Sunil Gaur, J
Petitioner seeks pre-arrest bail in ECIR /15/DLZO/2014 of 3rd July, 2014, registered by respondent under Sections 3 & 4 of the Prevention of Money
Laundering Act, 2002 (henceforth referred to as the ‘PMLA’) while claiming to be innocent. Learned senior counsel for petitioner submits that
in the complaint filed (after due investigation) in November, 2014, petitioner’s name does not appear. It was pointed out that even in the four
supplementary complaints filed in the years 2016 to 2019, name of petitioner does not figure. It was submitted that it is only in the fifth supplementary
complaint filed in May, 2019, name of petitioner finds mention. It was submitted that statement of petitioner under Section 50 of the PMLA has been
recorded but its copy has not been supplied to petitioner.
Learned senior counsel for petitioner contended that principles of natural justice require that copy of petitioner’s statement recorded under Section
50 of the PMLA needs to be supplied to petitioner. On the last date of hearing, learned Additional Solicitor General (ASG) had submitted that copy of
petitioner’s statement recorded under Section 50 of the PMLA can be made available to the Court but not to the petitioner.
Learned senior counsel for petitioner had drawn attention of this Court to respondent’s Reply (Annexure-I) filed before the court of Sessions to
point out that stand taken by respondent is that petitioner during investigation has remained evasive and non cooperative. Attention of this Court was
also drawn to Annexue-J attached to the reply filed by respondent before the court of Sessions to point out that petitioner’s statement has been
recorded on 25 occasions for 105 hours and the statement of petitioner recorded consists of 111 pages. Attention of this Court was also drawn to
Supreme Court’s decision in Santosh s/o Dwarkadas Fafat Vs. State of Maharashtra (2017) 9 SCC 71 4to submit that the purpose of custodial
interrogation is not just for the purpose of confession and the right against self-incrimination is provided for in Article 20 (3) of the Constitution of
India. It was pointed out by learned senior counsel for petitioner that merely because petitioner did not confess, cannot be the basis to assert that
petitioner has not cooperated with the investigation.
Learned senior counsel for petitioner submitted that the punishment for the offence in question is upto seven years and Section 19 of PMLA provides
that to arrest an accused under the PMLA, there has to be reason to believe (to be recorded in writing) that such person is guilty of the offences
punishable under the PMLA. It was pointed out that arrest under the Code of Criminal Procedure is on suspicion, whereas to arrest a person under
the PMLA, it has to be shown that a person is guilty of the offence alleged. It was next submitted by learned senior counsel for petitioner that facts
noticed in paragraph No. 4 of order of 6th August, 2019 of the Session’s court declining pre-arrest bail to petitioner, is based on the statement of
co-accused- Rajiv Saxena who was made approver and later on, application for cancellation of his bail has been filed by the respondent while labeling
him as an unreliable witness. It was submitted that properties worth more than ₹800 crores of petitioner’s company have been already attached
by the Income Tax Authorities under The Benami Transactions (Prohibition) Act, 1988 post denial of pre-arrest bail.
Learned senior counsel for petitioner submitted that parameters governing grant of pre-arrest bail are of abscondance, tampering with the evidence
and non-cooperation, which are ex facie not attracted to the instant case. On the aspect of gravity of the offence alleged, it was submitted by learned
senior counsel for petitioner that the statement of petitioner recorded under Section 50 of the PMLA does not incriminate him, provided it is correctly
recorded. It was asserted by learned senior counsel for petitioner that to gauge the gravity of the offence alleged, severity of the punishment provided
is the yardstick. Thus, grant of pre-arrest bail to petitioner is sought.
Learned ASG appearing for respondent, pointed out that a reply has been filed and also handed over petitioner’s statement recorded under Section
50 of the PMLA (in sealed cover) to submit that total quantum of kickbacks involved in this case is atleast seventy million Euros, which were
laundered by two chains of fund transfer, one headed by Christian Michel James and the other by Guido Haschke and Carlo Gerosa. To highlight the
extent and magnitude of money laundering, attention of this Court was drawn by learned ASG to various paragraphs of the reply and it was submitted
that the offence committed by petitioner adversely affects the economy of country. It was submitted that attachment of petitioner’s property by
Income Tax Authorities in different proceedings cannot be a yard stick to dilute the gravity of offence committed by petitioner. It was pointed out that
though petitioner had joined the investigation but is evasive in his replies and so, custodial interrogation of petitioner is required for an effective
investigation. It was asserted by learned ASG that petitioner is trying to influence and threaten the witnesses and tamper with the evidence and the
statement of petitioner recorded under Section 50 of PMLA incriminates him and apart from it, there are other facets which require custodial
interrogation of petitioner. Thus, dismissal of this application is sought.
Learned senior counsel for petitioner controverts the stand taken on behalf of respondent and submitted that the offence in question is punishable upto
term for seven years and in such cases, ‘plea bargaining’ is permissible. It was submitted that denial of bail granted cannot be by way of
punishment and the liberty of a person cannot be routinely curtailed. Reliance was placed upon Supreme Court’s decision in Sanjay Chandra Vs.
Central Bureau of Investigation (2012) 1 SCC 40 to submit that severity of the punishment should be taken into consideration while granting or
refusing bail. Reliance was also placed upon decisions of Coordinate Bench of this Court in H.B. Chaturvedi Vs. CBI 2010 (3) JCC 210 9and Anil
Mahajan Vs. Commissioner of Customs & Anr. 2000 (2) JCC (Delhi) 302 .Reliance was also placed upon another Coordinate Bench decision of this
Court in Paras Mal Lodha Vs. Assistant Director, Directorate of Enforcement 2017 SCC OnLine Del 8676 to submit that the veracity of
petitioner’s statement under Section 50 of PMLA is yet to be tested and so, it cannot be made the basis to deny bail to petitioner.
Having considered the submissions advanced by both the sides and on perusal of material on record and the decisions cited, I find that severity of the
punishment alone cannot be the criteria to determine as to whether bail has to be granted or not. Gravity of the offence is a relevant criteria which has
to be considered while granting or refusing the bail. During the course of hearing, reliance was placed by learned ASG upon Section 265-A of Cr.P.C.
to urge that in an offence punishable with term up to seven years, ‘plea bargaining’ can be entertained, is misplaced as proviso to Sub-Section
(1) (b) of Section 265-A of Cr.P.C. contains a rider that ‘plea bargaining’ is not available where the offence committed affects socio and
economic conditions of the country. A bare perusal of petitioner’s statement recorded under Section 50 of the PMLA reveals that he is evasive in
his replies. However, gravity of the offence committed can be gauged from the contents of the aforesaid statement recorded under Section 50 of
PMLA. In any case, it cannot be prima facie said that petitioner’s statement recorded under Section 50 PMLA does not incriminate him.
This Court is of the prima facie opinion that custodial interrogation of petitioner is required for an effective investigation. Mere attachment of
petitioner’s property in Income Tax proceedings would not justify grant of pre-arrest bail to petitioner, who is not only evasive in his replies but is
trying to influence the witnesses. It is so evident from the statement of witnesses recorded by respondent, which has been provided to this Court in
sealed cover. Upon considering this case in its entirety, this Court finds that grant of pre-arrest bail to petitioner would stall effective investigation in
this case.
Consequently, the applications are dismissed while vacating the interim order and by not commenting upon the merits of this case.
DASTI.
