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2021 (4) TMI 279 - HC - Money LaunderingSeeking grant of Bail - commission of economic offence - predicate or scheduled offence - burden to prove guilty - whether, in view of amendment to Section 45 of PMLA, the twin conditions stipulated therein stands revived post decision of Hon’ble Supreme Court in the case of Nikesh Tarachand Shah Vs. Union of India [2017 (11) TMI 1336 - SUPREME COURT]? - HELD THAT:- The question of the constitutional validity of Section 45 of PMLA was dealt with by Apex Court before amendment in the case of Nikesh Tarachand Shah. The grounds of challenge were that, Section 45 of the Act, when it imposes two further conditions before grant of bail is manifestly arbitrary, discriminatory and violative of petitioner’s fundamental rights under Article 14 read with Article 21 of the Constitution. The Apex Court enumerated illustrations while examining validity of twin conditions. The first would be cases where the charge would only be of money laundering and nothing else, as would be the case where the scheduled offence in Part A has already been tried and persons charged under the scheduled offence have or have not been enlarged on bail under the Code of Criminal Procedure and thereafter convicted or acquitted. The question is the provision which was held constitutional by Apex Court in the case of Nikesh Shah stands revived in view of Amendment as stated above to Section 45 of the Act - In view of amendment, the original sub-Section (ii) of Section 45 (1) which imposes the said twin conditions automatically stands revived and the said condition therefore remain on statute book. The original Section 45 (1) (ii) has to be inferred and treated as it still exists on the statute book and holds the field even as of today for deciding application for bail by an accused under PMLA. It was further argued that by inserting words “under this Act”, the Judgment delivered by Supreme Court in Nikesh Shah has become in effective. The Court held that the Apex Court in Nikesh Shah (supra) has declared Section 45 (1) of PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Articles 14 and 21 of Constitution of India. After effecting amendment to Section 45 (1) of PMLA. The words “under this Act” are added to sub-Section (1) of Section 45 of PMLA. However, the original Section 45 (1) (ii) has not been revived or resurrected by Amending Act. Even notification dated 29.03.2018 amending Section 45 (1) of PMLA which came into effect from 19.04.2018 is silent about its retrospective applicability. Hence, contention of respondent cannot be accepted. In the case of Nikesh Tarachand Shah as stated above the Hon’ble Supreme Court has declared Clause (ii) of sub-Section 1 of Section 45 of PML Act ultra vires Articles 14 and 21 of the Constitution. Sub-Section 2 the said decision the amendment referred to hereinabove was carried out. Clause (ii) of sub-Section 1 of Section 45 of PML Act places two conditions 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 that there are reasonable grounds for believing that accused is not guilty of such offence and that he is not likely to commit any offence while on bail. The question is whether substitution of the words “under this Act” in place of words punishable for term of imprisonment of more than three years under Part A of the Schedule in Section 45 of the Act, has impact of meeting with reasonings discussed by the Supreme Court in the case of Nikesh Tarachand Shah for declaring clause (ii) of sub-Section 1 of Section 45 of the Act ultra vires. The Adjudicating Authority had dismissed the original complaint under Section 5 (5) of the PMLA. The appeal is pending, the order is under challenge before the Appellate Tribunal and there is an order of status quo. The applicant was arrested after the period of about 18 months pursuant to registration of ECIR. Ms. Chanda Kochhar and Mr. V. N. Dhoot has been granted bail by Special Court under PMLA. The entire loan amount was repaid to ICICI bank. The applicant is in custody for more than 6 months. The transactions in question were for the period of 2009. The entire loan of ICICI Bank was repaid in 2012. Prior to arrest, applicant had appeared before respondent No.1 on several occasions. His statements were recorded and documents were tendered - The question of absconding does not arise. Considering the circumstances, further detention of the applicant is not necessary. Hence, case for grant of bail is made out. Bail application allowed.
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