Allowed¶14

Tinkal Kumar Bhagat v. Directorate of Enforcement

Bail granted – PMLA

Jharkhand HC28 Aug 2024B.A./10960/2023

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Case brief

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What is this about?

Jharkhand High Court bail application B.A. 10960/2023 Tinkal Kumar Bhagat PMLA ECIR RNZO/03/2022 accused no.7 supplementary prosecution complaint Sahebganj illegal mining Pankaj Mishra section 45 twin conditions reasonable grounds not guilty vague allegations Krishna Kumar Saha B.A. 8709/23 Bhagwan Bhagat Supreme Court Cr. Appeal 3392/24 Pavana Dibbur 2023 SCC Online SC 1586 proceeds of crime sine qua non bail bond Rs.10000 two sureties Special Judge PMLA Ranchi Rongon Mukhopadhyay 28.08.2024

What did the court decide?

Petitioner directed to be released on bail on furnishing a bail bond of Rs.10,000/- with two sureties of the like amount each, to the satisfaction of the learned Special Judge, PMLA Act, Ranchi, in connection with ECIR Case No. 04/2022 arising out of ECIR/RNZO/03/2022. ¶14

Tinkal Kumar Bhagat Vs Directorate of… — Mining and Natural Resources | Jharkhand HC (2024)

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the petitioner, in custody in connection with ECIR Case No. 04/2022 arising out of ECIR/RNZO/03/2022 registered under sections 3 & 4 of PMLA 2002, is entitled to grant of bail (including satisfaction of the section 45 twin conditions). +1 more

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Court's answer

In view of the aforesaid circumstances, the author was inclined to grant bail to the petitioner, and the bail application was allowed.

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Ratio / Principle

The petitioner was not named in the predicate offence; his role surfaced only in the supplementary prosecution complaint.

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Key takeaways

There does not appear to be any direct evidence linking the petitioner to the alleged transfer of Rs.40-45 lacs to Pankaj Mishra.ratio¶11
Compared to co-accused Krishna Kumar Saha and Bhagwan Bhagat, the allegations against the petitioner seem to be less grave; both comparators had obtained bail.ratio¶11
The offences alleged against the petitioner are mostly vague, and there are reasonable grounds for believing that the petitioner is not guilty of such offence.ratio

Detailed headnote1 paragraphs

Bail granted – PMLA – High Court of Jharkhand, Rongon Mukhopadhyay, J (decided 28.08.2024; C.A.V. 03.05.2024) – B.A. No. 10960 of 2023: petitioner Tinkal Kumar Bhagat, arraigned as accused no. 7 only in the supplementary prosecution complaint in ECIR Case No. 04/2022 arising out of ECIR/RNZO/03/2022 (sections 3 & 4 PMLA 2002; predicate FIR chargesheeted 30.11.2020, cognizance 15.01.2021), sought bail. Court found: petitioner unnamed in predicate offence and FIR; no direct evidence of the alleged Rs.40-45 lakh transfer to Pankaj Mishra; his alleged role (illegal stone mining at Mundali plots 60-61 and Bhutaha plots 76-77, c. 69,34,752 and 22,47,696 CFT) less grave than co-accused Krishna Kumar Saha (bailed in B.A. No. 8709/23) and Bhagwan Bhagat (bailed by Supreme Court order dated 12.8.24 in Cr. Appeal No. 3392/24, whose reasoning the court relied upon, including that the first listed offence apart from s.120B IPC was not a predicate offence). Concluding the allegations were 'mostly vague' and there were 'reasonable grounds for believing' the petitioner not guilty, bail was granted on a Rs.10,000 bond with two sureties; application allowed. Pavana Dibbur (2023 SCC Online SC 1586) on 'proceeds of crime' as sine qua non was referred by counsel only.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI B.A. No. 10960 of 2023

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Tinkal Kumar Bhagat, S/o Narayan Bhagat, aged about 39 years, R/o Mahadevbaran, Mirza Chowki, P.O. Mandro, P.S. Sahebganj, DistrictSahebganj, Jharkhand-813208. .….. Petitioner

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Versus

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Directorate of Enforcement, Government of India, through Assistant Director, Ranchi Zonal Office, situated at Plot No. 1502/B, Airport Road, Kunwar Singh Colony, Hinoo, P.O. Doranda, P.S. Airport Road, DistrictRanchi, Jharkhand.

