TMI Blog2015 (3) TMI 1053X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the second requirement. There is no dispute that, both the stipulations need to be met with and if any one is missing, it would not be permissible to release the applicant on bail It is clarified that, the reasons recorded in this order is only for the limited purpose of deciding this application for bail and any observation by this Court may not be construed as this Court having expressed any opinion on merits of the matter and the same shall not have any bearing at the time of trial against the applicant. The Trial Court shall in no way be influenced by the observation of this Court in this order since, as noted above, it is only for the purpose of deciding this application. - CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 3637 of 2015 - - - Dated:- 31-3-2015 - PARESH UPADHYAY, J. MR VIKRAM CHAUDHARY, SENIOR ADVOCATE with MR SANJAY AGARWAL, ADVOCATE with MR CHETAN K PANDYA, ADVOCATE for the Applicant JUDGMENT 1. This is an application for Regular Bail. The applicant is accused of having committed offence punishable under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 (for short 'the PML Act'). The case is registered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in the present case. Reliance is also placed on various decisions, including the following. (I) Nirmal Singh Pehlwan @ Nimma Vs. Inspector, Customs, Customs House, Punjab - 2011 (8) Scale 430. (ii) Vinod Solaki Vs. Union of India reported in (2008) 16 SCC 537. (iii) Tofan Singh Vs. State of Tamil Nadu reported in (2013) 16 SCC 31. (iv) Noor Aga Vs. State of Punjab - 2008 (9) Scale 681 2.3 Learned senior advocate for the applicant has submitted that, the applicant be enlarged on bail. 3.1 On the other hand, Mr.Devang Vyas, learned Assistant Solicitor General of India for the contesting respondent Authority has opposed this application and has submitted that the rigorous of Section 45 of the PML Act would apply with full force in the facts of this case and there is material on record even to hold that the applicant is guilty of the offence charged with and in any case, this is not the case where at this stage, Court may record finding that there are reasonable ground to believe that the applicant is not guilty of the offence charged with. Reference is made to the affidavit in reply dated 04.03.2015 filed on behalf of the respondent No.1 through Deputy Director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and consequently unconstitutional, illegal, arbitrary, discriminatory, and thus being violative of Articles 14, 19 and 21 of the Constitution of India, and this Hon'ble Court may read down, lay down, expound, interpret and deliberate upon the scope and perspective of Section 45 of PMLA so as to harmonize the same in juxtaposition with various scheduled offences [under amended Part A of the Schedule], [b] To read down, expound, deliberate and interpret the scope and perspective of Section 19 of PMLA in light of section 49(3) read with Rules notified by GSR 446[E] dated 1.7.2005, in consonance and harmony with settled constitutional mandate of Articles 14, 21 and 22 of Constitution of India as also in the context of various provisions under the Code of Criminal Procedure, 1973, as amended from to time and the Guidelines laid down by the Hon'ble Apex Court in D.K.Basu vs State of West Bengal 1997(1) SCC 416, [c] For issuance of an appropriate writ of quo warranto, calling upon Respondent No.3, who being an Assistant Director, Enforcement Directorate, appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t.1.7.2005, [iv] notification GSR 441(E) dated 1.7.2005 issued by the Central Government appointing Director to exercise the exclusive power conferred under section 19 of PMLA [v] Article 14, 21, 22 of the Constitution of India. [e] At the interim / ad interim stage [i] The proceedings under PMLA against the Petitioner may please be stayed, [ii] The Petitioner may please be released on regular bail in the above case in ECIR/01/SRT/2014, [f] Dispense with filing of affidavit in support to this Petition as the Petitioner is in judicial custody; [g] For such other or further order/s in the peculiar facts of the case. 4.2 The said petition is dismissed vide judgment dated 16.01.2015. Though with the said dismissal, the prayer for bail also stood rejected by the Division Bench of this Court, this application is accepted to be maintainable in view of the clarification given by the Division Bench vide order dated 04.03.2015 in Criminal Misc. Application (for review) No.3715 of 2015 in Special Criminal Application No.4496 of 2014. It is noted that the petition invoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r; or [ii] any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government. [1A] Notwithstanding anything contained in the Code of Criminal Procedure, 1973, [1973 (2 of 1974], or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorized, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed. [2] The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail. 5.2 In view of the above provision, this Court need to arrive at the satisfaction that (i) there are reasonable grounds for believing that the applicant is not guilty of the offence, he is charged with, and further that (ii) he is not likely to commit any offence while on bail. 5.3 So far the second p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision of the Division Bench of this Court recorded on Special Criminal Application No.4496 of 2014 dated 16.01.2015, more particularly para : 10.12 and 10.13 thereof. For this reason this application needs to be dismissed. 6.1 So far the parity, as claimed by the applicant is concerned, the same would not take the case of the applicant any further for the reason that it is for each accused that the above noted satisfaction needs to be recorded by the Court. From the material on record, it transpires that, each accused is attributed with different role. Further in no case the Court has recorded satisfaction as noted above. Non-arrest of an individual or conversion of non-bailable warrant into summons qua some of the accused can not be termed as the Court having recorded satisfaction as required under Section 45(1)(ii) of the PML Act. The contention of parity is therefore rejected. 6.2 The argument that the applicant has not committed any scheduled offence can not be gone into by this Court on the face of the decision of the Division Bench of this Court recorded on Special Criminal Application No.4496 of 2014. As noted above, reference needs to be made to para: 10.12 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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