1 BA: 1128/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLAE JURISDICTION CRIMINAL APPLICATION NO. 1128 OF 2011 IN (ECIR/02/MZO/2007) Shri Kashinath Mangtoolal Tapuriah... Applicant (Ori. Accused) Vs. The Union of India & Anrs. ... Respondents Mr. Ashok Mundargi, Senior Counsel a/w Mr. Girish Kulkarni i/by Mr. Vinit Jain for applicant. Mr. D.J. Khambata, A.S.G. a/w Ms. Revati Mohite-Dere for respondent no.1. Mrs. A.A. Mane, APP for State. Coram : Smt. R.P. SondurBaldota, J. Date : 16th December 2011 P.C. : 1. The applicant herein is one of the accused in P.M.L.A. No.1 of 2011 (ECIR/02/MZO/2007) under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (hereinafter 2 BA: 1128/2011 referred to as PMLA”). The other charges against him are for “ the offences punishable u/s 420, 467, 468, 471 and 212 of Indian Penal Code and Section 12(2), 12 (1) of the Passport Act. The co-accused of the applicant, one Hasan Ali Khan had been granted bail by this Court, which order came to be set aside by the Hon'ble Supreme Court by its order dtd. 30th September 2011 and the order of bail cancelled. 2. The two grounds pressed into service for seeking order of bail are that there is no material on record to suggest involvement of the applicant in the offences under Section 3 punishable under Section 4 of PMLA and the sickness of the applicant. 3. The case of the prosecution stated in brief is that in the search conducted by the Income Tax department at the residence of Hasan Ali Khan, certain documents came to be seized revealing huge funds in the foreign accounts to the tune of US$ 8 Billion with accounts in Union Bank of Switzerland, AG, Zurich, Switzerland. Similar search at the residence of the applicant revealed documents showing transfers of money from one account to another connected with Hasan Ali Khan. Therefore, investigation was initiated by Directorate of Enforcement under PMLA. The investigations led to revelation of following complaints against the applicant and Hasan Ali Khan. 3 BA: 1128/2011 (a) Worli Police registered F.I.R. No.28 of 2008 on 30th January 2008 against Hasan Ali Khan on the basis of complaint by Regional Passport Office, Mumbai. It was for the offences punishable under Sections 420, 467, 468, 469, 471, and 212 Indian Penal Code and Sections 10(3) and 12(1) of the Passports Act 1967, (b) The Regional Passport Office, Patna registered FIR No. 457 of 2010 on 19th December 2010 with Patna Police Station against Hasan Ali Khan for the offences punishable under Sections 420, 467, 468, and 471 Indian Penal Code read with Section 10(3) and 12(1) of the Passports Act. (c) Hyderbad Police registered C.R. No. 136 of 2011 dtd. 1st May 2011 against Hasan Ali Khan, the applicant and others for the offences punishable under Sections 406, 420, 379, 411, 120-B of IPC read with 25 of Antiquities and Art Treasures Act, 1972. The investigation further revealed financial transactions including notarised documents evidencing laundering of substantial funds through foreign bank accounts abroad. The applicant is 4 BA: 1128/2011 alleged to have actively associated with Hasan Ali Khan in the offence of money laundering as well as obtaining Passports on forged documents. The applicant has allegedly advised and guided Hasan Ali Khan into transfer of the funds in different banks account. 4. Mr. Mundargi, the learned Senior Counsel submits that there is no material to indicate that the money kept in the foreign accounts of the applicant was either tainted or was the proceeds of crime. In the absence of such material, according to him, there can be no application of any provision of P.M.L.A. to the applicant. In reply, Mr. Khambata, the learned Additional Solicitor General refers to Section 24 of PMLA to submit that when a person is accused of having committed the offence u/s 3, the burden of proving that the proceeds of crime are untainted property shall be on the accused. He submits that there is not even an attempt on the part of the applicant to disclose the source of money in his account. 5. Similar arguments as regards applicability of Section 3 of PMLA had been advanced on behalf of Hasan Ali Khan before the Hon'ble Supreme Court and had been rejected. It held that there are doubts about the original of account held by Hasan Ali Khan and the amounts deposited therein. The amounts in 5 BA: 1128/2011 the account were proceeds of sale of diamond jewellery stolen from the collection of Nizam of Hyderbabad, in which deal, Hasan Ali had received commission of US$30000. The applicant herein is alleged to have actively aided, assisted and guided Hasan Ali Khan in opening bank accounts abroad and transferring funds from one account to another in attempt to launder the money. Once the identical claim made on behalf of Hasan Ali Khan is rejected by the Hon'ble Supreme Court, there is no question of for this Court separately considering the same. In the circumstances, I find no merit in the first ground setforth on behalf of the applicant. 6. As regards the second ground, it is contended that the the applicant is an old man, aged about 74 years and suffering from multiple ailments. He has sterns in his heart, a titanium plate in his neck bone, problems with his survical spine, Myasthenia gravis and restless leg syndrome. In view of the claim made, report had been called from the Jail doctor as well as J.J. Hospital, to which the applicant had been referred to. The report dtd. 12th December 2011 given by Associate Professor and Unit Head, Grant Medical Collector, Sir J.J. Group of Hospital, Mumbai -8 is that the applicant's present symptomatology was limited to mild drooping of eyelids, which was corrected with a tablets and this status has been the same since last three years. The applicant had history of blackout 6 BA: 1128/2011 without fall about 8 days prior to his reference to cardiology. His M.R.I. of brain done on 12th November 2011 showed chronic ischemic changes in brain (reduced blood supply) which changes are irreversible, for which he has been prescribed medicines. The doctor has opined that the applicant does not required nursing care in the form of hospitalisation for myasthenia gravis. He can be treated with oral medication and all that he requires is a walking stick as supportive measure to avoid falls. 7. Mr. Mundargi, learned counsel for the applicant refers to the report of the Jail doctor, who has opined that the applicant needs nursing care and hospitalisation. Mr.Mundargi submits that considering the advanced age of the applicant, and the number of ailments suffered by him, this would be a fit case for releasing him on bail by subjecting him to conditions. Mr. Khambata submits on the other hand that considering the facts and circumstances of the case, there is strong apprehension of the applicant not being available for trial. The prosecution case is that it is the applicant who had helped Hasan Ali Khan in getting the second Passport from Patna. The passport could be got only through the contacts of the applicant. Therefore, even if directions are given to the applicant to deposit his passport with the prosecuting agency, it would be of no avail. The applicant can get another passport on forged and fabricated 7 BA: 1128/2011 documents and flee the country. The record of the case does indicate that the applicant wields strong influence with several government servants. Therefore, possibility of the applicant tampering with the witnesses cannot be ruled out. The applicant is also seen to have deep links with persons associated with foreign banks in countries like United Kingdom. Switzerland, U.A.E. etc. Therefore, there is apprehension of tampering with documents. In the circumstances, this court is not inclined to grant the application and release the applicant on bail. The present health report does not indicate any need for immediate hospitalisation or need of nursing care for the applicant. Needless to say that in case any such need arises in future, the applicant will be at liberty to move this Court again on the changed circumstances. The application is therefore rejected. (Smt. R.P. SondurBaldota, J.)