# Govind Prakash Pandey v. Directorate of Enforcement, G.O.I

- **Citation:** (2023) 3 ILRA 560
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-20
- **Case number:** Crl. Misc. Bail Application No. 1943 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-prakash-pandey-v-directorate-of-enforcement-g-o-i-49879
- **Pages:** 13

## Headnote

Law
-Code
of
Criminal
Procedure, 1973-Section 439 - Prevention
of Money Laundering Act, 2002-Sections 3
& 4-In the present case, there was no
requirement to take the applicant into
custody when he appeared before the
learned
trial
court
pursuant
to
the
summons being issued inasmuch as he has
never flouted the process of law, he
cooperated
in
the
investigation
throughout, the Investigating Agency has
never thought to arrest him under Section
19 of the PMLA despite he appeared
3 All. Govind Prakash Pandey Vs. Directorate of Enforcement, G.O.I.
561
before the E.D. to record his statement
twice pursuant to the summons being
issued u/s 50 of the PMLA and there was
no request of the E.D. before the learned
trial court to the effect that arrest of the
present
applicant
is
warranted-the
applicant's bail application was rejected
observing that the twin conditions of
Section 45 of the PMLA are not being
satisfied, without considering the relevant
aspect that the Investigating Agency has
never arrested the applicant u/s 19 of the
PMLA-Hence, the rigour of Section 45 of
the PMLA would not be attracted in the
present case-Learned trial court has taken
the custody of the present applicant
without following the settled proposition
of law of the Apex Court in Aman Preet
Singh and Satender Kumar Antil.(Para 1 to
29)

B. The twin conditions provided u/s 45 of
the 2002 Act, though restrict the right of the
accused to grant of bail, but it cannot be
said that the conditions provided u/s 45
impose absolute restraint on the grant of
bail. The discretion vests in the Court which
is not arbitrary or irrational but judicial,
guided by the principles of law as provided
u/s 45 of the 2002 Act...."(Para 26)

The bail application is allowed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,860 of 44,092. This is a partial read: ask again with offset=39860 for what follows._

560 INDIAN LAW REPORTS ALLAHABAD SERIES
the life of the law. It can be said that the
history of law is the history of adapting the
law to society's changing needs. In both
constitutional and statutory interpretation,
the court is supposed to exercise discretion
in determining the proper relationship
between the subjective and objective
purposes of the law.

40. As regards the fact that number of
persons have already been released on
anticipatory bail, therefore, parity has been
claimed, this Court finds that while
granting bail, focus should be upon role of
the accused, position of the accused in
relation to the incident as well as to the
victims, are utmost important factors to be
considered, as has been held by the
Supreme Court in the case of Mahadev
Meena v. Praveen Rathore and another.

41. This Court finds that accused are
persons
connected
with
Broadwell
Christian Society and involved in mass
conversion as the evidence in this regard
has been collected by the Investigating
Officer, who found them to be custodian of
the premises from where recovery of
relevant material proving offence of mass
conversion has been done.

42. It may be kept in mind that
anticipatory bail is an extraordinary remedy
to be exercised in suitable cases only. The
power under section 438 Cr.P.C. cannot be
utilized in a routine manner as a substitute
for regular bail. This discretionary power
calls for existence of facts of the kind
where the court is satisfied that its
interference is necessary to further the
cause of justice and to prevent misuse of
process of law.

43. Having gone through the
submissions of learned counsel for the
parties, nature of accusation of offence,
role of the applicants being persons
connected with the Society, their intent
behind the charitable works, appears to be
dubious, affecting the interest of marginal
section of society, object of the law and the
impact of the same on society, I do not find
it a fit case for granting anticipatory bail.

44. The anticipatory bail applications
stand rejected.
----------
(2023) 3 ILRA 560
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 20.02.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Crl. Misc. Bail Application No. 1943 of 2023

Govind Prakash Pandey ...Applicant
Versus
Directorate of Enforcement, G.O.I.
 ...Opposite Party

Counsel for the Applicant:
Aviral Raj Singh, Alok Kumar Singh, Dhruv
Kumar Singh, Palash Banerjee, Ritwick Rai,
Vaibhav Tiwari

