Case Law Details
Parkash Gurbaxani Vs Directorate of Enforcement through Assistant Director (Punjab and Haryana HC)
Conclusion: While before grant of bail the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea the Court could order release of the accused on bail only after recording a satisfaction that there were reasonable grounds for believing that the person to be released was not guilty of the offence he was accused of and that while on bail he was not likely to commit any offence.
Held: In the instant case, on the strength of the licences obtained by Chintels and the collaboration/ development agreements between Chintels, Sobha and QVC, the land, which was covered under the licences and was situated in Sectors 106, 108 and 109, Gurugram, was started to be developed as a residential colony under the name of ‘International City’. DTCP wrote to the Station House Officer, Police Station that as per the agreement/ terms of the licence Chintels was required to reserve and allot 249 NPNL plots. However, it had been found that only 84 NPNL plots had been allotted and out of these 84 plots, 55 had been allotted by Sobha to Limited Liability Partnerships (LLPs) created by Sobha itself. Thus, by allotting the NPNL plots to virtually itself, Sobha, Chintels and QVC had conspired to commit fraud as also had violated the terms of the licence/ agreement. Therefore, the police was requested to take penal action against Chintels, Sobha, QVC and the LLPs under Section 10 of the 1975 Act. On the basis of the above complaint FIR Section 420 IPC and Section 10 of the 1975 Act was registered at Police Station Bajghera and after going through the aforesaid FIR, since the Enforcement Directorate (ED) believed that an offence for laundering of money had also been committed, on 25.01.2019, the ED lodged Enforcement Case Information Report ( ECIR) under Sections 3 and 4 of the PMLA and started its own investigations. Investigations conducted by the Haryana Police in the FIR lodged by them revealed that the accused therein were guilty of breach of the terms of the agreement/ licence but had not committed any offence under Section 420 IPC. Accordingly, the Haryana Police filed a report under Section 173 Cr.P.C. seeking therein to prosecute the accused only under Section 10 of the 1975 Act. It was held that there was no challenge by assessee to either the supplementary charge sheet filed by the Haryana Police or the complaint filed by ED. Therefore, the weighty claims/ counter claims raised by both sides, which contain elaborate reference to documents and applicable law on the subject, with regard to the applicability of Section 420 IPC to the present proceedings were better left to be considered on a specific challenge, if any, to be made in this regard or by the Trial Court at the appropriate stage. In the facts of the present case, this Court was not inclined to hold a mini trial on this crucial aspect especially when such consideration and any finding thereupon may prejudice either party’s right to a fair trial. Since a report under Section 173 Cr.P.C. as also a supplementary report under Section 173(8) Cr.P.C. by the Haryana Police and a complaint under Sections 44/ 45 of the PMLA by the ED had already been filed; both assessee had been in custody since 16.02.2021; all the relevant documents on the basis of which the prosecution seeks to prosecute assessee already stand seized in the course of 16 raids conducted by the ED on different premises of assessee; properties of both assessees to the extent of the alleged money laundered by them, already stood attached; both assessee were senior citizens aged 61 and 75 years respectively with presently there being an emergent situation in this country due to spike in infected cases under Covid-19 warranting decongestion of prisons and that assessee got placed two stents in the clogged arteries of his heart in the year 2008 and till date was going for regular follow ups, this Court was of the considered opinion that, subject to the satisfaction of the Trial Court/ Illaqa Magistrate/ Duty Magistrate, Gurugram which should include deposit of assessee’s Passports and furnishing of heavy local sureties, assessees be released on regular bail. It was clarified that the above observations have been made only for the limited purpose of deciding the present petitions for regular bail and the same would not be construed to be an expression of opinion on the merits of the case.
FULL TEXT OF THE HIGH COURT ORDER /JUDGEMENT
This order shall dispose of two petitions being CRM-M-12901 of 2021 – Parkash Gurbaxani vs. The Directorate of Enforcement and CRM- M-12459-2021 – Ashok Solomon vs. Assistant Director, Directorate of Enforcement both of which have been filed for the grant of regular bail in case bearing No.ECIR/01/HIU/2019 dated 25.01.2019 registered under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (for short – the PMLA), arising out of FIR No.291 dated 13.12.2018 registered under Section 10 of the Haryana Development and Regulation of Urban Areas Act, 1975 (for short – the 1975 Act) and Section 420 IPC at Police Station Bajghera, District Gurugram.
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