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…. Opposite Party

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Coram: THE HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY

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For the Petitioner	-------- : Mrs. Anjana Prakash, Sr. Advocate : Mr. Anil Kumar, Advocate : Mr. Ankitesh Kumar Jha, Advocate : Mr. Arpit Kumar, Advocate : Ms. Aparna Dubey, Advocate
For the E.D.	: Mr. Anil Kumar, ASGI : Ms. Chandana Kumari, A.C. to ASGI : Mr. Rishabh Dubey, A.C. to ASGI --------

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C.A.V. On 03/05/2024 Pronounced on 28/08/2024

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Heard Mrs. Anjana Prakash, learned senior counsel appearing for the petitioner and Mr. Anil Kumar, learned ASGI for the Directorate of Enforcement.

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2. In this application, the petitioner has prayed for grant of bail as he is in custody in connection with ECIR Case No. 04/2022 arising out of ECIR/RNZO/03/2022 registered under sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as PMLA, 2002).

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3. The prosecution case reveals that a First Information Report was lodged by one Sambhu Nandan Kumar at Barwarha Police Station against accused Pankaj Mishra and others in which it has been alleged that the accused persons had threatened the informant over phone not to participate in the tender of Barharwa toll and on refusal the informant was attacked by a mob at the behest of the accused persons. Subsequently, chargesheet was submitted on 30.11.2020 in the said case. The Directorate of Enforcement took into consideration several other First Information Reports related to similar matters. The offences mentioned in the referred cases come under the definition of a “scheduled offence” in terms of section 2(1)(y) of PMLA 2002. In course of investigation, it was revealed that the vehicles

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B.A. No. 10960 of 2023

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carrying the mined items had to cross Barharwa toll before reaching the main road. Apart from carrying out mining activities under valid licences, a huge number of mining activities was being carried out illegally in Sahebganj district as well as in adjoining areas. It has been alleged that Pankaj Mishra is involved in illegal collection of levy from the trucks carrying stone chips through his accomplices and also has control over the mining of stone chips and boulders as well as installation and operation of several crushers set up across various mining sites in the district of Sahebganj. It has been alleged that Pankaj Mishra has a fixed share in almost all the Mines and Transportation and he also enjoys political clout being the representative of the Chief Minister of Jharkhand who is also an M.L.A. from Barhet Sahebganj. The investigation into the bank account of Pankaj Mishra reveals acquisition of proceeds of crime running into crores of rupees. The supplementary prosecution complaint reveals that the amount is obtained through illegal activities relating to assistance in mining and unlawful transportation activities in connivance with the petitioner and others. The proceeds of crime from illegal mining are generated in cash and are transferred to Pankaj Mishra by the petitioner, Krishna Kumar Saha and Bhagwan Bhagat who all are involved in illegal and excessive mining and its transportation activities as well as in the activities relating to money laundering.

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4. It has been submitted by Mrs. Anjana Prakash, learned senior counsel for the petitioner, that the petitioner is neither named in the predicate offence nor his name appears in any of the First Information Reports, which have been merged with the predicate offence. No case of money laundering is made out against the petitioner to attract an offence under the provisions of the PMLA, 2002. It has been submitted that during investigation, the investigating agency has failed to produce any evidence which would link the petitioner with the alleged offences or with the main accused-Pankaj Mishra. It has been submitted by Mrs. Anjana Prakash, learned senior counsel for the petitioner, that the captioned case is based on the predicate offence of the year 2020 but the name of the petitioner did not figure in the First Information Report nor his name has surfaced during investigation or in the chargesheet filed in the said case wherein cognizance has been taken on 15.1.2021. The Directorate of Enforcement has not been able to produce