Counsel for the Opposite Party:
Rohit Tripathi

A.
Criminal
Law
-Code
of
Criminal
Procedure, 1973-Section 439 - Prevention
of Money Laundering Act, 2002-Sections 3
& 4-In the present case, there was no
requirement to take the applicant into
custody when he appeared before the
learned
trial
court
pursuant
to
the
summons being issued inasmuch as he has
never flouted the process of law, he
cooperated
in
the
investigation
throughout, the Investigating Agency has
never thought to arrest him under Section
19 of the PMLA despite he appeared
3 All. Govind Prakash Pandey Vs. Directorate of Enforcement, G.O.I.
561
before the E.D. to record his statement
twice pursuant to the summons being
issued u/s 50 of the PMLA and there was
no request of the E.D. before the learned
trial court to the effect that arrest of the
present
applicant
is
warranted-the
applicant's bail application was rejected
observing that the twin conditions of
Section 45 of the PMLA are not being
satisfied, without considering the relevant
aspect that the Investigating Agency has
never arrested the applicant u/s 19 of the
PMLA-Hence, the rigour of Section 45 of
the PMLA would not be attracted in the
present case-Learned trial court has taken
the custody of the present applicant
without following the settled proposition
of law of the Apex Court in Aman Preet
Singh and Satender Kumar Antil.(Para 1 to
29)

B. The twin conditions provided u/s 45 of
the 2002 Act, though restrict the right of the
accused to grant of bail, but it cannot be
said that the conditions provided u/s 45
impose absolute restraint on the grant of
bail. The discretion vests in the Court which
is not arbitrary or irrational but judicial,
guided by the principles of law as provided
u/s 45 of the 2002 Act...."(Para 26)

The bail application is allowed. (E-6)

List of Cases cited:

1. Satender Kumar Antill Vs CBI & anr. (2022)
10 SCC 51
2. Aman Preet Singh Vs CBI Thru Director
(2021) SCC OnLine SC 941

3. Katar Singh Vs ED, SLP (Crl.) No. 12635 of
2022

4. Rana Kapoor Vs ED (2022) SCC OnLine Del
4065

5. Vijay Madanlal Choudhary & ors. Vs U.O.I. &
ors. (2022) SCC OnLine SC 929

6. Gautam Kundu Vs ED (PMLA), GOI, thru
Manoj Kumar, Asst. Dir., Eastern Region (2015)
16 SCC 1
(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Jaideep Narain Mathur,
learned Senior Advocate, assisted by Sri
Ritwick Rai, Sri Rajiv Shaker Bhatnagar,
Sri Birendra Kumar Mishra, Sri Anshuman
Mohit Chaturvedi, Sri Agni Sen, Sri
Vaibhav Tiwari and Sri Aviral Rai, learned
counsel for the applicant as well as Sri
Rohit Tripathi, learned counsel for the
Enforcement Directorate.

2. Sri Rohit Tripathi has filed counter
affidavit, the same is taken on record.

3. As per learned counsel for the
applicant, the present applicant is in jail
since 10.01.2023 in Sessions Case No.2791
of
2022,
arising
out
of
ECIR
No.ECIR/04/PMLA/LZO/2012,
under
Sections 3 & 4 of the Prevention of Money
Laundering Act, 2002, currently pending in
the Court of learned Special Judge, PMLA,
Lucknow.

4. Brief facts of the case are that the
present case pertains to the National Rural
Health Mission (hereinafter referred to as
"NRHM") in the State of U.P., which was
floated on the joint efforts of the Central
Government and State Government. One
M/s. Jagran Solutions was established in
the year 2005 as a unit of Jagran Prakashan
Ltd. (for short "JPL"). Jagran Solutions is a
reputed concern involved in business
activities of brand activation, Meetings
Incentives Conferences and Events (for
short "M.I.C.E"), retail & ISP, Rural
Marketing
and
Activation
Consulting.
Jagran Solutions has so far executed more
than 4500 projects with total turn-over of
over Rs.500 Crores and has to its credit, 63
National-level and 76 International-level
Awards.
562 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The Applicant joined Jagran
Solutions in the year 2007 as Senior
Accounts
Manager
and
is
presently
working as the business head of Jagran
Solutions. As a part of his official duties,
the
applicant
undertook
business
development and client servicing for Jagran
Solutions.

6. The Director General, Family
Welfare, U.P., published an advertisement
seeking private bidders to operate MMUs
in selected districts of U.P. for a period of
three years. Jagran Solutions submitted a
proposal for providing MMUs in all 15
districts as advertised in the Request For
Proposal (for short "RFP"). The financial
proposal submitted by Jagran Solutions
quoted
a
composite
price
(Capital
Expenditure plus Recurring Expenditure)
of INR 1,36,97,098/- as the cost per MMU.
The financial proposals of Jagran Solutions
were approved and the Firm entered into
four different agreements with the Director
General, Family Welfare. On the complaint
of huge bungling, fraud and forgery in the
issue relating to the NRHM, the matter was
referred to the CBI and CBI registered
preliminary
enquiry
on
19.11.2011
pursuant to the order being passed by the
High Court in Writ Petitions No.3611 (MB)
of 2011, 3301 (MB) of 2011 and 2647
(MB) of 2011, dated 15.11.2011. Pursuant
to the report of preliminary enquiry, CBI
registered FIR No.RC 04(A)/2012, SCUV/SC-II, New Delhi (FIR) on 05.02.2012,
inter alia, against M/s. Jagran Solutions,
under Section 420 IPC, Sections 13(2) r/w
Section 13(1)(d) of the Prevention of
Corruption Act, 1988 (hereinafter referred
to as "PC Act".

