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TMI Blog2023 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [ 2017 (11) TMI 1336 - SUPREME COURT ] will prevail - Thus in the considered view of the Court the twin conditions in section 45(1) of the 2002 Act after amendment stands revived until any decision comes in the matter by the Hon ble Apex Court. Now, coming to case in hand, admittedly, the disproportionate asset assessed by the Enforcement Directorate is/are to the tune of Rs.82,10,661/- which is less than one crore. Further, the petitioner Ramadhar Ram ( Cr. Misc. No. 24534 of 2022) is 67 years old man, sick and infirm and has suffered brain hemorrhage and was operated in Paras HMRI Hospital, Patna (Annexures-6 Series of the petition), the cases having been registered against him, he will be ultimately facing the music, this Court is inclined to grant him privilege of anticipatory bail with conditions - The petitioner herein is son of Ramadhar Ram and as stated above, the amount under question is less than one crore. Further, according to the case of the petitioner, he is suffering from epilepsy (Epileptic Seizure) since 2000 and has been treated by different Neurologist/ Neuro Surgeon in Ranchi (Jharkhand) as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence punishable under Section 13 (2) read with Section 13 (1) (e) of Prevention of Corruption Act, 1988 (henceforth for short the PC Act ); (ii) subsequently, charge sheet bearing No. 28/17 dated 04.10.2017 was filed in that case against Ram Adhar Ram, Anita Devi and Bikash Kumar for the offence under Section 13 (2) read with the Section 13 (1)(e) of the P.C. Act and Section 109/ 120 (B) of the IPC, 1860 by the Economic Offence Unit, Bihar, Patna before the Hon'ble Special Judge, Vigilance, North Bihar, Muzaffarpur; (iii) the said Section 13 (2) read with Section 13 (1) (e) of the P.C. Act , and Section 120 (B) of IPC are covered as Scheduled Offence under Para 1 and Para 8 in Part 'A' of the 2002 Act (as amended) and scrutiny of the said FIR/ Charge Sheet revealed that Ram Adhar Ram has acquired huge property in his name and in the names of his family members during the check period from 12.07.1979 to 19.06.2013; (iv) further allegation is/are that Ram Adhar Ram had joined in P.H.E.D., Motihari on 12.07.1979 as Junior Engineer and posted at different places in Bihar and acquired huge property through the corrupt practices; (v) during his service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his grand father and then to his father and uncle and finally to him (1.78 acres) on which Sisam, Sagwan, Litchi, Juice fruit and Simar trees were planted; (iv) as per the report of the Circle Officer, Chiraiya, East Champaran, he earned Rs.3,27,000/- per annum from the sale of goods, fruits, agricultural produce which between 1998 to 2019 will come to more than Rs.50 lacs; (v) further, son, Bikash Kumar was running a proprietorship firm in the name of Shree Shiv Traders since 2012-13 and Vabhav Accessories since 2018; (vi) the opposite parties wrongly calculated the confiscation amount worth Rs.82,10,661; (v) the value of ancestor land is worth Rs.24,92,000/- but again has been wrongly added by the opposite parties; 5. Learned counsel for the petitioners submit that Ramadhar Ram preferred Transfer Petition No.279 of 2019 before the Hon ble Apex Court which was heard on 10-05-2019 and the further proceedings of Economic Offence Police Station Case No.22 of 2013 (Special Case No.18 of 2013) pending in the court of learned Special Judge, Vigilance (North Bihar), Muzaffarpur has been stayed (Annexure-3 to the petition). 6. Further, an appeal was also filed again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to the Supreme Court s decision, in case of Nikesh Tarachand Shah (supra) , certain amendments were made in various provisions of the Act including Section 45(1) of the Act. The amending provision, which is relevant for the issue which has arisen in the present matter, reads thus : - 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 shall be substituted. 4. Evincibly, consequent upon the aforesaid amendment through Finance Act, 2018, Section 45 of the Act, as it now stands, reads thus : - Section 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 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia. The Court observed that before application of such provision, one must be doubly sure that it furthers a compelling State interest in tackling serious crimes. Absent any such compelling State s interest, indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. The provisions akin to Section 45 have been upheld on the ground that there was compelling State interest in tackling crimes of an extremely heinous nature, Supreme Court noted. For the benefit of quick reference, paragraph 46 of the decision in case of Nikesh Tarachand Shah (supra) is being reproduced hereinbelow : - 46. