Read Order: Bhupinder Singh @ Honey v. Enforcement of Directorate

Monika Rahar

Chandigarh, July 2, 2022: The High Court of Punjab and Haryana has granted regular bail to Bhupinder Singh @ Honey (a relative of Charanjit Singh Channi, the former Chief Minister of Punjab) who was under custody since February 2022 on the allegation of being involved in illegal mining and was thus accused of commission of the offence under Section 3, punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (‘PMLA’).

The Bench of Justice Arvind Singh Sangwan allowed the petition on the ground (apart from other grounds)  that the Court was convinced that the petitioner qualified for the triple test laid down under Section 45 of PMLA as the Court had nothing to presume adverse to the conduct of the petitioner and since all the documents were already in the custody of the investigating agency, therefore, the Court opined that there was no possibility for the petitioner to tamper with the same.

Prayer in this petition, filed under Section 439 Cr.P.C., was for the grant of regular bail to the petitioner in case/FIR ECIR registered in 2021 for the offence under Section 3, punishable under Section 4 of the PMLA.

In this case, in the year 2017, through an E-auction, one Kudratdeep Singh was the successful bidder for Rs. 4.04 crores and was allotted a sand mine. In 2018, the license of the said Kudratdeep Singh was suspended. In 2018, an FIR under Sections 379, 420, 465,467, 468, 471 of the IPC and Sections 21(1) & 4(1) of the Mines & Minerals (Regulation of Development) Act, 1957 was lodged against many persons with the allegations that when a team of the Mining Department and civil administration visited the spot, it was found that several mines have been excavated and illegal mining activities have been carried out at the spot.

As per the FIR, the sand mine was allotted to Kudratdeep Singh on a representation given by him that he is not conducting any mining, however, it was found that the majority of the numbers allotted to him were on the other side of the Satluj river in District Ludhiana and, therefore, the mining operations were suspended by the department itself. Later on, the police submitted the charge sheet under Section 173(2) Cr.P.C. and Kudratdeep Singh was kept in Column No. 2, whereas the challan was presented against 56 persons. 

Thereafter, the Directorate of Enforcement (‘ED’) raided the premises of Kudratdeep Singh, petitioner Bhupinder Singh @ Honey and one Sandeep Kumar in January 2022 and Rs. 8 crores (approx.) was recovered from the petitioner. The ED recorded the statement of Kudratdeep Singh that the petitioner used to help him whenever there was a dispute between the nine partners (who had obtained the Malikpur sand mine contract along with Kudratdeep Singh) and would also help in supervising the mining activities as a common friend.

The ED in its investigation stated that the petitioner, being the partner of M/s Provider Overseas Consultant Pvt. Ltd., diverted the proceeds of crime (of illegal mining) to this firm for earning more money and Kudratdeep Singh and Sandeep Kumar were also the Directors of the said company. The ED also recorded the petitioner’s statement stating that Rs. 6/7 Crores were recovered by him during the past six months from Rakesh Chaudhary and Mohan Pal Singh for facilitating them in their mining related works and the remaining Rs. 3/4 Crores were received by him for arranging the transfer of the employees of the Punjab Govt. through his political connections.

After considering the rival submissions, the Court found merit in the application. The first reason stated by the Court was that unlike under the NDPS Act where it is easy for an accused who has been released on bail to repeat such an offence, it is not easy for an accused to commit an offence again under the PMLA as he will always be in the radar of E.D. Further, the Court noted that after the registration of the aforesaid FIR in 2018, a complaint was filed by ED in 2022 and in the intervening period, there was no further complaint or FIR regarding illegal mining to suggest that the petitioner was a habitual offender and was involved in any other case even prior to registration of the aforesaid FIR, especially when he was not named either in the 2018 FIR or report submitted under Section 173(2) Cr.P.C.

Also, it was observed by the Court that there was no direct allegation against the petitioner that he was looking into the finance of the Kudratdeep Singh @ Lovie, therefore, the Court was convinced that the petitioner qualified for the triple test laid down under Section 45 of PMLA as the Court had nothing to presume adverse to the conduct of the petitioner and since all the documents were already in the custody of the investigating agency, therefore, the Court opined that there was no possibility for the petitioner to tamper with the same.

The next reason given by the Court was that a perusal of the ECIR of 2021 revealed that the same was registered under Sections 420, 467 and 471 of the IPC with reference to the 2018 FIR as the scheduled offence, however, Justice Sangwan added that nothing could be found regarding the role of the then Chief Minister and the proceedings under the PC Act were dropped. 

Also, on the delay of four years in the FIR registration, the Court opined that,

“Even there is a force in the arguments raised by learned senior counsel regarding the timing of registration of the FIR i.e. after 04 years of the registration of FIR No. 26 dated 07.03.2018, is due to political reasons especially in view of the fact that the same has been registered after the uncle of the petitioner took over as Chief Minister of the State of Punjab and also in view of the fact that from 2018 till 2022, neither any further FIR was registered nor any proceedings were initiated by ED.”

Additionally, by referring to a Supreme Court decision, the Court opined that there was no absolute bar in granting regular bail to an accused facing trial under the PMLA as the allegations were yet to be proved and the petitioner raised a probable defence that he had already filed an appeal before the appropriate authority to explain and prove that the recovery effected from him was not the proceed of crime and the final adjudication was yet to be made by the appropriate authority.

Also, Justice Sangwan asserted that when the investigation is complete and the charge sheet is filed in the Court, the conclusion of the trial is likely to take a long time, a person/accused like the present petitioner, aged about 36 years old, can be released on bail, subject to his furnishing bail/surety bonds and with a condition that his passport shall remain deposited with the Court/Prosecuting Agency and he will not leave the country without seeking prior permission of the Court.

The Court also considered the fact that as per the record of the Medical Officer, Central Jail, Kapurthala, the petitioner was under treatment for his heart ailments and that even otherwise he was in custody since February 03, 2022, and in judicial custody w.e.f. February 11, 2022, and a period of about 05 months lapsed, therefore, the Court held that the petitioner could not be kept in judicial custody for an unlimited period.

Thus, while granting regular bail to the petitioner, the Court held,

Accordingly, it is held that the petitioner qualifies the triple test under Section 45 of the Act and, therefore, the present petition is allowed.

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