Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1706 of 2015, Judgment Date: Dec 16, 2015

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NO. 1706  OF  2015
                (Arising out of  SLP(Crl.) No.6701 of  2015)


GAUTAM KUNDU                                                …   APPELLANT(S)

                                  :VERSUS:

MANOJ KUMAR, ASSISTANT DIRECTOR,
EASTERN REGION, DIRECTORATE OF
ENFORCEMENT (PREVENTION OF MONEY
LAUNDERING ACT) GOVT. OF INDIA                              …  RESPONDENT(S)


                               J U D G M E N T
Pinaki Chandra Ghose, J.
1.    Leave granted.

2.    This appeal, by special leave, is directed against  the  judgment  and
order dated 21st July, 2015 passed by the High  Court  of  Calcutta  in  CRM
No.6285  of  2015,  whereby  the  High  Court   has   rejected   appellant's
application for bail under Section 439 of the Code  of  Criminal  Procedure,
1973. The appellant was arrested on 25.03.2015 in  relation  to  an  offence
alleged to have been committed under Section 3 of the  Prevention  of  Money
Laundering Act, 2002, (hereinafter referred to as "PMLA").

3.    The appellant is the Chairman of Rose Valley Real Estate  Construction
Ltd. (hereinafter referred to  as  the  "Rose  Valley"),  a  public  company
incorporated in the year 1999 and registered under the Companies Act,  1956.
Certain non-convertible  debentures  were  issued  by  the  Rose  Valley  by
'private placement method.'  No  advertisements  etc.  were  issued  to  the
public. The said debentures were issued to the employees of the Company  and
to their  friends  and  associates  after  fulfilling  the  formalities  for
private placement of debentures. Thus,  the  appellant  collected  money  by
issuing secured debentures by way of private placement  in  compliance  with
the guidelines issued by the Securities and Exchange  Board  of  India  from
time to time.

4.    On  26.03.2013,  the  Adjudicating  Officer,  SEBI,  passed  an  order
imposing a penalty of Rs.1 crore upon the Rose Valley for violation  of  the
provisions of Sections 11(C) of the Securities and Exchange Board  of  India
Act, 1992 (hereafter referred to as the  SEBI  Act)  which  was  reduced  to
Rs.10 lakhs by the Securities  Appellate  Tribunal,  Mumbai.  A  letter  was
issued on 26.06.2013 by the Securities and Exchange Board of India  ("SEBI")
to the appellant Rose Valley informing  the  appellant  about  the  offences
alleged to have been committed by it under the Companies  Act,  SEBI  Act  &
Regulations, and Section 405 of the Indian Penal Code. The appeal  filed  by
the appellant before  the  Securities  Appellate  Tribunal  was  allowed  on
12.12.2013, holding that the appellant Company  has  repaid  all  the  money
collected from  the  investors.  It  was  further  held  by  the  Securities
Appellate Tribunal that there  are  no  grounds  for  violation  of  Section
11(C)(3) of the SEBI Act.

5.    On the basis of the aforementioned letter dated 26.06.2013  issued  by
SEBI, the  respondent  filed  a  report  being  ECIR  No.KIZO/02/2014  dated
27.02.2014, alleging commission of  offence  by  the  Rose  Valley  and  its
officers, punishable under Section 24 of the SEBI  Act.  Thereafter,  search
and seizure was conducted at the offices of the Rose Valley.

6.    A complaint was filed by the respondent authorities, being C/14214  of
2013, alleging that the Rose Valley transferred the money  raised  by  issue
of debentures from the account of one company to that  of  another  company.
It is also alleged that the money collected by issuing  the  debentures  for
the purpose of one business has been invested in some  other  business.  The
proceedings under Section 24 of the SEBI Act  has  been  challenged  in  the
High Court by way of revision and the said revision is pending  for  hearing
and further proceeding of the complaint case, being  C/14214  of  2013,  has
been stayed by the High Court. The High Court also directed  the  respondent
not to take any coercive measure against the appellant.

