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2022 (3) TMI 1439 - KARNATAKA HIGH COURTSeeking grant of bail - money laundering - Provisional attachment order - scheduled offences - completion of investigation of an offence under the provisions of the PMLA - would complete on issuance of an order under Section 5(1) of the said Act for provisional attachment or on filing of application under Section 5(5) of the Act for confirmation of the same or atleast when an order is passed under Section 8(3)(a) of the said Act? - person arrested subsequent to the order passed under Section 8(3)(a) of the said Act would be entitled for immediate release by applying the provisions of Section 167 (2) of Cr.PC. or not - twin conditions enumerated under the provisions of Section 45(1) of the Act is a Sine-qua-non for granting bail to an accused who has been arrested under Section 19 of the Act or not - arrest made under Section 19 of the Act is a preventive detention or not. Whether the investigation of an offence under the provisions of the PMLA would complete on issuance of an order under Section 5(1) of the said Act for provisional attachment or on filing of application under Section 5(5) of the Act for confirmation of the same or atleast when an order is passed under Section 8(3)(a) of the said Act? - If so, if a person is arrested subsequent to the order passed under Section 8(3)(a) of the said Act would be entitled for immediate release by applying the provisions of Section 167 (2) of Cr.PC.? - HELD THAT:- It is pertinent to note that nowhere it is mentioned as to what is the time limit for filing a complaint/final report under Section 45 of the Act. However, there can not be a situation where a person is arrested and he is continued in custody eternally on the pretext that there is no time limit fixed under the Act for filing the complaint/final report as is contemplated under section 45 of the said Act. Admittedly, the proceedings under the Act is judicial proceedings. Whenever a person is arrested by the investigating agency his personal liberty is taken away by the investigating agency for a particular purpose. As is provided in Section 167 of Cr.PC., supra, if an Investigating Agency fails to file a final report as contemplated under Section 173 Cr.PC. within 60 days or 90 days as the case may be depending upon the maximum punishment prescribed in a given penal statute, the person who has been arrested by the Investigating Agency acquires indefeasible right to be released forthwith. Even though there is no specific time limit prescribed under the Act for filing complaint/final report as contemplated under Section 45 of the Act, whenever a person is arrested by the Directorate of Enforcement under the provisions by resorting to the powers vested in it under Section 19 of the Act., the Directorate of Enforcement is expected to file a complaint/final report within 60 days from the date of arrest. In the event of failure to do so, indefeasible right is definitely to accrue to an accused under the Act. Having regard to the scheme of the Act, especially the investigation powers is given to the Directorate of Enforcement and the proceedings before the Directorate of Enforcement in summoning the accused recording his statement, collection of evidence being treated as judicial proceedings as is found in Section 50(4) of the Act referred to supra, the said proceedings cannot be termed as completion of investigation. The proceedings that takes place before filing of the final report is for the purpose of prima facie satisfaction of the Directorate of Enforcement that a provisional attachment order was passed which needs confirmation in order to protect the assets and to put an end to the money laundering. The arguments put forth on behalf of the petitioner that the petitioner is entitled for statutory bail under Section 167(2) of the Cr.PC., on issuance of the order passed under Section 5(1) of the Act for provisional attachment or filing an application for its confirmation before the adjudicating authority under Section 5(5) of the Act. In other words, the attachment of the property and its confirmation though is part of the same investigation, it is not for the purpose of filing the complaint under Section 45 of the Act and it is for the purpose of attachment of the property - for all practical purposes, the investigation would not be complete so as to make available a right to the petitioner for statutory bail under Section 167(2) of Cr.P.C. - questions are answered in negative. Whether an accused is entitled for grant of bail taking note of the fact that he has been enlarged on bail in respect of predicate offences? - Whether twin conditions enumerated under the provisions of Section 45(1) of the Act is a Sine-qua-non for granting bail to an accused who has been arrested under Section 19 of the Act? - Whether an arrest made under Section 19 of the Act is a preventive detention? - Whether the petitioner has made out a case for grant of bail? - HELD THAT:- Close reading of section 45(1) of the Act makes it clear that before a court grants bail to an accused person, for an offence under the Act, an opportunity must be provided to the prosecutor to oppose the application and in the event of the prosecution opposing the application, court must be satisfied that there are reasonable grounds for believing that an accused is not guilty of such offence and he is not likely to commit any offence while on bail. Therefore, one can easily construe while exercising the power under Section 439 of Cr.PC., for grant of bail. The twin condition referred to supra must be satisfied before a court intends to grant the bail. The language employed in Section 45(1) of the Act is in the form of twin conditions akin to the language employed by the legislature under Section 37 of the NDPS Act - the court which is considering the bail application must get satisfied that there are reasonable grounds that accused may not be guilty and he may commit further offence as money laundering is a continuous offence. The special powers vested in this court under Section 439 Cr.PC. cannot be exercised in the case of an accused facing trial under the provisions of the said Act, like any other accused who has been charged under the provisions of the IPC. Having regard to the language employed in Section 45(2), there is an embargo on the powers of this court to exercise the special powers vested in this court under Section 439 Cr.P.C. On careful reading of Section 45(2), one can easily understand that the wordings used under the said provision is in pari materia to section 37 of the NDPS Act. This court considered the rival contentions of the parties in the light of Section 19 of the Act. Argument of the counsel for de-facto complainant that arrest under Section 19 of the Act, cannot be construed as preventive detention cannot be countenanced in law - If the said argument is to be accepted, there remains nothing for the Special Court to decide the guilt or otherwise of the accused in the trial. The opinion of the Investigating Agency is no doubt judicial in nature, having regard to Section 50(4) of the Act. But, the Special Court has to charge the accused for the offence under Section 3 of the Act after taking cognizance of the said offence when once a complaint/final report under Section 45 of the Act, is filed. If the opinion of the Investigating Agency for the purpose of arrest under Section 19 of the Act, that an accused under the Act is prima facie guilty of offence under the provisions of the Act, it is only for the purpose of arrest and not binding on the Special Court. In the case on hand, it is no doubt true that the petitioner is enlarged on bail in respect of the predicated offences. The Investigating Agency is very well aware of the said fact. Despite the same, the investigating Agency proceeded to effect the arrest of the petitioner by resorting to the powers vested in it under Section 19 of the said Act. Therefore, the word ‘guilty’ found under Section 19 of the Act is to be construed in that sense and not as an opinion that would bind the petitioner/accused and definitely not binding on the Special courts. Thus, the argument put forth on behalf of the petitioner that ipso facto, petitioner is entitled for the bail in view of the fact that the petitioner is enlarged on bail for the predicated offences cannot be countenanced in law - the questions are answered in negative. The petition is allowed.
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