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TMI Blog2021 (10) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 24-9-2021 - Justice B. P. Routray For the Petitioner : Mr. A. Mishra, Advocate For the Opp. Parties : Mr. G. Agarwa, counsel for Union of India (E.D.) ORDER 1. Present application has been filed under Section 439 Cr.P.C. praying to release the Petitioner on bail in connection with Crl. Misc. (PMLA) Case No.34 of 2016 pending in the Court of learned Sessions Judge-cum-Special Judge, Bhubaneswar. 2. The facts of the case reveal that, initially Kharavela Nagar P.S. Case No.44 of 2013 and 45 of 2013 were registered against Arthatatwa Group of Companies and Others. Subsequently, Central Bureau of Investigation (CBI) took up investigation of the said cases along with other cases in pursuance to the directions issued by the Supreme Court of India. As such, SPE Case No.42 of 2014 (arising out of Kolkata CBI/SCB/RC/ No.47/S/2014-Kol. dated 5th June, 2014) has been registered alleging commission of offences under Section 120-B/294/341/406/409/420/467/ 468/471/ 506/34 of the Indian Penal Code and Sections 3/4/5 of the Pries Cheat and Money Circulation Scheme (Banning) Act, 1976. Keeping in view the nature of allegations and as materials surfaced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 Companies among which Arthatatw Infra India Ltd. Is one of them where the Petitioner was working as a Director. The Petitioner has active role in siphoning public money and in close association with the principal accused he utilized the funds collected from general public to the tune of ₹ 5.52 crores (as per market value). It is also submitted that there being materials against the Petitioner for commission of offence of money laundering in respect of scheduled offences under para-1 of Schedule-I of PML Act and the proceeds of crime being utilized in his personal benefits, the Petitioner should not be released on bail 6. At the outset in view of dispute relating to period of custody of the Petitioner, this Court called for copy of the order sheet from the Special Judge. It reveals from the said order sheet that the case was registered on 29th August, 2016 on the complaint lodged by the Assistant Director of Enforcement Directorate, Bhubaneswar, Odisha. The Petitioner Sri Krushna Padhi has been produced before the Special Judge on 16th October, 2017 on the strength of production warrant issued by the said Court. Thus, in negating the contentions of both parties, the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21. (emphasis supplied) 13. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ( NDPS ) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) {1999) 9 SCC 252}, Babba alias Shankar Raghuman Rohida v.State of Maharashtra {(2005) 11 SCC 569} and Umarmia alias Mamumia v. State of Gujarat {(2017) 2 SCC 731} enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 14. We may also refer to the orders enlarging similarly situated accused under the UAPA passed by this Court in Angela Harish Sontakke v. State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond the statutory mandate of a prima facie assessment under Section 43D(5), but it was premature and possibly would have prejudiced the trial itself. It was in these circumstances that this Court intervened and cancelled the bail. 18. It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA perse does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. 19. Adverting to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. 11. In the case of Gouttam Kundu (supra) the offence was concerning PMLA Act whereas in the case of K.A. Najeeb (supra) as relied by the Petitioner, the facts are concerning cancellation of bail in the offences involving Unlawful Activities (Prevention) Act. A similar view to that of the case of Gouttam Kundu has been reiterated in the case of Rohit Tandon v. Directorate of Enforcement, (2018) 11 SCC 46. 12. The instant case is concerning offences under the PMLA Act. So keeping in view the restrictions contained in Section 45 o ..... 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