7. The Enforcement Directorate also
registered
ECIR/04/PMLA/LZO/2012
(ECIR) on 14.04.2012.

8. Notably, after some litigations at
the High Court and the Apex Court, the
present applicant was sent to the judicial
custody on 03.07.2014 by the Special
Judge, P.C. Act in relation to the predicate
offence due to his non-appearance in the
court on the date fixed owing to death of
the father of the applicant. However, his
counsel was duly appeared before the
learned trial court. Thereafter, vide order
dated 28.08.2015 passed in Criminal Misc.
Second Bail Application No.934 of 2015
(Annexure No.11), the present applicant
was granted bail by this Court. In the
aforesaid order dated 28.08.2015, this
Court has observed that the applicant has
throughout cooperated in the investigation,
has not absconded and there is no
likelihood of tampering with the evidence
by the applicant. This Court further
directed the applicant to deposit a sum of
Rs.4.89 Crores, the alleged misappropriated
amount before the learned trial court. The
applicant has deposited the aforesaid
amount of Rs.4.89 Crores in compliance of
the order dated 28.08.2015.

9. Since the Enforcement Directorate
(hereinafter referred to as "E.D.") was
continuing with its investigation under the
Prevention of Money-Laundering Act,
2002 (hereinafter referred to as "PMLA")
in furtherance of ECIR, the applicant duly
cooperated in the investigation and his
statement was recorded by the E.D. under
Section 50 of PMLA on 23.12.2016 and
10.06.2019. Since the present applicant was
properly cooperating in the investigation,
therefore, he was not arrested by the E.D.
under Section 19 of the PMLA during the
course of the investigation.

10. After more than 10 years from the
registration
of
ECIR,
the
E.D.
on
05.12.2022 filed a prosecution complaint
3 All. Govind Prakash Pandey Vs. Directorate of Enforcement, G.O.I.
563
under Section 44 read with Section 45 of
the PMLA, inter alia, making the present
applicant and JPL as accused no.3 & 4
therein. The Special Judge, PMLA took
cognizance of the prosecution complaint on
17.12.2022
and
issued
summons
on
22.12.2022 to the applicant for appearance
on 10.01.2023, however, no proper service
of summons was effected on the applicant
and only a constructive service was
effected. Learned Senior Advocate has
stated that no property of the applicant or
JPL has been attached by the E.D.

11. On 22.12.2022, summons have
been issued against the applicant. Learned
Senior Advocate has stated that the
aforesaid summons issued to the applicant
did not contain copy of the prosecution
complaint filed by the E.D., copy of
statements and relevant documents of the
complaint, which is a clear cut violation of
Sections 204 (3) & 208 Cr.P.C. For the
convenience, Sections 204 (3) & 208
Cr.P.C.
are
being
reproduced herein
below:-

"204.
(3)
In
a
proceeding
instituted upon a complaint made in
writing, every summons or warrant issued
under
sub-
section
(1)
shall
be
accompanied by a copy of such complaint.

208.
Supply
of
copies
of
statements and documents to accused in
other cases triable by Court of Session.
Where, in a case instituted otherwise than
on a police report, it appears to the
Magistrate issuing process under section
204 that the offence is triable exclusively by
the Court of Session, the Magistrate shall
without delay furnish to the accused, free of
cost, a copy of each of the following:-

(i) the statements recorded under
section 200 or section 202, of all persons
examined by the Magistrate;

(ii)
the
statements
and
confessions, if any, recorded under section
161 or section 164;

(iii) any documents produced
before the Magistrate on which the
prosecution proposes to rely:

Provided that if the Magistrate is
satisfied that any such document is
voluminous, he shall, instead of furnishing
the accused with a copy thereof, direct that
he will only be allowed to inspect it either
personally or through pleader in Court."

