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TMI Blog2022 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties before this Court for reconsideration of Criminal Original Petitions to be decided in accordance with law. 3. Pursuant to the order passed by the Apex Court, the learned counsel on either side made their submissions in the bail petitions. 4. It is not in dispute that the petitioners were arrested by the respondent for the alleged offence under Section 3 of the Prevention of Money Laundering Act (hereinafter referred to as "PMLA") and punishable under Section 4 of PMLA. The petitioners filed petitions in Crl.O.P.Nos.673, 675 and 677 of 2021 seeking for bail. The said petitions were dismissed on 02.02.2021 on the ground that investigation was pending. The Economic Offences Wing of Tamil Nadu Police had registered a case in Crime No.6 of 2016 on 02.06.2016, for the alleged commission of offences under Sections 406, 420, 120B of IPC read with Section 5 of the Tamil Nadu Protection of Interest of Depositors (in Financial Establishment) Act, 1997 (TNPID Act) and they were granted Anticipatory Bail and subsequently, the Anticipatory Bail granted to them came to be cancelled and during their incarceration, the Committee of Administrator appointed by the Hon'ble First Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e offences listed in Part A and Part B of the Schedule to the aforesaid Act into Part A of that Schedule instead of keeping them in two Parts so that the provision of monetary threshold does not apply to the offences." 30. By the Finance Act of 2015, by Section 145, the limit of Rs.30 lakhs in Section 2(y) was raised to Rs.1 crore and in the Schedule after Part A, Part B was populated with only one entry, namely Section 132 of the Customs Act. Certain other amendments were made, by the Finance Act of 2016, to the 2002 Act with which we are not directly concerned. 31. The statutory history of Section 45, read with the Schedule, would, thus show that in its original avatar, as Clause 44 of the 1999 Bill, the Section dealt only with offences under the Act itself. Section 44 of the 2002 Act makes it clear that an offence punishable under Section 4 of the said Act must be tried with the connected scheduled offence from which money laundering has taken place. The statutory scheme, as originally enacted, with Section 45 in its present avatar, would, therefore, lead to the same offenders in different cases having different results qua bail depending on whether Section 45 does or does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e than three years under Part A of the Schedule. In this illustration, the Special Court/High Court would enlarge Mr. X on bail only if the conditions specified in Section 45(1) are satisfied and not otherwise. In the fourth illustration, Section 45 would apply in a joint trial of offences under the Act and under Part A of the Schedule because the only thing that is to be seen for the purpose of granting bail, under this Section, is the alleged occurrence of a Part A scheduled offence, which has imprisonment for over three years. The likelihood of Mr. X being enlarged on bail in the first three illustrations is far greater than in the fourth illustration, dependant only upon the circumstance that Mr. X is being prosecuted for a Schedule A offence which has imprisonment for over 3 years, a circumstance which has no nexus with the grant of bail for the offence of money laundering. The mere circumstance that the offence of money laundering is being tried with the Schedule A offence without more cannot naturally lead to the grant or denial of bail (by applying Section 45(1)) for the offence of money laundering and the predicate offence. .............. 53. The matter came to this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed in Section 45(1) stood revived. 19. 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 13 of 19 "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. .............." (iii) 2021 SCC Online Del 3901 [Amarendra Dhari Singh vs Directorate Of Enforcement ], wherein the Divisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Special Public Prosecutor appearing for the respondent, has relied upon the following judgments:- (i) 2017(1) SCC 283 [ Cheviti Venkanna Yadav vs State Of Telangana ] wherein the Hon'ble Supreme Court held as follows:- 27. In State of Himachal Pradesh v. Narain Singh (2009) 13 SCC 165 while dealing with the validation of statute the Court ruled that:- "It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation." 