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2022 (2) TMI 458 - HC - Money LaunderingSeeking grant of Regular Bail - Money Laundering - scheduled offences - twin conditions in section 45 of PMLA satisfied or not - existence of mens rea or not - submission of forged and false documents to the banks for availing various credit facilities - HELD THAT:- The provisions of law which are declared unconstitutional is not law, it confers no rights, it imposes no duties, it becomes inoperative, as though it has never been passed. Since the Notification dated 29.03.2018 has remained silent about its retrospective applicability, this Court in the present bail application, while observing that sub-section 45(1) (ii) have neither been revived nor resurrected by the amending Act, would consider this bail application on the premise that there is no rigor of the twin conditions of section 45(1) of PMLA. While dealing with the bail application, three factors are mainly to be seen namely; (i) flight risk (ii) tampering evidence and (iii) influencing witnesses. So far as flight risk in context of applicant is concerned, the proceeding in relation to earlier FIRs against the applicant has taken care of the said factor, further the condition of surrender of passport can secure the presence of applicant during the trial. So far, no overt act is alleged against the applicant, who is on interim bail vide order dated 28.10.2021 in Cr.M.A. No.6 of 2021 in present Cr.M.A. No.23944 of 2019 and extended from time to time, to even consider the aspect of influencing the witnesses. Further, all the necessary documents and evidence would be in the custody of investigating agency, so the fear of tampering with the evidence would also not arise - In the present case, the applicant has already spent 20 months imprisonment and in total has spent 47 months. Considering the punishment to sections invoked under the schedule offence, this Court finds the present to be a fit case, where discretion could be exercised in favour of the applicant. The applicant is ordered to be released on regular bail for the offences punishable under sections 3 and 4 of the PMLA on executing a personal bond of ₹ 50,000/- with one surety of the like amount to the satisfaction of the trial Court and subject to the fulfilment of conditions imposed - application allowed.
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