HIGH COURT OF DELHI
RAJEEV SHARMA – Appellant
Versus
DIRECTORATE OF ENFORCEMENT – Respondent
BAIL APPLN.-3156/2021

The twin conditions under Section 45 of the PMLA not being applicable, the triple test is required to be applied so as to consider grant of bail to the petitioner.

Headnote:

BAIL - PMLA - [KEYWORD] - The petitioner, a freelance journalist, seeks regular bail in an ECIR recorded by the respondent pursuant to the predicate offence(s) being FIR No. 230/2020 registered at P.S.Special Cell under Sections 3/4/5 of the Official Secrets Act and Section 120B IPC. The petitioner contends that the offences punishable under the Official Secrets Act not being the Scheduled Offences under the PMLA, ECIR recorded by the respondent and the arrest made pursuant to that as also the complaint filed is without any jurisdiction.

Fact of the Case:

The petitioner, a freelance journalist, was arrested for offences punishable under Sections 3/4/5 of the Official Secrets Act on 14th September 2020 and was released on default bail in terms of Section 167(2) Cr.P.C on 4th December 2020 as the charge sheet/complaint had not been filed within the statutory period. On 26th February 2021, the respondent recorded the above-noted ECIR and directed the petitioner to join the investigation which he joined several times till 1st July 2021. The premises of the petitioner was searched and seizures affected, however, nothing except sixteen visiting cards were recovered. In the above-noted ECIR, the petitioner was arrested on 1st July 2021 for offences punishable under Sections 3/4 of PMLA and is in custody since then.

Finding of the Court:

The court held that the offences punishable under the Official Secrets Act are not in the list of Scheduled Offences under the PMLA. Whether the charge sheet filed in the predicate offence is for offences punishable under Sections 3/4/5 of Official Secrets Act read with 120B IPC or for Section 120B IPC substantively or whether in the absence of any charge sheet under Section 411 IPC having been filed by the Special Cell, Delhi Police, the respondent/Enforcement Directorate could have recorded the above-noted ECIR for offences punishable under Sections 3 & 4 of the PMLA on the ostensible ground that since Section 120B IPC is a Schedule Offence and the Enforcement Directorate had jurisdiction to investigate into offence of money laundering pursuant to the offences under Sections 3/4/5 of Official Secrets Act would be a matter to be dealt by the learned Trial Court at the stage of charge.

Issues: 1. Whether the ECIR recorded by the respondent and the arrest made pursuant to that as also the complaint filed is without any jurisdiction?2. Whether the petitioner is entitled to bail?

Ratio Decidendi: 1. The offences punishable under the Official Secrets Act are not in the list of Scheduled Offences under the PMLA.2. The twin conditions under Section 45 of the PMLA not being applicable, the triple test is required to be applied so as to consider grant of bail to the petitioner.3. Considering that the predicate offence, if any, against the petitioner is under Section 120B IPC and Section 411 IPC only and the proceeds of the crime which are alleged to be laundered are a sum of ₹48,20,788.50 paisa and that the petitioner has been in custody now for nearly six months, this Court deems it fit to grant bail to the petitioner.

Final Decision: The petition is allowed. The petitioner is directed to be released on bail on furnishing a personal bond in the sum of ₹5 lakhs with two surety bonds of the like amount, subject to the satisfaction of the learned Trial Court, out of which, one surety would be a family member of the petitioner. The petitioner will surrender his passport to the learned Trial Court and will not leave the country without the prior permission of the Court concerned. In case of change of residential address and/or mobile number, the same will be intimated to the Court concerned by way of an affidavit. The petitioner will appear before the Investigating Officer on the first Monday of every calendar month at 5 pm for the next six months.