28. To arrive at the said conclusion, the two-Judge Bench reproduced from the decision in Constitution Bench in State of T.N. v. Arooran Sugars Ltd (1997) 1 SCC 326 which is to the following effect:- "It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A court's directive must always bind unless the conditions on wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to Provided that a person, who, is under the age of sixteen there are reasonable grounds for years, or is a woman oris sick or infirm, may be released on bail, if the Special Court so directs: Section 45 - Post Nikesh Tarachand Shah Section 45. Offence to be cognizable and non-bailable. bailable. (2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an 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 there are reasonable grounds for years, or is a woman or is sick or infirm, or is a woman or is sick or infirm, or is accused either on his own or along with other co-accused of money ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he category A deals with both police cases and complaint cases. The trial courts and the High Courts will keep in mind the aforesaid guidelines while considering bail applications. The caveat which has been put by learned ASG is that where the accused have not cooperate din the investigation nor appeared before the Investigating officers, nor answered summons when the courts feels that judicial custody of the accused is necessary for the completion of the trial, where further investigation including a possible recovery is needed, the aforesaid approach cannot give them benefit, something we agree with. (iv) The order of the Hon'ble Supreme Court made in Miscellaneous Application No.1849 of 2021 in S.L.P. No.5191 of 2021 [Satender Kumar Antil v. Central Bureau Of Investigation ] wherein the Hon'ble Supreme Court held as follows "Learned senior counsels for parties state that they will endeavour to work out some of the fine tuning which is required to give meaning to the intent of our order dated 07.10.2021 We make it clear that our intent was to ease the process of bail and not to restrict it. The order, in no way, imposes any additional fetters but is in furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant of bail to the petitioner, adverted to the provision of Section 45 of PMLA,2002 and the amendment brought in with effect from 19.4.2018 vide GSR 383 (E) in exercise of powers conferred under Section 207 of the Finance Act, 2018 (13 of 2018) which provisions are reproduced for profitable understanding as under- "S.45. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless-- (i) the Public Prosecutor has been given an 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 cogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 years under part A of the Schedule", the words "under this Act" were substituted in section 45(1) of the PMLA. 13. The Supreme Court in P. Chidambaram vs E.D. (2019) 9 SCC 24 has taken judicial note of such amendment:- 38. The twin conditions under Section 45(1) for the offences classified thereunder in Part A of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah v. Union of India (2018)11 SCC 1 . Insofar as the twin conditions for release of the accused on bail under Section 45 of the Act are concerned, the Supreme Court held (at SCC p. 15. para 3) the same to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. Subsequently, Section 45 has been amended by Amendment Act 13 of 2018. The words "imprisonment for a term of imprisonment of more than three years under Part A of the Schedule" has been substituted with "accused of an offence under this Act...". 14. Further, in Mohd. Arif vs. Govt. of India, 2020 SCC OnLine Ori 544, the Orissa High Court has held as under:- " 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y loss to the tune of Rs.1137 crores to the investors. 8. With regard to the investment mobilized from the public, the SEBI, by its interim order dated 20.08.2015 and final order dated 30.03.2016, directed the Company and its Directors to wind up the investment schemes and refund the money due to the investors. However, the Directors had failed to refund the money to the investors. Based on the reference from the SEBI and the complaints received from the investors/public, the Economic Offences Wing of the Tamil Nadu Police registered a case in Crime No.6 of 2016, dated 02.06.2016, for the offences under Sections 406, 420, 120B of IPC read with Section 5 of the TNPID Act. The Economic Offences Wing had registered a case in ECIR No.ECIR/MDSZO/04/2018 on 09.07.2018. The respondent issued an order of arrest on 09.12.2020 under section 19(1) of PMLA and remanded to judicial custody. 9. In the appeal filed against the order granting bail to the petitioners, the Hon'ble Supreme Court in S.L.P. (Crl.)Nos. 7563-7565 of 2021, by order dated 22.11.2021, observed that the High Court has not dealt with the issue with regard to the statutory bar for grant of bail in offences concerning Pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the words "punishable for a term of imprisonment of more than three years under part A of the Schedule", the words "under this Act" were substituted in section 45(1) of the PMLA. 16. 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. When such a law is passed, the legislature basically corrects the errors which have been pointed out in a judicial pronouncement. Resultantly, it amends the law, by removing the mistakes committed in the earlier legislation, the effect of which is to remove the basis and foundation of the judgment. Therefore, merely because the entire section is not re-enacted would be of no consequence, since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable. Therefore, once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision. Therefore, there is a presumption in favour of constitutionality since the amended section 45(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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