The court found that the applicant's arrest lacked sufficient grounds due to an unsigned FIR and absence of a chargesheet, allowing bail under the PMLA.

ORDER:

Manish Pitale, J.

The applicant in the present case was arrested on 27.06.2023 and he is seeking bail, on the basis that despite the rigours of the twin test contemplated under Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA), he is entitled to such relief.

2. The applicant joined the Indian Revenue Service in the year 2008 and after completing his training, he joined Central Excise Zone on 17.05.2010. Having served in various capacities, including as Deputy Director, Directorate of Enforcement, Mumbai, he was working as Additional Commissioner (Appeals), Lucknow CGST and CX Zone, when FIR dated 30.06.2022 was registered by the ACB, Mumbai against the applicant for offences under Sections 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, 1988 (PC Act) and Section 13(2) read with Section 13(1)(b) of the PC Act as amended in the year 2018, as also Section 109 of the Indian Penal Code, 1860. It was alleged in the FIR that during the check period between 12.01.2011 and 31.08.2020, the applicant had amassed assets disproportionate to his known sources of income, to the extent of about Rs. 2.45 crores. Anonymous information was received by the Central Bureau of Investigation (CBI) and on this basis, the ACB, Mumbai caused the FIR to be registered. It is pertinent to note that while investigation was undertaken in pursuance of the FIR, the applicant was never arrested. It is also an admitted position that even the chargesheet has not been filed till date in the said FIR.

3. Subsequently, on 13.12.2022, Enforcement Case Information Report (ECIR) bearing No.ECIR/MBZO-I/69/2022 was registered by the Directorate of Enforcement, Mumbai Zonal Unit, Mumbai (ED) i.e. respondent No.1 herein. The aforesaid FIR was treated as the scheduled or the predicate offence and it was recorded that the applicant had illegally amassed assets disproportionate to the tune of 204% of the known and legal sources of his income and that of his family members. On 27.06.2023, the applicant was arrested in connection with the aforesaid ECIR. In August 2023, the respondent No.1 filed complaint under Section 45 of the PMLA before the City Civil and Additional Sessions Judge, Greater Bombay (hereinafter referred to as the designated Court). In the said complaint, apart from giving the details of the material found during the course of investigation in connection with the said ECIR, gist of the statements recorded under Section 50 of the PMLA was also given. The proceedings are pending before the designated Court.

4. Mr. Ashok Mundargi, the learned senior counsel appearing for the applicant made the following submissions, while seeking bail for the applicant:

(a) It was submitted that a perusal of the FIR concerning the predicate offence in the present case, would show that it is an unsigned document, as the signature of the complainant/informant is missing. In fact, the column pertaining to complainant/informant in the FIR is blank. According to the learned senior counsel appearing for the applicant, this renders the FIR itself fundamentally defective and consequently, it vitiates the ECIR also. On this basis, it is claimed that the arrest of the applicant is rendered illegal and unsustainable.

(b) By referring to Section 13(1)(e) of the PC Act, prior to its amendment in the year 2018 and also Section 13(1)(b) of the PC Act, post its amendment in the year 2018, it was submitted that the very nature of the offence is such that the occasion to file the chargesheet and to proceed against the applicant in the predicate offence, would arise only if the applicant is unable to satisfactorily account for property, allegedly disproportionate to his known sources of income. Reliance was placed on the judgment of the Supreme Court, in the case of the State of Haryana and others vs. Bhajan Lal and others [1992 Supp (1) SCC 335], particularly paragraph No.76 thereof, to contend that there cannot be a preconceived idea of guilt in such cases. T