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2012 DIGILAW 4687 (MAD)

S. Martin v. Inspector Of Police

2012-11-15

G.M.AKBAR ALI

body2012
Judgment : The petitioner, who is alleged to have committed the offence punishable under Secs.294-A, 120(B), 420 IPC in Cr.No.304 of 2012, on the file of the respondent, seeks anticipatory bail. 2. This is the second application filed by the petitioner. Earlier application filed in Crl.O.P.No.11019 of 2012 was dismissed by this court on 8.6.2012. The petitioner has been arrayed as A.2. 3. The case of the prosecution is that, a search was made at the house of A.1, one Nagarajan, on 12.3.2012 by the respondent police and a sum of Rs.7,20,05,000/-was seized from his house. A.1 was arrested and confession was recorded. From the confession, it was revealed that A.2, the petitioner herein was dealing with lottery tickets of Sikkim and Nagaland which were banned in Tamil Nadu. However, they were printing and selling such lottery tickets to innocent purchasers and thereby cheating the public and keeping the above said money as unaccounted money which obtained as unlawful gain. 4. Subsequently, a search was made in the house of the A.3 and a sum of Rs.50,00,000/-was recovered. A.1 was granted bail by the trial court and A.2 and A.3 were at large. They filed earlier Anticipatory bail applications and they were dismissed as stated earlier. 5. The present application is filed on the ground of change of circumstances that the petitioner has been implicated only on the confession of co-accused and the amount seized from A.1 and A.3 has already been accounted for by A.3 and A.3 has subsequently been granted anticipatory bail. 6. It was also contended that while dismissing the earlier application, this court found that A.3 was similarly placed as this petitioner, and since A.3 has been granted anticipatory bail now, there is no impediment for granting anticipatory bail to this petitioner also. 7. Mr.S. Ashok Kumar, learned counsel for the petitioner submits that the case of the prosecution is that a sum of Rs.7,20,05,000/-was seized from A.1 and on confession, A.1 implicated A.2, as if that the amount is illgotten money from the sale of banned lottery tickets of North Eastern States in the State of Tamil Nadu. 8. 7. Mr.S. Ashok Kumar, learned counsel for the petitioner submits that the case of the prosecution is that a sum of Rs.7,20,05,000/-was seized from A.1 and on confession, A.1 implicated A.2, as if that the amount is illgotten money from the sale of banned lottery tickets of North Eastern States in the State of Tamil Nadu. 8. The learned Senior counsel pointed out that for an offence under Sec.294-A IPC, the prosecution has not proved possession of any lottery tickets from the petitioner and the theory of conspiracy and cheating under Sec.420 IPC is only imaginary and after thought and not based on any legal evidence. The learned Senior counsel pointed out that on the earlier occasion this court has held that the documents produced by A.3 accounting for the seized money were an afterthought and self serving documents and therefore, dismissed the application. 9. The learned Senior counsel pointed out that A.3 has produced further documents and has also produced relevant documents before the Income Tax Authorities. Therefore, the petitioner cannot be held responsible for the seizure of any amount at the hands of A.1. The learned Senior counsel further pointed out that the amount involved is a sale transaction between the wife of the petitioner and A.3, and the wife of the petitioner being an income tax assessee, the documents were produced before the incometax department and it is not ill-gotten money from the sale of lottery ticekts. 10. On the contrary. Mr.A. Navaneetha Krishnan, the learned Advocate General submitted that the petitioner is an habitual offender involved in five other cases and the State has slapped detention order under Act 14 of 1982. The learned Advocate General pointed out that an unaccounted amount of Rs.7.7 crores has been seized and the Directorate of Enforcement has taken the investigation suo-motu under the provisions of Prevention of Money Laundering Act and the petitioner has not so far appeared before the authority for interrogation. 11. The learned Advocate General further pointed out that the documents produced by A.3 and the wife of the petitioner were forged documents and particularly the sale agreement was executed in a document which was ante-dated only to get over the offence. The learned Advocate General also pointed out that the amount is ill-gotten money and therefore, custodial interrogation is necessary. 12. The learned Advocate General also pointed out that the amount is ill-gotten money and therefore, custodial interrogation is necessary. 12. The learned Advocate General could further point out that after the dismissal of earlier application, the petitioner has been absconding and fleeing to foreign States through the Airports at Calcutta and Mumbai. Therefore, the prosecution is not able to arrest him. According to the learned Advocate General, there is no change of circumstances and granting of pre arrest bail for A.3 cannot be taken advantage of by the petitioner. 13. The learned Advocate General also pointed out that since documents were falsified the case has been altered to an offence under Sec.120-B, 420, 467,468 and 471 IPC. 14. Heard and perused the materials available on record. 15. The genesis of the registration of the crime is the seizure of a sum of Rs.7,20,05,000/- from the house of A.1. The First Information Report would reveal that a search was made in accordance with law in the house of A.1 and A.1 has admitted that he along with the petitioner/A.2 have dealt in banned lottery tickets of other States and the profit earned from such sale was kept in his house. 