7.    Vide its order dated 18.06.2014,  SEBI  directed  the  appellant  Rose
Valley to refund the money to the customers of  the  Ashirbad  Scheme.  This
order was challenged before the Securities  Appellate  Tribunal  by  way  of
Appeal No.233 of 2014. On 19.06.2014, a  Show  Cause  Notice  under  Section
8(1) of the PMLA was served upon Rose Valley and its officials. Rose  Valley
filed a writ petition before the High  Court  of  Calcutta  challenging  the
said Show Cause Notice. The said writ petition was dismissed by the  learned
Single Judge of the High Court. Thereafter, the matter was taken  in  appeal
before the Division Bench of the Calcutta High Court, being  AST  No.345  of
2014. The Division Bench of the High Court dismissed  the  said  appeal  and
directed the  appellant  Rose  Valley  to  appear  before  the  Adjudicating
Authority under  Section  8  of  the  PMLA  and  directed  the  Adjudicating
Authority to decide the preliminary objections as may be raised by the  Rose
Valley, including the applicability of the PMLA as also the validity of  the
search and seizure against Rose Valley. It was  further  directed  that  the
Adjudicating Authority should pass  a  reasoned  order  in  the  matter  and
communicate the same to the appellant Rose Valley within two days  from  the
date of passing such order.

8.    A complaint was filed by the respondent  on  April  2,  2015,  in  the
Court of learned Chief Judge, City Sessions Court at  Kolkata,  against  the
appellant under Section 4 of PMLA, though no offence  is  made  out  against
the appellant under Section 3 of the  PMLA.  The  said  complaint  has  been
registered as ML Case No.3 of 2015. Despite  having  fully  cooperated  with
the investigation, the appellant was arrested on 25.03.2015 on suspicion  of
having committed an offence punishable under the provisions of the PMLA  and
is detained in custody since then.

9.    While the appellant was in custody, his father expired  on  06.04.2015
upon which he moved an application before the High  Court  of  Calcutta  for
interim bail to perform the rituals for his deceased father. The High  Court
vide its order 08.04.2015, directed release of the appellant on  provisional
bail for two weeks on  the  conditions  mentioned  in  the  said  order.  On
completion  of  the  period  of  provisional  bail,   the   appellant   duly
surrendered before the Court of learned Chief Judge, City Sessions Court  at
Kolkata.

10.   On 06.07.2015, the appellant filed  a  fresh  bail  application  under
Section 439 of the Code of Criminal  Procedure  before  the  High  Court  of
Calcutta, being CRM No.6285 of 2015. Vide impugned judgment  and  order  the
High Court has rejected the said application of the appellant  holding  that
no order has yet been passed by any competent Court of law that  no  offence
is made out against the appellant under Section 24 of the SEBI  Act.  It  is
pertinent to mention here that a criminal revision praying for  quashing  of
the proceedings initiated against the appellant  under  Section  24  of  the
SEBI Act is still pending for decision before the High Court.

11.   Aggrieved by  the  rejection  of  the  bail  application  filed  under
Section 439 of the Code of Criminal Procedure, the appellant has  approached
this Court through this appeal by special leave.

12.   We have heard Mr. Gopal Subramanium, learned senior counsel  appearing
for the appellant and also Mr. Ranjit Kumar, learned Solicitor  General  for
India. For  proper  appreciation  of  submission  made  by  learned  counsel
appearing  for  the  parties,  it  would  be  necessary  to   consider   the
authorities cited on behalf of the both parties.

13.   Mr. Gopal  Subramanium,  learned  senior  counsel  appearing  for  the
appellant submitted that there is no offence made  out  under  PMLA  against
the appellant as Section 24 of the SEBI Act  is  not  a  separate  scheduled
offence under the PMLA. Section 12A read with Section 24 of SEBI Act is  the
scheduled offence under the PMLA since 2009. Neither the complaint filed  by
SEBI nor the complaint filed by the respondent (which is based  entirely  on
SEBI complaint) prosecutes the appellant for violation of Section  12A  read
with Section 24 of the SEBI Act.

14.   According to learned senior counsel for the appellant, Section  24  of
the SEBI Act was printed separately in the Schedule of PMLA  for  the  first
time vide PMLA (Amendment) Act, 2012 w.e.f. 15.02.2013, which is clearly  an
inadvertent typographical error. The  description  of  offence  given  under
paragraph 11 of the Schedule to PMLA for Section 24 of the  SEBI  Act  reads
as "acquisition of securities or  control",  which  is  different  from  the
description given to the Section under the SEBI  Act,  which  describes  the
Section as "Offences". Rather the  heading  "acquisition  of  securities  or
control" is part of the heading of Section 12A read with  Section  24  which
is the scheduled offence. The relevant extract of the Schedule to the









 PMLA, as it stood after the 2009 Amendment, is as follows:

Paragraph 8 - The Securities and Exchange Board of India Act,  1992  (15  of
1992)

|12A read with Section |Prohibition of manipulative and deceptive  |
|24                    |devices, insider trading and substantial   |
|                      |acquisition of securities or control       |


