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TMI Blog2021 (7) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner Bimal Jain, being guilty of offence of money laundering. Whether the complainant and the Investigating Agency cannot be same? - HELD THAT:- Issue decided in the case of MUKESH SINGH VERSUS STATE (NARCOTIC BRANCH OF DELHI) [ 2020 (9) TMI 419 - SUPREME COURT] where it was held that merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. Twin conditions of 45 of the PMLA - HELD THAT:- Admittedly the Hon ble Supreme Court in Nikesh Tarachand Shah (supra) declared the Section 45 of the PMLA as it stood then, as unconstitutional and violative of Articles 14 and 21 of the Constitution of India, but the defects pointed out by the Hon ble Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [ 2017 (11) TMI 1336 - SUPREME COURT] were cured by the Legislature and an amendment to section 45(1) was made vide the Finance Act, 2018 (No.13 of 2018). Under the amendment Act, section 45(1) was revived and for the words punishable for a term of imprisonment of more than three yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegations are the petitioners have forged their medical certificates and Naresh Jain continues the criminal activities while in Jail and the investigation in the case is still going on and a large number of activities/fact accounts/witnesses /employees and beneficiaries are involved - It is also alleged if enlarged on bail there is every likelihood the petitioners may flee to Dubai or elsewhere to avoid the process of law and they are flight risks. Bail cannot be granted to both the petitioners - petition dismissed. - BAIL APPLN. 112/2021 and CRL.M.(BAIL) 81/2021; BAIL APPLN. 122/2021 - - - Dated:- 30-7-2021 - HON'BLE MR. JUSTICE YOGESH KHANNA Petitioner/s Through : Mr. Vikram Chaudhri, Sr. Advocate with Mr. Naveen Malhotra, and Mr. Harshit Sethi, Advocates. Respondent Through : Mr. S.V. Raju, ASG, Mr. Zoheb Hossain, Special Counsel, Mr. Amit Mahajan, CGSC, Ms. Aarushi Singh, Ms. Mallika Hiremath, Mr. Vivek Gurnani, and Mr. Agni Sen, Advocates YOGESH KHANNA, J. (Through Video Conferencing) 1. These petitions are for grant of bail to the applicant Bimal Jain (Bail Application No.112/2021) and Naresh Jain (Bail Application No.122/2021). 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cement Directorate cannot be the complainant and the Investigating Officer at the same time; and c) effect of declaration of twin conditions under Section 45 of the PMLA have been declared unconstitutional and ultra virus in view of decision in Nikesh Tarachand Shah vs. Union of India and Anr. (2018) 11 SCC 1. 7. It is argued by the learned senior counsel for the petitioner Bimal Jain, per Section 19(1) PMLA the Investigating Officer must have the material in his possession; and he has reasons to believe (the reasons for such belief to be recorded in writing); that such person is guilty of offence under the Act; and after arrest of such person under sub section (1), he has to forward the copy of order along with material in his possession to the adjudicating authority in a sealed envelope. The rules qua form and the manner of forwarding the copy of the arrest order of the person along with material to the adjudicating authority were also quoted viz Rule 2, 3, 6, Form III under Rule 6 of the PMLA. 8. It was argued it is obligatory to see if there was sufficient compliance of the provisions of Section 19 of the PMLA and the Rules made thereunder. It was argued the arrest of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case-to-case basis. A contrary decision of this Court in Mohan Lal v. State of Punjab [Mohan Lal v. State of Punjab, (2018) 17 SCC 627 : (2019) 4 SCC (Cri) 215] and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled. 12. The last limb of argument was qua twin conditions of 45 of the PMLA. Admittedly the Hon ble Supreme Court in Nikesh Tarachand Shah (supra) declared the Section 45 of the PMLA as it stood then, as unconstitutional and violative of Articles 14 and 21 of the Constitution of India, but the defects pointed out by the Hon ble Supreme Court in Nikesh Tarachand Shah (supra) were cured by the Legislature and an amendment to section 45(1) was made vide the Finance Act, 2018 (No.13 of 2018). Under the ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upendra Rai vs. Directorate of Enforcement 2019 SCC OnLine Del 9086 has also been stayed by the Hon ble Supreme Court in SLP (Crl) 2598/2020 vide an order dated 03.06.2020. Moreso, contrary view taken by this Court also in Dr. Shivender Mohan Singh vs. Directorate of Enforcement 2020 SCC OnLine Del 766, has also been stayed by the Supreme Court vide its order dated 31.07.2020 in SLP(Crl) No.3474/2020 while stating Until further orders, status quo with respect to release from jail be maintained and impugned Judgment not to be treated as a precedent for any other case. 17. No doubt, the legislature has the power to cure the underlying defect pointed out by a Court, while striking down a provision of law and pass a suitable amendment. In State of Karnataka v. Karnataka Pawn Brokers Association (2018) 6 SCC 363 it was held:- 24. On analysis of the aforesaid judgments it can be said that the Legislature has the power to enact validating laws including the power to amend laws with retrospective effect. However, this can be done to remove causes of invalidity. When such a law is passed, the Legislature basically corrects the errors which have been pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forged/fabricated to incorporate entities, operating bank accounts, facilitating bogus/over-invoiced/ under invoiced import and export transactions and rotation of the funds through web of shell companies to cause undue benefit to the parties involved and loss to the exchequer and banks. Naresh Jain also facilitated parking of funds abroad by Indian nationals through his international Hawala transaction structure created in India and in various other jurisdictions. Naresh Jain conducted international Hawala operation and domestic operation of providing accommodation entries to co-conspirators i.e. the beneficiaries in lieu of his commission. For this purpose, Naresh Jain along with his brother Bimal Kumar Jain and other accomplices, confidants, employees and others established a structure of paper entities (barring a few that were doing real business) by incorporating companies or forming other business entities like firm or individual proprietorship. Investigation so far, has revealed that Naresh Jain incorporated and operated 450 Indian entities and 104 foreign entities. These entities were incorporated by using original identity proofs and documents of dummy shareholders and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es have been issued by the Interpol against Naresh Kumar Jain. The USA Southern District Court of New York vide its Order dated 16.06.2009 upheld the forfeiture of assets worth USD 43,72,653/- of Naresh Jain and his accomplices in a money laundering case. 27. It is alleged Naresh Jain has continued the business of international Hawala and domestic accommodation entries; by keeping himself under veil and adopted measures i.e. kept his offices secret; hired premises for his operations; got rent agreements of rented premises signed by his employees; employees were paid in such a way that they could not be linked with him directly; got SIM cards issued in the name of other persons for himself and his employees and accomplices to conduct business and avoid detection; incorporated entities with dummy shareholders and directors; and his name does not appear anywhere in documents. Even the allegations are the petitioners have forged their medical certificates and Naresh Jain continues the criminal activities while in Jail and the investigation in the case is still going on and a large number of activities/fact accounts/witnesses /employees and beneficiaries are involved. 28. It is al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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