12. Specific recital to this effect has
been given in para-8 (xxix) of the bail
application.

13. Sri Mathur has stated that the
aforesaid fact has been admitted in the
counter
affidavit
in
para-37
thereof
indicating that while proceedings were
being conducted, the accused or his counsel
never asked for the copies, however, the
E.D. is always willing to provide copies of
the documents to the accused-applicant and
those copies can be collected from the
office of E.D. As per Sri Mathur, despite
the summons having not been served upon
the applicant, he came to know the date,
therefore, he appeared before the learned
trial court on 10.01.2023 where he has been
taken into custody. Admittedly, copies of
the complaint and other relevant documents
have not been provided to the applicant or
his counsel. On the same date, the
application for bail was pressed on behalf
of the applicant; on that, learned counsel
for the E.D. prayed time to file objection,
therefore, the applicant pressed ad-interim
bail apprising that the present applicant has
not been arrested by the E.D. under Section
19 of the PMLA, he cooperated in the
investigation, he never flouted the process
of law and he further undertakes to
cooperate with the proceedings, therefore,
564 INDIAN LAW REPORTS ALLAHABAD SERIES
in the light of the dictum of the Apex Court
in re; Satender Kumar Antil Vs. Central
Bureau of Investigation & Another,
(2022) 10 SCC 51, he may be given adinterim bail but his ad-interim bail
application was rejected by the learned trial
court on 10.01.2023 and the applicant was
sent to the judicial custody fixing the date
as 18.01.2023. The regular bail application
of the present applicant was rejected by the
learned trial court on 24.01.2023 by
observing that the twin conditions of
Section 45 of PMLA are necessary and
those conditions are not satisfied, therefore,
the applicant is not entitled for bail.

14. Sri Jaideep Narain Mathur,
learned Senior Advocate, has submitted
that the Apex Court in re; Aman Preet
Singh vs. C.B.I. Through Director, 2021
SCC OnLine SC 941, has held that if
during investigation, the accused has
cooperated in the investigation and has not
been arrested by the Investigating Agency,
merely because charge sheet has been filed,
he should not be arrested. He has referred
paragraphs 10, 11 & 12 of the aforesaid
judgment, which are as under:-

"10. A reading of the aforesaid
shows that it is the guiding principle for a
Magistrate while exercising powers under
Section 170, Cr.P.C. which had been set
out.
The
Magistrate
or
the
Court
empowered to take cognizance or try the
accused has to accept the charge sheet
forthwith and proceed in accordance with
the procedure laid down under Section 173,
Cr.P.C. It has been rightly observed that in
such a case the Magistrate or the Court is
required to invariably issue a process of
summons and not warrant of arrest. In case
he seeks to exercise the discretion of
issuing warrants of arrest, he is required to
record the reasons as contemplated under
Section 87, Cr.P.C. that the accused has
either been absconding or shall not obey
the summons or has refused to appear
despite proof of due service of summons
upon him. In fact the observations in Subpara (iii) above by the High Court are in
the nature of caution.

11. Insofar as the present case is
concerned and the general principles under
Section 170 Cr.P.C., the most apposite
observations are in sub-para (v) of the
High Court judgment in the context of an
accused in a non-bailable offence whose
custody was not required during the period
of investigation. In such a scenario, it is
appropriate that the accused is released on
bail as the circumstances of his having not
been arrested during investigation or not
being produced in custody is itself
sufficient to entitle him to be released on
bail. The rationale has been succinctly set
out that if a person has been enlarged and
free for many years and has not even been
arrested during investigation, to suddenly
direct his arrest and to be incarcerated
merely because charge sheet has been filed
would be contrary to the governing
principles for grant of bail. We could not
agree more with this.

12. If we may say, the observation
hereinabove
would
supplement
our
observations made in Siddharth v. State of
Uttar Pradesh, 2021 SCC OnLine SC 615
and must be read together with that
judgment.

15. Sri Mathur has further drawn
attention of this Court towards the dictum
of the Apex Court in re; Satender Kumar
Antil (supra) referring para-2 where three
categories have been indicated for applying
the judgment; para-2 reads as under:-

"2. After allowing the application
for intervention, an appropriate order was
3 All. Govind Prakash Pandey Vs. Directorate of Enforcement, G.O.I.
565
passed on 7-10-2021 [Satender Kumar
Antil v. CBI, (2021) 10 SCC 773 : (2022) 1
SCC (Cri) 153] . The same is reproduced
as under : (Satender Kumar Antil case
[Satender Kumar Antil v. CBI, (2021) 10
SCC 773 : (2022) 1 SCC (Cri) 153] , SCC
pp. 774-76, paras 2-11)

"2. We have been provided
assistance both by Mr S.V. Raju, learned
Additional Solicitor General and Mr
Sidharth Luthra, learned 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 43D(5)], Companies Act, [Section 212(6)],
etc.

