ANIL TULEJA Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) The instant revision has been filed under Sec. 438 read with Sec. 422 BNSS, 2023 against the order dtd. 05/10/2024 passed by the learned Special Judge (PMLA), Raipur, C.G. whereby the cognizance has been taken in prosecution complaint dtd. 19/06/2024 filed in ECIR/RPZO/04/2024 dtd. 11/04/2024 against the petitioner under Sec. 3 read with Sec. 4 of the Prevention of Money Laundering Act, 2002.

(2.) The Petitioner is a retired officer of the Indian Administrative Services with a distinguished and unblemished service record. He retired as the Joint Secretary in Department of Commerce and Industry, Chhattisgarh in May, 2023. The Petitioner is a well reputed individual having deep roots in the society and resides in Raipur along with his wife and two children. The Petitioner does not have any criminal antecedents. In the instant case, it is pertinent to note that at the time of passing the Impugned Order (i.e., on 5/10/2024) where cognizance of the offence of money laundering was taken, no sanction u/s 197(1) CrPC was obtained by the Respondent/ED for prosecution of the Petitioner herein, despite the Petitioner being a Public Servant at the time of the commission of the alleged offence and despite the mandatory requirement for obtaining such a sanction in terms of Sec. 197(1) CrPC read with Sec. 65 PMLA. Pertinently, even as on date, to the best of the Petitioner's knowledge, no sanction u/s 197(1) CrPC has been obtained by the Respondent/ED for prosecution of the Petitioner. Based upon a prosecution Complaint filed by the Income Tax Department bearing Ct. Case. No. 1183/2022 u/s 276(C)/277/278/278E IT Act r/w Sec. 120-B/191/199/200/204 IPC ("IT Complaint") the ED registered an ECIR bearing No. ECIR/RPZO/11/2022 ("ECIR 11") treating the offence u/s 120B IPC as the standalone scheduled offence. The ECIR 11 alleged existence of a liquor scam in the State of Chhattisgarh that allegedly existed between 2019-2022. On 4/7/2023, the Respondent/ED filed a Prosecution Complaint u/s 44 r/w Sec. 45 of the Prevention of Money Laundering Act, 2002 ("PMLA") in relation to ECIR 11. Notably, the Petitioner was not arraigned s an accused by the Respondent/ED despite having raised several allegations against him. On 17/1/2024, the ACB, Raipur registered the FIR bearing No. 04/2024 ("Chhattisgarh FIR" / "Scheduled Offence FIR") at the behest of the Respondent/ED inter alia against the Petitioner based upon a letter dtd. 11/7/2023 sent during the course of an illegal investigation by the ED in absence of any Scheduled Offence. Pertinently, on 18/1/2024, the ACB, Raipur had sought for and was granted sanction u/s 17A of the Prevention of Corruption Act, 1988 on 22/2/2024 for investigation qua the Petitioner herein in the Scheduled Offence FIR. Copy of the FIR bearing No. 04/2024 registered by the ACB, Raipur is annexed herewith as Annexure A/2. Copy of letter sent by the Director General, EOW, to the Secretary, Chhattisgarh General Administration, for prior approval under Sec. 17A of the Prevention of Corruption Act, regarding the investigation against inter-alia the Petitioner is annexed herewith as Annexure A/3. Copy of Prior approval received under Sec. 17A of the Prevention of Corruption Act for investigation against inter-alia the Petitioner is annexed herewith as Annexure A/4. On 8/4/2024, the Hon'ble Supreme Court was pleased to quash the Prosecution Complaint dtd. 4/7/2023 filed by the Respondent/ED in ECIR 11, along with the entire material and investigation conducted by the ED therein, with a finding that no scheduled offence is made out and there were no proceeds of crime in relation to ECIR 11 and the Prosecution Complaint filed therein. Copy of the Order dtd. 8/4/2024 passed by the Hon'ble Supreme Court is annexed herewith as Annexure A/5. On 11/4/2024, within 3 days of quashing of the ECIR, a subsequent ECIR bearing No. ECIR/RPZO/04/2024 ("Subject ECIR") was registered by the ED on the same facts, allegations and underlying material as the ECIR 11. The Subject ECIRis predicated upon the offences in the Chhattisgarh FIR as the alleged scheduled offences. Copy of ECIR bearing No. 04/2024 dtd. 11/4/2024 is annexed herewith as Annexure A/6. On 20/4/2024, the Petitioner was arrested in the utmost mala fide and illegal manner by the Respondent/ED after the Petitioner had appeared before the ACB, Raipur pursuant to summons in relation to the Chhattisgarh FIR.

(3.) Learned counsel for the petitioner would contend that:-