2018 (8) TMI 1848 - HC - Money Laundering

Money laundering - Grant of Bail - Provisional attachment of properties - Section 45(1) of the PMLA Act - HELD THAT - In the present PMLA case the applicant was duly cooperating with the investigation and no prayer was ever been made by the non-applicant to arrest him during the investigation - The entire case of the prosecution is based on Section 50 of the statement and banking trial and there is no question of hampering and tampering with the same. No interrogation whatsoever has been conducted since the applicant has been sent to the judicial custody and therefore no purpose will be served by keeping him in custody. Effecting amendment to Section 45(1) of the PMLA Act the words under this Act are added to Sub Section (1) of Section 45 of the PMLA Act. However the original Section 45(1) (ii) has not been revived or resurrected by the said Amending Act. The learned counsel appearing for the applicant and the learned ASG are not disputing about the said fact situation and in fact have conceded to the same. It is further to be noted here that even Notification dated 29.3.2018 thereby amending Section 45(1) of PMLA Act which came into effect from 19.4.2018 is silent about its retrospective applicability. The applicant is 62 years of age and is an MBBS doctor by profession and is practicing and having number of medical institutes. He is permanent resident of Indore and in all other cases of Scheduled offences in which he was enlarged on bail he never misused the terms and conditions of the bail. There is no reason to presume that applicant would abscond or temper or influence the witnesses - the applicant is entitled to be released on bail without expressing any opinion on merits of the case the application for grant of bail is allowed on various terms.

Summary

Issues:
1. Provisional attachment of properties under PMLA
2. Bail application under Section 439 of Cr.P.C
3. Constitutional validity of Section 45 of PMLA
4. Arguments for and against bail
5. Medical condition of the applicant

Provisional Attachment of Properties under PMLA:
The respondent registered an ECIR and provisionally attached properties worth ?8,93,50,085 belonging to the applicant and his family. The provisional attachment was confirmed by the adjudicating authority, and the applicant's appeal is pending before the PMLA Tribunal.

Bail Application under Section 439 of Cr.P.C:
The applicant filed a bail application in a special Sessions Trial for an offence under Section 45 of the PMLA Act. The applicant was denied bail previously and taken into judicial custody. The applicant argued for bail based on previous Supreme Court judgments and the right to defend himself under Article 21 of the Constitution.

Constitutional Validity of Section 45 of PMLA:
The applicant cited the Nikesh Tarachand Shah case where the Supreme Court declared Section 45 of PMLA as unconstitutional, violating Articles 14 and 21. The applicant argued that the amended provisions of the PMLA Act do not affect the bail application under Section 45.

Arguments for and Against Bail:
The applicant's counsel highlighted the prolonged trial duration, the applicant's cooperation with investigations, and the absence of any arrest during the investigation. The prosecution opposed bail citing the gravity of the offence and the amended provisions of the PMLA Act.

Medical Condition of the Applicant:
The applicant, a 62-year-old MBBS doctor, suffers from various health issues. The court considered his medical condition while granting bail and imposed specific conditions for his release, including a personal bond and surrendering his passport.

In conclusion, the court allowed the bail application, considering the applicant's age, profession, and medical condition. The court imposed conditions for bail, emphasizing the applicant's compliance with the legal process and non-interference with evidence or witnesses.