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TMI Blog2017 (11) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... y to oppose any application for release on bail and the Court must be satisfied, where the Public Prosecutor opposes the application, that there are reasonable grounds for believing that the accused is not guilty of such offence, and that he is not likely to commit any offence while on bail. 3. The Prevention of Money Laundering Act, 2002 was introduced, as its Statement of Objects and Reasons mentions, to make money laundering an offence, and to attach property involved in money laundering, so that this serious threat to the financial system of India is adequately dealt with. It is worth setting out the Statement of Objects and Reasons of the Act in full. "STATEMENT OF OBJECTS AND REASONS It is being realised, world over, that moneylaundering poses a serious threat not only to the financial systems of countries, but also to their integrity and sovereignty. Some of the initiatives taken by the international community to obviate such threats are outlined below:- (a) the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, to which India is a party, calls for prevention of laundering of proceeds of drug crimes and other connected act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Schedule under Indian Penal Code the word offence under section 477A relating to falsification of accounts should be omitted; (c) 'knowingly' be inserted in clause 3(b) relating to the definition of money-laundering; (d) the banking companies, financial institutions and intermediaries should be required to furnish information of transactions to the Director instead of Commissioner of Income-tax (e) the banking companies should also be brought within the ambit of clause II relating to obligations of financial institutions and intermediaries; (f) a definite timelimit of 24 hours should be provided for producing a person about to be searched or arrested person before the Gazetted Officer or Magistrate; (g) the words "unless otherwise proved to the satisfaction of the authority concerned" may be inserted in clause 22 relating to presumption on interconnected transactions; (h) vacancy in the office of the Chairperson of an Appellate Tribunal, by reason of his death, resignation or otherwise, the seniormost member shall act as the Chairperson till the date on which a new Chairperson appointed in accordance with the provisions of this Act to fill the vacancy, enters upon his office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming it as untainted property shall be guilty of offence of money-laundering. Section 4. Punishment for money-laundering.- Whoever commits the offence of money-laundering shall be punishable with rigorous imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine: Provided that where the proceeds of crime involved in money-laundering relates to any offence specified under paragraph 2 of Part A of the Schedule, the provisions of this section shall have effect as if for the words "which may extend to seven years", the words "which may extend to ten years" had been substituted. Section 5. Attachment of property involved in money-laundering. (1) Where the Director or any other officer not below the rank of Deputy Director authorised by the Director for the purposes of this section, has reason to believe (the reason for such belief to be recorded in writing), on the basis of materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (1) from such enjoyment. Explanation.- For the purposes of this sub-section, "person interested", in relation to any immovable property, includes all persons claiming or entitled to claim any interest in the property. (5) The Director or any other officer who provisionally attaches any property under subsection (1) shall, within a period of thirty days from such attachment, file a complaint stating the facts of such attachment before the Adjudicating Authority. xxx xxx xxx Section 43. Special Courts.- (1) The Central Government, in consultation with the Chief Justice of the High Court, shall, for trial of offence punishable under section 4, by notification, designate one or more Courts of Session as Special Court or Special Courts or such area or areas or for such case or class or group of cases as may be specified in the notification. Explanation.- In this sub-section, "High Court" means the High Court of the State in which a Sessions Court designated as Special Court was functioning immediately before such designation. (2) While trying an offence under this Act, a Special Court shall also try an offence, other than an offence referred to in sub-section (1), w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unless- (i) the Public Prosecutor has been given a opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. (1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned senior counsel, at the stage that the said Act was a Bill (which was referred to a Standing Committee on Finance of the Parliament, and which presented its report on 4.3.1999 to the Lok Sabha), the Central Government broadly accepted the recommendations of the Standing Committee, which were then incorporated in the said Bill along with some other changes. At this stage, argued Shri Rohatgi, it is interesting to note that Clauses 43 and 44 of the Bill, which correspond to Sections 44 and 45 of the present Act, were very differently worded and dealt only with offences under the 2002 Act. The twin conditions laid down as additional conditions for grant of bail were, at this stage, only qua offences under the 2002 Act. When Parliament enacted the 2002 Act, this scheme was completely changed in that Section 45 of the Act now spoke only of the predicate/scheduled offence and not the offence under the 2002 Act. In the present Act, a scheduled offence, which is an offence under other penal laws contained in Part A of the Schedule, that is tried with offences under the Act, bail would be granted only after satisfying the twin conditions laid down in the Section. Also, when the Act was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ification of such offence as being punishable with three years or more would again be wholly irrelevant