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2022 (2) TMI 949 - HC - Money LaunderingInterpretation of statute - constitutional validity of section 45 of PMLA - Effect of post-amended section 45 of the Prevention of Money-Laundering Act, 2002 (PML Act) in terms of amendment introduced w.e.f. 19.04.2018 - situation post decision of the Supreme Court in the case of NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. [2017 (11) TMI 1336 - SUPREME COURT] - HELD THAT:- The Legislative competence of introducing Amending Act has not been disputed, nor countered on any count. Certainly the legislature cannot by way of amendment undo the decision of Courts. However, the Legislature has power to rectify through amendment the defect noticed or highlighted by the decision of the Court. The purpose behind amendment is not to over rule the decision of the Court but simply to correct it and to remove the basis on which the provision has been declared as unconstitutional - when the Prevention of Money Laundering Bill, 1999 was tabled before the Parliament, the twin conditions for release on bail would apply only insofar as offence under the PML Act itself. The Amending Act has changed the entire complexion. Notably section 45 of the Act has not been repelled from the statute book. Therefore, in our view, the section as it stood after amendment has to be read as it stands. It is not found necessary that the entire section has to be resurrected afresh. The very effect of the amendment has changed the periphery of its applicability. The section which stands after amendment has to be read as a whole - Absence of reference in notification dated 29.03.2018 thereby amending section 45(1) of the Act about its retrospective applicability does not take away the force and impact of amendment. It is for the Legislature to give effect to the amending provisions prospectively or retrospectively. However, that cannot be reason for ineffecting the amending provisions of the Act. The reference arose out of statutory jurisdiction and not constitutional jurisdiction of this Court. Unless there is proper challenge and pleadings, the issue of constitutional validity cannot be undertaken. Undoubtedly, the Legislature has power and competence to amend the provisions of the Act. Unless the amended provision is struck down by the Courts, it cannot be watered down. Since after the amendment the entire complexion of section 45 has been changed, the contention that the entire section has to be reenacted by way of amendment after decision in the case of Nikesh Shah, not agreed. Therefore, the twin conditions would revive and operate by virtue of Amendment Act, which is on date in force. The twin conditions in section 45(1) of the 2002 Act, which was declared unconstitutional by the judgment of the Apex Court in Nikesh T.Shah Vs. Union of India, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018 - Registry shall place the bail application before the concerned Court for further consideration.
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