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime. Absent any such compelling State interest, the indiscriminate application of the provisions of Section 45 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 criminal cases and in course of investigation carried out against him in respect of commission of offence under the Act, it emerged that he had purchased properties in the name of the petitioner and her deceased husband to the tune of Rs. 5,66,000/-. Further, a sum of Rs. 6,95,000/- has been allegedly deposited in the savings bank account of the petitioner by the said accused Ashok Kumar Yadav. In addition, a sum of Rs.2,99,500/- is lying in the account of the deceased husband of the petitioner. 29. Considering the nature of allegation, in my opinion, a case of grant of anticipatory bail is made out. 30. This application is allowed. 10. Learned counsel for the petitioners submit that in view of the fact that petitioner Ram Adhar Ram is an old man, infirm and as per the documents that have been attached, he is ill, he deserves reliefs. 11. Further, in case of Bikash Kumar also, he is sick and have brought on record the documents to support his case, both the petitioners are ready to abide by all the terms and conditions, if granted relief and as such the petitioners be allowed. 12. Per contra, Mr. Manoj Kumar Singh, learned counsel for the Enforcement Direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o Rs.25,29,000/- in his various savings accounts, Rs. 12,85,900/- in the saving accounts of his wife, Anita Devi and Rs.36,37,500/- into the saving accounts of his son, Bikash Kumar. 17. Further, 4 (Four) bank accounts were opened in the name of Ramadhar Ram, Anita Devi and Pinki Kumari with the fruits of proceeds of crime, the available bank balance into the new accounts are also liable for attachment. The cash deposits are not in commensurate with their illicit source of income and these deposits have subsequently been used for acquisition of immovable and movable properties. 18. Ramadhar Ram made huge investments in landed properties in his name and in the name of his wife, son and his daughter-in-law and constructed two houses, one in his name and the other in his son's name. The acquisition of said properties are not commensurate with his justifiable salaried income. He stated to have incurred Rs.8-9 lakhs on the house constructed in his name but did not disclosed about having invested Rs. 13 lakhs in the construction of the house in the name of his son, Bikash Kumar which came to notice while recording the statement of Bikash Kumar under section 50 of PMLA, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2021 in which it has been held as follows: QUESTION REFERRED :- Whether the twin conditions in section 45(1) of the 2002 Act, which was declared unconstitutional by the judgment of the Apex Court in Nikesh T. Shah Vs. Union of India (2018) 11 SCC 1, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018? In turn, we are called upon to answer the above referred question. 06. We have exhaustively heard learned Senior Counsel Mr.Sunil Manohar for the applicant-accused and learned Additional Solicitor General of India (ASGI) Mr. (7) criaba1149.21 Anil Singh on behalf of the ED. Both of them made elaborate submissions on the issue involved in context with the relevant provisions in different enactments like, The Terrorist and Disruptive Activities (Prevention) Act, 1987, Narcotic Drugs and Psychotropic Substances Act, 1985, The Maharashtra Control of Organised Crime Act, 1999, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 etc. Besides that both of them placed reliance on various reported judgments, which we prefer to deal contextually. We may hasten to add that submissions were made as if we are deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Yogesh Narayanrao Deshmukh (supra). In said case, the learned Single Judge took note of earlier two decisions of this Court in cases of Sameer Bhujbal (supra) and Deepak Virendra Kochar Vs. Directorate of Enforcement (Cri.B.A. No.1322/2020 Bombay High Court). It is expressed that, in Nikesh Shah's case the Hon'ble Apex Court has struck down Section 45 of the PML Act, as a whole having found it arbitrary and violative of Article 14 and 21 of the Constitution of India and not just applicability of twin conditions to scheduled offences and, therefore expressed its agreement with the view taken in earlier decisions in the cases of Sameer Bhujbal (supra) and Deepak Kochhar (supra) along with decision of Delhi High Court in Upendra Rai's case. In short, taking a note of the Supreme Court's decision in case of Nikesh Shah coupled with the views expressed by this Court in earlier two decisions, same view has been reiterated. In the said decision, we are unable to find much deliberation on the point as to what was the effect of subsequent amendment. 