and would have absolutely no rational relation to the object of granting bail insofar as offences under the 2002 Act are concerned. Learned senior counsel also referred to Article 21 of the Constitution and stated that the aforesaid procedure would be unfair, unjust and would fall foul of Article 21 inasmuch as it would certainly fall foul of the US Constitution's Eighth Amendment which interdicts excessive bails. Since this Court has recognized that this feature of the Eighth Amendment would fall within Article 21, it would be a direct infraction thereof. He also argued that a person will be punished for an offence contained under the 2002 Act, but will be denied bail because of a predicate offence which is contained in Part A of the Schedule, which would again render Section 45(1) as manifestly arbitrary and unreasonable. He referred to Nikesh Tarachand Shah's case, which is Writ Petition (criminal) No.67 of 2017, in which the scheduled offences were Sections 120B, 409, 420, 471 and 477A of the Indian Penal Code read with Section 13 of the Prevention of Corruption Act. These of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not possible to read down the provision to make it constitutional as the very scheme of Section 45 is manifestly arbitrary and irrational. Shri Rohatgi cited various judgments to buttress his submissions which will be referred to by us in the course of this judgment. 6. On the other hand, the learned Attorney General Shri K.K. Venugopal impressed upon us the fact that the Parliamentary legislation qua money laundering is an attempt by Parliament to get back money which has been siphoned off from the economy. According to the learned Attorney General, scheduled offences and offences under Sections 3 and 4 of the 2002 Act have to be read together and the said Act, therefore, forms a complete code which must be looked at by itself. According to the learned Attorney General, it is well settled that classification which is punishment centric has been upheld by a catena of judgments and so have the twin conditions been upheld by various decisions which were referred to by him. According to him, the expression "any offence" in Section 45(1)(ii) would mean offence of a like nature and not any offence, which would include a traffic offence as well. According to the learned Attorney Gene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t ingredient of the offence is that these persons must be knowingly or actually involved in any process or activity connected with proceeds of crime and "proceeds of crime" is defined under the Act, by Section 2 (u) thereof, to mean any property derived or obtained directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence (which is referred to in our judgment as the predicate offence). Thus, whosever is involved as aforesaid, in a process or activity connected with "proceeds of crime" as defined, which would include concealing, possessing, acquiring or using such property, would be guilty of the offence, provided such persons also project or claim such property as untainted property. Section 3, therefore, contains all the aforesaid ingredients, and before somebody can be adjudged as guilty under the said provision, the said person must not only be involved in any process or activity connected with proceeds of crime, but must also project or claim it as being untainted property. Under Section 4 of the Act, the offence of money laundering is punishable with rigorous imprisonment for a minimum period of three years which may extend to 7 y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magna Carta itself. Clause 39, which was, at that time, written in Latin, is translated as follows: "No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." It is well known that Magna Carta, which was wrung out of King John by the barons on the 15th of June, 1215, was annulled by Pope Innocent III in August of that very year. King John died one year later, leaving the throne to his 9 year old son, Henry III. It is in the reign of this pious King and his son, Edward I, that Magna Carta was recognized by kingly authority. In fact, by the statutes of Westminster of 1275, King Edward I repeated the injunction contained in clause 39 of Magna Carta. However, when it came to the reign of the Stuarts, who believed that they were kings on earth as a matter of divine right, a struggle ensued between Parliament and King Charles I. This led to another great milestone in the history of England called the Petition of Right of 1628. Moved by the hostility to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ights of 1689, which was accepted by the only Dutch monarch that England ever had, King William III, who reigned jointly with his wife Queen Mary II. It is in this document that the expression "excessive bail ought not to be required...." first appears in Chapter 2, clause 10. 13. What is important to learn from this history is that clause 39 of Magna Carta was subsequently extended to pre-trial imprisonment, so that persons could be enlarged on bail to secure their attendance for the ensuing trial. It may only be added that one century after the Bill of Rights, the US Constitution borrowed the language of the Bill of Rights when the principle of habeas corpus found its way into Article 1 Section 9 of the US Constitution, followed by the Eighth Amendment to the Constitution which expressly states that, "excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted". We may only add that the Eighth Amendment has been read into Article 21 by a Division Bench of this Court in Rajesh Kumar v. State through Government of NCT of Delhi (2011) 13 SCC 706, at paragraphs 60 and 61. 14. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence. 28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) "... the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right." 