16. A.1 was arrested and the money was seized. Pursuant to his confession, the house of A.3 was searched and a sum of Rs.50,00,000/- was recovered on the same day. 17. When an earlier application for anticipatory bail was moved, there was an attempt by A.3 by explaining that there was a sale agreement between A.3 and Leema Rose, who is the wife of petitioner/A.2 for purchase of property belonging to Leema Rose, for which, accounted money has been handed over to A.1 and the balance amount has been kept in the house of A.3. 18. The income tax returns were also filed. However, this court observed that they were self serving documents which were executed after the recovery of money. Finally, this Court observed that custodial interrogation was required as the investigation was in the crucial stage. However, this court has again considered the plea of A3 and has granted pre -arrest bail. 19. The petitioner is alleged to be the prime accused dealing with banned lottery in the State of Tamil Nadu for the offence punishable under Sec.294-A IPC. But the seizure of money and some lottery tickets were only from A1 and A3. 20. However, this court has again considered the plea of A3 and has granted pre -arrest bail. 19. The petitioner is alleged to be the prime accused dealing with banned lottery in the State of Tamil Nadu for the offence punishable under Sec.294-A IPC. But the seizure of money and some lottery tickets were only from A1 and A3. 20. It is relevant to point out that the Directorate of Enforcement is also seized of the matter as an amount of Rs.7,20,05,000/-is involved and a case has been registered under the Prevention of Money Laundering Act. The petitioner has also given a sworn statement before the Deputy Director of Income Tax, Investigation Unit and has explained the source of the seized amount. 21. The explanation by A3 was that there is sale transaction between him and the wife of the petitioner. However, now the investigation has revealed that the stamp paper purchased for the said sale agreement dated 2.3.2012 was supplied to the vendor only on 9.3.2012 and the same was sold to the parties only on 13.3.2012. Therefore, an altered First Information Report has been filed including an offence under Secs.467,468 and 471 IPC. This fact was not brought before this court when anticipatory bail was granted to A3. 22. Though there is a force in the contention of the learned Advocate General, the investigation regarding the purchase and sale of the stamp paper as stated above was not brought to the knowledge of this court , when co-accused was granted pre-arrest bail. However, the allegation against the present petitioner is that the seized money is an illgotten money from the sale of lottery tickets in Tamil Nadu, for which an offence under Sec.294-A alone will be attracted. 23. However, for unaccounted money, the provisions of the Prevention of Money Laundering Act 2002 will be attracted and Secs.3 and 4 of the Act deals with offence and punishment of money laundering and the schedule to the Act deals with what are all the money laundering offences. 24. Unfortunately, an offence under Sec.294-A or 420 IPC are not mentioned in Part-B of the schedule. However, Sec.467 is mentioned for forgery of transfer of any valuable security or to receive any money. 25. 24. Unfortunately, an offence under Sec.294-A or 420 IPC are not mentioned in Part-B of the schedule. However, Sec.467 is mentioned for forgery of transfer of any valuable security or to receive any money. 25. The learned Advocate General pointed out that under Sec.24 of Prevention of Money Laundering Act, the burden is upon the person to prove that the proceeds of the crime are untainted. In any event, the Director of Enforcement is also seized of the matter and they have issued summons for the appearance of the petitioners. Either to accept the explanation of A3 or not is in their domain. 26. Now the crucial question is, whether there is any change of circumstances in granting pre-arrest bail and that too, when similarly placed accused was granted pre-arrest bail. 27. In the pre-arrest bail order granted to A.3, this court considered the subsequent events viz., A.3 giving statement before the Income Tax authority and execution of sale deed and this court has also considered the fact that though the case has been registered in March 2012, there was no significant progress in the investigation. The custodial interrogation will be necessary only when there was no cooperation from the accused. The court also considered the gravity of the offence and the possibility of tampering with the witnesses and taking into account the relevant facts and circumstances and granted bail. 28. When two other accused, from whom, the huge amount has been seized were granted bail, I see no reason to treat the present petitioner differently. The gravity of the offence is sezure of huge amount from A1 and A3. 29. Earlier the major offence was only 420 IPC and now subsequently altered to 467, 468 and 471 IPC. The present altered offences would involve the wife of the petitioner and the other accused. Therefore, I am of the considered view that no prejudice would be caused if the petitioner is granted pre-arrest bail. 30. 29. Earlier the major offence was only 420 IPC and now subsequently altered to 467, 468 and 471 IPC. The present altered offences would involve the wife of the petitioner and the other accused. Therefore, I am of the considered view that no prejudice would be caused if the petitioner is granted pre-arrest bail. 30. Accordingly, the petitioner is ordered to be released on bail in the event of arrest or on his appearance within a period of fifteen days from the date of receipt of copy of this order before the learned Judicial Magistrate, Alandur, on his executing a bond for a sum of Rs.1,00,000/-(Rupees one lakh only) with two sureties each for a like sum to the satisfaction of the learned Magistrate concerned, or to the satisfaction of the respondent police or the police officer who intends to arrest and on condition that the petitioner shall report before the respondent police daily twice at 10.00 a.m and 5.00 p.m for four weeks and on further condition that the petitioner shall not leave the jurisdictioin without the permission of the respondent police.