The relevant extract of the Schedule to the PMLA as it stands today after
the Amendment Act of 2012 w.e.f. 15.02.2013 is as follows:

Paragraph 11 - The Securities and Exchange Board of India Act, 1992 (15 of
1992)



|12A read with Section|Prohibition of manipulative and deceptive   |
|24                   |devices, insider trading and substantial.   |
|Section 24           |Acquisition of securities or control        |


15.   The learned senior counsel for the appellant  submitted  that  if  the
offences prescribed against the sections in paragraph 11 in  both  the  rows
are read together, the same will appear as the heading  of  Section  12A  of
the SEBI Act. A conjoint reading of two rows under paragraph 11  of  Part  A
of the Schedule would show that the same is in substance a  reproduction  of
paragraph 8 of Part B of the Schedule of PMLA as  was  prevailing  prior  to
the amendment effected on 15.02.2013 and  therefore,  the  position  remains
unchanged. Section 12A of the SEBI Act is as follows:

"Prohibition of manipulative and deceptive  devices,   insider  trading  and
substantial acquisition of securities or control.

12A. No person shall directly or indirectly -

(a)   use or employ, in connection with the issue, purchase or sale  of  any
securities listed or proposed to be listed on a recognized  stock  exchange,
any manipulative or deceptive device or contrivance in contravention of  the
provisions of this Act or the rules or the regulations made thereunder;

(b)   employ any device, scheme or artifice to defraud  in  connection  with
issue or dealing in securities which are listed or proposed to be listed  on
a recognized stock exchange;

(c)   engage in any act, practice, course  of  business  which  operates  or
would operate as fraud or deceit upon any person,  in  connection  with  the
issue, dealing in securities which are listed or proposed to be listed on  a
recognized stock exchange, in contravention of the provisions  of  this  Act
or the rules or the regulations made thereunder;

(d)   engage in insider trading;

(e)   deal in securities while  in  possession  of  material  or  non-public
information or communicate such material or non-public  information  to  any
other person, in a manner which is in contravention  of  the  provisions  of
this Act or the rules or the regulations made thereunder;

(f)   acquire control of any company or securities more than the  percentage
of equity share  capital  of  a  company  whose  securities  are  listed  or
proposed to be listed on a recognized stock  exchange  in  contravention  of
the regulations made under this Act."

Section 24 of the SEBI Act reads as follows:

"24. Offences. - (1) Without prejudice  to  any  award  of  penalty  by  the
Adjudicating Officer under this Act, if any person contravenes  or  attempts
to contravene or abets the contravention of the provisions of  this  Act  or
of any rules or regulations made thereunder, he  shall  be  punishable  with
imprisonment for a term which may extend to ten years, or with  fine,  which
may extend to twenty-five crore rupees or with both.

(2) If any person fails to pay  the  penalty  imposed  by  the  Adjudicating
Officer or fails to comply with any of his directions or  orders,  he  shall
be punishable with imprisonment for a term which shall not be less than  one
month, but which may extend to ten years or with fine, which may  extend  to
twenty-five crore rupees or with both."



16.   According to the learned senior counsel for the  appellant,  the  fact
that no new offence was meant to be added by way of the 2012  amendment,  is
clear from a plain reading of the "Statement of Objects and Reasons" to  the
Amendment of 2012, as well as the "Notes on Clauses" on the  Amendment  Act,
2012 and from a comparison of the Schedules of  PMLA  of  2009  and  amended
PMLA of 2012. It  is  submitted  by  the  learned  senior  counsel  for  the
appellant that the respondent is wrongly reading  Section  24  of  SEBI  Act
simplicitor as a  separate  scheduled  offence,  whereas  Section  24  is  a
general penal provision for violation of any and  every  provisions  of  the
SEBI Act or any rules or regulations made thereunder.

17.   It was further submitted by the learned senior counsel  appearing  for
the appellant that if the intent  of  the  legislature  was  to  incorporate
Section 24 of SEBI Act alone as an offence, in that event, there would  have
been no necessity to incorporate "12A read  with  Section  24"  inasmuch  as
Section 24 of the SEBI Act prescribes that all violations of  provisions  of
SEBI Act would be punishable in terms of Section 24 of the SEBI  Act,  1992.
Had that been the intention of the legislature, the legislature  would  have
mentioned either "offences and penalties  under  SEBI  Act,  1992"  or  only
Section 24 and the heading thereof,  as  scheduled  offence.  There  was  or
could be no necessity to specify section 12A separately if  the  legislature
intended to incorporate Section 24 as a separate scheduled offence.

