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2021 (6) TMI 1069 - DSC - Money LaunderingSeeking grant of Bail - criminal conspiracy - fraudulent import of fertilizers and other materials for fertilizer production at inflated prices - commission of crime - sham consultancy agreements - fake invoices for consultancy services were prepared - Applicability of twin conditions of Section 45 of PMLA - HELD THAT:- The issue of applicability of twin conditions of amended Section 45 of PMLA has arisen before the various Hon'ble High Courts of this country and divergent view has come across. The Hon'ble High Court of Delhi in the matter of UPENDRA RAI VERSUS DIRECTORATE OF ENFORCEMENT [2019 (7) TMI 576 - DELHI HIGH COURT] and, the Hon'ble Madhya Pradesh High Court in the matter of DR. VINOD BHANDARI VERSUS ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT [2018 (8) TMI 1848 - MADHYA PRADESH HIGH COURT] and the Hon'ble Bombay High Court in the matter of CHHAGAN CHANDRAKANT BHUJBAL VERSUS ASSISTANT DIRECTOR ENFORCEMENT DIRECTORATE AND ANR [2016 (6) TMI 1148 - BOMBAY HIGH COURT] have taken a view that post amendment of Section 45 of PMLA, twin conditions do not get revived and hence, are inapplicable to the bail application filed under the PMLA - However, a contrary view has been taken by the Hon'ble High Court of Orissa at Cuttack in the matter of MOHAMMAD ARIF VERSUS DIRECTORATE OF ENFORCEMENT, GOVT. OF INDIA [2020 (7) TMI 425 - ORISSA HIGH COURT] and by the Hon'ble High Court of Patna in the matter of VIDYUT KUMAR SARKAR VERSUS THE STATE OF BIHAR AND ORS. [2020 (7) TMI 581 - PATNA HIGH COURT]. Further, till date, no court has declared the twin conditions mentioned in the amended Section 45 of PMLA to be unconstitutional on the ground of it being violative of Article 14 of the Constitution of India. Further, having regard to the fact that twin conditions in the amended Section 45 of the PMLA have not been struck down being unconstitutional till date by any court in India, therefore, twin conditions as mentioned in Section 45 of the PMLA are required to be made applicable to the present bail application. It is apparent that accused played a major role by getting the illegal commission transferred from M/s. Uralkali General Trading, Gibralter and Gulf Marine, Dubai into the account of entities owned by Rajiv Saxena and from there, the said commission was transferred as per his instructions and that of co-accused Pankaj Jain and Sanjay Jain - the accused in his statement under Section 50 of PMLA has not been able to give the source of such huge funds received by him in cash or in the entities owned by him. Therefore, there is a prima facie material to hold that accused is involved in the offence of money laundering and since the Ld. Special Counsel for the ED has opposed the grant of bail, therefore, as per Section 45 of PMLA, accused is not entitled to bail. The accused is also not entitled to bail as per proviso to Section 45 of the PMLA on the ground of he being a sick and infirm person as there is nothing on record to suggest that accused is sick to that extent that in case he remains incarcerated, then his health condition will further deteriorate. The investigation is at the stage of collection of evidence regarding identification of proceeds of crime and finding of trail of remaining ill gotten money, which in the case of money laundering is generally routed through a complex web of companies. Therefore, taking into account the above mentioned factors, even if twin conditions mentioned in Section 45 of PMLA are ignored, then also having regard to the serious economic offence committed by accused wherein the alleged amount of ₹ 685 Crores has been laundered, the possibility of tempering with the witnesses, the accused being an influential person and the investigation being at an initial stage, the court is not inclined to release the accused on bail, even as per Section 439 Cr.P.C. Bail application dismissed.
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