(D)
Economic
offences
not
covered by Special Acts.

REQUISITE CONDITIONS

(1)
Not
arrested
during
investigation.

(2) Cooperated throughout in the
investigation including appearing before
investigating officer whenever called.

(No need to forward such an
accused along with the charge-sheet
(Siddharth v. State of U.P. [Siddharth v.
State of U.P., (2022) 1 SCC 676 : (2022) 1
SCC (Cri) 423])
CATEGORY A

After
filing
of
chargesheet/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 43D(5) of the UAPA, POSCO, etc.'

4. Needless to say that Category
A deals with both police cases and
complaint cases.
566 INDIAN LAW REPORTS ALLAHABAD SERIES

5. The trial courts and the High
Courts will keep in mind the aforesaid
guidelines
while
considering
bail
applications. The caveat which has been
put by the learned ASG is that where the
accused have not cooperated in the
investigation nor appeared before the
investigating
officers,
nor
answered
summons when the court feels that judicial
custody of the accused is necessary for the
completion of the trial, where further
investigation including a possible recovery
is needed, the aforesaid approach cannot
give them benefit, something we agree with.

6. We may also notice an aspect
submitted by Mr Luthra that while issuing
notice to consider bail, the trial court is not
precluded from granting interim bail taking
into consideration the conduct of the
accused during the investigation which has
not warranted arrest. On this aspect also
we would give our imprimatur and
naturally the bail application to be
ultimately considered, would be guided by
the statutory provisions.

7. The suggestions of the learned
ASG which
we
have
adopted
have
categorised a separate set of offences as
"economic offences" not covered by the
special Acts. In this behalf, suffice to say on
the submission of Mr Luthra that this Court
in Sanjay Chandra v. CBI [Sanjay Chandra
v. CBI, (2012) 1 SCC 40 : (2012) 1 SCC
(Cri) 26 : (2012) 2 SCC (L&S) 397] has
observed in para 39 that in determining
whether to grant bail both aspects have to
be taken into account:

(a) seriousness of the charge, and

(b) severity of punishment.
Thus, it is not as if economic offences are
completely taken out of the aforesaid
guidelines but do form a different nature of
offences and thus the seriousness of the
charge has to be taken into account but
simultaneously,
the
severity
of
the
punishment imposed by the statute would
also be a factor.

8. We appreciate the assistance
given by the learned counsel and the
positive approach adopted by the learned
ASG.

9. The SLP stands disposed of
and the matter need not be listed further.

10. A copy of this order be
circulated to the Registrars of the different
High Courts to be further circulated to the
trial courts so that the unnecessary bail
matters do not come up to this Court.

11. This is the only purpose for
which we have issued these guidelines, but
they are not fettered on the powers of the
courts."

16. Sri Mathur has stated that the
present case is relating to the category ''C',
which has been dealt in para-86 of the
judgment, which reads as under:-

"Special Acts (Category C)

86. Now we shall come to
Category C. We do not wish to deal with
individual enactments as each special Act
has got an objective behind it, followed by
the rigour imposed. The general principle
governing delay would apply to these
categories also. To make it clear, the
provision contained in Section 436-A of the
Code would apply to the Special Acts also
in the absence of any specific provision.
For example, the rigour as provided under
Section 37 of the NDPS Act would not
come in the way in such a case as we are
dealing with the liberty of a person. We do
feel that more the rigour, the quicker the
adjudication ought to be. After all, in these
types of cases number of witnesses would
be very less and there may not be any
justification for prolonging the trial.
Perhaps there is a need to comply with the
directions of this Court to expedite the
3 All. Govind Prakash Pandey Vs. Directorate of Enforcement, G.O.I.
567
process and also a stricter compliance of
Section 309 of the Code."

17. Sri Mathur has also drawn
attention of this Court towards the
judgment and order dated 09.01.2023
passed by the Apex Court in re; Katar
Singh Vs. Directorate of Enforcement,
Petition(s) for Special Leave to Appeal
(Crl.) No(s).12635 of 2022, to submit that
the Apex Court protected the liberty of that
accused considering the fact that the
Investigating Agency did not arrest the
accused under Section 19 of the PMLA
when
investigation
begins.
For
the
convenience, the order dated 09.01.2023
reads as under:-

"Applications for exemption from
filing
documents/facts/annexures
and
exemption from filing O.T. are allowed.