29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29) "There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower of classifying persons for legitimate purposes. (5) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough. (6) If a law deals equally with members of a welldefined class, it is not obnoxious and it is not open to the charge of denial of equal protection on the ground that it has no application to other persons. (7) While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis." Proposition 7 is important for the present purpose. Also, it is well settled that Article 14 condemns discrimination not only by substantive law, but also by procedural law. (See Budhan Choudhry v. State of Bihar, (1955) 1 SCR 1045 at 1049). 17. After adverting to these judgments, Bhagwati J., in Asgarali Nazarali Singaporawalla v. The State of Bombay, 1957 SCR 678 at 690-692 held: "The first question which we have to address to ourselves is whether there is in the impugned Act a reasonable classification fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title, preamble and provisions, the classification of the offences for the trial of which the Special Court is set up and a special procedure is laid down can be said to be unreasonable or arbitrary and therefore violative of the equal protection clause; (2) having regard to the fact that the types of offences specified in the Schedule to the Act were very common and widely prevalent during the post war period and had to be checked effectively and speedily tried, the legislation in question must be regarded as having been based on a perfectly intelligent principle of classification, having a clear and reasonable relation to the object sought to be achieved, and it did not in any way contravene Article 14 of the Constitution." In the instant case, bribery and corruption having been rampant and the need for weeding them out having been urgently felt, it was necessary to enact measures for the purpose of eliminating all possible delay in bringing the offenders to book. It was with that end in view that provisions were enacted in the impugned Act for speedier trial of the said offences by the appointment of Special Judges who were invested with exclusive jurisdiction to try the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay) (P) Ltd. v. Union of India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121] stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14." This view of the law by two learned Judges of this Court was concurred with by Kurian, J. in paragraph 5 of his judgment. 19. Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive head. Can the sacred essence of the human right to secure which the struggle for liberation, with 'do or die' patriotism, was launched be sapped by formalistic and pharisaic prescriptions, regardless of essential standards? An enacted apparition is a constitutional, illusion. Processual justice is writ patently on Article 21. It is too grave to be circumvented by a black letter ritual processed through the legislature." 59. Immediately after the decision in Maneka Gandhi [(1978) 1 SCC 248] another Constitution Bench of this Court rendered decision in Sunil Batra v. Delhi Admn. [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] specifically acknowledged that even though a clause like the Eighth Amendment of the United States Constitution and concept of "due process" of the American Constitution is not enacted in our Constitution text, but after the decision of this Court in Rustom Cavasjee Cooper [(1970) 1 SCC 248] and Maneka Gandhi [(1978) 1 SCC 248] the consequences are the same. The Constitution Bench of this Court in Sunil Batra [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] speaking through Krishna Iyer, J. held: (Sunil Batra case [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , SCC p. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the court to determine whether such procedure is reasonable, just and fair and if the court finds that it is not so, the court will strike down the same. 63. Therefore, "law" as interpreted under Article 21 by this Court is more than mere "lex". It implies a due process, both procedurally and substantively." 20. Given the parameters of judicial review of legislation laid down in these judgments, we have to see whether Section 45 can pass constitutional muster. 21. It is important to first set out the genesis of Section 45 as it appeared in the Prevention of Money Laundering Bill, 1999. In its original avatar, the precursor to Section 45, which was Section 44 of the said Bill, read as follows:- "44. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973,- (a) every offence punishable under this Act shall be cognizable; (b) no person accused of an offence punishable for a term of imprisonment of more than three years under this Act 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 application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. (2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." The change made by Section 45 is that, for the purpose of grant of bail, what was now to be looked at was offences that were punishable for a term of imprisonment of three years or more under Part A of the Schedule, and not offences under the 2002 Act itself. At this stage, Part A of the Schedule contained two paragraphs - Para 1 containing Sections 121 and 121A of the Indian Penal Code, which deal with waging or attempting to wage war or abetting waging of war against the Government of India, and conspiracy to commit such offences. Paragraph 2 dealt with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. Part B of the Schedule, as originally enacted, referred to ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst Safety of Maritime Navigation and Fixed Platforms of Continental Shelf Act, 2002. 22. By the Amendment Act of 2012, which is Act 2 of 2013, a very important amendment was made to the Schedule by which the entire Part B offences were transplanted into Part A. The object for this amendment, as stated in the Statement of Objects and Reasons for the amendment in clause 3 (j), specifically provided: "(j) putting all the offences listed in Part A and Part B of the Schedule to the aforesaid Act into Part A of that Schedule instead of keeping them in two Parts so that the provision of monetary threshold does not apply to the offences." 23. By the Finance Act of 2015, by Section 145, the limit of Rs. 30 lakhs in Section 2(y) was raised to Rs. 1 crore and in the Schedule after Part A, Part B was populated with only one entry, namely Section 132 of the Customs Act. Certain other amendments were made, by the Finance Act of 2016, to the 2002 Act with which we are not directly concerned. 