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TMI Blog2022 (3) TMI 1057X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [ 2017 (11) TMI 1336 - SUPREME COURT] the Hon'ble Supreme Court, after holding that the prescribed twin conditions for release on bail were violative of Articles 14 and 21 of the Constitution, declared Section 45(1) of the PML Act, as unconstitutional, to that extent. It is well settled principle of law that when the investigation is complete and the charge-sheet is filed in the Court, conclusion of the trial is likely to take a long time, a person/accused like the petitioner, who is aged about 53 years, can be released on bail, subject to his furnishing bail/surety bonds and with a condition that his passport shall remain deposited with the Court/Prosecuting Agency and he will not leave the country without seeking prior permission of the Court - After considering the entire matter and in particular that investigation is the case is complete and a complaint has already been filed by the E.D.; the petitioner has been in custody since 26.07.2021 and that the properties of the petitioner have already been attached, this Court is of the opinion that the present petition deserves to be allowed. Ordered accordingly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration, M/s Subhash Singh company, M/s Unique Traders, M/s Quality Lime Product, M/s U.R.Sales Pvt. Ltd, M/s U.R.Enterprises and M/s M.K.Trasders, in his name and in the name of his family members, availed 19 loans from Bank of Baroda, G.T. Road, Phagwara and defaulted in repayment of these loans amounting to ₹ 21.31 crore. It is further alleged that with the proceeds of crime, the accused purchased the following properties:- i. Property measuring 4 kanals vide vasika no. 1170 dated 24.06.2021 at village Narangshahpur, Tehsil Phagwara, in the name of Smt. Veena Handa for ₹ 18,50,000/-, out of which Rs..1,00,000/- was paid in cash and the remaining amount of ₹ 17,50,000/- was paid from the account of M/s B.L.Seth Steel Ltd. ii. A loan of ₹ 30,00,000/- was obtained by the accused in his name from ICICI Home Loan against property bearing H. No. 524-B, Adarsh Nagar, Phagwara, and the payments to repay this loan was made by utilizing the loan availed from BOB, Phagwara. An another loan amounting to ₹ 6,00,000/- was obtained from ICICI Top Up loan and this loan was also repaid by utilizing the loan availed from BOB, Phagwara. 4. It is furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation, has arrested the accused in the present case for committing the offence punishable under Sections 3 and 4 of PMLA, 2002. Learned counsel for the petitioner have submitted that on 30.03.2021, the petitioner had tested Covid positive, due to which, he could not appear before the respondent-ED; that the present case is based on assumptions and presumptions; that the properties of the petitioner were attached by the the respondent-ED, and the said action is under challenge by the petitioner before the Adjudicating Authority, New Delhi; that the petitioner was arrested on 26.07.2021 on the pretext of not cooperating with the Enforcement Directorate and that he did not make himself available for investigation. It is further submitted that the petitioner had made himself available to the agency as and when called upon to do so and got his statement recorded nearly 4-5 times from 2019. It is also contended that the petitioner had already entered a compromise with the Bank and had paid an amount of ₹ 2.5 crore to the Bank and in proportion to the amount, the Bank has vacated the charge on the respective properties and also issued NOCs regarding it. Still further, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 accused is not guilty of such offence and that he is not likely to commit any offence while on bail. It is further submitted that limitation of granting bail as specified in sub-Section (i) is in addition to the limitation provided under Cr.P.C. It is further contended that the petitioner does not qualify the twin test laid down under Section 45 of PML Act, as there is every possibility that he may leave the country, if granted the concession of bail. Learned counsel for the complainant, while referring the judgment of the Hon'ble Apex Court in P. Chidambaram Vs. Directorate of Enforcement, (2019)9 SCC 68, contends that grant of bail in the economic offence will hamper the probe and the crime committed by the petitioner shaking the economic fabric of the society, the petitioner is not entitled to the grant of bail. I have heard the learned counsel for the parties. Section 45(1) of the PML Act, as enacted by the Parliament in the year 2002, would read as under:- Section 45. Offences to be cog ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court, would read as under:- 45. Regard being had to the above, we declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions 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. As per the learned Additional Solicitor General, after such decision, the defect on the basis of which the Supreme Court had declared Section 45(1) of the PML Act to be unconstitutional, was cured and consequently the twin conditions prescribed in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itions: (i). The petitioner shall furnish personal and surety bonds, in the sum of Rs.Two Lakh, with one or two solvent local sureties in the like amount, before, and, to the satisfaction of the learned trial Court/Duty Magistrate. (ii). Till the petitioner complies with the process of furnishing sureties, the applicant is directed to be released on furnishing cash bail of Rs.Two Lakh, and, the petitioner shall comply with the formalities of furnishing sureties within a period of six weeks from his actual release from jail. (iii) The petitioner shall submit his residential address along with proof of his staying there to the respondent, and, in the event of change of address, shall update the same before, and, to the satisfaction of the learned trial Court concerned. (iv) The petitioner shall surrender his passport with the investigating agency, if not already surrendered, before, the learned trial Court concerned. (v) The petitioner shall remain present before the Special Court concerned, on the fixed dates without fail unless and until prevented for medical reasons. (vi) The petitioner shall not leave the jurisdiction of this High Court without obtaining the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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