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TMI Blog2017 (6) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Corruption Act as well as under the Indian Penal Code and there is also a case by the Central Bureau of Investigation. Thereafter, the Applicant has been summoned by the Directorate of Enforcement, Surat, on the basis of which huge currency and other documentary evidence were seized by the Income Tax Department, and the Directorate of Enforcement, Surat has registered a case under the PML Act as stated above. 4. Heard learned Senior Counsel Shri Vikarm Chaudhary appearing with learned Advocate Shri Chetan K. Pandya for the Applicant, learned APP Ms. Moxa Thakker for the Respondent State and learned Assistant Solicitor General Shri Devang Vyas with learned Central Government Standing Counsel Shri Kshitij M. Amin for Respondent No.2 Directorate of Enforcement, Surat. 5. Learned Senior Counsel Shri Vikaram Chaudhary referred to the background of the facts as well as the provisions of the PML Act and submitted that the offences as contemplated under the PML Act and provided in the Schedule to the PML Act has to be prima facie established. Learned Senior Counsel Shri Chaudhary submitted that whether the provisions of the PML Act and Sections 3 and 4 of the PML Act would be attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly submitted that while deciding Criminal Misc. Application (For Regular Bail) No. 3952 of 2016 with Criminal Misc. Application (For Regular Bail) No. 3991 2016 by the High Court (Coram: P.P.Bhatt,J) vide order dated 17.10.2016 has considered the provisions of Section 45 of the PML Act while deciding the bail application referring to the judgment of this High Court as well as other High Courts and also the judgment of the Hon'ble Apex Court in case of Om Prakash v. Union of India reported in (2011) 14 SCC 1. Learned Senior Counsel Shri Chaudhary pointedly referred to the observations and the Scheme of the Act and submitted that the High Court has clearly observed: "Thus, the issue regarding compliance with the procedure is live, germane and open and the view taken by the Division Bench in its order dated 3.8.2015 passed in S.Cr.A (Habeas Corpus) 4247 of 2015 Rakesh Manekchand Kothari (supra) prevails so far. The Hon'ble Single Judge in a batch matter has taken the view that the offences under PMLA are cognizable and no procedure under Cr.P.C. is required to be followed. This view is based primarily on the judgment passed by a Division Bench of Hon'ble Punjab and Hary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Punjab & Haryana High Court in case of Gorav Kathuria v. Union of Inida CRWP No.595 of 2016 and submitted that it made a detailed reference to the provisions of the PML Act which have been interpreted and considered by the High Court of Punjab & Haryana. He emphasized the observations made in paragraph 72, 73 and 80 and emphasized that it has been clearly observed in paragraph 80 that it has been noted by the Punjab & Haryana High Court that they have not come across any precedent with regard to the two issues, and therefore, the question of law were framed while issuing the certificate for the purpose of reference to the Hon'ble Apex Court. Learned Senior Counsel Shri Vikram Chaudhary submitted that the Hon'ble Apex Court has disposed of the Appeal and clearly observed that the judgment of the High Court is correct, and therefore, it would merge with the order of the Hon'ble Apex Court. The doctrine of merger would be attracted where the order of the High Court would merge with the order of the Hon'ble Apex Court. Learned Senior Counsel Shri Chaudhary referred to the judgment of the Madras High Court in case of J.Sekar v. Assistant Director, Directorate of Enf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y laundering specifically provides that it will have an overriding effect over the provisions of procedure of the Cr.PC. He emphasized that it has been clearly provided by the legislature that where the provisions of Cr.PC are inconsistent or in conflict with the statutory provisions of the PML Act, the said statute of the PML Act will prevail. Learned Assistant Solicitor General Shri Devang Vyas pointedly referred to the observations made in the aforesaid judgment and submitted that it has been clearly observed: "(28.) Before dealing with the application for bail on merit, it is to be considered whether the provisions of Section 45 of the PMLA are binding on the High Court while considering the application for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) No. 30674 of 2017 (Coram: A.J.Desai,J) dated 15.3.2017 and submitted that a similar view has been expressed relying upon the same judgment of the Hon'ble Apex Court. He pointedly referred to the observations made in this judgment referring to the scheme of the PML Act as well as the provisions of the amendment made in 2013 and he emphasized the observations of the Hon'ble Division Bench of the Punjab & Haryana High Court which has been considered in this judgment and he emphasized that the prayer regarding vires of the provisions of Section 45 of the PML Act has been rejected by the Hon'ble Division Bench. Learned Assistant Solicitor General Shri Devang Vyas pointedly referred to the observations made referring to the same judgment of the Hon'ble Punjab & Haryana High Court as well as other judgments, including the judgment / order in case of Rakesh Manekchand Kothari v. Union of India with reference to the provisions of Section 45 of the PML Act. He emphasized the observations: "By considering the judgment of the Division Bench of the Punjab and Haryana High Court read with the order passed by the Hon'ble Supreme Court in the case of Gorav Kathuria dismissin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther details with reference to the affidavit-inreply with regard to the prima facie material and the nature of offence and submitted that considering the gravity of the offence and the economic offence in which the special statute like the PML Act has been enacted by the legislature, the application for bail has to be considered keeping in mind the rigors of Section 45 of the PML Act and the present Application for bail may not be entertained. 