24. The statutory history of Section 45, read with the Schedule, would, thus show that in its original avatar, as Clause 44 of the 1999 Bill, the Section dealt only with offences under the Act itself. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). In this illustration, again, Mr. X would be liable to be enlarged on bail under Section 439 of the Code of Criminal Procedure by the Special Court/High Court, with or without conditions, as Section 45 of the 2002 Act would have no application. 26. The fourth illustration would be an illustration in which Mr. X is prosecuted for an offence under the 2002 Act and an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule. In this illustration, the Special Court/High Court would enlarge Mr. X on bail only if the conditions specified in Section 45(1) are satisfied and not otherwise. In the fourth illustration, Section 45 would apply in a joint trial of offences under the Act and under Part A of the Schedule because the only thing that is to be seen for the purpose of granting bail, under this Section, is the alleged occurrence of a Part A scheduled offence, which has imprisonment for over three years. The likelihood of Mr. X being enlarged on bail in the first three illustrations is far greater than in the fourth illustration, dependant only upon the circumstance that Mr. X is being prosecuted for a Schedule A offence which has imprisonme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscriminatory depending upon whether a person is being tried for an offence which also happens to be an offence under Part A of the Schedule, or an offence under Part A of the Schedule together with an offence under the 2002 Act. Obviously, the grant of bail would depend upon a circumstance which has nothing to do with the offence of money laundering. On this ground alone, Section 45 would have to be struck down as being manifestly arbitrary and providing a procedure which is not fair or just and would, thus, violate both Articles 14 and 21 of the Constitution. 28. Another interesting feature of Section 45 is that the twin conditions that need to be satisfied under the said Section are that there are reasonable grounds for believing that the accused is not guilty of "such offence" and that he is not likely to commit any offence while on bail. The expression "such offence" would be relatable only to an offence in Part A of the Schedule. Thus, in an application made for bail, where the offence of money laundering is involved, if Section 45 is to be applied, the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of the offence under Part A o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act was enacted so that property involved in money laundering may be attached and brought back into the economy, as also that persons guilty of the offence of money laundering must be brought to book. It is interesting to note that even in the recent 2015 amendment, the Legislature has used the value involved in the offence contained in Part B of the Schedule as a basis for classification. If, for example, the basis for classification of offences referred to and related to offences under the 2002 Act with a monetary limit beyond which such offences would be made out, such classification would obviously have a rational relation to the object sought to be achieved by the Act i.e. to attach properties and the money involved in money laundering and to bring persons involved in the offence of money laundering to book. On the other hand, it is clear that the term of imprisonment of more than 3 years for a scheduled or predicate offence would be a manifestly arbitrary and unjust classification, having no rational relation to the object sought to be achieved by an Act dealing with money laundering. Again a few illustrations would suffice to prove the point. 30. An extremely heinous off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scheduled offence would have no rational relation to the object of the 2002 Act and to the granting of bail for offences committed under the Act, and, therefore, have to be annulled on the basis of the equal protection clause. 31. When we go to Part A of the Schedule as it now exists, it is clear that there are many sections under the Indian Penal Code punishable with life imprisonment which are not included in Part A of the Schedule, and which may yet lead to proceeds of crime. For example, Sections 232 and 238 of the Indian Penal Code, which deal with counterfeiting of Indian coin and import or export of counterfeited Indian coin, are punishable with life imprisonment. These sections are not included in Part A of the Schedule, and a person who may counterfeit Indian coin is liable to be tried under the Code of Criminal Procedure with conditions as to bail under Section 439 being imposed by the High Court or the Sessions Court. As against this, a person who counterfeits Government stamps under Section 255 is roped into Part A of the Schedule, which is also punishable with life imprisonment. If such person is to apply for bail, the twin conditions contained in Section 45 would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he offences under the NDPS Act are classified on the basis of the quantity of narcotic drugs and psychotropic substances that the accused is found with, which are categorized as: (1) a small quantity, as defined; (2) a quantity which is above small quantity, but below commercial quantity, as defined; and (3) above commercial quantity, as defined. The sentences of these offences vary from 1 year for a person found with small quantity, to 10 years for a person found with something between small and commercial quantity, and a minimum of 10 years upto 20 years when a person is found with commercial quantity. The twin conditions specified in Section 37 of the NDPS Act get attracted when bail is asked for only insofar as persons who have commercial quantities with them are concerned. A person found with a small quantity or with a quantity above small quantity, but below commercial quantity, punishable with a one year sentence or a 10 year sentence respectively, can apply for bail under Section 439 of the Code of Criminal Procedure without satisfying the same twin conditions as are contained in Section 45 of the 2002 Act, under Section 37 of the NDPS Act. By assimilating all these three c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e out on bail without his having satisfied the twin conditions of Section 45. However, if in an identical situation, Mr. Y is prosecuted for the same offences, but happens to be arrested, and then applies for bail, the twin conditions of Section 45 will have first to be met. This again leads to an extremely anomalous situation showing that Section 45 leads to manifestly arbitrary and unjust results and would, therefore, violate Articles 14 and 21 of the Constitution. 