2023 (4) TMI 12 - HC - Money Laundering

Seeking grant of Anticipatory Bail - Money Laundering - scheduled offence - cash deposits not in commensurate with illicit source of income - deposits subsequently used for acquisition of immovable and movable properties - twin conditions in section 45(1) of PMLA 2002, complied with or not - HELD THAT - This Court is in complete agreement with the Division Bench decision of the Bombay High Court (Nagpur Bench) in AJAY KUMAR VERSUS DIRECTORATE OF ENFORCEMENT THROUGH THE ASSISTANT DIRECTOR, SUB-ZONAL OFFICER, NAGPUR 2022 (2) TMI 949 - BOMBAY HIGH COURT that the legislature have the power to and competence to amend the provision of the Act. The amended provision has not been struck down by the Court and as such the same cannot be watered down. Thus, it cannot be said that until and unless the entire section gets amended, the decision in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. 2017 (11) TMI 1336 - SUPREME COURT will prevail - Thus in the considered view of the Court the twin conditions in section 45(1) of the 2002 Act after amendment stands revived until any decision comes in the matter by the Hon ble Apex Court. Now, coming to case in hand, admittedly, the disproportionate asset assessed by the Enforcement Directorate is/are to the tune of Rs.82,10,661/- which is less than one crore. Further, the petitioner Ramadhar Ram ( Cr. Misc. No. 24534 of 2022) is 67 years old man, sick and infirm and has suffered brain hemorrhage and was operated in Paras HMRI Hospital, Patna (Annexures-6 Series of the petition), the cases having been registered against him, he will be ultimately facing the music, this Court is inclined to grant him privilege of anticipatory bail with conditions - The petitioner herein is son of Ramadhar Ram and as stated above, the amount under question is less than one crore. Further, according to the case of the petitioner, he is suffering from epilepsy (Epileptic Seizure) since 2000 and has been treated by different Neurologist/ Neuro Surgeon in Ranchi (Jharkhand) as well as Patna, (Annexure-8 Series) as relief is being granted to his father, Ramadhar Ram and he will also be facing the trial, this Court is inclined to extend him too the benefit of anticipatory bail with conditions. Let the two petitioners namely Ramadhar Ram (Cr. Misc. No. 24534 of 2022) and Bikash Kumar @ Vikash Kumar (Cr. Misc. No. 24928 of 2022), be released in the event of their arrest or surrender before the Sub-ordinate court within a period of four weeks from the receipt of this order, on furnishing bail bond of Rs.1,00,000/- each with two sureties of the like amount each in connection with Complaint Case subject to the conditions as laid down under Section 438(2) of the Cr.P.C. with further conditions imposed - application allowed.

Summary

Issues Involved:
1. Petitioners' apprehension of arrest under the Prevention of Money Laundering Act, 2002.
2. Allegations of disproportionate assets and corrupt practices.
3. Applicability of Section 45 of the PMLA, 2002 post-amendment.
4. Petitioners' plea for anticipatory bail based on age, health, and legal precedents.

Detailed Analysis:

1. Petitioners' Apprehension of Arrest:
The petitioners feared arrest in connection with Complaint Case-cum-Special Trial No.(PMLA)04 / 2020 arising from ECIR No.PTZO 02/2017 under Section 4 of the Prevention of Money Laundering Act, 2002.

2. Allegations of Disproportionate Assets and Corrupt Practices:
The prosecution alleged that Ramadhar Ram, a government employee, acquired properties worth Rs.81,49,323.23/- during his service from 12.07.1979 to 19.06.2013, which were disproportionate to his known income sources. The assets included properties in his and his family's names, bank balances, insurance policies, and vehicles. The charge sheet filed against him and his family members included offenses under the Prevention of Corruption Act, 1988, and the IPC.

3. Applicability of Section 45 of the PMLA, 2002 Post-Amendment:
The petitioners argued that Section 45(1) of the PMLA, 2002, as amended, does not revive the twin conditions for bail declared unconstitutional in the case of Nikesh Tarachand Shah. However, the court cited various judgments, including the Bombay High Court's decision in Ajay Kumar vs. Directorate of Enforcement, which held that the twin conditions stand revived post-amendment unless struck down by the Supreme Court.

4. Petitioners' Plea for Anticipatory Bail:
The petitioners contended that Ramadhar Ram, being 67 years old, sick, and infirm, deserved relief. Documents were presented showing his medical condition. Similarly, Bikash Kumar, suffering from epilepsy, sought bail. The court considered their health conditions and the fact that the disproportionate asset amount was less than one crore rupees.

Judgment:
The court granted anticipatory bail to both petitioners, Ramadhar Ram and Bikash Kumar, subject to conditions including furnishing bail bonds, regular court appearances, non-interference with witnesses, and surrendering passports. The applications for anticipatory bail were allowed based on age, health, and the amount involved being less than one crore rupees.