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TMI Blog2021 (8) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... hasis was laid on this during the argument. Medical condition of petitioner - HELD THAT:- Petitioner is suffering from cancer since 2002 which is not denied by the department. The petitioner is under the treatment of one doctor namely Morton Coleman of U.S. and he visits the doctor for his follow up from time to time. It is on record that the petitioner was granted special permission to travel to America by the American Embassy aided by the Ministry of External Affairs and his sister was also allowed to travel with him due to his medical condition. Looking into the medical condition of the petitioner, this Court permitted the petitioner to travel to USA for his medical treatment subject to conditions, despite the registration of the FIR - No doubt, as argued by the Ld. ASG, the condition of the petitioner is not serious and do not require immediate attention and his present condition is manageable, but one also cannot lose sight of the fact that the petitioner is a known case of cancer and is suffering from various diseases for which he is taking medicines as submitted by Ld. Sr. counsel for the petitioner. The petitioner is entitled to be released on bail on merits as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the accused persons and similar modus was adopted in respect of other manufacturers/suppliers. Money was paid through hawala operators and intermediaries. Group companies of coaccused Rajeev Saxena, who is an accused in Augusta Westland Case also, were used for receipt of commission from supplier of fertilizers and other products to IFFCO and IPL. During the commission of crime, sham consultancy agreements and fake invoices for consultancy services were prepared without providing any such services and thus commission was received by group companies of Rajeev Saxena without any genuine transaction and that money was actually illegal commission generated out of import of fertilizers and raw material. 5. It is claimed that the present petitioner/accused acted as intermediary along with other accused for channelizing the ill gotten money through different firms and companies. It is claimed that in this manner, ₹ 685 Crores approximately were received in the bank accounts of the group companies and individual account of Rajeev Saxena and other accused including the present petitioner/accused Amarendra Dhari Singh. It is claimed that the fertilizers were imported fraudulentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner that the main accused of this case namely P.S. Gahlaut and Dr. US Awasthi have filed W.P. (CRL) 1051/2021 and W.P. (CRL) 1052/2021 and in these petitions, those petitioners have raised the issue that they are not public servants under the Prevention of Corruption Act 1988 and the present petitioner has not been arrested in the said FIR. It is further submitted by the Ld. Sr. counsel that if the said petitions are allowed, the present ECIR would seize to exist in the absence of predicate offence and he referred to the order dated 31.05.2021 passed by this Court. It is further submitted by the Ld. Sr. counsel for the petitioner that the arrest of the petitioner is in violation of Section 50 Cr.P.C. and Section 19 PMLA. It is further submitted that the respondent has failed to furnish the ground of arrest to the petitioner till date and they are not even incorporated in the arrest memo handed over to the petitioner at the time of his arrest. It is further submitted that the respondent is under an obligation to inform the arrested person about the grounds of his arrest and in this regard reliance has been placed by the Ld. Sr. counsel on DK Basu Vs. State of West Bengal (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted by the Ld. Sr. counsel that since 2010 the respondent has been conducting enquiry against the petitioner under the provisions of FEMA and the petitioner has duly co-operated in the enquiry and submitted all the documents as required by the respondent. 11. It is further submitted by the Ld. Sr. counsel that the allegations in the said FEMA case which were being investigated are identical to those in the present ECIR and even the investigating officer under the FEMA enquiry is the same as that in the present ECIR. It is further submitted by the Ld. Sr. counsel that since 2019 the petitioner has been duly co-operating in the enquiry conducted by the Income Tax Department where also the nature of allegations are identical with that of the present ECIR. It is further submitted by the Ld. Sr. counsel that the respondent in reply to the bail application has relied upon the statements of the petitioner made U/s 50 of the PMLA. It is further submitted by the Ld. Sr. counsel that the exculpatory and inculpatory nature of the statements made by the petitioner are matter of trial and cannot be gone into at the stage of investigation and the said statements are hit under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... medical treatment between 25.05.2021 to 24.06.2021 and the said special permission was commenced by the petitioner even prior to the registration of the present FIR i.e. since 10.05.201. 