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IN THE HIGH COURT OF DELHI
SUNIL GAUR, J.
Directorate of Enforcement - Appellant
Versus
Gagan Dhawan & Another - Respondent
Crl.Rev.P. Nos. 107, 1180 of 2018
Decided On : 06-08-2019
Money Laundering - Bail - The Prevention of Money Laundering Act, 2002 (PMLA) - Sections 3/4 - Summary of Acts and Sections: PMLA, 2002 - Sections 3/4 - The court discussed the gravity of the offence, the parameters for grant of bail, and the recent decision of the Supreme Court declaring Section 45(1) of the PMLA as unconstitutional. The court found that the impugned orders did not take note of the embargo to grant of bail put by Section 45(1) of the PMLA, but this infirmity did not go to the root of the matter as the Supreme Court had already declared Section 45(1) of the PMLA to be unconstitutional. The court also noted that the extent of money laundering alleged was not of such magnitude to justify denial of bail to the accused, and that the parameters for cancellation of bail and the grounds for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different from the parameters for grant of bail. The court concluded that the impugned orders granting bail to the accused were not liable to be interfered with.
Fact of the Case:
The case involved allegations of money laundering and the granting of bail to the accused under the Prevention of Money Laundering Act, 2002 (PMLA). The petitioner sought quashing of orders granting bail to the respondents in a case related to bank transactions, cash transactions, and diversion of credit facilities.
Finding of the Court:
The court found that the impugned orders did not take note of the embargo to grant of bail put by Section 45(1) of the PMLA, but this infirmity did not go to the root of the matter as the Supreme Court had already declared Section 45(1) of the PMLA to be unconstitutional. The court also noted that the extent of money laundering alleged was not of such magnitude to justify denial of bail to the accused, and that the parameters for cancellation of bail and the grounds for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different from the parameters for grant of bail. The court concluded that the impugned orders granting bail to the accused were not liable to be interfered with.
Issues: The issues involved the grant of bail to the accused under the PMLA, the gravity of the offence, and the recent decision of the Supreme Court declaring Section 45(1) of the PMLA as unconstitutional.
Ratio Decidendi: The court held that the impugned orders did not take note of the embargo to grant of bail put by Section 45(1) of the PMLA, but this infirmity did not go to the root of the matter as the Supreme Court had already declared Section 45(1) of the PMLA to be unconstitutional. The court also noted that the extent of money laundering alleged was not of such magnitude to justify denial of bail to the accused, and that the parameters for cancellation of bail and the grounds for challenging the order of grant of bail on the ground of arbitrary exercise of discretion are different from the parameters for grant of bail.
Final Decision: The court dismissed the petitions, stating that the impugned orders granting bail to the accused were not liable to be interfered with.
JUDGMENT :
1. In the above captioned first petition, petitioner-Directorate of Enforcement seeks quashing of order of 4th January, 2018 vide which respondent-Gagan Dhawan has been granted regular bail in ECIR/HQ/17/2017, under Sections 3/4 of The Prevention of Money Laundering Act, 2002 (in short ‘PMLA’), whereas in the above captioned second petition, challenge is to order of 23rd October, 2018, vide which respondent-Ranjit Malik @ Johny has been granted bail in the aforesaid ECIR/HQ/17/2017.
Since these petitions pertain to ECIR/HQ/17/2017 and the challenge to the aforesaid impugned orders is on similar grounds, therefore, both these petitions have been heard together and are being disposed of by this common order.
The facts as noticed in the impugned order of 4th January, 2018 are as under:-
“Briefly stated facts of the present case are that an FIR was registered by the Central Bureau of Investigation (CBI) on 30.08.2017, u/s 13 of Prevention of Corruption Act, 1988 against one Sunil Kumar Ojha-IRS, Dr. Subhash Chandra-IRS and other Income Tax Officers as well as M/s Sterling Biotech Ltd. (SBL) and some other unknown persons on the basis of having found certain hand-written diaries/record of certain transactions of SBL group for the period from 01.01.2011 to 28.06.2011, which was found and seized by Income Tax Department in their search in the office premises of SBL Group, Vadodara, Gujrat. The said diary contained details of bank transactions as well as cash transactions involving name of some individuals including Income Tax Officers. Thereafter, an ECIR was registered by the Enforcement Directorate (ED) and the present applicant Gagan Dhawan was called by the ED on 13 different occasions, who joined the investigation and his statement was recorded. It was alleged that present applicant was known to the Directors of SBL Group, namely Chetan and Nitin. Thereafter, on 25.10.2017, another FIR was registered by CBI for offences u/s 13(2) of Prevention of Corruption Act r/w Sections 420/467/468/471 IPC and same being scheduled offences, a fresh ECIR was registered by ED on 27.10.2017 and the present applicant Gagan Dhawan was summoned and arrested on 30.10.2017 and thereafter, he was remanded to ED custody for about 15 days and is in judicial custody thereafter. The second FIR was registered on the allegations of loan obtained by SBL Group, to the tune of Rs. 5,000/- crores from various banks and it was alleged that the said loan was obtained on the basis of fictitious and forged statement of accounts and the money obtained through loan was invested in shell companies in India as well as abroad. It was further found during investigation that the Directors Nitin Jayantiilal Sandesara and Chetan Jayantilal Sandesara, purchased several properties in New Delhi and Gurgaon, Haryana and present applicant helped the said Directors of SBL Group in diverting and mis-utilizing the credit facilities availed through various banks.”
The role of respondent- Ranjit Malik @ Johny, as re-capitulated in the impugned order of 23rd October, 2018, is as under:-
“As to the role of the accused / applicant, it is the complainant’s case that on 24.08.2017 a search was conducted at his premises resulting in seizure of incriminating documents wherein there were multiple entries pertaining to huge amounts/ financial transactions. Another search was conducted at the premises of co-accused Gagan Dhawan inter alia resulting in seizure of some digital devices which upon analysis revealed various whatsapp conversations between Gagan Dhawan and accused/ applicant Ranjit Malik @ Johny regarding several cash transactions. One Rakesh Chandra who was examined by the complainant had told in his statement that accused Ranjit Malik used to work for Gagan Dhawan for collection /delivery of cash from / to various persons / places. As the accused/ applicant did not report to the summons issued to him on various dates and gave evasive replies, that he was arrested on 02.08.201
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