21. Now, adverting to the first and foremost contention raised as to whether the offences of money laundering under PMLA are cognizable or not, it may be noted that sub-section (1) of Section 45 pertaining to the offences was amended by Act 20 of 2005. Subsection 1 of Section 45 prior to amendment read as under:
“Section 45- Offences to be cognizable and non- bailable- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), (a) Every offence punishable under this Act shall be cognizable; (b) No person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless.”
22. Subsequently, sub-section (1) was substituted by the Act 20 of 2005 w.e.f. 1.7.2005.
“(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless…”
23. It may be noted that for removal of doubts, the Explanation to Section 45 was inserted by the Finance (No.2) Act, 2019 w.e.f. 1.8.2019 which reads as under:
“Explanation- For the removal of doubts, it is clarified that the expression “Offences to be cognizable and non-bailable” shall mean and shall be deemed to have always meant that all the offences under this Act shall be cognizable offences and non-bailable offences notwithstanding anything to the contrary contained in the Code of Criminal Procedure, 1973 (2 of 1974), and accordingly the officers authorized under this Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under Section 19 and subject to the conditions enshrined under this Section”.
ALL THE OFFENCES UNDER PMLA WERE, ARE AND SHALL BE “COGNIZABLE AND NON-BAILABLE OFFENCES”
24. From the afore-stated substitution of sub-section (1) and insertion of the Explanation to Section 45, and non-amendment in the short title of Section 45 – “offences to be cognizable and non-bailable”, there remains no shadow of doubt that all the offences under the PMLA were, are and shall be “cognizable and non-bailable offences” notwithstanding anything to the contrary contained in the Code of Criminal Procedure Code, 1973. Accordingly, the officers authorized under the PMLA Act are empowered to arrest an accused without warrant, subject to the fulfilment of conditions under Section 19 which deals with power to arrest and subject to the conditions enshrined under Section 45. The Prosecution complaint no.12/2018 in ECIR No.JPZO/01/2016 having been lodged by the authorized officer competent to file the complaint under Section 45 of the Act read with order dated 11.11.2014 issued by the Government of India, Ministry of Finance, Department of Revenue, New Delhi, as stated in the complaint itself, the Court does not find any substance in the submissions made by Mr. Hora that the Prosecution complaint was not lodged by the authorized officer.
WHETHER THE KNOWLEDGE OF THE ACCUSED OF PROCEEDS OF CRIME WAS SINE QUA NON FOR PROSECUTION?
25. The submissions by Mr. Hora, learned counsel for the petitioners that the knowledge of the petitioners that they were dealing with the proceeds of crime was sine qua non and essential ingredient for the offence of money laundering as defined under Section 3 of the PMLA, and that in the instant case, in absence of any material to show that the petitioners had the knowledge that they were dealing with the proceeds of crime committed by Bharat Bomb and his associates, continuation of the proceedings under the PMLA against the petitioners would be an abuse of process of law, have also no legs to stand.
26. Section 2(u) defines what is “proceeds of crime” and Section 2(y) defines what is “Scheduled offence”. As discernible from the record, the Prosecution complaint in ECIR was lodged against the petitioners and others under the PMLA by the ED, pursuant to the investigation carried out by the CBI in the FIR No. RCBD1/2016/E/0002 dated 07.03.2016 and the charge-sheet dated 14.06.2016 filed by the CBI against Bharat Bomb and others for the offences under Sections 120B, 420, 467, 468, 471, 472 and 474 of IPC and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 at the Designated CBI Court at Jaipur. All the said offences are scheduled offences within the meaning of Section 2(y) of the said Act. The allegations against the petitioner no.1-Anoop Bartaria (Accused No.5) as the Chairman and Managing Director of M/s. World Trade Park Ltd. and the petitioner no.2- World Trade Park Ltd. (accused No.8) are stated in detail in para 10.5 and 10.8 respectively in the Prosecution complaint. The Court at this juncture is not required to go into the merits of the said allegations. Suffice it to say that serious allegations of money laundering are alleged against both the petitioners in the Prosecution complaint and sufficient material particulars have been narrated in the said complaint to substantiate the said allegations, which prima facie show the direct involvement of the petitioners in the alleged offences of money laundering as defined in Section 3 of the said PMLA.
THE KNOWLEDGE OF THE ACCUSED THAT HE WAS DEALING WITH THE PROCEEDS OF CRIME IS NOT A CONDITION PRECEDENT OR SINE QUA NON TO PROSECUTE HIM UNDER PMLA
27. Having regard to the definition contained in Section 3, it would be a folly to hold that the knowledge of the accused that he was dealing with the proceeds of crime, would be a condition precedent or sine qua non required to be shown by the prosecution for lodging the complaint under the said Act. As the definition itself suggests whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money laundering. Hence, apart from having knowledge, if a person who directly or indirectly attempts to indulge or is actually involved in the process or activity connected with the proceeds of crime, is also guilty of the offence of money laundering. In the instant case, the direct involvement of the petitioners in the activities connected with the proceeds of crime has been alleged, along with the material narrated in the complaint which would require a trial to be conducted by the competent court.
PARTY: ANOOP BARTARIA & ETC. vs DY. DIRECTOR ENFORCEMENT DIRECTORATE & ANR – SPECIAL LEAVE PETITION (Crl.) No. 2397-2398 OF 2019 – 21.04.2023.
https://main.sci.gov.in/supremecourt/2019/8489/8489_2019_5_1501_43740_Judgement_21-Apr-2023.pdf
Anoop Bartaria vs. Dy.Director Enforcement
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