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TMI Blog2018 (2) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... en though the Applicant accused is in jail, there is no cooperation by his family members for the investigation and further details. Therefore the present application deserves to be allowed and accordingly stands allowed. The Applicant – JIGNESH KISHOREBHAI BHAJIAWALA is ordered to be released on bail in connection with ECIR/01/STSZO/2016 registered with Directorate of Enforcement, Surat converted into PMLA Case No.5 of 2017 pending before the Hon’ble Designated Special Court under PMLA, 2002 on his executing a bond of ₹ 50,000/- (Rupees Fifty Thousand Only), with one solvent surety of the like amount to the satisfaction of the lower Court - Criminal Misc.Application (For Regular Bail) No. 7970 of 2017 - - - Dated:- 1-2-2018 - MR. RAJESH H. SHUKLA, J. For The Applicant : SHRI S.V. Raju, Senior Advocate with Mr Chetan K Pandya, Advocate For The Respondent : Mr Devang Vyas, Assistant Solicitor General And Shri K.P.Raval, APP ORAL JUDGMENT 1. The present Application is filed by the Applicant Original Accused under Section 439 of the Code of Criminal Procedure read with the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the PML A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail. All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly. In view of the aforesaid, the present matter is also liable to be remitted back for consideration in terms of the aforesaid. The appeal is disposed of accordingly. The Apex Court has remitted the matter back for consideration in terms of the aforesaid order. Therefore, this matter has been placed before this bench for hearing in light of the order of the Hon'ble Apex Court as stated above. 7. Heard learned Senior Counsel S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the submissions are made but the charge sheet referred to only one crore and he submitted that the CBI has already submitted the charge sheet and the investigation is over, and therefore, there is no justification to languish the petitioner in jail. He therefore emphasized the relevant criteria for grant of bail. However, learned Senior Counsel Shri S.V.Raju referred to the complaint on page 73 and the FIR filed by the CBI at page 101 and submitted that it refers to only 1 Crore 2 Lacs, and therefore, the submissions regarding the provisions of the PML Act are required to be considered. He therefore submitted that the present application for bail may be considered. 10. Learned Senior Counsel Shri S.V.Raju referred to and relied upon the judgment of the Hon'ble Apex Court in case of Chandraswami and ors. v. Central Bureau of Investigation reported in (1996) 6 SCC 751 and pointedly referred to the observations made in paragraph 18 with reference to the nature of offence and Section 437 of Cr.PC and submitted that as observed in that case, Section 437, Clause 1 and 2 are not attracted in case of petitioner also, and therefore, the present application may be allowed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be filed in the first instance before the trial court. Learned Assistant Solicitor General Shri Devang Vyas referred to the background of the facts with details to highlight the modus operandi and how the provisions of the PML Act are attracted with regard to the offence under the PML Act. Learned Assistant Solicitor General Shri Devang Vyas submitted that the FIR by the CBI is a separate issue as it is filed by CBI for the alleged offence under the Prevention of Corruption Act read with the offences under the IPC. Learned Assistant Solicitor General submitted that it is such an act and omission of the Applicant accused with regard to the money laundering, the special statute will be applicable and the authorities are empowered under the provisions of the PML Act 2002 to proceed against the applicant. He pointedly referred to several details and manipulations as alleged, that how the number of accounts with different banks have been operated at the time of demonetization of the currency of higher denomination of ₹ 500/- and ₹ 1000/-. He submitted that there may be some fake names or fake accounts resulting in the alleged offence of forgery etc. which are still u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the provisions of the PML Act and in particular Sections 23 and 24, a presumption has to be made that such money is the proceeds of crime, and therefore, unless the burden is discharged, prima facie case is established, and therefore, looking to the nature and gravity of the economic offence, the present application may not be entertained. Learned Assistant Solicitor General Shri Devang Vyas submitted that Sections 22 and 23 read with Section 24 of the PML Act refers to the presumption or the inference to be drawn, and if the burden is not discharged, prima facie the person is liable and prima facie case is established. Learned Assistant Solicitor General Shri Devang Vyas submitted that the applicant has failed in discharging the burden, and therefore, if the burden is not discharged the presumption may be raised and, once it is permissible to infer presumption that such proceeds are the proceeds of crime, the provisions of Section 65 read with Section 71 of the PML Act would be applicable. He therefore submitted that in view of the specific provisions of Section 71 of the PML Act, it will have an overriding effect. Even the rigors of Section 45 are taken away by the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized that since the severity of the offence and the punishment are considered as one of the relevant criteria for grant of bail under Section 439 of Cr.PC, the present application deserves to be allowed. He again referred to the details and submitted that the presumption cannot be made about the proceeds of crime without sufficient material and, it is a matter of appreciation of evidence at the trial. Learned Senior Counsel Shri S.V.Raju referred to the role attributed to the applicant and submitted that he is said to have filled in the number of forms in light of the demonetization. He submitted that filling of more forms to assist the people by itself is not an offence, and once the matter is remitted back with clarification that the twin conditions of Section 45 of the PML Act would not be applicable, the present application deserves to be allowed. He also submitted that the case of Pradeep Sharma was different i.e. he has not approached initially the Hon'ble Apex Court, and therefore, his case stands on a different footing. He also submitted that if some person have approached the trial court after the order of the Hon'ble Apex Court, it would not justify that the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3, the authority or the court shall presume that such proceeds of crime are involved in money laundering. In other words unless the burden is discharged, the person who is charged with the offence of money laundering, the presumption is required to be made that it is a proceed of crime involved in money laundering. Therefore, it refers to the presumption or inference to be drawn and the burden is on the accused, which is required to be discharged. However, it may have to be considered on the basis of material and evidence at the trial and the Court is obliged to make such presumption if the burden is discharged. In other words, the aspect of presumption and the burden of proof to be discharged by the applicant-accused may come at that stage. Therefore, the provision of Sections 23 and 24 pressed by learned Assistant Solicitor General, Shri Devang Vyas may have to be considered for the purpose of deciding the present application with reference to the provision of Section 439 of the Cr.P.C. and the concept of bail or jail having a reference to the aspect of liberty under Article 21 of the Constitution of India. 19. The Hon ble Apex Court in catena of judicial pronouncements has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y until the day appointed for his appearance. Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice. 7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being shielded from the hazards of being exposed to the misadventures of a person alleged to have committed a crime; and on the other, the fundamental canon of criminal jurisprudence viz. The presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restraint, the more restraint on other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he society, at that stage a detailed examination of material and evidence or the elaborate discussion is not necessary and the court is not required to have any perception that prima facie case is established which would be sufficient to deny the bail. In fact the prima facie case may be considered but the relevant criteria for grant of bail has other facets like prima facie case, the nature of accusation and severity of punishment and also the reasonable apprehension of tampering with the witnesses. Therefore, at that stage, the prima facie satisfaction about the involvement of the Applicant accused may not be a lone criteria as the trial may take some time and therefore having regard to the nature of offence or severity of offence and the reasonable apprehension about tampering with the witnesses of material discretion, is required to be exercised. 24. In the facts of the case therefore, even if it is prima facie assumed about the involvement of the Applicant accused with regard to the alleged offence under the PML Act and there may be further scrutiny of the material by the Respondent agency, the fact remains that most of the material has been seized and collected and the sev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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