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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 ..... ord the first satisfaction as contemplated under Section 45 (1) (ii) of the PML Act, it would be immaterial as to whether the applicant meets with the second requirement. There is no dispute that, both the stipulations need to be met with and if any one is missing, it would not be permissible to release the applicant on bail 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 trial against the applicant. The Trial Court shall in no way be influenced by the observation of this Court in this order since, as noted above, it is only for the purpose of deciding this application. X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 8 SCC 273, will apply with full force in the present case. Reliance is also placed on various decisions, including the following. (I) Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, Customs House, Punjab - 2011 (8) Scale 430. (ii) Vinod Solaki Vs. Union of India reported in (2008) 16 SCC 537. (iii) Tofan Singh Vs. State of Tamil Nadu reported in (2013) 16 SCC 31. (iv) Noor Aga Vs. State of Punjab - 2008 (9) Scale 681 2.3 Learned senior advocate for the applicant has submitted that, the applicant be enlarged on bail. 3.1 On the other hand, Mr.Devang Vyas, learned Assistant Solicitor General of India for the contesting respondent Authority has opposed this application and has submitted that the rigorous of Section 45 of the PML Act would apply with full force in the facts of this case and there is material on record even to hold that the applicant is guilty of the offence charged with and in any case, this is not the case where at this stage, Court may record finding that there are reasonable ground to believe that the applicant is not guilty of the offence charged with. Reference is made to the affidavit in reply dated 04.03.2015 filed on behalf of the respondent No.1 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discriminatory, and thus being violative of Articles 14, 19 and 21 of the Constitution of India, and this Hon'ble Court may read down, lay down, expound, interpret and deliberate upon the scope and perspective of Section 45 of PMLA so as to harmonize the same in juxtaposition with various scheduled offences [under amended Part A of the Schedule], [b] To read down, expound, deliberate and interpret the scope and perspective of Section 19 of PMLA in light of section 49(3) read with Rules notified by GSR 446[E] dated 1.7.2005, in consonance and harmony with settled constitutional mandate of Articles 14, 21 and 22 of Constitution of India as also in the context of various provisions under the Code of Criminal Procedure, 1973, as amended from to time and the Guidelines laid down by the Hon'ble Apex Court in D.K.Basu vs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of affidavit in support to this Petition as the Petitioner is in judicial custody; [g] For such other or further order/s in the peculiar facts of the case." 4.2 The said petition is dismissed vide judgment dated 16.01.2015. Though with the said dismissal, the prayer for bail also stood rejected by the Division Bench of this Court, this application is accepted to be maintainable in view of the clarification given by the Division Bench vide order dated 04.03.2015 in Criminal Misc. Application (for review) No.3715 of 2015 in Special Criminal Application No.4496 of 2014. It is noted that the petition invoking Article 226 of the Constitution of India being Special Criminal Application No.4496 of 2014 was filed by the present applicant, principally challenging some of the provisions of the PML Act being unconstitutional and as the consequence thereof, the arrest was prayed to be held to be illegal, which is not accepted by the Division Bench, but that by itself would not be a ground to disentitle the applicant to ask for bail under Section 439 of the Code of Criminal Procedure. This Court finds that, learned senior counsel for the applicant is right in his submission that, the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing in force on granting of bail." 5.2 In view of the above 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e contention of parity is therefore rejected. 6.2 The argument that 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 m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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