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RAKESH MANEKCHAND KOTHARI Versus DEPUTY DIRECTOR, ENFORCEMENT DIRECTORATE & ANR

Commission of offense punishable under Section 3 read with Section 4 of the Prevention of Money Laundering Act, 2002 - whether rigorous of Section 45 of the PML Act is not applicable qua the applicant, inasmuch as no offence is committed by the applicant, the applicant is not accused of having committed any scheduled offence? - Held that:- Having taken into consideration the contents of the complainant filed by the respondent authority dated 29.10.2014 Annexure-A to this application, with specif .....

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f the PML Act, it would be immaterial as to whether the applicant meets with 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 th .....

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NT 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 as PMLA Case No.4 of 2014 in the Court of the Principal District and Sessions Judge, Ahmedabad (Rural), which is the designated Court under the Act. The applicant had already moved the designated Court for regular bail by filing Criminal Misc. App .....

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f parity as well, the applicant needs to be enlarged on bail. In this regard, reference is made to the cases of (i) Mr.Bilal Haroon Galani and (ii) Mr.Praful Patel. Reliance is also placed on the order passed by the Co-ordinate Bench of this Court in the case of Sunil Deepakkumar Agarwal Vs. State of Gujarat recorded on Criminal Misc. Application No.15636 of 2014 dated 19.11.2014 and in the case of Afroz Mohd. Hasan Fatta Vs. State of Gujarat recorded on Criminal Misc. Application No.2191 of 201 .....

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tive finding that the applicant has not committed the offence under the PML Act. It is submitted that the word 'reasonable' needs to be understood and interpreted reasonably. In this regard, reliance is placed on the decision of the Bombay High Court in the case of Shri Ashok Zende Vs. State of Maharashtra in Criminal Bail Application No.1817 of 2014 dated 17.11.2014. It is also contended that the maximum sentence prescribed for the offence in question is 7 years, and therefore the decis .....

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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 c .....

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urt (Coram:-Hon'ble Mr.Justice Anant S. Dave & Hon'ble Mr.Justice G.B.Shah) in the Writ Petition filed by this applicant himself, being Special Criminal Application No.4496 of 2014 dated 16.01.2015, the present application could not be considered on merits at all. During the course of hearing however, learned Assistant Solicitor General has conceded that in view of the clarification given by the Division Bench dated 04.03.2015 in Criminal Misc. Application (for review) No.3715 of 201 .....

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6972 (iii) Naresh J. Sukhawani Vs. Union of India - 1995 (0) GLHEL - SC 19209. (iv) Union of India Vs. Shiv Shanker Kesari - 2007 (0) GLHEL - SC 39851 (v) K.T.M.S.Mohd. Vs. Union of India - 1992 (0) GLHEL - SC 13569 (vi) K.I.Pavunny Versus Assistant Collector (Hq.), Central Excise Collectorate, Cochin - 1997 (0) GLHEL - SC 13291. (vii) Bipinbhai A. Patel Vs. State of Gujarat - 1998 (1) G.L.H. 704. 4. Having heard learned advocates for the respective parties, this Court finds as under. 4.1 At the .....

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he Schedule under the Act which may even be non-cognizable, bailable and on much lighter pedestal, for being unreasonable and ultra vires, 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 of .....

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e 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, appointed under Foreign Exchange Management Act, 1999, can under Section 54 of PMLA only assist any officer investigating under PMLA, to show cause as to how and under what authority has he exercised the power of arrest under Section 19 of PMLA, while effecting arrest of the Petitioner on .....

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stant Director under section 49 of PMLA, [iii] any records to show compliance of Rules notified by GSR 446(E) dated 1.7.2005, and [v] any Criminal Proceedings against the Petitioner in the alleged Scheduled offence showing the Petitioner as an accused person; and [d] For issuance of an appropriate writ of Habeas corpus, or order or direction under Article 226 of the Constitution of India, directing forthwith release of the Petitioner from custody, by setting aside the Impugned Arrest Order dated .....

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basis of such material in possession, on the basis of which there exists reason to believe that person is guilty of an offence under the PMLA; which shall be recorded in writing; and pursuant to arrest to inform him of the Grounds' for such arrest, [iii] Rules notified by Central Government vide GSR 446[E], dt.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] Articl .....

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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 Article 226 of the Constitution of India being Special Criminal Application No.4496 of 2014 w .....

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Division Bench of this Court noted above, would not disentitle the applicant to press this application. It is held that the decision of the Division Bench of this Court in the Special Criminal Application No.4496 of 2014 would not operate as a bar against the present applicant to press this application. It is noted however that the finding of the Division Bench qua the applicant, on merits, if any, can not be brushed aside. 5.1 Having held that this application needs to be considered on merits, .....

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r has been given an opportunity to oppose the application for such release; and [ii] where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail. Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Provided further that the Specia .....

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nvestigate 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 .....

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However further deliberation in that regard may be required only if the (i) noted above, is satisfied. 5.4 So far the first stipulation, that this Court need to arrive at the satisfaction that, there are reasonable grounds for believing that the applicant is not guilty of the offence he is charged with, is concerned, for that purpose the material on record needs to be considered. Having done so, more particularly having taken into consideration the contents of the complainant filed by the respo .....

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ecision of the Bombay High Court in the case of Shri Ashok Zende Vs. State of Maharashtra in Criminal Bail Application No.1817 of 2014 dated 17.11.2014, would not take the case of the applicant any further since it was the case of an Assistant Manager in a nationalised bank and he was already placed under suspension and the thrust was that there was no likelihood of him committing that offence again. So far the satisfaction recorded by the Bombay High Court in that case that there were reasonabl .....

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d not be permissible to release the applicant on bail. At this juncture, reference is also required to be made 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 .....

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