Kumar (petitioner) revealed the following sources of income:
“(i) Rental income of Rs. 7,41,600/- during the Financial Year 2003-04 to 2014-15:
In course of statement u/s 50 of PMLA dated 23.09.2015 and 13.10.2015, petitioner submitted that rent accrued from the following sources:
(a) Aircel Tower – For the period 2011 to 2013, which has been credited in his bank account number 3936000100201809 held with Punjab National Bank, Lakhisarai; and rent after 2013 has been credited in his bank account number 912010028413971 maintained at Axis Bank, Barrackpore.
(b) 6-7 shops of Shanti Market, held in the name of his mother Smt. Shanti Devi. The rental income from Shanti Market has been reflected in the ITRs filed in the name of Smt. Shanti Devi. Therefore, the claim of rental income from Aircel Tower (Dish Net) and Shanti Market by Shri Rajesh Kumar is fictitious and without any basis.
(ii) With regard to Agricultural income, during investigation, it also revealed that Shri Rajesh Kumar (petitioner) was not having any agricultural income. The ITRs were without any basis and were manipulated in an attempt to legalise the tainted money available in the hands of Shri Sadhu Saran Gupta (father of petitioner), but fact remains that petitioner admitted of having only one plot of land acquired in his name by Shri Sadhu Saran Gupta, in the year 1990.
(iii) So far as business income of Rs. 24,80,949/- during Financial Year 2003-04 to F.Y. 2014-15 from trading in cement, food grains, electronic goods, resale of old/used cars etc., in course of statement u/s 50 of PMLA dated 07.07.2014, petitioner stated that he was engaged in the trading business of food grains during the year 2000 to 2003 and further during the year 2010- 11 and 201-12 through partnership firm M/s Shanu Enterprises, other partner being his brother Shri Suman Kumar, who during course of his statement u/s 50 of PMLA dated 09.06.2016 stated that no books of account has been maintained in respect of business of M/s Shanti Enterprises. Thereafter, scrutiny of bank account in the name of M/s Shanti Enterprises revealed banking transactions from M/s Kuber Trading, New Delhi, M/s Om Agro, Raipur, Shree Pawan Kumar, Lakhisarai and others. M/s Kuber Trading, M/s Om Agro and Shree Pawan Kumarwere found to be non- existent as letters sent for verification of genuineness of transactions was returned back by postal authorities with the remarks "not known". Scrutiny of the ITRs filed in the name of Shri Rajesh Kumar (petitioner) revealed that the purported business income accruing from partnership firm M/s Shanti Enterprises has been reflected in the business income of individual ITRs of Shri Rajesh Kumar. This makes apparent that no PAN in the name of partnership firm M/s Shanti Enterprises was obtained as the firm was never in existence. During the course of investigation, no documentary evidence in respect of trading of cement, food grains, electronic goods etc. could be produced to substantiate the claim of so called business of M/s Shanti Enterprises. The VAT Returns of M/s Shanti Enterprises has also been filed from the February 2006 to Financial Year 2011-12, which is without any basis, with conscious intention to hide the taint of the money acquired from undisclosed sources.”
8. Learned counsel for the Enforcement Directorate relies upon several decisions of the Supreme Court in the case of (i) Vijay Madanlal Choudhary & Ors. vs Union of India, reported in 2022 SCC OnLine SC 929, (ii) Gautam Kundu vs Manoj Kumar, Assistant Director, reported in 2016 (334) ELT 195 (SC), and (iii) Pavana Dibbur vs The Directorate of Enforcement in Criminal Appeal No. 2779 of 2023 and lastly, on a recent judgment of the Supreme Court, in the case of Union of India vs. Kanhaiya Prasad passed on 13.02.2025 in Criminal Appeal No. 728 of 2025, arising out of Special Leave Petition (Crl.) No. 7140 of 2024 and he submits that the Hon’ble Supreme Court has observed following in paragraph – 21:
“21. As well settled, the offence of money laundering is not an ordinary offence. The PMLA has been enacted to deal with the subject of money laundering activities having transnational impact on financial systems including sovereignty and integrity of the countries. The offence of money laundering has been regarded as an aggravated form of crime world over and the offenders involved in the activity connected with the Proceeds of Crime are treated as a separate class from ordinary criminals. Any casual or cursory approach by the courts while considering the bail application of the offender involved in the offence of money laundering and granting him bail by passing cryptic orders without considering the seriousness of the crime and without considering the rigours of Section 45, cannot be vindicated.”
9. Accordingly, learned counsel appearing on behalf of E.D. submits that after considering the entire facts and circumstances of the present case, the learned Session Judge/Special Judge (PMLA), Patna has rightly rejected the Anticipatory Bail petition filed on behalf of the Petitioner, vide order dated 23.02.2024 and this Court should refrain from interfering with the impugned order.
10. Though, learned counsel for the opposite party / E.D. has relied upon number of decisions of the Supreme Court, however, I find that none of the decisions cited by him really extend any help or benefit to him. Same are distinguishable on facts. The facts and legal issues involved in the present case are materially different and distinguishable on key facts.
11. Heard the submissions so advanced by learned counsel for the parties and perused the materials available on record. This Court is in agreement with the submission advanced by learned counsel for the petitioner that once cognizance is taken of the offence punishable under Section 4 of the PMLA, the Special Court cannot exercise the power of arrest of the accused shown in the complaint and accordingly, the order impugned i.e. order dated 23.02.2024 passed by learned Sessions Judge /Special Judge (PMLA), Patna in Special Trial (PMLA) Case No. 01 of 2017, arising out of ECIR No. PTZO/02/2014 dated 07.01.2014, is, hereby, set aside, in the light of judgment of the Supreme Court in the case of Tarsem Lal (supra) and learned Special Court (PMLA), Patna is directed to consider the application of petitioner afresh and dispose of the same in the light of observation made by Hon’ble Supreme Court in paragraphs 23 & 25 of the case of Tarsem Lal (supra) with following conditions:
"(i) The petitioner shall appear before the concerned Special Court within one month from the date of receipt / production of copy of this order and shall file an undertaking before the Special Court that he shall regularly and punctually appear before the Special Court on the dates fixed unless his appearance is specifically exempted by the exercise of powers under Section 205 of the Cr.P.C.; and
(ii) The petitioner shall furnish bond in accordance with Section 88 of the Cr.P.C. to the satisfaction of the Special Court within one month from the date of receipt / production of copy of this order."
12. With above observation and direction, this petition is allowed.