Learned counsel for the petitioners
submit that the petitioners have already
suffered pre trial custody for more than four
years in respect of the scheduled offence, the
investigating agency did not arrest the
petitioners under Section 19 PMLA when
investigation begins, that they are senior
citizens of approximately 66,70, 68 and 67
years of age respectively and properties of
petitioners in SLP (Crl.) Nos. 12635/2022
and 12615/2022 have even attached worth
Rs. 8,00,000/- and Rs. 5,50,000/- and
petitioners in SLP (Crl.) Nos. 12646/2022
and 12919/2022 have deposited the alleged
amount of Rs. 11,88,000/- and 50,00,000/- in
the respective matters. It is further submitted
that the total period of incarceration in case
of conviction is only seven years and Section
45 PMLA will not be applicable as it is preamendment.

Issue notice.

In the meantime, the petitioners
be not arrested but shall continue to
cooperate with further investigation."

18. Sri Mathur has also referred the
judgment of the High Court of Delhi in re;
Rana
Kapoor
Vs.
Directorate
of
Enforcement, 2022 SCC OnLine Del
4065, to submit that in more or less in
similar facts and circumstances, the Delhi
High Court has granted bail to the accused
persons. The ratio of the judgment has been
indicated in paras 33 & 34, which reads as
under:-

"33. The applicant was not
implicated
in
FIR
bearing
RC
No.2232021A0005 registered by CBI. The
applicant
was
implicated
in
present
criminal
complaint
filed
by
the
respondent/ED and arrayed as accused no
2. The investigating officer consciously did
not arrest the applicant. The applicant
participated in investigation as his three
statements under section 50 PMLA were
recorded. The respondent also did not
allege
that
the
applicant
neither
participated
nor
cooperated
in
investigation. The concerned Special Court
after taking cognizance on present criminal
complaint ordered for summoning of the
accused persons including the applicant.
The investigating officer even after filing of
present complaint did not apply for custody
of the applicant. The co-accused Gautam
Thapar was arrested consciously by the
investigating officer during investigation
and was denied bail by the Special Court
and High Court and as such the applicant
is standing on different footing from coaccused Gautam Thapar. The applicant
was taken into custody due to dismissal of
bail
application
vide
order
dated
20.01.2022 passed by the court of Sh.
Sanjeev Aggarwal, Special Judge (PC
Act)(CBI)-02 Rouse Avenue District Court,
New Delhi. The applicant primarily not
seeking bail on merit but on basis of
observation made by the Supreme Court in
568 INDIAN LAW REPORTS ALLAHABAD SERIES
para no 65 of Satinder Kumar Antil
decision and as such applicant is not
required to pass the test of section 45
PMLA. The conditions as per section 45
PMLA would be applicable, had the
applicant filed an application either under
section 439 of the Code after arrest during
investigation or under section 438 of the
Code apprehending his arrest during
investigation. As mentioned in present
criminal complaint filed by the respondent,
the applicant was not arrested during
investigation by the investigating agency.
There is legal force in argument advanced
by the learned Senior Counsel of the
applicant that applicant is entitled to bail
in view of observations/legal proposition as
laid down by the Supreme Court in
Satinder Kumar Antil. It is not mandate of
section 170 of the Code that if the accused
is not taken into custody or arrested during
investigation can be arrested or taken into
custody after appearance in court post
summoning order particularly when neither
investigation
agency
nor
prosecution
agency sought arrest of accused.

34. The arguments advanced by
the learned Special Counsel for the
respondent
that
the
applicant
has
misinterpreted para no 65 of Satinder
Kumar Antil is misplaced. There is no force
in argument advanced by the learned
Special Counsel for the respondent that the
applicant before grant of bail required to
pass test of 45 of PMLA. The position
would have been different, had the
applicant arrested during investigation.
The investigating agency as mentioned
hereinabove consciously preferred not to
arrest the applicant during investigation or
post filing of charge sheet. The arguments
advanced and case law relied on by the
Special Counsel for the respondent are
considered in right perspective to the given
facts and circumstances but they do not
provide much legal help to the respondent
in opposing present bail application."

