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2021 (10) TMI 1301 - HC - Money LaunderingSeeking grant of bail - commission of certain Schedule Offences - collection of huge amount from innocent depositors by floating different alluring schemes in falsely promising them with very high returns and benefits - petitioner is said to have the direct and indirect indulgement in these activity of the Companies and knowingly assisted and became a party in the processed activity connected with the proceeds of the crime - offence under Section 120- B/294/341/406/409/420/467/468/471/506/34 of the IPC read with Section 4/5 6 of the Prize Chit and Money Circulation Scheme (Banning) Act, 1978. HELD THAT - Section 45 of the PMLA at it presently stands begins with non-obstante clause. Section 45 imposes two conditions for grant of bail to any person accused of any offence under the Act viz., (i) that the prosecutor must be given an opportunity to oppose the application for such bail; (ii) where the move is opposed, the court must be satisfied that there are reasonable grounds for believing that the accused persons is not guilty of such offence and that he is not likely to commit any offence while on bail. If by the amendment introduced in Section 45 of the PMLA, by Act No. 13 of 2018; the entire Section 45 has been reframed in reviving and resurrecting the requirement of twin-conditions under sub-Section (1) of Section 45 of the PMLA for grant of bail. In view of clear language used in paragraph 46 of the Hon'ble Supreme Court's decision in case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. 2017 (11) TMI 1336 - SUPREME COURT , this Court is of the considered view that the amendment in sub-Section (1) of Section 45 of the PMLA introduced after the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah does not have the effect of reviving the twin-conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of the Constitution of India. The power under Section 438 of Cr.P.C. is an extraordinary power and the judicial discretion is this regard is required to be exercised with due care and caution. Grant or refusal of bail is entirely discretionary and discretion should depend upon the facts and circumstances of each case as also all other surrounding factors as relevant to the particular case on hand. Certain parameters have to be kept in mind while considering or dealing with the application for anticipatory bail - here the Petitioner has faced the custodial interrogation on 08.02.2016, 09.02.2016, 10.02.2016 and 11.02.2016 as has been stated in the counter affidavit filed by the E.D. His detail statement has also been recorded. The properties said to have been so acquired have already been identified in course of investigation as indicated in the list as provided. The Petitioner has been at large and free for several years and has not even been arrested during the investigation or thereafter by the E.D. Officials. It is not shown nor any material is pointed out to say that the Petitioner has violated any terms and conditions as imposed on him, while granting bail in the CBI case which include more importantly the surrendering his passport and as to his appearance in Court on each date of posting of the case and before the Investigating Officer on Monday of every month until full completion of investigation. If the Petitioner has been enlarged and free for many years and has not been arrested during investigation or taken to custody; the move to suddenly go for his arrest for being incarcerated further merely because of pendency of the PMLA case against him by resisting the prayer, does not appear to be in the direction of serving any purpose of the case where the cognizance has been taken way back on 01.11.2016 and supplementary complaints being also filed the same have been accepted. It is directed that in the event of arrest of the Petitioner or upon his surrender before the Court in seisin of the case, he shall be released on bail on the conditions imposed - bail application allowed.
Issues Involved:
1. Petitioner's apprehension of arrest and detention. 2. Application for anticipatory bail under Section 438 of the Code of Criminal Procedure. 3. Allegations against the Petitioner under the Prevention of Money Laundering Act (PMLA). 4. Application of Section 45 of the PMLA and its conditions for bail. 5. Constitutional validity of Section 45 of the PMLA post-amendment. 6. Consideration of economic offences in granting bail. 7. Judicial discretion in granting anticipatory bail. Detailed Analysis: 1. Petitioner's Apprehension of Arrest and Detention: The Petitioner filed an application under Section 438 of the Code of Criminal Procedure, 1973, seeking anticipatory bail in connection with CMC (PMLA) Case No.34 of 2016, fearing arrest and detention. 2. Application for Anticipatory Bail: The Petitioner’s counsel argued for bail based on the facts and circumstances of the case, while the Enforcement Directorate (ED) opposed it, citing Section 45 of the PMLA. 3. Allegations Against the Petitioner: The Petitioner was involved in the Artha Tatwa Group of Companies, which allegedly collected funds from investors through deceitful schemes and misappropriated the money. The Petitioner was accused of making personal financial gains and acquiring properties with the diverted funds. 4. Application of Section 45 of the PMLA and Its Conditions for Bail: Section 45 of the PMLA imposes two conditions for bail: (i) the prosecutor must be given an opportunity to oppose the bail application, and (ii) the court must be satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. 5. Constitutional Validity of Section 45 of the PMLA Post-Amendment: The Supreme Court in Nikesh Tarachand Shah v. Union of India declared Clause (ii) of sub-Section (1) of Section 45 of the PMLA ultra vires Articles 14 and 21 of the Constitution. Following this, amendments were made to Section 45(1), replacing the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" with "under this Act." However, the Court observed that the amendment did not revive the twin conditions for bail, which were declared ultra vires. 6. Consideration of Economic Offences in Granting Bail: Economic offences, involving deep-rooted conspiracies and significant public fund losses, are considered grave and require a different approach in bail matters. The Court referred to precedents, including Y.S. Jagan Mohan Reddy and Rohit Tandon v. CBI, emphasizing the seriousness of economic offences. 7. Judicial Discretion in Granting Anticipatory Bail: The Court highlighted that the power under Section 438 of Cr.P.C. is extraordinary and must be exercised with caution. It considered various factors, including the Petitioner’s cooperation during the investigation, lack of evidence tampering, and compliance with bail conditions in related cases. Conclusion: The Court directed that in the event of the Petitioner's arrest or surrender, he shall be released on bail with specific conditions: furnishing a bond of ?2,00,000 with two solvent sureties, not making any inducements or threats, not influencing witnesses, not leaving the country without permission, and presenting himself before ED/Court when required. The ABLAPL was accordingly disposed of, and an urgent certified copy was issued as per rules.
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