18.   Further, the Enforcement Directorate's own document titled  "FAQs"  on
their website mentions the Schedule to PMLA which  treats  Section  12A  r/w
Section 24 of the SEBI Act as a scheduled offence and not Section 24  alone.
Similarly, the Schedule to PMLA on the website of the Ministry  of  Finance-
Financial Intelligence Unit also mentions S.12A r/w 24 of the  SEBI  Act  as
the  scheduled  offence  and  not  Section  24  alone.  This  reflects   the
authority/government's own understanding of the Schedule. Thus,  it  can  be
safely said that the printing of Section 24 of  SEBI  Act  separately  under
the Schedule to the PMLA is vide an  inadvertent  typographical  error  that
has crept into the  legislation  as  is  apparent  from  the  marginal  note
therein. It is an accepted principle  of  interpretation  of  statutes  that
where an inadvertent grammatical or other error has palpably crept into  the
legislation, the Court is at liberty to disregard the error in applying  the
statute. (Afcons Infrastructure Ltd. v. Cherian Verkey Construction Co.  (P)
Ltd., (2010) 8 SCC 24).

19.   Learned senior counsel for the appellant further  submitted  that  the
description given to the offence under  Section  24  of  SEBI  Act,  in  the
Schedule to PMLA is "acquisition of securities  or  control",  and  even  if
Section 24 is treated as a separate scheduled offence,  the  words  used  in
the description have to be given meaning to and its application  has  to  be
restricted to the offence described under it in the  Schedule.  The  learned
senior counsel for the appellant further submitted that this Court has  held
in numerous judgments that the Court should give meaning to each  and  every
word  used  by  the  legislature  and  it  is  not  a  sound  principle   of
construction to brush aside words in a statute as being inapposite  surplus,
if they can have a proper application in  circumstances  conceivable  within
the contemplation of the statute. [See: Gurudevatta VKSSS Maryadit v.  State
of Maharashtra, (2001) 4 SCC 534 at para 26]. It has also been held by  this
Court that "the courts always presume that the  legislature  inserted  every
part thereof for a purpose and the legislative intent is that every part  of
the statute should have effect. The legislature is deemed not to  waste  its
words or to say  anything  in  vain  and  a  construction  which  attributes
redundancy to the legislature will not be  accepted  except  for  compelling
reasons." [Visitor, AMU v. K.S. Misra, (2007) 8 SCC 593, at para 13)].

20.    Therefore, learned senior counsel for the  appellant  submitted,  the
words "acquisition of securities or control", appearing next to  Section  24
of the SEBI Act in the Schedule to the PMLA must be given  due  meaning  and
construed to mean that only that extent of the  offence  which  pertains  to
""acquisition of securities or control" is a punishable offence  under  PMLA
and not any other violation under the SEBI Act.


21.    It was further submitted  by  the  learned  senior  counsel  for  the
appellant that Section 24 alone cannot by  itself  be  a  scheduled  offence
under the PMLA since it does not enumerate a specific offence rather  it  is
the nature of a "catch-all" penal provision, which  imposes  punishment  for
any contravention of the  SEBI  Act,  Rules  or  Regulations  and  does  not
precisely define or specify any offence in particular. Inclusion of  Section
24 as a separate offence would be a violation  of  the  basic  principle  of
criminal jurisprudence that 'criminal law has to be clear and  unambiguous.'
It has been held by this Court  in  numerous  judgments  that  criminal  law
ought to be absolutely clear, specific  and  not  vague,  failing  which  it
would suffer from arbitrariness.  [Ref:  (i)  State  of  Madhya  Pradesh  v.
Baldeo Prasad, (1961) 1 SCR 970; (ii) Harakchand Ratanchand Banthia  &  Ors.
v. Union of India & Ors., (1969) 2 SCC 166; and (iii) A.K.  Roy  &  Ors.  v.
Union of India & Ors., (1982) SCR 272].


