The Delhi High Court refused to grant bail since the applicant doesn’t qualify for twin condition under section 45 of the Prevention of Money Laundering Act, 2002 (PMLA Act).
The petitioner Abhishek Boinpally challenged the orders dated 31.10.2022, 13.11.2022 and 14.11.2022 in the Writ Petition (Crl.) in which the petitioner has challenged the legality and validity of the arrest of the accused and has thus prayed that he be released on bail.
Sh. Vikram Chaudhary, senior counsel alongwith Sh. Sumer Singh Bopparai for the accused Abhishek Boinpally has submitted that the ED moved an application dated 29.10.2022 before the Trial Court seeking permission to interrogate and record the petitioner’s statement in the PMLA case without mentioning any provision as to the maintainability thereof.
It has been submitted that the Special Judge wrongly permitted the ED to record statements for 3 days within a period of 30 days. It has been submitted that the said order was passed without issuing any notice to the petitioner or allowing him to show cause in flagrant violation of the principles of natural justice and Audi Alteram Partem.
It has further been submitted that there were no valid grounds for arrest under Section 19 PMLA, nor does the prerequisite of Section 19(1) PMLA exist. It has been submitted that even Section 19(2) PMLA r/w rules of 2005 were not followed as there was no availability of the material in possession on the basis whereof the reasons are recorded in writing that the person is guilty. It has been submitted that under Section 19(2) PMLA it was a pre-requisite to send the material immediately to the adjudicating authority.
Sh. Zoheb Hossain, special counsel for ED submitted that the arrest and remand of the petitioner was strictly by law. It has been submitted that ED sought permission to interrogate and record the petitioner’s statement under PMLA because the petitioner would not have been able to appear and comply with the summons under Section 50 PMLA being in judicial custody.
The bare perusal of this section makes it clear that any summons, notice or order shall not be invalid or shall be deemed to be invalid merely because of any mistake, defect or omission in such notice, summons, order, document or other proceedings. If such notice, summons, order, documents or other proceedings are in substance and effect in conformity with or according to the intent and purpose of this act.
Another facet of the contention of the learned senior counsel is that the production warrant under Section 267 could not have been issued by the Special Judge in the PMLA case, while the petitioner was in custody in another case of the CBI.
It was further inter alia held that the occurrence constituting two different transactions gives rise to two different cases and the exercise of power under Section 167 (1) & (2) should align with the object underlying the said provision in respect of each of those occurrences which constitute two different cases and the investigation in one specific case cannot be the same as in the other.
Justice Dinesh Kumar Sharma observed that “there is no force in the contentions raised by the petitioner and the petitioner cannot be released on the grounds raised by him in the writ petitioner number W.P.(CRL)705/2023. The petitioner is required to cross the bar of twin conditions as laid down under Section 45 of PMLA to be released on bail.”
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