M. SIVASANKAR Vs. UNION OF INDIA

JUDGEMENT

(1.) Application for regular bail filed under Section 439 of the Cr.P.C by the applicant who is arraigned as the 5 th accused in ECIR/KCZO/31/2020 of the Directorate of Enforcement, Cochin Zonal Office ('ED' for short) for having allegedly committed the offence punishable under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 ('PMLA' for short).

(2.) On 06/07/2020, OR No.7/2020 was registered by the Customs (Preventive) Commissionerate of Cochin against the person named Sarith P.S., the former PRO of the UAE Consulate for having smuggled 30 KGs of 24 karat gold worth ?148,200,010/- camouflaged as diplomatic cargo. A bill of entry was filed claiming the consignee to be Mr Rashid Khamis Ali Musaiqri Ashima who is a Charge D' Affairs of the UAE Consulate, claiming benefits of exemption from payment of Customs duty as imported diplomatic cargo. On the basis of intelligence report, the Customs decided to check the baggage with the permission of the Ambassador of the United Arab Emirates in India. That is when a cylindrical-shaped gold as stated above was seized. The National Investigating Agency ('NIA', for short), Kochi registered Crime No.2/2020 on 10/07/2020 alleging offences punishable under Sections 16, 17 and 18 of Unlawful Activities (Prevention) Act ('UAPA', for short) against four persons namely, the above-mentioned Sarith, Swapna Prabha Suresh-former Secretary to the Counsel General of UAE Consulate, Fasil Fareed and Sandeep Nair. Based on the aforesaid activity of smuggling under the guise of diplomatic baggage, the ED registered the aforesaid crime initially against four persons, on 13/07/2020 and a complaint was also filed before the special Court on 06/10/2020. During the course of investigation, all the persons acquainted with the facts and circumstances of this case were questioned in their statements recorded. The NIA and the Customs also had recorded statements of various persons including the accused. Investigation revealed that the accused persons have indulged in criminal activities and committed scheduled offences and huge amount of proceeds of crime were generated which they are possessing/concealing/using. The statement of the witnesses and the persons arrayed as accused initially indicated the involvement of the applicant also. He was therefore intended to be questioned. Apprehending arrest, he approached this Court for anticipatory bail by filing BA No. 6752/2020 under Section 438 of the Cr.P.C. The same was dismissed by this Court on 28/10/2020. On the same day, he was arrested and remanded to judicial custody as he was arrayed as the 5th accused for the offence under the PMLA. The investigation revealed that the accused, including the applicant, have committed offence of money laundering under Section 3, punishable under Section 4 of the PMLA. The mobile phone and the laptop of 2 nd accused Swapna Suresh were seized and mirror-image of the applicant's phone was obtained from C-DAC. Supplementary prosecution complaint would be filed in the light of the incriminating material unearthed during investigation. The applicant was taken into custody and his statements under Section 50 of the PMLA were recorded. There are no reasonable grounds to believe that the accused is not guilty and that he is not likely to commit an offence of similar nature while on bail. The investigation reveals that the applicant has played a significant role in the offence.

(3.) The applicant states that he is an Engineering Graduate with an MBA. He joined service as a Deputy Collector in State service, and was thereafter conferred with IAS. He had held many important and responsible positions in the Government. He was working as the Principal Secretary, IT and Principal Secretary to the Chief Minister. In these capacities, he used to contact different agencies and Consulates of different countries to coordinate activities in Kerala. During floods in Kerala, he had been in contact with the Consulates and several countries had offered help to the State Government and the same was being coordinated through the office of the Chief Minister. A2 was then the Secretary to the Consulate General, UAE. She was arrested in connection with the gold smuggling case involving diplomatic baggage to the Consulate. Her mobile phone calls revealed several calls between her and the applicant. The applicant was therefore, summoned by the investigating agencies for questioning about those calls between him and A2. He was summoned by the ED, NIA and Customs several times between 14/07/2020 and 15/10/2020. He states that he was questioned by the ED for more than fifty hours on different dates. Signed statements were obtained from him and throughout he has been cooperating in the investigation. When such questioning continued disregarding his health conditions, he approached this Court for a pre- arrest bail, but the same was rejected by this Court. A story about the involvement of the accused in the Crime has been contrived on the basis of the statements allegedly given by A2 and Sri Venugopal, a Chartered Accountant, whom he had introduced to A2 for her financial solutions. A locker was arranged by Sri.Venugopal for A2 to keep her money. How she handled her money was none of his concern. The locker was got by A2 much before her involvement in the gold smuggling case. She alone had operated that locker. The applicant was arrested while he was undergoing Ayurvedic treatment. He was not permitted to complete the treatment. The details of the days and time he was interrogated by the different agencies are mentioned in Annexure-I. Consequent to his arrest, he was given to the custody of ED for a total period of 14 days. He sought bail from the jurisdictional Court, but the same was rejected. He has therefore approached this Court for indulgence.