22.     It  was  alternatively  submitted  by  the  learned  senior  counsel
appearing for the appellant that  assuming  if  Section  24  simplicitor  is
treated as a scheduled offence, it  was  introduced  vide  PMLA  (Amendment)
Act, 2012, w.e.f. 15.02.2013 i.e. much after the offences  were  alleged  to
have been committed and bar against ex-post facto laws under  Article  20(1)
would be attracted. Section 2(u) of PMLA defines  "proceeds  of  crime"  and
states that it must be as a  result  of  criminal  activity  relating  to  a
scheduled offence. Under Section 3 of the PMLA, in order for the offence  of
money laundering to be triggered, it must be established  at  the  threshold
that the "proceeds of crime" was as a result of criminal  activity  relating
to a scheduled offence on the date such crime was  committed.  He  submitted
that the offences are alleged to have been committed between the years  2001
and 2007. The offence under Section 12A r/w Section 24 of  SEBI  Act  became
scheduled offence  only  by  way  of  the  Prevention  of  Money  Laundering
(Amendment) Act, 2009 w.e.f. 01.06.2009, much after the  alleged  commission
of crime and the  appellant  is  admittedly  not  accused  of  violation  of
Section 12A r/w Section 24 of the SEBI Act.


23. Mr. Ranjit Kumar, learned Solicitor General appearing on behalf  of  the
respondent,  on  the  other  hand,  submitted  that  Rose  Valley  Group  of
Companies floated as many as 27 companies although two  out  of  them,  i.e.
Rose Valley Real Estate Construction Ltd. ("Rose Valley")  and  Rose  Valley
Hotels Entertainment Ltd. were the front runners to allure the investors  to
invest in (i) Ashirbad Scheme, (ii)Time Share Scheme,  and  (iii)  Debenture
Scheme, promising high returns to the investors and the funds  so  collected
from  the  public  at  large  were  subsequently  laundered  in   associated
companies. Rose Valley made a public issue of debentures without filing  any
offer document in violation of Section 56 of the Companies  Act,  1956,  nor
did it file statement in lieu of prospectus as claimed by it. On  the  basis
of the information/documents received from  SEBI,  the  respondent  filed  a
complaint in the Court of Chief  Metropolitan  Magistrate  at  Calcutta  for
Scheduled  Offence  under  Section  24  of  the  SEBI  Act.  The  respondent
conducted searches of the premises of the Rose Valley  Group  on  22.05.2014
and 23.05.2014,  resulting  into  seizure  of  incriminating  documents  and
Indian currency of Rs.37.07 lacs. The  respondent's  action  of  search  and
seizure was challenged by the appellant by filing  a  writ  petition  before
the High Court of Calcutta which was dismissed on 7.7.2014.


24.     He  further  submitted  that  the  investigation  conducted  by  the
respondent revealed that Rose Valley illegally  and  fraudulently  collected
public money from the general public in the State  of  West  Bengal,  Assam,
Tripura and Odisha, amounting to Rs.12363.63 crores  (approx).  In  addition
to this, Rose Valley illegally and fraudulently collected public funds  from
the States of  Karnataka,  Bihar,  Maharashtra,  Jharkhand,  Uttar  Pradesh,
Delhi, Madhya Pradesh, amounting to more than  Rs.3120.97  crores  (approx).
Therefore, the funds of Rs.12.82 crores collected from  the  general  public
under the garb of Debenture Schemes is a tip of the iceberg.


25.    Mr. Ranjit Kumar, learned Solicitor General  further  submitted  that
the "scheduled offences" and "offence  of  money  laundering"  are  mutually
exclusive and independent of each other. Section 3 of the  PMLA  deals  with
the offence of money laundering punishable under Section 4 of the said  Act,
whereas the 'Schedule'  to  PMLA  involving  offences  under  28  paragraphs
enable the respondent to conduct the investigation  for  the  collection  of
evidence relating to offence of money laundering. In the present  case,  the
respondent filed the complaint under Section 45 of PMLA  and  cognizance  of
the same has been taken by the Special Court  on  02.04.2015  under  Section
44(1)(b) of PMLA. He further submitted that the complaint filed by SEBI  has
nothing to do with the merits of the present case and the High Court  stayed
the proceedings of the SEBI complaint on the ground  that  the  CMM  had  no
authority to take cognizance of the  offence  as  the  latest  amendment  in
Section 26 of SEBI Act makes the offence triable by the Court of Sessions.


26. The learned Solicitor General submitted that Section 45 of  PMLA  refers
only to the term 'Special Court' and therefore has to  be  given  restricted
meaning. According to him,  PMLA  is  a  'Special  Law'  applicable  to  the
subject of money laundering, and deals with  economic  offenders  and  white
collar criminals. The object of PMLA is to prevent money-laundering  and  to
provide for confiscation of property derived from, or  involved  in,  money-
laundering. To enable the scheme of the Act, reliance was placed on  various
provisions of the PMLA. He further submitted that Section  44  of  the  PMLA
only confers jurisdiction on the Special Court to deal with  offences  under
the PMLA.  Section  45  of  PMLA  makes  the  offence  of  money  laundering
cognizable and non-bailable  and  also  provides  that  notwithstanding  the
provisions of Criminal  Procedure  Code,  1973,  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 the Public Prosecutor has been given an  opportunity  to  oppose  the
application for such release.


