RAJEEV SHARMA Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) By this petition, the petitioner seeks regular bail in ECIR/05/STF/2021 recorded by the respondent pursuant to the predicate offence(s) being FIR No. 230/2020 registered at P.S.Special Cell under Ss. 3/4/5 of the Official Secrets Act and Sec. 120B IPC.

(2.) Learned counsel for the petitioner contends that the petitioner is a senior freelance journalist aged 61 years old, suffering from various ailments and has represented premier news agencies like United News of India (UNI), The Tribune, Free Press Journal, Sakal Times and Enadu. The petitioner has also written various books and is a journalist accredited by Press Information Bureau, Govt. of India. The petitioner worked as a freelance journalist for Chinese newspaper i.e. Global Times from the year 2014 to 2016 and during this employment as a journalist, the petitioner used to send and receive emails from his aforesaid employer which are all easily available in public domain. In connection with the predicate offence being FIR No. 230/2020 registered at P.S.Special Cell, the petitioner was arrested for the offences punishable under Ss. 3/4/5 of the Official Secrets Act on 14/9/2020 and was released on default bail in terms of Sec. 167(2) Cr.P.C on 4/12/2020 as the charge sheet/complaint had not been filed within the statutory period. On 26/2/2021, the respondent recorded the above-noted ECIR and directed the petitioner to join the investigation which he joined several times till 1/7/2021. The premises of the petitioner was searched and seizures affected, however, nothing except sixteen visiting cards were recovered. In the above-noted ECIR, the petitioner was arrested on 1/7/2021 for offences punishable under Ss. 3/4 of PMLA and is in custody since then.

(3.) Learned counsel for the petitioner contends that the offences punishable under the Official Secrets Act not being the Scheduled Offences under the PMLA, ECIR recorded by the respondent and the arrest made pursuant to that as also the complaint filed is without any jurisdiction. It is further contended that even otherwise, as per the complaint of the respondent, the proceeds of the crime attributable to the petitioner amount to ? 48,20,788.50 paisa and in terms of Proviso to Sec. 45 of the PMLA de-hors the decision of the Hon'ble Supreme Court in (2018) 11 SCC 1 titled as Nikesh Tarachand Shah Vs. Union of India, the twin conditions as BAIL APPLN. 3156/2021 Page 2 of 12applicable in Sub-Sec. (1), clauses (i) and (ii) will not be applicable as the proceeds of the crime even as per the respondent is less than ? 1 Crore. Further, even for arriving at the proceeds of the crime for a sum of ? 48,20,788.50 paise, an entry of ? 14 lakhs has been repeated. Reliance is also placed on the decision reported as 2021 SCC Online Kerala 395 titled M.Sivasankar Vs. Union of India. to contend that since the amount involved is less than ? 1 Crore, the Proviso to Sec. 45 of the PMLA would be applicable.