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TMI Blog2015 (3) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is committed by the applicant, the applicant is not accused of having committed any scheduled offence. It is further submitted that, even if it is assumed that, rigorous of Section 45 do apply qua the applicant, on the ground of parity as well, the applicant needs to be enlarged on bail. In this regard, reference is made to the cases of (i) Mr.Bilal Haroon Galani and (ii) Mr.Praful Patel. Reliance is also placed on the order passed by the Co-ordinate Bench of this Court in the case of Sunil Deepakkumar Agarwal Vs. State of Gujarat recorded on Criminal Misc. Application No.15636 of 2014 dated 19.11.2014 and in the case of Afroz Mohd. Hasan Fatta Vs. State of Gujarat recorded on Criminal Misc. Application No.2191 of 2015 dated 05.03.2014. 2.2 Learned senior advocate for the applicant has alternatively submitted that, the applicant is entitled to bail on the ground that both the conditions of Section 45 of the PML Act are satisfied in the facts of this case. In support of this, it is submitted that, there is no antecedent against the applicant and that there is no material to substantiate that the applicant is guilty of the offences alleged against him. It is submitted that the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at in view of the clarification given by the Division Bench dated 04.03.2015 in Criminal Misc. Application (for review) No.3715 of 2015 in Special Criminal Application No.4496 of 2014, the present application can not be termed to be not maintainable. However, it is submitted that, the said decision of the Division Bench of this Court would bind the present applicant and on that additional ground as well, this application be dismissed. Reliance is also placed on the following decisions. (i) Ram Singh Vs. Central Bureau of Narcotics - 2011 (0) GLHEL - SC 50045 (ii) Customs, New Delhi Vs. Ahmadalieva Nodira - 2004 (0) GLHEL - SC 6972 (iii) Naresh J. Sukhawani Vs. Union of India - 1995 (0) GLHEL - SC 19209. (iv) Union of India Vs. Shiv Shanker Kesari - 2007 (0) GLHEL - SC 39851 (v) K.T.M.S.Mohd. Vs. Union of India - 1992 (0) GLHEL - SC 13569 (vi) K.I.Pavunny Versus Assistant Collector (Hq.), Central Excise Collectorate, Cochin - 1997 (0) GLHEL - SC 13291. (vii) Bipinbhai A. Patel Vs. State of Gujarat - 1998 (1) G.L.H. 704. 4. Having heard learned advocates for the respective parties, this Court finds as under. 4.1 At the outset, it needs to be recorded that the present applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of West Bengal 1997(1) SCC 416, [c] For issuance of an appropriate writ of quo warranto, calling upon Respondent No.3, who being an Assistant Director, Enforcement Directorate, appointed under Foreign Exchange Management Act, 1999, can under Section 54 of PMLA only assist any officer investigating under PMLA, to show cause as to how and under what authority has he exercised the power of arrest under Section 19 of PMLA, while effecting arrest of the Petitioner on 01.09.2014 in ECIR/01/SRT/2014, without producing till date, despite specific objection by the Petitioner ¬ [i] any authorization conferring upon him by way of any notification or order issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 19(1) of PMLA, which mandatorily prescribe the arrest to be made on the basis of such material in possession, on the basis of which there exists reason to believe that person is guilty of an offence under the PMLA; which shall be recorded in writing; and pursuant to arrest to inform him of the `Grounds' for such arrest, [iii] Rules notified by Central Government vide GSR 446[E], dt.1.7.2005, [iv] notification GSR 441(E) dated 1.7.2005 issued by the Central Government appointing Director to exercise the exclusive power conferred under section 19 of PMLA [v] Article 14, 21, 22 of the Constitution of India. [e] At the interim / ad¬interim stage¬ [i] The proceedings under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rameters which need to be kept in view by this Court. Section 45 of the PML Act reads as under. "45 Offences to be cognizable and non¬ bailable.¬ [1] Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless- [i] the Public Prosecutor has been given an opportunity to oppose the application for such release; and [ii] where the Public Prosecutor opposes the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provision, this Court need to arrive at the satisfaction that (i) there are reasonable grounds for believing that the applicant is not guilty of the offence, he is charged with, and further that (ii) he is not likely to commit any offence while on bail. 5.3 So far the second part i.e. 'likelihood of not committing any offence' is concerned, there is substantial force in the submission of learned senior advocate for the applicant that, 'the offence' needs to be understood as 'the offence under the PML Act' and not any other offence. However further deliberation in that regard may be required only if the (i) noted above, is satisfied. 5.4 So far the first stipulation, that this Court need to arrive at the satisfaction that, there are reasonable grounds for believing that the applicant is not guilty of the offence he is charged with, is concerned, for that purpose the material on record needs to be considered. Having done so, more particularly having taken into consideration the contents of the complainant filed by the respondent authority dated 29.10.2014 Annexure-A to this application, with specific reference to the role attributed to the present applican ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the applicant has not committed any scheduled offence can not be gone into by this Court on the face of the decision of the Division Bench of this Court recorded on Special Criminal Application No.4496 of 2014. As noted above, reference needs to be made to para: 10.12 and 10.13 of the said decision. It is noted that, the said decision is in the petition filed by this very applicant. 7. So far the authorities cited by learned senior advocate for the applicant is concerned, there can not be any dispute with regard to the proposition enunciated therein, however none of the authorities can be substitute to the satisfaction to be recorded by this Court as required under Section 45 of the PML Act, as noted above, and the said satisfaction needs to be recorded on the facts and it can not be a question of law. 8.1 For the reasons recorded above, this application is dismissed. 8.2 It is clarified that, the reasons recorded in this order is only for the limited purpose of deciding this application for bail and any observation by this Court may not be construed as this Court having expressed any opinion on merits of the matter and the same shall not have any bearing at the time of tria ..... X X X X Extracts X X X X X X X X Extracts X X X X
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