27.     The  learned  Solicitor  General  lastly   submitted   that   'money
laundering' being  an  economic  offence  poses  a  serious  threat  to  the
National Economy and National Interest and committed with  cool  calculation
and deliberate design with the motive of personal  gain  regardless  of  the
consequences to the society. Hence, for Money Launderers 'jail is  the  rule
and bail is an exception, which finds support from many  landmark  judgments
of this Court.


28.    Before dealing with the application for bail on merit, it  is  to  be
considered whether the provisions of Section 45 of the PMLA are  binding  on
the High Court while considering the application for bail under Section  439
of the Code of Criminal Procedure. There is no doubt that  PMLA  deals  with
the offence of money laundering and the Parliament has enacted this  law  as
per commitment of the country to the United Nations General  Assembly.  PMLA
is a special statute enacted  by  the  Parliament  for  dealing  with  money
laundering. Section 5 of the Code of Criminal Procedure, 1973  clearly  lays
down that the provisions of the Code of Criminal Procedure will  not  affect
any special statute or any local law. In other words, the provisions of  any
special statute will prevail over the general  provisions  of  the  Code  of
Criminal Procedure in case of any conflict.


29.    Section 45 of the PMLA  starts  with  a  non  obstante  clause  which
indicates that the provisions laid down in Section 45 of the PMLA will  have
overriding effect  on  the  general  provisions  of  the  Code  of  Criminal
Procedure in case of conflict between them. Section 45 of the  PMLA  imposes
following two conditions for grant of bail  to  any  person  accused  of  an
offence punishable for a term of  imprisonment  of  more  than  three  years
under Part-A of the Schedule of the PMLA: (i) That the  prosecutor  must  be
given an opportunity to oppose the application for bail; and (ii)  That  the
Court must be satisfied that there  are  reasonable  grounds  for  believing
that the accused person is not guilty of such offence and  that  he  is  not
likely to commit any offence while on bail.


30.  The conditions specified under Section 45 of  the  PMLA  are  mandatory
and needs  to  be  complied  with  which  is  further  strengthened  by  the
provisions of Section 65 and  also  Section  71  of  the  PMLA.  Section  65
requires that the provisions of Cr.P.C. shall apply in so far  as  they  are
not inconsistent with the provisions of this Act  and  Section  71  provides
that  the  provisions   of   the   PMLA   shall   have   overriding   effect
notwithstanding anything inconsistent therewith contained in any  other  law
for the time  being  in  force.  PMLA  has  an  overriding  effect  and  the
provisions of Cr.P.C. would apply only if they  are  not  inconsistent  with
the provisions of this Act. Therefore, the conditions enumerated in  Section
45 of PMLA will have to be complied with even in respect of  an  application
for bail made under Section 439 of Cr.P.C. That coupled with the  provisions
of Section 24 provides that unless the contrary is proved, the Authority  or
the Court shall presume  that  proceeds  of  crime  are  involved  in  money
laundering and the burden to prove  that  the  proceeds  of  crime  are  not
involved, lies on the appellant.


