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2021 (6) TMI 424 - HC - Money LaunderingSeeking grant of Regular Bail - siphoning of funds - scheduled offences - bogus purchase invoices - Constitutional validity of Section 45 of the Prevention of Money Laundering Act, 2002 - two conditions for grant of bail where an offence punishable for a term of imprisonment of more than 3 years under Part A of the Schedule to the Act - HELD THAT - Assuming that the twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words under this Act by deleting offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule only makes an ostensible change. The offence of money laundering as stipulated under section 3 of the PMLA Act stems out of the offences prescribed in the Schedules. The defects which the Supreme Court in Nikesh Tarachandra Shah 2017 (11) TMI 1336 - SUPREME COURT had pointed out while invalidating the existing law are not substantially removed by the amendment. The Supreme Court has asserted that, the twin conditions prescribed in Section 45 of the PMLA Act would have no nexus whatsoever with a bail application which concerns itself with the offence of money laundering, for if Section 45 of the PMLA Act is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. It is observed that Section 45 of the PMLA Act is a drastic provision which affects the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India and turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Burden or proof on the person charged as envisaged in section 24 of PMLA Act - HELD THAT - In the present case, the applicant is charged with scheduled offences as defined under section 2(u) of the Act. An F.I.R. is registered for the offence under Sections 465, 468, 471, 420, 120B of the IPC which are specified in Paragraph No. 2 of Part-A. The maximum punishment prescribed for the offences for which the applicant is charged is seven years. The applicant has been granted bail for the IPC offences on the condition of depositing ₹ 50,00,000/-. The applicant is ordered to be released on regular bail - Application allowed.
Issues Involved:
1. Regular bail application under Section 439 of the Cr.P.C. read with Sections 44 and 45 of the PMLA Act. 2. Alleged cheating and forgery by the applicant and co-accused. 3. Applicability and interpretation of Section 45 of the PMLA Act post the Supreme Court's decision in Nikesh Tarachandra Shah vs. Union of India. 4. Consideration of the applicant's health and cooperation with the investigation. 5. Conditions for granting bail. Detailed Analysis: 1. Regular Bail Application under Section 439 of the Cr.P.C. read with Sections 44 and 45 of the PMLA Act: The applicant sought regular bail in connection with his arrest under Section 19(1) of the PMLA Act. The application was filed under Section 439 of the Cr.P.C. and Sections 44 and 45 of the PMLA Act. The applicant was accused of money laundering and generating proceeds of crime amounting to ?2,70,00,000/-. 2. Alleged Cheating and Forgery by the Applicant and Co-accused: The prosecution alleged that the applicant and co-accused falsely declared high circulation numbers for their newspapers to attract advertisements, thereby cheating government and private agencies. The inflated circulation figures led to illegal gains of ?2,70,00,000/-. An FIR was registered for offences under Sections 465, 468, 471, 420, and 120B of the IPC. 3. Applicability and Interpretation of Section 45 of the PMLA Act Post the Supreme Court's Decision in Nikesh Tarachandra Shah vs. Union of India: The applicant's counsel argued that the Supreme Court in Nikesh Tarachandra Shah vs. Union of India had set aside the twin conditions of Section 45 of the PMLA Act. The counsel submitted that the Court should decide the bail application in light of Section 439 of the Cr.P.C. The Enforcement Directorate, however, contended that the twin conditions still apply post-amendment and cited various judgments to support their stance. 4. Consideration of the Applicant's Health and Cooperation with the Investigation: The applicant's counsel highlighted the applicant's age (56 years) and health issues, arguing that he had cooperated with the investigation and that his property worth ?4 Crores had already been attached. The counsel also pointed out that no private agency had filed a complaint against the applicant. 5. Conditions for Granting Bail: The Court considered the applicant's health, cooperation with the investigation, and the fact that he had been granted bail for IPC offences on the condition of depositing ?50,00,000/-. The Court also noted that the applicant had been in custody since 07.12.2020 and that further incarceration would not serve any purpose. The Court imposed several conditions for granting bail, including the deposit of ?5,00,000/- within 10 days and an undertaking to deposit ?15,00,000/- within six months. Conclusion: The Court granted bail to the applicant, considering the proviso to Section 45 of the PMLA Act, which allows bail if the accused is sick and the amount involved is less than one crore. The Court imposed specific conditions to ensure the applicant's compliance and prevent any misuse of liberty. The judgment emphasized that the observations made were not to influence the trial proceedings. The application was allowed, and the rule was made absolute accordingly.
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