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IN THE HIGH COURT OF DELHI AT NEW DELHI
Chandra Dhari Singh, J.
Sajjan Kumar – Appellant
Vs.
Directorate of Enforcement – Respondent
Bail Application No. 926 of 2022, Crl. M. (Bail) No. 324 of 2022, Crl. M.A. No. 5377 of 2022
Decided On : 13-06-2022
Code of Criminal Procedure, 1973 - Section 439 - Prevention of Money Laundering Act, 2002 - Section 3 r/w 4/44/45/70 - Customs Act, 1962 - Sections 132 and 135 - Offences to be cognizable and non-bailable - Business of export/import of garments and carpets – Bail Application -Whether twin conditions as envisaged under Section 45 of PMLA are applicable even after amendment stage of bail or not - Applicant also got prepared forged documents of property at Sainik Enclave to depict the purchase of subject property in the year 2006, so as to dissociate the purchase made in year 2011 from proceeds of crime. The roles of individuals and firms were also recorded who knowingly indulged in the said activity – It is equally well-settled that economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. (Para 28)
Finding of the court :
As per allegations, the applicant is unique modus operandi to procure the goods from various places within India to export same in name of different firms/companies by inflating the value by several times. Two sets of invoices bearing the same serial number and dates were prepared. The invoices of inflated value were produced before Indian custom authorities and actual values were sent to consignee therefore on the basis of inflated values, extra duty drawbacks were claimed by accused other than what was admissible, and in this manner, Rs. 32.25 crores were fraudulently availed by applicant/accused. In this regard, reliance was placed on the statement of witnesses recorded under Section 50 of PMLA - Parameters of Section 45 of the PMLA, this Court finds no reasonable ground for believing that the applicant is not guilty of the alleged offence. From a prima facie view of the material placed on record and in light of the gravity of alleged offence, it cannot be said that the applicant is not likely to commit any such offence while on bail.
Result: Bail application is dismissed.
JUDGMENT :
Chandra Dhari Singh, J.
1. The instant third bail application under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter “Cr.P.C”) has been filed by the applicant seeking grant of regular bail in proceedings emanating from ECIR No. DLZO-1/09/2019 dated 23rd December 2019 leading to filing of prosecution complaint by the Directorate of Enforcement (hereinafter “ED”) dated 23rd November 2021 under Section 3 read with Sections 4/44/45/70 of the Prevention of Money Laundering Act, 2002 (hereinafter “PMLA”).
FACTUAL MATRIX
2. The background of the case is discussed as under:
(ii) A prosecution complaint was filed against the applicant by the Directorate of Revenue Intelligence (hereinafter “DRI”) on 23rd April 2018, alleging commission of predicate offences under Sections 132 and 135 of the Customs Act, 1962, during 2010-2011 with respect to disbursal of duty drawback on the overvalued exports subsequently leading to extra duty drawbacks to the tune of Rs.32.25 Crores.
(iii) After investigating the case for almost 7 years, DRI registered the abovementioned ECIR on 23rd December 2019 on twin allegations:-
(a) that Low value invoices were submitted by Representative of foreign buyer for obtaining the Certificate of Origin of goods from Delhi Chamber of Commerce.
(b) that Full Exports proceeds received against value of goods were arranged by foreign buyer and sent through Bank to India.
(iv) The complaint was forwarded by DRI to Directorate of Enforcement (hereinafter “ED”) on 19th November 2019 and on 23rd December 2019, an ECIR bearing no. DLZO-I/09/2019 was registered by the ED.
(v) The applicant was alleged to be the key person in managing various enterprises through which such availing of excess duty drawback was facilitated.
(vi) Section 132 of the Customs Act was added as scheduled offence in 2015. At the time of commission of alleged offence during 2010-2011, it was not a scheduled offence.
(vii) During one of the appearances on 7th April 2021, the applicant alleged to have been pressurized to bribe the ED officials with a sum of Rs.50 Lakhs to get a clean chit and when the applicant tried to resist, he was severely tortured and beaten up resulting in grave physical injury including fracture leading to deep psychological trauma.
(viii) The applicant made a complaint to the concerned SHO against the inhuman physical assault against the officials of the ED, however, when no action was taken, the applicant filed an application under Section 156(3) of Cr.P.C. before the Court concerned seeking registration of FIR, which is still pending before the Court of learned CMM, Central District, Tis Hazari Courts, Delhi.
(ix) Searches were carried out at the residential premises of the applicant on 24th September 2021 and subsequently he was arrested on 25th September 2021 at 4:15 AM.
(x) The applicant was remanded to Police Custody till 7th October 2022 and has been in Judicial Custody since then.
(xi) The learned Trial Court took cognizance of the said complaint and the applicant’s first and second bail applications were dismissed vide orders dated 9th December 2021 and 10th February 2022, respectively.
(xii) Learned Special Judge dismissed the second bail application on the grounds that :-
a. Various companies caused fraudulent export of goods to claim undue DEPB/Duty Drawback scheme, thus caused a loss of Rs. 32,25,62,967/- to the exchequer.
b. The accused/applicant was the key person in entire fraudulent export and was directly involved in export operations, in association with suppliers he indulged in exporting the goods at inflated values.
c. The investigation was also conducted with the banks and during investigation, it was found that the accused/applicant received the duty drawback i
It is not necessary to multiply the authorities on the sweep of Section 45 of the 2002 Act which, as aforementioned, is no more res integra.
The court emphasized that bail under the PMLA requires satisfaction of twin conditions regarding the accused's guilt and likelihood of committing further offences, which were not met in this case.
(1) Economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting economy of country as a whole and ....
The court emphasized that in economic offences, especially under the PMLA, bail should not be granted unless the accused demonstrates they are not guilty and unlikely to commit further offences.
Bail is the rule and jail is the exception, especially in serious economic offences under the Prevention of Money Laundering Act, where the gravity of charges necessitates stringent scrutiny.
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