14. In the decision of Delhi High Court in case of Upendra Rai (supra) while dealing with the issue, Delhi High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in favour of constitutionality the review petition was rejected. Further held, 26. Learned ASGI took us through preamble of the PML Act which inter alia provides that it is an enactment to prevent money laundering and to provide confiscation of property derived from or involved in money laundering and or matters connected there with or incidental thereto. It is submitted that the offence of money laundering poses serious threat to the financial system of the country. Learned ASGI Mr. Anil Singh has submitted that already the Supreme Court has upheld the validity of twin conditions, namely, section 45(1) in its earlier decision in the case of Gautam Kundu Vs. Directorate of Enforcement (2015) 15 SCC 1 later on approved by the Supreme Court in another decision in case of Rohit Tandon Vs. Director of Enforcement (2018) 11 SCC 46. His line of argument is that in case of Nikesh Shah (supra) per se applicability of the twin conditions to the PML Act has not been struck down but considering the defects about its applicability depending upon predicated offence twin conditions are held unconstitutional, which now stood rectified. 38. It is a settled law that a statute must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be, of course, by appropriate proceeding in proper way. The Supreme Court in the case of A.C. Estates Vs. Serajuddin Co. (1973) 2 SCC 324 has observed that when the question of ultra vires is wholly foreign to the scope and jurisdiction of initial authority, then it will not be open to the High Court to go into those questions in proceeding arising out of said initial proceeding. 43. We may note that there is no proper challenge to the constitutional validity of the Amending Act. Neither there are grounds of challenge nor pleadings to that effect, since obviously the reference was made while dealing bail application. The Supreme Court in reported case of New Delhi Municipal Committee Vs. State of Punjab, AIR 1997 SC 2847 has observed that courts should, particularly in constitutional matters, refrain from expressing opinions on points not raised or not fully and effectively argued by counsel on either side. Learned Sr. Counsel Mr.Sunil Manohar raised several grounds by reading judgment of Nikesh Shah (supra) to state that all the deficiencies, which are pointed, have not been met. In our view, this submission has come up without proper challenge and pleadings, at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act would be attracted while dealing with bail application. 46. It is argued that the Amendment Act has not reintroduced twin conditions in Section 45 of the Act. In this regard, we may take a note of the decision of the Supreme Court in the case of Shamrao V. Parulekar Vs. The District Magistrate, Thana, Bombay 1952 SCR 683, of which para 7 reads as below :- The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. x x x xxx x The above observations are useful to decide the objection about requirement of reintroduction of twin conditions. 47. The Amending Act has changed the entire complexion. Notably section 45 of the Act has not been repelled from the statute book. Therefore, in our view, the section as it stood after amendment has to be read as it stands. We do not fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be said that until and unless the entire section gets amended, the decision in Nikesh Tarachand Shah (supra) will prevail. The Bombay High Court also took note of the decision cited by the learned counsel for the petitioners in Most. Ahilya Devi vs. The State of Bihar (supra) while passing the order aforesaid. 27. Thus in the considered view of the Court the twin conditions in section 45(1) of the 2002 Act after amendment stands revived until any decision comes in the matter by the Hon ble Apex Court. 28. Now, coming to case in hand, admittedly, the disproportionate asset assessed by the Enforcement Directorate is/are to the tune of Rs.82,10,661/- which is less than one crore. 29. The amended Section 45 of the PMLA, 2002 read as follows: 45. Offences to be cognizable and nonbailable. ( 1) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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