19. Therefore, to sum up, Sri Mathur,
learned Senior Advocate, has submitted
that while granting the bail to the present
applicant in the predicate offence, this
Court has observed that the applicant has
never flouted the process of law and has
cooperated in the investigation properly.
The direction was issued to deposit a sum
of Rs.4.89 Crore, which has been deposited
by the applicant in the year 2015 itself.
Since then, the applicant is cooperating in
the investigation being conducted by the
Enforcement Directorate as he has been
called twice to record his statement under
Section 50 of the PMLA and the present
applicant has recorded his statement. The
E.D. did not arrest the applicant under
Section
19
of
the
PMLA
as
the
Investigating Agency did not find it
appropriate to arrest the applicant during
investigation as he was cooperating. After
filing of the prosecution complaint, the
learned trial court took cognizance and
issued summons to the applicant without
making compliance of the mandatory
provisions of Section 204 (3) Cr.P.C. as
neither copy of the complaint has been
supplied to the applicant nor any relevant
documents have been provided. Even when
the present applicant appeared before the
learned trial court on 10.01.2023, none of
the documents either the prosecution
complaint or its supporting documents have
been provided. Not only the above, copies
of statements and other documents have not
been
provided
to
the
applicant
in
compliance of Section 208 Cr.P.C. when
the applicant appeared before the learned
trial court. The present applicant could
have been given ad-interim bail in the light
of the dictum of the Apex Court in re;
Aman Preet Singh (supra) and Satender
3 All. Govind Prakash Pandey Vs. Directorate of Enforcement, G.O.I.
569
Kumar Antil (supra), but his ad-interim
bail application has been rejected and he
has been sent to the judicial custody in a
sheer illegal and unwarranted manner.
Thereafter, his bail application has been
rejected observing that the twin conditions
of Section 45 of the PMLA are not being
satisfied, without considering the relevant
aspect that the Investigating Agency has
never arrested the applicant under Section
19 of the PMLA nor any request was made
before the learned trial court on 10.01.2023
when the applicant appeared before the
learned trial court. Therefore, as per Sri
Mathur, in such circumstances, the rigour
of Section 45 of the PMLA would not be
attracted in the present case. The present
applicant undertakes that he shall cooperate
in the trial proceedings and shall not misuse
the liberty of bail and shall abide by all
terms and conditions of the bail order, if he
is enlarged on bail.

20. Per contra, Sri Rohit Tripathi,
learned counsel for the E.D. has submitted
that a person accused of the offence of
money laundering can only be released
when the conditions stipulated under
Section 45 of the PMLA are satisfied i.e.
prosecution/E.D. is given an opportunity to
oppose the release/bail of the accused
applicant and if the accused is released,
reasons have to be recorded that there is a
reasonable satisfaction that the accused has
not committed the offence of money
laundering. In support of his aforesaid
submission, he has placed reliance upon
paragraphs 398 & 399 of the dictum of the
Apex Court in re; Vijay Madanlal
Choudhary and Others Vs. Union of
India and Others, 2022 SCC OnLine SC
929, which reads as under:-

"398. Thus, it is well settled by
the various decisions of this Court and
policy of the State as also the view of
international community that the offence of
money-laundering is committed by an
individual with a deliberate design with the
motive to enhance his gains, disregarding
the interests of nation and society as a
whole and which by no stretch of
imagination can be termed as offence of
trivial nature. Thus, it is in the interest of
the State that law enforcement agencies
should be provided with a proportionate
effective mechanism so as to deal with
these types of offences as the wealth of the
nation is to be safeguarded from these
dreaded criminals. As discussed above, the
conspiracy of money-laundering, which is a
three-staged process, is hatched in secrecy
and executed in darkness, thus, it becomes
imperative for the State to frame such a
stringent law, which not only punishes the
offender proportionately, but also helps in
preventing the offence and creating a
deterrent effect.

399. In the case of the 2002 Act,
the Parliament had no reservation to
reckon the offence of money-laundering as
a serious threat to the financial systems of
our country, including to its sovereignty
and integrity. Therefore, the observations
and in particular in paragraph 47 of
Nikesh Tarachand Shah vs. Union of India,
(2018) 11 SCC 1, are in the nature of
doubting the perception of the Parliament
in that regard, which is beyond the scope of
judicial review. That cannot be the basis to
declare the law manifestly arbitrary."

21. Sri Tripathi has also cited para-37
of the judgment of the Apex Court in re;
Gautam
Kundu
v.
Directorate
of
Enforcement (Prevention of MoneyLaundering Act), Government of India
through
Manoj
Kumar,
Assistant
Director, Eastern Region, (2015) 16 SCC
1, which reads as under:-
570 INDIAN LAW REPORTS ALLAHABAD SERIES

"37. We do not intend to further
state the other facts excepting the fact that
admittedly the complaint was filed against
the
appellant
on
the
allegation
of
committing
offence
punishable
under
Section 4 of PMLA. The contention made
on behalf of the appellant that no offence
under Section 24 of the SEBI Act is made
out against the appellant, which is a
scheduled offence under PMLA, needs to be
considered from the material collected
during the investigation and further to be
considered by the competent court of law.
We do not intend to express ourselves at
this stage with regard to the same as it may
cause prejudice to the case of the parties in
other proceedings. We are sure that it is
not expected at this stage that the guilt of
the accused has to be established beyond
reasonable doubt through evidence. We
have noted that in Y.S. Jagan Mohan Reddy
v. CBI [Y.S. Jagan Mohan Reddy v. CBI,
(2013) 7 SCC 439 : (2013) 3 SCC (Cri)
552] , this Court has observed that: (SCC
p. 449, para 34)

"34. ... The economic offences
having
deep-rooted
conspiracies
and
involving huge loss of public funds need to
be viewed seriously and considered as
grave offences affecting the economy of the
country as a whole and thereby posing
serious threat to the financial health of the
country...."

