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2022 (8) TMI 1054 - HC - Money LaunderingSeeking grant of Bail - money laundering - foreign outwards remittances - admissibility of statements of accused - admissible evidences or not - twin conditions as contemplated under Section 45 of PML Act, satisfied or not - HELD THAT - Insofar as the twin conditions as contemplated under Section 45 of PML Act, the Hon'ble Supreme Court of India repeatedly held in many cases that the duty of the Court is to examine the jurisdictional facts including the mandate of Section 45 of the PML Act, which must be kept in mind. Even post Nikesh Tavachand Shah Vs. Union of Idia anr. case 2017 (11) TMI 1336 - SUPREME COURT , the Section 45 of the PML Act saw amendment vide from 19.04.2018. After effecting amendment to Section 45(1) of the PML Act, the words under this Act are read to sub Section (1) of Section 45 of the PML Act. On a comparative reading of Section 45(1) of the PML Act, pre-amendment and post-amendment, as could be observed, original sub-Section 45(1)(ii) is neither revived or resurrected by the amending Act. The notification dated 29.03.2018 is silent about its retrospective applicability - Therefore, the legislature has not withdrawn the twin conditions from Section 45 of the PML Act, though in the case of Nikesh Tavachand Shah Vs. Union of Idia anr., the Hon'ble Supreme Court of India has struck down the same as being unconstitutional. Therefore, the twin conditions under Section 45 of the PML Act still remain in the Statute book. The Hon'ble Supreme Court of India has directed the concerned Court to hear the matters on merits, without application of the twin conclusion contained in Section 45 of the Act, as declared as unconstitutional. But the twin conditions still continue. The amendment Act of 2018 which introduces the expression under this Act to Section 45 of the PML Act, in no uncertain terms can obliterate or dilute the direction issued by the Hon'ble Supreme Court of India - the twin conditions as contemplated under Section 45(1) of the amendment Act have to satisfy not withstanding of the judgment of the Hon'ble Supreme Court of India in the case of Nikesh Tavachand Shah Vs. Union of Idia anr. That apart, during investigation it was found that the material evidence against the petitioner in carrying out the offence of money laundering in the matter of sending the proceeds of crime to the tune of Rs.59.47 crores to the undisclosed beneficial owner and end use at Hong Kong. Therefore, prosecution will be able to marshal all the evidence during the course of trial. Therefore, analysis of jargons like 'preponderance of probabilities' and 'beyond reasonable doubts' has no basis at the initial stage. Now the petitioner is facing trial for the commission of offence under Section 4 of PMLA. Further, this Court dismissed the earlier bail petition only on 24.06.2022 and there is no change of circumstances to consider the present bail petition - Petition dismissed.
Issues:
1. Bail application under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002. 2. Involvement in offences under Sections 465, 467, 468, 471, and 420 of IPC. 3. Allegations of layering funds and money laundering. 4. Admissibility of statements recorded under Section 50 of PMLA. 5. Examination of twin conditions under Section 45 of the PML Act. 6. Compliance with jurisdictional facts and legislative amendments. 7. Sufficiency of evidence for prosecution during trial. Analysis: 1. The petitioner sought bail after being remanded for offences under the PMLA. The respondent linked the case to IPC sections involving financial transactions and foreign remittances, alleging impersonation and fund layering through various entities. The petitioner denied direct involvement, emphasizing lack of evidence and disassociation from the accused's actions. 2. The Special Public Prosecutor argued the petitioner's pivotal role in money laundering, citing fund layering activities and manipulation of accounts. The prosecutor highlighted the petitioner's alleged coordination with name lenders and the movement of illicit funds to Hong Kong. The prosecutor emphasized the seriousness of the economic offences and the risk of the petitioner fleeing the country. 3. The defense contended that statements under PMLA Section 50 are inadmissible as evidence, questioning the petitioner's prolonged incarceration and the necessity of custodial interrogation. The defense stressed the absence of concrete proof linking the petitioner to the crimes, pointing out discrepancies in the prosecution's narrative. 4. The court examined the twin conditions under Section 45 of the PML Act, noting the legislative amendments and Supreme Court rulings. Despite the constitutional challenge, the court upheld the twin conditions, emphasizing the need for compliance in bail considerations. The court underscored the importance of jurisdictional facts and the continued relevance of the statutory provisions. 5. The court dismissed the bail petition, citing the substantial evidence against the petitioner in money laundering activities. Emphasizing the ongoing trial and the lack of changed circumstances, the court deemed the prosecution capable of presenting a strong case during the trial. The court rejected the petitioner's arguments and upheld the previous decision denying bail.
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