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TMI Blog2022 (11) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... L.A.) ENFORCEMENT DIRECTORATE, GOVERNMENT OF INDIA, PATNA [ 2022 (3) TMI 1436 - PATNA HIGH COURT] , the Hon ble Patna High Court has refused to grant anticipatory bail and held that twin conditions have to be considered at the time of grant of anticipatory bail. The Court did not grant anticipatory bail in the light of the gravity of the offence of money laundering, facts of the case which reveals his complicity and the fact that trial could not proceed because of his non-appearance. The prayer for grant of anticipatory bail to the petitioner stands rejected. - CRIMINAL MISCELLANEOUS No.68179 of 2021 - - - Dated:- 13-9-2022 - HONOURABLE MR. JUSTICE SUNIL KUMAR PANWAR Appearance : For the Petitioner/s: Mr. Y.V. Giri, Sr. Adv Mr. Sumit Kumar Jha, Adv Mr. Shadab Akhtar, Adv Mr. Sumit Kumar, Adv Ms. Riya Giri, Adv For the Union of India : Mr. Dr. K.N. Singh, Sr. Adv (A.S.G.I) Mr. Manoj Kumar, C.G.C Mr. Sriram Krishna, JC to ASG ORAL ORDER Heard the parties. 2. The petitioner is apprehending her arrest in connection with Special Case (PMLA) filed under Section 45 of the Prevention of Money Laundering Act, 2002, arising out of ECIR No. PTZO/08/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rchasing of the movable properties in her name. 5. Mr. Y.V. Giri, learned senior advocate appearing on behalf of the petitioner has submitted that petitioner was not associated with the NGO Sewa Sankalp Ewam Vikas Samiti. The petitioner is an old lady aged about 70 years who was retired from the Health Department, Muzaffarpur. The petitioner has been implicated in this case only because she is the mother of the main accused Brajesh Thakur. There is no material available on record against the petitioner to suggest any link that petitioner has committed any of the scheduled offence as provided in the PMLA, 2002, rather the allegation against the petitioner in linking her in omitting the schedule offence are false, baseless, vexatious, vague, lacks substance. 6. Mr. Giri, learned senior advocate further pointed out that mere transfer of money from the account of the NGO in the account of the petitioner does not itself constitute offence under Section 3 or any of the provisions of the PMLA Act, 2002, as to attract the essentials of any of the offences as prescribed under the provisions of PMLA Act, it is essential to be shown that the petitioner was consciously and knowingly invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that the alleged proceeds of crime valued Rs. 91,32,272/- attributed in the complaint against the petitioner is a legitimate property and in no manner relates to any scheduled offence under PMLA Act as the petitioner was a government servant and was working in the Health Department and she retired in the year 2007 after successfully completing her service without any complaint. So far as the immovable property of the petitioner is concerned, the said property has been purchased by the petitioner with the help of her father-in-law way back in the year 1988 and is ancestral property. However, the Authority, while calculating the consideration of the property have calculated the property on the basis of present circle rate, completely overlooking the fact that the property has been purchased in the year 1988. So far as purchase of movable property i.e. vehicles are concerned, it has been purchased by the petitioner from her own earnings and also for purchasing those properties/vehicles, the petitioner had taken loan from the bank. Moreover, the amount alleged against the petitioner regarding proceeds of crime is less than 1,00,00,000/-(rupees one crore), therefore, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gal and unaccounted cash and loans were taken against these FDs and utilized for purchase of vehicles. However, the repayment of loans has been made through cash but no supporting documents regarding cash utilized for creation of these FDs and utilized for repayment of loans have been submitted by the petitioner Manorma Devi which makes it evident that she has deliberately concealed proceeds of crime generated by her son Brajesh Thakur in these investments. 13. From a bare perusal of Section 45 of the Act, it is established that petitioner cannot claim anticipatory bail as above mentioned eventualities depends on the discretion of the learned Special Court and learned Special Court has rightly exercised its discretion and in the facts of the case has rejected the anticipatory bail of the petitioner as money laundering is an economic offence of grave nature and assisted the main accused in laundering proceeds of crime generated from criminal activities relating to scheduled offence. 14. In Shyam Sundar Bajaj versus Union of India represented by Assistant Director (Criminal Miscellaneous No. 64175 of 2019 dated 11.03.2022), the Hon ble Patna High Court has refused to gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (xiii)(a) The reasons which weighed with this Court in Nikesh Tarachand Shah for declaring the twin conditions in Section 45(1) of the 2002 Act, as it stood at the relevant time, as unconstitutional in no way obliterated the provision from the statute book; and it was open to the Parliament to cure the defect noted by this Court so as to revive the same provision in the existing form. (b) We are unable to agree with the observations in Nikesh Tarachand Shah distinguishing the enunciation of the Constitution Bench decision in Kartar Singh and other observations suggestive of doubting the perception of Parliament in regard to the seriousness of the offence of money-laundering, including about it posing serious threat to the sovereignty and integrity of the country. 17. It would be just proper to mention appropriate observation which was observed by this Hon ble Court in the case of Most. Ahilya Devi versus The State of Bihar reported in (2020) 4 BLJ 1. The relevant paragraphs are quoted hereunder:- 3. Subsequent to the Supreme Court s decision, in case of Nikesh Tarachand Shah (supra), certain amendments were made in various provisions of the Act including Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for release of a person accused of an offence under the Act, on bail, if a Public Prosecutor opposes the bail application, namely; the Court is satisfied (i) that there are reasonable grounds for believing that the accused is not guilty of such offence and (ii) that he is not likely to commit any offence while on bail. Whether substitution of the words under this Act in place of the words punishable for a term of imprisonment of more than three years under Part A of the Schedule in Section 45 (1) of the Act, has the impact of meeting with the reasonings and logic incorporated and discussed by the Supreme Court in case of Nikesh Tarachand Shah (supra) for declaring the Clause (ii) of Sub-section (1) of Section 45 of the Act ultra vires and, therefore, Clause (ii) of sub-Section (1) of Section 45 of the Act is in present form should be treated to be valid, despite Supreme Court s decision in case of Nikesh Tarachand Shah (supra) is the central question to be gone into the present application. 18. This Court is of the considered view that petitioner Manorma Devi being mother of main accused Brajesh Thakur has received total amount of Rs. 47,14,458/- in her bank accounts f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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