36. However, the learned Attorney General has argued before us that we must uphold Section 45 as it is part of a complete code under the 2002 Act. According to him, Section 45, when read with Sections 3 and 4, would necessarily lead to the conclusion that the source of the proceeds of crime, being the scheduled offence, and the money laundering offence, would have to be tried together, and the nexus that is provided is because the source of money laundering being as important as money laundering itself, conditions under Section 45 would have to be applied. We are afraid that, for all the reasons given by us earlier in this judgment, we are unable to agree. The learned Attorney General asked us to read down Section 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. We hold that the provisions for pretrial detention in the Bail Reform Act of 1984 fall within that carefully limited exception. The Act authorizes the detention prior to trial of arrestees charged with serious felonies who are found after an adversary hearing to pose a threat to the safety of individuals or to the community which no condition of release can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing. We are unwilling to say that this congressional determination, based as it is upon that primary concern of every government-a concern for the safety and indeed the lives of its citizens-on its face violates either the Due Process Clause of the Fifth Amendment or the Excessive Bail Clause of the Eighth Amendment." In a sharply worded minority judgment of Justice Marshall, with whom Justice Brennan agreed, the minority held that the Bail Reform Act, which permitted pre-trial detention on the ground that the person arrested is likely to commit future crimes would violate substantive due process and the 8th amendment to the US Constitution. This it did with reference to an earlier judgment, namely, Stack v. Boyle, 342 US 1, where Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Solicitor General, are in consonance with the conditions prescribed under clauses (i) and (ii) of sub-section (1) of Section 437 and clause (b) of sub-section (3) of that section. Similar to the conditions in clause (b) of sub-section (8), there are provisions in various other enactments - such as Section 35(1) of Foreign Exchange Regulation Act and Section 104(1) of the Customs Act to the effect that any authorised or empowered officer under the respective Acts, if, has got reason to believe that any person in India or within the Indian customs waters has been guilty of an offence punishable under the respective Acts, may arrest such person. Therefore, the condition that "there are grounds for believing that he is not guilty of an offence", which condition in different form is incorporated in other Acts such as clause (i) of Section 437(1) of the Code and Section 35(1) of FERA and 104(1) of the Customs Act, cannot be said to be an unreasonable condition infringing the principle of Article 21 of the Constitution." It is clear that this Court upheld such a condition only because the offence under TADA was a most heinous offence in which the vice of terrorism is sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may not do that which he ought to have done. The court may in a situation of this nature keep in mind the broad principles of law that some acts of omission and commission on the part of a public servant may attract disciplinary proceedings but may not attract a penal provision." The Court then went on to say: "44. The wording of Section 21(4), in our opinion, does not lead to the conclusion that the court must arrive at a positive finding that the applicant for bail has not committed an offence under the Act. If such a construction is placed, the court intending to grant bail must arrive at a finding that the applicant has not committed such an offence. In such an event, it will be impossible for the prosecution to obtain a judgment of conviction of the applicant. Such cannot be the intention of the legislature. Section 21(4) of MCOCA, therefore, must be construed reasonably. It must be so construed that the court is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the provision of a monetary threshold limit does not apply to the offences contained therein. The High Court concluded: "12.20 Guided by the aforesaid principles laid down by the Hon'ble Supreme Court regarding statutory interpretation and the duty of the Court to secure the ends of justice, we have no hesitation in holding that in 2013, Part B of the Schedule was omitted and the Scheduled Offences falling thereunder were incorporated in Part A with the sole object to overcome the monetary threshold limit of Rs. 30 lakhs for invocation of PMLA in respect of the laundering of proceeds of crime involved in those offences. No substantive amendment was proposed with express intention to apply limitations on grant of bail as contained in Section 45(1) in respect of persons accused of such offences which were earlier listed in Part B. Therefore, twin limitations in grant of bail contained in Section 45(1) as it stands today, are not applicable qua a person accused of such offences which were earlier listed in Part B." The matter came to this Court by a certificate of fitness granted by the High Court. Sikri, J and Ramana, J., by their order dated 12th August, 2016, stated: ..... X X X X Extracts X X X X X X X X Extracts X X X X
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