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B.A. No. 10960 of 2023

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any evidence or even any statements of the prime accused-Pankaj Mishra regarding the involvement of the petitioner and infact Pankaj Mishra in his statement recorded by the Directorate of Enforcement has stated that the work of loading of rake through railways and the crushers are looked after by Bhagwan Bhagat and not by the petitioner. The allegation of illegal mining is not a “scheduled offence” and the legal consequences of illegal mining is encapsulated in the provisions of the Mines and Minerals (Development and Regulation) Act, 1956 and the Jharkhand Minerals (Prevention of Illegal Mining) Rules, 2004 and the modalities have been prescribed therein to proceed against the offenders under the said Act and Rules. There is no evidence on record about any transaction made between the petitioner and Pankaj Mishra and the learned senior counsel has refuted the assertions made in para 17 of the counter affidavit by submitting that the same are vague assertions without there being any document in support thereof. Mrs. Anjana Prakash has referred to section 2 (u) of PMLA, 2002, which defines “Proceeds of Crime” and in such context she has referred to the case of Pavana Dibbur Vs. The Directorate of Enforcement reported in 2023 SCC Online SC 1586 while submitting that the existence of “Proceeds of Crime” is a sine qua non for establishing an offence under section 3 of PMLA 2002. Reference has also been made to the supplementary prosecution complaint filed by the Directorate of Enforcement more particularly paragraph 5.2 which reveals that the bank balance of Pankaj Mishra and his associates including Krishna Kumar Saha were frozen having total balances worth Rs.13,32,26,570 and Krishna Kumar Saha has been granted bail in B.A. No. 8709/23. No money trail between Pankaj Mishra and the petitioner could be detected to reveal any collection between the two. The name of the petitioner figures in the supplementary prosecution complaint as accused no. 7 along with two other accused persons namely Krishna Kumar Saha (accused no. 5) and Bhagwan Bhagat (accused no.6). The nature of investigation can be derived from the fact that when it was pointed out that the petitioner has valid lease deeds for plot nos. 76 and 77, the Directorate of Enforcement has made a volte face by referring to plot nos. 78 and 79 which though belongs to some other person and not the petitioner. Mrs. Anjana Prakash, learned senior counsel, has therefore submitted that the twin conditions as required under section 45 of PMLA 2002 having been

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B.A. No. 10960 of 2023

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fulfilled, the petitioner deserves to be released on bail.

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5. Mr. Anil Kumar, learned ASGI, has submitted that the supplementary prosecution complaint was in continuation to the earlier prosecution complaint dated 16.9.2022 and supplementary complaint dated 19.6.23 wherein cognizance has already been taken and therefore it cannot be contended by the petitioner regarding his innocence as in the earlier complaints his name did not figure as the investigation itself is a continuous process and since the role of the petitioner has come to light in the supplementary prosecution complaint his name figures as accused no. 7. The presence of a predicate offence has been mentioned in the prosecution complaint as the same is a condition precedent to investigate the offence of money laundering and the same demolishes the contention of the petitioner that there was no predicate offence. It has further been submitted that during investigation a total of 47 searches were conducted and in course of search cash amounting to Rs.5,34,44,400/- was seized and bank balance amounting to Rs.13,32,26, 570/-, an inland vessel MN Infralink along with five number of crushers were frozen. Several documents and records were also seized which incriminate the petitioner and the other accused persons of being involved in money laundering. So far as the role of the petitioner is concerned, the same reveals an active participation in money laundering in the association of Pankaj Mishra and the statement of Binod Jaiswal recorded under section 50 PMLA 2002 further enhances the allegation against the petitioner of extorting Rs.1,00,000/-from each stone crusher operator in Sahebganj and Rs.25,000/- from each railway rake loaded from Sahebganj for transportation. The petitioner was actively involved in illegal mining without obtaining consent to operate and huge quantity of excavated stones were made from the said Mines. The extensive illegal mining activities conducted in Sahebganj came to the fore on the joint inspection of multiple stone mining sites conducted between 25.7.22 and 29.7.22. The petitioner as well as Krishna Kumar Saha and Bhagwan Bhagat were found to have excavated stone mines beyond the authorized limit. Mr. Anil Kumar, learned ASGI, has submitted that the offence of money laundering is a separate and independent offence and it is not necessary that the accused in a predicate offence and the offence under PMLA, 2002 need to be the same person. He has also referred to the joint inspection report attached

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B.A. No. 10960 of 2023

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with the supplementary affidavit filed by the Directorate of Enforcement while submitting that plot nos. 78 and 79 were mistakenly written as plot nos. 76 and 77. It has been submitted that the bail applications of Pankaj Mishra and Bhagwan Bhagat have already been rejected by this Court.

