ARCHANA NAG Vs. DIRECTORATE OF ENFORCEMENT

JUDGEMENT

(1.) This is a bail application U/S.439 of Cr.P.C. by the petitioner for grant of bail in connection with Complainant Case (PMLA) Case No.10 of 2022 for commission of offence Under Sec. 3 of the Prevention of Money Laundering Act, 2002 (In short 'PMLA') which is punishable Under Sec. 4 of the PMLA pending in the file of learned District and Sessions Judge, Khurda at Bhubaneswar.

(2.) An overview of the facts involved in this case are on 29/9/2022, one FIR was registered against the Petitioner and another vide Nayapalli PS Case No. 646 of 2022 for commission of offences punishable U/Ss. 384/385/387/506/120-B of Indian Penal Code (In short the 'IPC') and Sec. 67 of Information Technology Act (In short the 'IT Act'), 2000 and again on 2/10/2022, another FIR was registered against the Petitioner and others vide Khandagiri PS Case No. 496 of 2022 for commission of offences punishable Under Ss. 341/328/ 324/354-C/370/386/387/ 388/ 389/ 419/ 420/ 465/ 506/120-B of Indian Penal Code (in short IPC), 1860 and Under Sec. 66-E/67 of the IT Act. In these FIRs against the Petitioner and others, it was alleged that the Petitioner and other co-accused persons had extorted crores of Rupees from different rich people by blackmailing them to get their video footage containing objectionable and inappropriate photographs viral. The aforesaid cases were investigated into by the local police, but in the course of investigation, the Assistant Director of Enforcement, Bhubaneswar claiming the offences alleged against the Petitioner and others to be scheduled offences as defined Under Sec. 2(1)(y) of the PMLA instituted a complaint against the Petitioner and others before the Special Court under PMLA, Bhubaneswar for commission of offence U/S. 3 of PMLA which is punishable U/S. 4 of PMLA. It is stated in the complaint that soon after registration of the aforesaid police cases, PMLA Case No.10 of 2022 was recorded against the Petitioner and others for commission of aforesaid offence under PMLA and the matter was investigated into by ED. It is accordingly stated in the complaint that One Four Wheeler 'Ford Endeavour' bearing Registration No. OD-02-BP-2324 belonging to the Petitioner with approximate purchase value of Rs.39,03,736.00 was seized so also one G+2 storeyed residential building constructed over plot No. 1338/15105 of Khata No. 698 measuring an area ac 0.047 decimal (2050 sq. ft) with approximate market value of Rs.3.6 Crores was attached. It is also alleged in the complaint that the Petitioner and others had generated illegal income of Crores of Rupees through extortion by way of honey trapping rich and influential people and making their nude videos and threatening as well as blackmailing them for lodging false police cases and getting their nude videos viral in social media and, thereby, the income of the Petitioner and others are proceeds of crime as defined Under Sec. 2(1)(u) of the PMLA. This is how the complaint against the Petitioner and others came to be instituted for commission of offences Under Ss. 3/4 of PMLA.

(3.) Heard, Mr.J.Pal, learned counsel for the Petitioner and Mr. G.Agrawal, learned counsel for the ED extensively. Mr. Pal has mainly confined his submission on two points; firstly, non-compliance of the the mandate of Sec. 19 of PMLA while arresting the Petitioner and thereby, the Petitioner is entitled to bail on that very score; secondly, the Petitioner being a woman can be directed to go on bail notwithstanding to the rigor of Sec. 45 of the PMLA in view of the proviso attached thereto. In addition, Mr. Pal has also submitted that there is no prima facie material to detain the Petitioner in custody and the Petitioner having successfully passed the tripod test, there would be no impediment to direct release of the Petitioner on bail. On the other hand, Mr. G. Agarawal, learned counsel for the ED has submitted that merely because the Petitioner is a woman would not confer any right on her to go on bail, when there is allegation against her for generating crores of rupees as a proceeds of crime and she being accused of offence of money laundering cannot be extended with any relaxation through the proviso to overcome the rigor of 45(1) of PMLA which she having not satisfied, her bail application itself merits no consideration. In support of their rival submissions, learned counsels for both the parties have relied upon some decisions, which would be discussed if found relevant in subsequent paragraph.