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2021 (9) TMI 478 - HC - Money LaunderingApplicability of application u/s 439(2) of the Cr.P.C. - accused is released from the ‘custody’ or not - decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act or not - irrelevant material acted upon or not - relevant material ignored or not? Whether Section 439(2) of the Cr.P.C. can have no application unless accused is released from the ‘custody’? - HELD THAT:- The instant application filed by the prosecution under Section 439(2) is maintainable, although the accused actually has not been released. Primary objection as to the maintainability is overruled. Whether decision in Nikesh Tarachand Shah [2017 (11) TMI 1336 - SUPREME COURT] has lost its significance because of amendment in Section 45(1) of the PMLA Act? - HELD THAT:- In Nikesh T. Shah, the Hon’ble Apex Court has struck down Section 45 of the PMLA Act, as a whole having found it arbitrary and violative of Article 14 & 21 of the Constitution of India and not just applicability of twin conditions to scheduled offences - Once, it is held that twin conditions enumerated under Section 45 of the PMLA Act have no application while granting bail to accused of money laundering, it is to be ascertained, whether the trial Court granted bail on irrelevant considerations. Whether Trial Court while granting bail, acted upon the irrelevant material and ignored the relevant material? - HELD THAT:- The prosecution case rests and founded on documentary evidence and, therefore, even if applicant is released on bail, chances of tampering the prosecution evidence are weak and faint. Apart from that, it is worthwhile recording here that NSEL Management, Persons, Defaulters of NSEL and persons associated with Aastha Group (Mohit Aggarwal and Sham Kejriwal) have been granted bail either by Special Court or by the High Court, having a greater role than the present applicant. Mr. Chavan, the learned Senior Counsel for the respondent, has placed for my perusal, orders granting bail to twenty co-accused, who may have similar or greater role than the present accused. Even otherwise offence under Sections 3 and 4 of the PMLA Act is offence punishable upto seven years - the trial Court while granting bail to respondent-accused has not acted upon the irrelevant material and ignored the relevant material. Application dismissed.
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