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6. Mrs. Anjana Prakash, learned senior counsel for the petitioner, in reply, has submitted that there is no connection of the petitioner with the predicate offence. The allegations against Krishna Kumar Saha are more grave but he has been granted bail by this Court.

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7. The name of the petitioner figures in the supplementary prosecution complaint in which he has been arrayed as accused no. 7. His role has been depicted in para 8.5 of the supplementary prosecution complaint which reads as follows:-

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iii. Tinkal Kumar Bhagat-

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The accused no. 7 namely Tinkal Kumar Bhagat is knowingly a party in money laundering and assisted Pankaj Mishra in illegal at plot nos. 60,61, Thana No. 18, Bangla-Sakrogarh, Mouja-Mundali, Anchal-Mandro, Sahebganj, which was spread on an area of about 3.18 Acre. The total quantity of excavated stone in the above said mining site was about 69,34,752 CFT in connivance with Accused No.1, Pankaj Mishra. Further, the accused Tinkal Kumar Bhagat is also knowingly indulged in acts of illegal mining at plot nos. 76, 77 of Bhutaha Mauja which was entirely illegal and no consent to operate mines was obtained from any authority. The illegal mining was done in an area of about 0.86 acres and around 22,47,696 CFT of stones were illegally mines in the said plot.

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Tinkal Kumar Bhagat has also assisted Pankaj Mishra by way of transferring Rs.40-45 lacs to him in lieu of looking after his illegal mining activities. Further, he is directly indulged, knowingly is a party and is actually involved in all the activities connected with the offence of money laundering, i.e. use or acquisition, possession, concealment, and projecting or claiming as untainted property”.

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8. The role of Krishna Kumar Saha has been demarcated in para 13 (i)

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of the supplementary prosecution complaint, which reads as follows:-

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i. Krishna Kumar Saha-

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The Accused No. 5 namely Krishna Kumar Saha is knowingly involved in money laundering and a party in illegal mining in plot no. 56, 59p, 60p, 211p, 212p, 225p, 203p and 210 of Mauja Chapande, Sahebganj. The investigation revealed that the total excavated volume from the above-mined area was around 4,11,64,200 CFT. Considering even a maximum overburden debris of 40%, the net stone excavation comes to around 2,46,98,520 CFT. Further, the accused Krishna Kumar Saha has acquired proceeds of crime to the tune of Rs.2,17,00,000 in the bank account of his relatives out of which, he has transferred Rs.2,07,00,000/-to his bank account. Further, the accused-Krishna Kumar Saha is in possession of proceeds of crime amounting to Rs.17,58,18,751/- which is projected to be untainted by way of concealing the said amount in the financial system through banking channels. Moreover, Krishna Kumar Saha has also assisted the accused Pankaj Mishra by way of providing him

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with monetary benefits.

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Hence, the Accused no. 5 i.e. Krishna Kumar Saha directly indulged in illegal activities of stone mining and knowingly assisted Pankaj Mishra by way of providing him with monetary benefits. Further, the accused Krishna Kumar Saha is actually involved in all the activities connected with the offence of money laundering including concealing, acquiring, using, projecting and claiming the tainted property as untainted property by way of layering the proceeds of crime in different bank accounts”.

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9. Similarly, Bhagwan Bhagat who has been arrayed as accused no. 6, seems to have been involved in money laundering as per the investigating agency in the following manner:-

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ii. Bhagwan Bhagat-

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The Accused No. 6 namely Bhagwan Bhagat is knowingly indulged in laundering the funds generated out of his illegal mining activities, which he has done on about 7.8 acres beyond the permissible limits on plot no.135P,138P,137P,136,129P,120,119,118P,89P,111P and 110P of Mauja Borna. The lease was given for mining on a total area of 13.13 acres at block Patna. However, the inspection revealed that the total mining has been done on an area of 21 acres. It revealed that from April 2019 to June, 2022, the total mining challan obtained by Bhagwan Bhagat was around 23908985 CFT whereas the actual mining done by him was several times the quantity for which the mining challan was obtained.

