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2022 (3) TMI 808 - HC - Money LaunderingMoney Laundering - proceeds of crime - petitioner could not produce purchase/sale orders in respect of the transactions - effect of the amendment in question in sub-section (1) of Section 45 of the Act - twin conditions of section 45 of the PMLA Act satisfied or not - HELD THAT:- The twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words “under this Act” by deleting “offence punishable for a term of imprisonment of more than three years under Part A of the Schedule” only makes an ostensible change. The offence of money laundering as stipulated under Section 3 of the PMLA Act stems out of the offences prescribed in the Schedules. The defects which the Supreme Court in Nikesh Tarachand Shah (supra) [2017 (11) TMI 1336 - SUPREME COURT] had pointed out while invalidating the existing law are not substantially removed by the amendment. The Supreme Court has asserted that, the twin conditions prescribed in Section 45 of the PMLA Act would have no nexus whatsoever with a bail application which concerns itself with the offence of money laundering, for if Section 45 of the PMLA Act is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. The Supreme Court has held that “that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination”. Such observations facilitate the Courts to realize and interpret the legal effect of the twin conditions attached to Section 45 of the PMLA Act - the Supreme Court has directed all the concerned courts to decide the matter on merits without application of the twin conditions contained in Section 45 of the PMLA Act as they are declared unconstitutional. The twin conditions still continue. Unquestionably, the Amendment Act of 2018, which introduces the expression “under this Act” to Section 45 of the PMLA Act, in no uncertain terms can obliterate or dilute the directions issued by the highest court of land. After going through the facts of the present case, it is not in dispute that proceeds of crime amounting to ₹ 20,00,000/- (Rupees Twenty Lakh) originating from bank accounts held with Bank of India, G.B. Road, Gaya have merged in the bank account no.75105078737 of M/s Sanjog Steels Pvt. Ltd. Jaipur (petitioner’s firm). During investigation, it was also found that firms, namely, M/s Radha Trading Company, Delhi, M/s Shree Ram Overseas, M/s Shree Ganesh Overseas, M/s Sandeep Traders, M/s Rajesh Trading Company, M/s Sunil Trading Company and M/s Azad Singh and Manoj Kumar are fake and fictitious firms and have not been operating from the addresses as mentioned in their bank accounts or in the sales invoices. It also revealed that they do not exist at given address - the transactions, through these firms, are involved in money laundering in terms of Section 23 of the PMLA. The entire community is aggrieved if the economic offenders, who ruin the economy of the State are not brought to book. A murder may be committed in the hit of moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. The prayer for anticipatory bail of the petitioner is hereby rejected.
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