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2022 (6) TMI 96 - HC - Indian LawsMoney Laundering - scheduled offences or not - untainted property - statement recorded under Section 50 of PMLA Act - constitutional validity of twin conditions of Section 45 of PMLA Act - HELD THAT - This Court is of the considered view that the provisions of Section 45 of the Act 2002 prior to judgment of Hon ble Apex Court in the case of Nikesh Tarachand Shah 2017 (11) TMI 1336 - SUPREME COURT had been declared unconstitutional; but the defects in provisions of the said Act was cured by Parliament by way of Amendment Act 13 of 2018 and consequently the twin conditions of Section 45 while disposing of the bail application under the Act 2002 stood revived - The twin conditions under Section 45 (1) for the offences classified thereunder in Part-A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah. There are reasonable ground for believing that applicant is guilty of the offences of money laundering and he is likely to commit any offence if enlarged on bail - Application dismissed.
Issues Involved:
1. Legality of the FIR and subsequent investigation. 2. Validity of the charges under various sections of IPC, Arms Act, and Criminal Law Amendment Act. 3. Application of PMLA, 2002 provisions. 4. Applicant’s involvement and role in the alleged offenses. 5. Constitutionality and applicability of Section 45 of PMLA, 2002 in granting bail. Detailed Analysis: 1. Legality of the FIR and Subsequent Investigation: The complaint originated from an FIR (No.02/2016) dated 11.01.2016, registered at Tandwa P.S., Chatra District. It involved offenses under Sections 414/120-B read with 420/384/386 & 387 of IPC, Sections 25 (1-B) (a), 26 & 35 of the Arms Act, 1959, and Sections 17 (1) (2) of the Criminal Law Amendment Act. The FIR was based on secret information received by the Superintendent of Police, Chatra, about a committee formed in the Amarpali & Magadh Coal Area connected with T.P.C., a terrorist gang declared unlawful by the Government of Jharkhand. The police conducted a raid, resulting in the recovery of cash, weapons, and incriminating evidence linking the accused to the T.P.C. organization. 2. Validity of the Charges: The charge-sheet (No.17/16) filed on 10.03.2016 before the Court of C.J.M., Chatra, included charges under Sections 414/384/386/387 & 120-B of IPC, Sections 25 (1-B) A, 26 & 35 of the Arms Act, and Sections 17 (1) (2) of the Criminal Law Amendment Act. The matter was handed over to the National Investigation Agency (NIA) due to the involvement of Maoist cadres and destructive activities against the State. The NIA re-registered the case as N.I.A. Case No. RC-06/2018/NIA/DLI, and supplementary charge-sheets were submitted, incorporating additional sections under the Unlawful Activities (Prevention) Act, 1967. 3. Application of PMLA, 2002 Provisions: The Directorate of Enforcement commenced an investigation under the PMLA, 2002, registering Enforcement Case Information Report (ECIR) No. RNSZO/02/2016. The complaint alleged that the accused were involved in money laundering by projecting tainted money as untainted property. The investigation revealed the involvement of the accused in extorting levy from contractors and using the proceeds for terrorist activities. Properties and vehicles identified as proceeds of crime were attached under the PMLA provisions. 4. Applicant’s Involvement and Role: The applicant was alleged to be an active member of T.P.C., extorting levy from local contractors and transporting coal on behalf of other transporters. The applicant's properties and vehicles were identified as proceeds of crime. The applicant claimed innocence, stating that the case was based on documentary evidence and that he was falsely implicated. He argued that the properties were attached by the Directorate of Enforcement, leaving no chance of siphoning off the properties. 5. Constitutionality and Applicability of Section 45 of PMLA, 2002: The applicant's counsel argued that the twin conditions of Section 45 of PMLA, 2002, were declared unconstitutional by the Supreme Court in "Nikesh Tarachand Shah Vs. Union of India & Anr." The counsel cited various case laws to support the bail application. However, the Directorate of Enforcement contended that the defects in Section 45 were cured by Amendment No.13/2018, reviving the twin conditions for considering bail applications. The court held that the twin conditions of Section 45 stood revived after the amendment and were applicable while considering the bail application. The court cited several Supreme Court judgments emphasizing the seriousness of economic offenses and the need for a different approach in granting bail for such offenses. The court concluded that there were reasonable grounds to believe that the applicant was guilty of money laundering and that he was likely to commit any offense if enlarged on bail. Consequently, the bail application was refused.
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