14. It is further submitted by the Ld. Sr. counsel for the petitioner that looking into the medical condition of the petitioner which was also considered by the American Embassy, on 01.06.2021 this Court in WP (Crl.) 1035/2021 permitted the petitioner to travel to USA for his medical treatment subject to conditions, despite the registration of the FIR by CBI. It is further submitted by the Ld. Sr. counsel that the petitioner was also permitted to travel abroad for medical treatment by this Court vide order dated 20.01.2020. It is further submitted by him that the petitioner has fully co-operated with the investigation. 15. It is further submitted by the Ld. Sr. counsel for the petitioner that the petitioner is a member of Rajya Sabha from Bihar whose turn expires in the year 2026. It is further submitted by the Ld. Sr. counsel that the petitioner is in the business of fertilizer trading and consultancy and is a tax payee. He further submitted that there is not even an iota of allegation by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... baseless. It is submitted by the Ld. Sr. counsel that these allegations have been made on the basis of Whatsapp messages recovered from the petitioner s phone seized during the search conducted in October 2019 in the FEMA enquiry but it is pertinent to note here that the petitioner became a Member of Parliament in March, 2020. 18. It is further submitted by the Ld. Sr. counsel that the petitioner never helped anybody connected with the case flee the country and the allegations against the petitioner of helping Sushil Kumar Pachisia are false and baseless. It is further submitted that Sushil Kumar Pachisia has been ordinarily residing abroad since 2005-2006 and he was available to the IT department and ED during 2019-2020 and even an LOC was opened by the IT against him and only after the said LOC lapsed only then the said Susheel Kumar went abroad. It is further submitted by the Ld. Sr. counsel that if ED required the presence of Sushil Kumar, it could have opened LOC against him as has been done against the petitioner. It is further submitted that the petitioner has not in any way assisted the said Susheel Kumar in fleeing the country in violation of any rule of law and has on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bail should be granted to the person arrested. 22. On the other hand, it is submitted by the Ld. ASG that the accusation against the petitioner are serious in nature and he is involved in money laundering which is a serious economic offence and in view of the Supreme Court of India, the economic offenders constitute a class apart and be visited with a different approach in the matter of bail. It is further submitted by the Ld. ASG that the petitioner is a sitting Rajya Sabha MP and is a Member of Parliamentary Standing Committee of Fertilizers and the present offence pertains to generation of proceeds of crime while committing the offence in the import of fertilizers. It is further argued by the Ld. ASG that the accused is a powerful and influential person and there is all likelihood of the petitioner tampering with the evidence and the evidence of the witnesses to whom the cash was paid on behalf of the accused is yet to be recorded. It is further submitted that the allegations of malafide are wholly irrelevant to the proceedings of PMLA which is concerned with the stand alone offence of money laundering. It is further submitted by the Ld. ASG that in a case when the informatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er submitted by the Ld. ASG that the medical condition of the petitioner is manageable which is evident from his own pleading as he has traveled abroad for business, leisure and medical treatment over 90 times. It is further submitted by the Ld. ASG that the petitioner has been medically examined by a competent doctor every 48 hours and necessary medical help was provided and he was even taken to RML Hospital on 09.06.2021 for his thorough medical examination and the medical condition of the petitioner was confirmed to be stable by the competent doctors of RML Hospital. 25. Ld. ASG further submitted that in terms of the twin conditions prescribed in Section 45 of the PMLA, this Court could only grant bail to the petitioner after recording a satisfaction to the effect that there are reasonable grounds for believing that the petitioner is not guilty of the alleged offences and that while on bail he is not likely to commit any offence. 26. The Ld. ASG further submitted that though in Nikesh Tarachand Shah vs. Union of India and another (2018) 11 SCC 1 Section 45(1) of the PMLA, as it then stood, had been declared unconstitutional by the Supreme Court but the defect pointed o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on bail or on his own bond 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. 28. The quoted provision imposed two conditions before bail could be granted to a person accused of an offence punishable for a term of imprisonment for more than three years under Part A of the Schedule attached to the PMLA. These conditions were that before grant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... twin conditions prescribed in Section 45(1) stood revived. 