22. On being confronted Sri Rohit
Tripathi as to whether the Investigating
Agency has ever thought to arrest the
applicant during investigation on the basis
of material, evidences and allegations
against the applicant, Sri Tripathi has fairly
stated
that
during
investigation,
the
Investigating Agency did not think to arrest
the applicant pursuant to the ECIR dated
14.04.2012. He has also submitted that the
summons were issued to the applicant to
cooperate in the investigation and to record
his statement under Section 50 of the
PMLA and the applicant duly appeared
before the E.D. on 23.12.2016 and
10.06.2019, therefore, Sri Tripathi has
submitted that the present applicant has not
been arrested under Section 19 of the
PMLA.

23. On being further confronted as to
why the applicant has not been provided
copy of complaint and copies of statements
and relevant documents to the applicant in
compliance of Section 204 (3) and 208
Cr.P.C., Sri Tripathi has stated that such
copies have not been demanded by the
applicant or his counsel, therefore, the
same were not provided. However, he has
submitted that the same shall be provided
to the applicant or his counsel but at this
juncture, he could not dispute that the
mandatory compliance of Sections 204 (3)
& 208 Cr.P.C. has not been made.

24. Heard learned counsel for the
parties and perused the material available
on record.

25. At the very outset, it would be apt
to deal the rigours of Section 45 of the
PMLA, which provides that before granting
bail, the twin conditions have to be seen
carefully. In the present case, this is an
admitted case of the prosecution that after
lodging the ECIR on 14.04.2012, the E.D.
has not tried to arrest the present applicant
under Section 19 of the PMLA. Even after
release of the present applicant from jail in
the predicate offence in the year 2015, the
present applicant was called twice by the
E.D. under Section 50 of the PMLA to
record his statement on 23.12.2016 and
10.06.2019 where the applicant appeared
and recorded his statement but the E.D. has
not arrested the applicant under Section 19
3 All. Govind Prakash Pandey Vs. Directorate of Enforcement, G.O.I.
571
of the PMLA. Therefore, it is clear that
considering the proper cooperation of the
present applicant in the investigation and
evidences, material and allegations against
the applicant, the Investigating Officer did
not find it proper to arrest the applicant
under Section 19 of the PMLA. In other
words, his arrest was not warranted during
investigation. It is also clear from the
records that after proper cooperation of the
applicant
in
the
investigation,
the
prosecution compliant was filed by the
E.D. where the learned trial court took
cognizance and issued summons to the
applicant and the applicant appeared before
the learned trial court pleading his bonafide
conduct
apprising
each
facts
and
circumstances
seeking
bail
giving
undertaking that he shall cooperate in the
trial proceedings in the same manner as he
has cooperated in the investigation, but on
the request of learned counsel for the E.D.
to file objection, the bail application was
adjourned; then the applicant prayed for adinterim bail making submission regarding
his bonafide but ad-interim bail application
of the applicant has been rejected without
considering the dictums of the Apex Court
in re; Aman Preet Singh (supra) and
Satender Kumar Antil (supra). Even his
regular bail application has been rejected
on the ground that the twin conditions of
Section 45 of the PMLA are not being
satisfied whereas in the present case, the
applicant has not been arrested by the
Investigating Agency under Section 19 of
the PMLA and the counsel for the E.D. was
properly heard by the trial court, therefore,
rigours of Section 45 of the PMLA should
not be made applicable in the present case.

26. Sub-clause (2) of Section 44 of
PMLA provides that nothing contained in
this section shall be deemed to affect the
special power of the High Court regarding
bail under Section 439 Cr.P.C. The Apex
Court vide para 400 in re; Vijay Madanlal
Choudhary (supra) has observed as
under:-

"400. It is important to note that
the twin conditions provided under Section
45 of the 2002 Act, though restrict the right
of the accused to grant of bail, but it cannot
be said that the conditions provided under
Section 45 impose absolute restraint on the
grant of bail. The discretion vests in the
Court which is not arbitrary or irrational
but judicial, guided by the principles of law
as provided under Section 45 of the 2002
Act...."

27. Notably, the statutory rights of the
present applicant defined under Section 204
(3) & 208 Cr.P.C.