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Further, the accused Bhagwan Bhagat has knowingly assisted Pankaj Mishra in carrying out illegal stone mining activities and subsequent illegal activities connected thereto including day-to-day management of his bank accounts, supplying illegally mined stone materials and carrying out illegal activities under his patronage. Further, after deducting day-to-day expenses borne in cash, the accused Bhagwan Bhagat is in possession of proceeds of crime to the tune of Rs.2,70,64,300/- which has been deposited in five of his bank accounts. He has also knowingly assisted Pankaj Mishra in laundering proceeds of crime amounting to Rs.4.87 crores in his HDFC bank account no. 50200062737102 during the period 29.10.2021 to 18.05.2022.

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Hence, the accused Bhagwan Bhagat had directly indulged, knowingly is a party and is actually involved in all the activities connected with the offence of money laundering, i.e. use or acquisition, possession, concealment, and projecting or claiming as untainted property”.

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10. What would transpire from the above as per the prosecution complaint is that Pankaj Mishra was the nucleus of the entire scheme of money laundering and the other accused persons including the petitioner were his accomplices and who worked in tandem with him in such illegal mission. 11. The role of the petitioner seems to be primarily focused on running of stone mines illegally in connivance with Pankaj Mishra. So far as the transferring of Rs.40-45 lacs is concerned, there does not appear to be any direct evidence linking the petitioner to such purported transfer. The

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B.A. No. 10960 of 2023

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petitioner was not named in the predicate offence and his role has surfaced in the supplementary prosecution complaint. When the allegations related to the petitioner are compared to Krishna Kumar Saha and Bhagwan Bhagat, the same seems to be less graver. However, Krishna Kumar Saha has been granted bail by this Court in B.A. No. 8709/23. During the pendency of the instant application, an order dated 12.8.24 was submitted at the bar which relates to an order passed by the Hon’ble Supreme Court in the case of Bhagwan Bhagat in Cr. Appeal No. 3392/24 in which the said accused has been granted bail. The relevant part of the order reads as follows:-

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“ There are, no doubt, allegations of large scale illegal mining against the accused, but that is not sufficient. Prima facie, there must be factual assertions in the complaints to show that the offences which are named as scheduled offences on the basis of which complaints are filed, directly or indirectly, generated proceeds of crime. We may also note that the first offence mentioned in both the complaints is not a predicate offence at all, as apart from Section 120B of the Indian Penal Code, 1860, no other scheduled offence is mentioned in the First Information Report.

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On a plain reading of these two complaints, prima facie, we are

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satisfied that there are reasonable grounds for believing that the complaints do not indicate that the appellants are guilty of offence of money-laundering. We may also note here that nothing is pleaded to show that the appellants are involved in any other offence of moneylaundering under the PMLA. Allegation of tampering with the evidence have not been made. Both the appellants have undergone incarceration for a period of about 01 year approximately”.

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12. So far as the case of the petitioner is concerned, the offences alleged are mostly vague and the epitome of the case reveals that there are reasonable grounds for believing that the petitioner is not guilty of such offence. The petitioner is in custody since 7.7.2023.

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13. In view of the aforesaid circumstances, I am inclined to grant bail to the petitioner.

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14. The petitioner, named above, is therefore, directed to be released on bail, on furnishing bail bond of Rs.10,000/- (Ten thousand only), with two sureties of the like amount each to the satisfaction of learned Special Judge, PMLA Act, Ranchi in connection with ECIR Case No. 04/2022 arising out of ECIR/RNZO/03/2022.

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15. This application is allowed.

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(Rongon Mukhopadhyay, J)

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Rakesh/-

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B.A. No. 10960 of 2023

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Tinkal Kumar Bhagat v. Directorate of Enforcement

Case brief

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Tinkal Kumar Bhagat v. Directorate of Enforcement

Case brief

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