[Anil Deshmukh bail] Sachin Waze’s statements not credible, Deshmukh may not be convicted: Bombay High Court [READ ORDER]

The Bombay High Court while granting bail to former Maharashtra Home Minister Anil Deshmukh in the money laundering case against him, observed from the evidence placed before it that there was a probability Deshmukh would not be convicted in the case..Justice NJ Jamadar noted that the investigating agency Enforcement Directorate (ED) had primarily relied on statements of dismissed Mumbai cop Sachin Waze who was co-accused in the case.His statements claimed that an amount of ₹1.71 crores was transferred during the months of February and March, 2021 allegedly extorted from the bars owners and handed over to Deshmukh's personal assistant, Kundan Shinde. However, the statements of Waze lack certainty, the Court stated.“These statements ex-facie cannot bear weight of the allegation of generation of proceeds of crime out of the alleged predicate offence of exercise of influence over the transfers and postings of the police officials. These statements ex-facie lack the element of certainty as to the source, time and place. They prima facie appears to be hear-say,” the Court said. A predicate offence is a crime which is a component of larger crime. An offence like money laundering under the Prevention of Money Laundering Act (PMLA) begins with an offence under the Indian Penal Code, which is considered the predicate offence.The monetary advantage which the accused received from the act is termed as 'proceeds' of the crime.The Court in the present case concluded that the witness statements collected by ED allegedly in support of the allegations failed to point out with certainty what exact criminal act was committed by Deshmukh and how that helped him generate the proceeds for crime.It also opined that Waze’s tenure as a cop was controversial.Further, Waze's statements along with those of former IPS officer Param Bir Singh were purportedly made after learning or hearing that money changed hands.“All these factors if considered on the anvil of the test enunciated in the case of Ranjitsingh Sharma (supra) may persuade the Court to hold that, in all probabilities, the applicant may not be ultimately convicted,” the Court said..The Court took note of the fact that Waze was an approver in CBI’s case, and in the money laundering case, ED had given its no objection to the grant of Waze's request to become an approver .“As of now, the status of Mr. Sachin Waze is a co-accused. The statements of Mr. Sachin Waze, banked upon by the prosecution, are but statements of a co-accused. To what extent, even at this stage, the statements of co-accused can be used against another, may warrant consideration,” the Court noted..Deshmukh and his associates are being investigated for alleged corruption between 2019 and 2021.Based on findings of a preliminary investigation into a complaint of advocate Dr. Jaishri Patil, the CBI booked Deshmukh and unknown others. The inquiry was launched after the Bombay High Court issued a direction to that effect on April 5, 2021, in response to a petition filed by Param Bir Singh, former Commissioner of Mumbai Police.Based on this FIR of CBI, the Enforcement Directorate (ED) initiated a case of money laundering offences under PMLA against Deshmukh and arrested him in November 2021. He was remanded to ED custody that was extended till November 15 by the High Court. Thereafter he was remanded to judicial custody where he remains till date.Deshmukh was later apprehended by the CBI in the first week of April this year. He was detained by the CBI until April 16 before being remanded to judicial custody..ED had made the following allegations against Deshmukh:- That Deshmukh played a crucial role in the reinstatement of dismissed Mumbai cop Sachin Waze; and after his reinstatement, they worked as a team to collect illegal gratification through extortion and illegal activities;- That on Deshmukh’s instructions, Waze collected cash to the tune of ₹4.70 Crores from the bar owners during the months of December 2020 to February, 2021.- That Deshmukh abused his position to effect transfers and postings of the police officials with a view to obtain undue advantage. The allegation was that Deshmukh passed on unofficial instructions to members of the Police Establishment Board (PEB) to make recommendations on transfers and postings; and in return Deshmukh allegedly received huge consideration through some intermediary for favourable transfers and postings of the police officials..The High Court noted that there was no categorical allegation that what was projected as proceeds of crime had been derived or obtained as a result of criminal activity relating to the scheduled offence of exercise of undue influence over transfers and postings of police officials.“With respect to transfers of amounts between the period of 2011-19 and September to November 2020, the prosecution case did not project the alleged unaccounted cash as ‘proceeds of crime’,” the Court noted..The High Court concluded that Deshmukh was entitled to bail on merits as a prima facie case for exercise of discretion was made out.Further, the judge also said that the proviso under Section 45 of PMLA empowers the Court to exercise the discretion in favour of an accused who is otherwise sick or infirm and a case for exercise of discretion under the proviso was also made out.“Deshmukh, 73 years of age, had been suffering from multiple ailments which could be classified as de-generative and hence in the light of the material on record, it would be audacious to observe that the applicant is not a sick person” the Court observed..Senior Advocate Vikram Chaudhary with Advocates Aniket Nikam, Inderpal Singh, Hargun Sandhu, Devyani Chemburkar and Sonam Gond appeared for Deshmukh. Additional Solicitor General Anil Singh with Advocates Aditya Thakkar, Shreeram Shirsat, Amandeep Singh Sra, Pranav Thackur, Smita Thackur appeared for ED. [Read order]