11.In rejoinder, learned Senior Counsel Shri Vikram Chaudhary again referred to the papers as well as the background of the facts and submitted that assuming that the provisions of Section 45 of the PML Act are applicable, it cannot be argued that no bail could be granted. He emphasized that even if Section 45 of the PML Act is attracted, it provides for the discretion to the High Court and he further submitted that in order to arrive at the conclusion, the High Court may examine the material. Learned Senior Counsel Shri Vikram Chaudhary submitted that, as submitted earlier, the issue is not finally decided with reference to cognizable and noncognizable offence particularly with reference to the amendment made in 2013 where the offences are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 14.The submissions which have been made by learned Senior Counsel Shri Vikram Chaudhary referring to Section 2(1)(u) of the PML Act emphasizing on the "proceeds of crime" that unless the amount which has been recovered from the Applicant is not established to be "proceeds of crime", the offences as per the Schedule would not be attracted. 15.The another facet of the submissions which have been made with much emphasis on Section 45 of the PML Act with reference to the amendment that the amendment 2013 was with the sole object to overcome the monetary threshold of Rs. 30 lacs for application of the PML Act to those offences which have been considered by the Punjab & Haryana High Court in case of Gorav Kathuria (supra). Learned Senior Counsel Shri Chaudhary has referred to the Amendment of 2013 with much emphasis that the offences which were earlier in Part-A of the Schedule prior to 2013 Amendment are heinous offences, and therefore, the other offences under Part-B of the Schedule cannot be equated with heinous offences for the purpose of Section 45(1) of the PML Act. The submissions have been made referring to the judgment of Gorav Kathuria (supra) and the other judgments that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... releasing the accused on bail. This is pari materia with other statutory provisions like the NDPS Act. The amendment made in Section 45 of the principal Act referred to the offences as in Part-A with punishment for a term of imprisonment of more than three years. The submissions have been made that it is only qua heinous offences as provided like waging a war etc., rigors of Section 45 of the PML Act could be attracted and the other offences which were in Part-B, which have been clubbed in Part-A would not attract Section 45 of the PML Act, is misconceived. It is well settled that the provisions of the Statute has to be read as it is and the court cannot in the guise of interpreting the provisions of law can add or substitute in the provision. If the submissions have to be accepted, it would amount to embarking upon the legislative function without any justification. It cannot be readily accepted that the legislature is not aware or oblivious of the circumstances so as to accept such submission that Section 45 of the PML Act has to be restricted qua its application for heinous offences in the Part-A and the same Section 45 of the PML Act would not be attracted for the purpose of ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation for bail under Section 439 of the Code of Criminal Procedure. There is no doubt that PMLA deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. Section 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA: (I) That the prosecutor must be given an opportunity to opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act are not attracted, is thoroughly misconceived in light of the aforesaid observations which have interpreted the same provision provided for the burden of proof on the Applicant Accused with further rider that presumption shall be made by the authority or the court unless it is so established by the present Applicant Accused of an offence. Thus, the submission that unless the foundation is laid for attraction of the statutory provision of the PML Act, it cannot be said to be "proceeds of crime", is thoroughly misconceived or rather contrary to the statutory provisions interpreted by the Hon'ble Apex Court in case of Gautum Kundu (supra). The Hon'ble Apex Court has observed: "We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as provided in Section 45(1)(ii) of the PML Act. This itself would suggest that one cannot put the cart before the horse and readily accept the submissions which have been made with reference to the observations made by the Hon'ble Punjab & Haryana High Court or the Madras High Court brushing aside the specific observations referring to the same statutory provisions of Section 45 of the PML Act by the Hon'ble Apex Court. 22.The submissions which have been made by learned Senior Counsel Shri Vikram Chaudhary that the issue is not settled and therefore when there are divergent views under consideration and where the reference is also made and it has been remanded, it is a case for grant of bail, is thoroughly misconceived. The submissions which have been made with reference to the details with regard to the order of the High Court having been merged with the order of the Hon'ble Apex Court, which has been emphasized as stated herein above, also cannot be accepted. The doctrine of merger would not be attracted in the facts of the case as the order of the High Court may merge but it would not be setting any precedent. It is well accepted that what is of the essence in a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides. 10. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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