31. The declaration by the Supreme Court in Nikesh Tarachand Shah's case (supra) would render the twin conditions prescribed in Section 45(1) of the PMLA for release of an accused on bail to be void in toto; such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under Section 45(1) of the PMLA as are now sought to be pressed into service by the ED cannot be considered to have revived or resurrected only on the prospective substitution of the words punishable for a term of imprisonment of more than three years under Part A of the Schedule with the words under this Act especially without there being any amendment with regard to the twin conditions for grant of bail which had specifically been declared to be unconstitutional as also in the absence of any validating law in this regard with retrospective effect. 32. The Bombay High Court vide order dated 06.06.2018 in Bail Application No. 286 of 2018 Sameer M. Bhu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f amendment, the original sub- Section (ii) of Section 45(1) which imposes the said twin conditions automatically stands revived and the said condition therefore remain on statute book. The original Section 45(1) (ii) has to be inferred and treated as it still exists on the statute book and holds the field even as of today for deciding application for bail by an accused under PMLA. It was further argued that by inserting words under this Act , the Judgment delivered by Supreme Court in Nikesh Shah (supra) has become in effective. The Court held that the Apex Court in Nikesh Shah (supra) has declared Section 45(1) of PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Articles 14 and 21 of Constitution of India. After effecting amendment to Section 45 (1) of PMLA. The words under this Act are added to sub- Section (1) of Section 45 of PMLA. However, the original Section 45(1) (ii) has not been revived or resurrected by Amending Act. Even notification dated 29.03.2018 amending Section 45(1) of PMLA which came into effect from 19.04.2018 is silent about its retrospective applicability. Hence, contention of respondent ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conditions therein will apply in the case of petitioner for grant of bail. 37. While dealing with the bail application it is not in dispute that three factors have to be seen namely i) flight risk, ii) tampering evidence, iii) influencing witnesses. 38. The Hon ble Supreme Court in Niranjan Singh Anr. Vs. Prabhakar Rajaram Kharote and Others (1980) 2 SCC 559 has held that at the stage of granting bail detailed examination of evidence and elaborate documentation of the merits of the case should be avoided, so that no party should have the impression that his case has been prejudiced. In the instant case, the petitioner has been investigated under FEMA and Income Tax prosecution has also been lodged against him in regard to the same allegations. It is not the case of the department that the petitioner has not joined the investigation but what has been averred is that he has given some evasive answers, no details provided. During the course of the arguments, it was submitted by the Ld. Sr. counsel for the petitioner that the prince of the department s case is one Rajiv Saxena who has made statements against the petitioner. The Ld. Sr. counsel for the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed a class apart and needed to be visited with a different approach and reliance was placed on the judgments of Hon ble Supreme Court in State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364; Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12 SCC 129; Sunil Dahiya v. State (Govt. of NCT of Delhi) 2016 SCC OnLine Del 5566; Bhupinder Singh v. Unitech Ltd. Civil Appeal No. 10856/2016 order dated 18.03.2021 and also in Rohit Tandon v. Directorate of Enforcement (2018) 11 SCC 46. However, in this regard, reference may be made to the judgment of the Hon ble Supreme Court in P. Chidambaram v. Directorate of Enforcement (2020) 13 SCC 791 wherein it was observed as under: 23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration of the FIR by the CBI. Therefore, when such is the conduct of the petitioner, he cannot be said to be a flight risk. Moreover, nothing has been placed on record that the petitioner/accused is a flight risk nor much emphasis was laid on this during the argument. 42. Now as far as the medical condition of the petitioner is concerned, he is suffering from cancer since 2002 which is not denied by the department. The petitioner is under the treatment of one doctor namely Morton Coleman of U.S. and he visits the doctor for his follow up from time to time. It is on record that the petitioner was granted special permission to travel to America by the American Embassy aided by the Ministry of External Affairs and his sister was also allowed to travel with him due to his medical condition. Looking into the medical condition of the petitioner, this Court permitted the petitioner to travel to USA for his medical treatment subject to conditions, despite the registration of the FIR. The medical report in regard to the petitioner s health was also called form RML hospital and vide its report dated 19.07.2021, it has been stated that his medical records were reviewed by the medica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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