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TMI Blog2025 (2) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... uch offence and that he is not liable to commit any offence while on bail. As well settled, these two conditions are mandatory in nature and they need to be complied with before the accused person is released on bail. It is further required to be noted that Section 65 of PMLA requires that the provisions of Cr.P.C. shall apply insofar as they are not inconsistent with the provisions of the PMLA and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Hence the conditions enumerated in Section 45 will have to be complied with even in respect of application for bail made under Section 439 of Cr.P.C. So far as facts of the present case are concerned, the High Court in a very casual and cavalier manner, without considering the rigours of Section 45 granted bail to the respondent on absolutely extraneous and irrelevant considerations. There is no finding whatsoever recorded in the impugned order that there were reasonable grounds for believing that the respondent was not guilty of the alleged offence under the Act and that he was not likely to commit any off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be satisfied of the accused's non-guilt and low likelihood of reoffending. The High Court's failure to adhere to these conditions rendered its bail order unsustainable. ii) Statements recorded under Section 50 of the PMLA are admissible, and Article 20(3) does not apply to investigative processes under this section.
Appeal allowed by way of remand. X X X X Extracts X X X X X X X X Extracts X X X X ..... work of the school owned by his trust. It was also found that the respondent-accused had handled the said proceeds of crime and transferred it by using hawala network for acquisition of the resort at Manali. It was also alleged that the entire work of family-owned LLP's and of Maa Sharda Devi Buildings and Construction, was handled by the respondent to route the proceeds of crime generated by his father to portray it as untainted money. The respondent thus had allegedly layered and laundered the proceeds of crime generated by his father, being a syndicate member involved in illegal sale of sand using hawala network. The respondent also had allegedly concealed the proceeds of crime by way of purchasing properties, carrying out renovation work and constructions in the familyowned trust property using the said proceeds of crime. 6. The appellant-ED therefore filed Prosecution Complaint against the respondent and other accused on 10.11.2023 for the offences under Section 3 read with Section 4 of the PMLA. The specific role of the respondent-accused has been mentioned in paragraph 11.6 of the said Prosecution Complaint. The concerned PMLA Court had taken cognizance of the alleged offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut also to its integrity and sovereignty. The offence of money laundering is a very serious offence which is committed by an individual with a deliberate desire and the motive to enhance his gains, disregarding the interest of the nation and the society as a whole, and such offence by no stretch of imagination can be regarded as an offence of trivial nature. The stringent provisions have been made in the Act to combat the menace of money laundering. 11. Since, the entire controversy revolves around Section 45 of the PMLA, it would be beneficial to reproduce the said provision: - "Section 45 - Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), - (a) every offence punishable under this Act shall be cognizable; (b) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the PMLA and Section 71 provides that the provisions of PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Hence the conditions enumerated in Section 45 will have to be complied with even in respect of application for bail made under Section 439 of Cr.P.C. Further, Section 24 provides that in case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money-laundering. Therefore, the burden to proof that proceeds of crime are not involved in money laundering would lie on the person charged with the offence. 14. The aforesaid position of law has been reiterated time and again in catena of judgments by this Court. To cite a few judgments are in case of Gautam Kundu Vs. Directorate of Enforcement (2015) 16 SCC 1, Rohit Tandon Vs. Directorate of Enforcement (2018) 11 SCC 46, Tarun Kumar Vs. Assistant Director Directorate of Enforcement (2023) SCC OnLine 1486, etc. 15. In case of Vijay Madanlal (supra), whereby the various provisions of the Act including Section 45 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew of the above, there remains no shadow of doubt that the consideration of the two conditions mentioned in Section 45 is mandatory, and that while considering the bail application, the said rigours of Section 45 have to be reckoned by the court to uphold the objectives of the PMLA. 17. So far as facts of the present case are concerned, the High Court in a very casual and cavalier manner, without considering the rigours of Section 45 granted bail to the respondent on absolutely extraneous and irrelevant considerations. There is no finding whatsoever recorded in the impugned order that there were reasonable grounds for believing that the respondent was not guilty of the alleged offence under the Act and that he was not likely to commit any offence while on bail. Noncompliance of the mandatory requirement of Section 45 has, on the face of it, made the impugned order unsustainable and untenable in the eye of law. 18. Though it was sought to be submitted by learned senior Advocate Mr. Ranjit Kumar for the respondent that the appellant had relied upon the statements of the respondent recorded under Section 50 of the Act which were inadmissible in evidence, the said submission cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of crime; and such process or activity in a given fact situation may be a continuing offence, irrespective of the date and time of commission of the scheduled offence. In other words, the criminal activity may have been committed before the same had been notified as scheduled offence for the purpose of the 2002 Act, but if a person has indulged in or continues to indulge directly or indirectly in dealing with proceeds of crime, derived or obtained from such criminal activity even after it has been notified as scheduled offence, may be liable to be prosecuted for offence of money laundering under the 2002 Act - for continuing to possess or conceal the proceeds of crime (fully or in part) or retaining possession thereof or uses it in trenches until fully exhausted. The offence of money laundering is not dependent on or linked to the date on which the scheduled offence, or if we may say so, the predicate offence has been committed. The relevant date is the date on which the person indulges in the process or activity connected with such proceeds of crime. These ingredients are intrinsic in the original provision (Section 3, as amended until 2013 and were in force till 31-7-2019); and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an aggravated form of crime world over and the offenders involved in the activity connected with the Proceeds of Crime are treated as a separate class from ordinary criminals. Any casual or cursory approach by the Courts while considering the bail application of the offender involved in the offence of money laundering and granting him bail by passing cryptic orders without considering the seriousness of the crime and without considering the rigours of Section 45, cannot be vindicated. 22. The impugned order passed by the High Court being in teeth of Section 45 of PMLA and also in the teeth of the settled legal position, we are of the opinion that the impugned order deserves to be set aside, and the matter is required to be remanded to the High Court for fresh consideration. Accordingly, the impugned order is set aside, and the matter is remanded to the High Court for consideration afresh with the request to the Chief Justice to place the matter before the Bench other than the Bench which had passed the impugned order. We may clarify that we have not expressed any opinion on the merits of the case. 23. Though, the learned Senior Counsel Mr. Ranjit Kumar has submitted that the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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