31.  It was submitted on behalf of the appellant that Section 12A read  with
Section 24 of the SEBI Act does not include Section 24 of the said Act as  a
scheduled offence but it is only Section 12A which is to be construed  as  a
scheduled offence as the description of offence against Section  24  of  the
SEBI Act mentioned under paragraph 11 of the Schedule to  PMLA  is  part  of
Section 12A of the said Act.  In  this  context  it  was  submitted  by  the
learned Solicitor General that PMLA being a Special Statute cannot be  given
restricted meaning while interpreting its provisions including the  Schedule
which is an integral part  of  this  Act.  PMLA  has  been  enacted  by  the
Parliament as per commitment of  the  country  to  the  United  Nations  and
having global dimensions and cannot be confined to  national  boundaries  of
our country. Moreover, its legislative intent has to be  gathered  from  the
plain reading of the language used in the provisions  of  the  Act  and  the
Schedule appended thereunder. Hence, there is no ambiguity that  Section  24
of the SEBI Act is a scheduled offence under Paragraph 11 of  the  Schedule.
The fact remains that Section 24 of the SEBI Act is inclusive in nature  and
also includes Section 12A within its ambit and scope.  Further,  on  perusal
of various offences listed in the Schedule in 28  Paragraphs,  it  could  be
seen that only penal provisions of the Statutes have  been  incorporated  in
the Schedule. There is no denying the fact that Section 24 of the  SEBI  Act
is a penal provision of inclusive nature and thus it  clearly  reflects  the
legislative intent of  a  scheduled  offence  under  PMLA.  Admittedly,  the
complaint was filed by SEBI against  the  appellant  on  the  allegation  of
committing offence  punishable  under  Section  4  of  PMLA.  The  complaint
reveals that SEBI received a letter from the Ministry of Corporate  Affairs,
Office of the Registrar of Companies ("ROC"), West  Bengal,  with  reference
to Rose Valley in which the ROC had stated that Rose Valley  has  repeatedly
issued debentures in the years 2001-2002,  2004-2005,  2005-2006  and  2007-
2008 to more than 49 persons in each financial  year  without  filing  offer
documents with either the ROC or the SEBI and requested SEBI to  investigate
into the matter. From the information provided by ROC, it was observed  that
Rose Valley had raised a total sum of Rs.1282.225 lakhs  from  2585  persons
by issuing secured debentures to the general public without  complying  with
the norms related to IPO of securities as per  first  provision  to  Section
67(3) of the Companies Act, 1956. Rose Valley  by  making  public  issue  of
debentures  during  the  period  between  2001-2002  to  2007-2008,  without
complying with the public issue norms, violated the provisions of  erstwhile
SEBI  (Disclosure  and  Investor  Protection)  Guidelines,  2000   and   the
provisions  of  Section  117(A)  of  the  Companies  Act,  1956  and   other
provisions of SEBI Act which is a Scheduled Offence under PMLA.


32.  We have heard the learned counsel for the parties.  At  this  stage  we
refrained ourselves from deciding the questions tried to be raised  at  this
stage since it is nothing but a bail  application.  We  cannot  forget  that
this case is relating to “Money Laundering”  which  we  feel  is  a  serious
threat to the national economy and national interest. We cannot brush  aside
the fact that the schemes have been prepared in a calculative manner with  a
deliberative  design  and  motive  of  personal  gain,  regardless  of   the
consequence to the members of the society.


33.  With regard to the questions raised by Mr. Gopal  Subramanium,  learned
senior counsel appearing on behalf of the appellant, at this  stage,  we  do
not think that we should answer or deal with the same in view  of  the  fact
that the matter is pending before a Division Bench  of  the  High  Court  in
writ  jurisdiction,  as  has  been  pointed  out  before  us.   Hence,   any
observation or remarks made by us may cause prejudice to the  case  of  both
the sides. Therefore, we feel that it would be proper for us  only  to  deal
with the matter concerning bail. We note that admittedly  the  complaint  is
filed against the appellant on the allegations  of  committing  the  offence
punishable under Section 4 of the PMLA. The contention raised on  behalf  of
the appellant that no offence under Section 24 of the SEBI Act is  made  out
against the appellant, which is a scheduled offence under  the  PMLA,  needs
to be considered from the materials collected during  the  investigation  by
the respondents.  There is no order as yet passed by a  competent  court  of
law, holding that no  offence  is  made  out  against  the  appellant  under
Section 24 of the SEBI Act and  it  would  be  noteworthy  that  a  criminal
revision  praying  for  quashing  the  proceedings  initiated  against   the
appellant under Section 24 of SEBI Act is still pending for  hearing  before
the High Court. We have  noted  that  Section  45  of  the  PMLA  will  have
overriding effect  on  the  general  provisions  of  the  Code  of  Criminal
Procedure in case of conflict between them. As  mentioned  earlier,  Section
45 of the PMLA imposes two conditions for grant  of  bail,  specified  under
the said Act. We have not missed the proviso to Section 45 of the  said  Act
which indicates that the legislature has carved out an exception  for  grant
of bail by a Special Court when any person is under the age of 16  years  or
is a woman or is a sick or infirm. Therefore, there is  no  doubt  that  the
conditions laid down under Section 45A of the  PMLA,  would  bind  the  High
Court as the provisions of special  law  having  overriding  effect  on  the
provisions of Section 439 of the Code of Criminal  Procedure  for  grant  of
bail to any person accused of committing offence punishable under Section  4
of the PMLA, even when the application for bail is considered under  Section
439 of the Code of Criminal Procedure.


34.  We have further noted the directions given by this  Court  in   Subrata
Chattoraj v. Union of India and Ors., (2014) 8 SCC  768,  in  particular  to
paragraph 35.4.


35.  We cannot brush aside the fact that the appellant floated  as  many  as
27 companies to allure the investors to invest in their different  companies
on a promise of high returns and funds were collected  from  the  public  at
large which were subsequently laundered  in  associated  companies  of  Rose
Valley  Group  and  were  used  for  purchasing  moveable   and   immoveable
properties.


36.  We do not intend to further state the other facts  excepting  the  fact
that admittedly the  complaint  was  filed  against  the  appellant  on  the
allegation of committing offence punishable under Section  4  of  the  PMLA.
The contention made on  behalf  of  the  appellant  that  no  offence  under
Section 24 of the SEBI Act is made out against the  appellant,  which  is  a
scheduled offence under the PMLA, needs to be considered from  the  material
collected during the investigation and  further  to  be  considered  by  the
competent court of law. We do not intend to express ourselves at this  stage
with regard to the same as it may cause prejudice the case  of  the  parties
in other proceedings. We are sure that it is  not  expected  at  this  stage
that the guilt of the accused has to be established beyond reasonable  doubt
through evidences.  We have noted that in Y.S. Jagan Mohan Reddy v.  Central
Bureau of Investigation, (2013) 7 SCC 439, this Court has observed that  the
economic offences having deep rooted conspiracies and  involving  huge  loss
of public funds  need  to  be  viewed  seriously  and  considered  as  grave
offences affecting the economy of the country as a whole and thereby  posing
serious threat to the financial health of country.  In  Union  of  India  v.
Hassan Ali Khan, (2011) 10 SCC 235, this Court has laid down that what  will
be the burden of proof when attempt is  made  to  project  the  proceeds  of
crime as untainted money. It is held in the said paragraph that  allegations
may not ultimately be established, but  having  been  made,  the  burden  of
proof that the  monies  were  not  the  proceeds  of  crime  and  were  not,
therefore, tainted shifted on the accused persons under Section  24  of  the
PML Act, 2002. The same proposition of law is  reiterated  and  followed  by
the Orissa High Court in the unreported  decision  of  Smt.  Janata  Jha  v.
Assistant Director, Directorate  of  Enforcement  (CRLMC  No.  114  of  2011
decided on December 16, 2013). Therefore,  taking  into  account  all  these
propositions of law, we feel that the application for bail of the  appellant
should be seen at  this  stage  while  the  appellant  is  involved  in  the
economic offence, in general, and for the offence punishable  under  Section
4 of the PMLA, in particular.


37.   We have further noted that the High Court at the time of refusing  the
bail application, duly considered  this  fact  and  further  considered  the
statement of the Assistant General Manager of RBI,  Kolkata,  seizure  list,
statements of directors of Rose Valley, statements  of  officer  bearers  of
Rose Valley, statements of debenture trustees of Rose Valley, statements  of
debenture holders of Rose Valley, statements of AGM  of  Accounts  of   Rose
Valley and statements of Regional Managers of Rose Valley for  formation  of
opinion  whether  the  appellant  is  involved  in  the  offence  of   money
laundering and on consideration of the said statements and  other  materials
collected during the investigation, the High Court  specifically  stated  as
follows:


“By making a pragmatic approach to the provision of  Section  45(1)  of  the
P.M.L. Act and on consideration of the  antecedents  of  the  petitioner  in
collection of money from open  market  for  issuing  secured  debentures  in
violation of the guidelines of SEBI and on  further  consideration   of  the
manner of keeping accounts of Rose Valley, I am  unable  to  hold  that  the
petitioner is not  likely to commit any offence while on bail. As a  result,
I cannot persuade myself to grant bail to  the  petitioner  at  this  stage.
So, prayer for bail is rejected. The application is dismissed.”





38.   In these circumstances, we  do  not  find  that  the  High  Court  has
exercised its discretion  capriciously  or  arbitrarily  in  the  facts  and
circumstances of this case. We further note that the High Court  has  called
for all the relevant papers and duly  taken  note  of  that  and  thereafter
after satisfying its conscience, refused the  bail.  Therefore,  we  do  not
find that the High Court has committed any wrong in  refusing  bail  in  the
given circumstances. Accordingly, we do not find  any  reason  to  interfere
with the impugned order so passed by the High Court and the bail, as  prayed
before us, challenging the said order is refused.  Consequently  the  appeal
is dismissed.



                                                               ………………………………J
       
                                                      (Pinaki Chandra Ghose)


 
                                                               ………………………………J

                                                              (R.K. Agrawal)


New Delhi;


December 16, 2015.