TMI Blog2017 (6) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... is a case for grant of bail, is thoroughly misconceived. The emphasis made by learned Senior Counsel Shri Vikram Chaudhary that the foundation has to be laid is also misconceived as it is only at the conclusion of the investigation, the picture may emerge with regard to the nature of offence or the class of offence as provided in the schedule. Therefore, in light of the discussion made herein above, the present Criminal Application cannot be entertained and deserve to be dismissed and accordingly stands dismissed - CRIMINAL MISC.APPLICATION (FOR REGULAR BAIL) NO. 7970 of 2017 - - - Dated:- 12-6-2017 - MR. RAJESH H.SHUKLA, J. For The Applicant : SHRI VIKRAM CHAUDHARY, SENIOR ADVOCATE with MR CHETAN K PANDYA, ADVOCATE For The Respondent : MR DEVANG VYAS, ASSISTANT SOLICITOR GENERAL with SHRI KSHITIJ M. AMIN, C.G.S.C. ORAL JUDGMENT 1. The present Criminal Miscellaneous Application is filed by the Applicant / Original Accused under Section 439 of the Code of Criminal Procedure, 1973 read with Section 45 of the Prevention of Money Laundering Act, 2002 (hereinafter referred to as the PML Act ) in connection with File No. ECIR/01/STSZO/2016 on the ground stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry submitted that as provided under Section 19 of the PML Act, the procedure has to be followed and it clearly lays down that there has to be a material in the possession on the basis of which the officer can have a reason to believe. He emphasized that these reasons have to be reduced to writing in a sealed cover, and within 24 hours, he has to be produced before the Magistrate. Therefore, learned Senior Counsel Shri Chaudhary submitted that the procedure has not been followed, and therefore, the present Application may be allowed. He also referred to Chapter VII which referred to Special Courts . Learned Senior Counsel Shri Chaudhary pointedly referred to Section 43 of the PML Act which referred to the Special Courts and submitted that Section 44(2) provides for exercise of powers under Section 439 of Cr.PC. Learned Senior Counsel Shri Chaudhary submitted that the provisions of the PML Act may not be attracted. He submitted that even if it is assumed that the provisions of the PML Act are attracted, the amendment which has been made in Section 45 is required to be considered with regard to the cognizable and noncognizable offence. For that purpose he referred to the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.595 of 2016 . He again referred to the observations made in this judgment quoted in the order of the High Court (Coram: P.P.Bhatt,J) in Criminal Misc. application No. 3952 of 2016 with Criminal Misc. Application No. 3991 of 2016 dated 17.10.2016 in paragraph 6.12 and emphasized that the Scheme of the PML Act with reference to other provisions of other special statutes have been considered. Learned Senior Counsel Shri Chaudhary submitted that by amendment in 2013, the offences which were in Part-A of the Schedule prior to amendment in 2013 and the offences under Part B of the Schedule which were clubbed with Part-A, cannot be equated. He therefore tried to submit referring to the provisions of the PML Act that the purpose of the Money Laundering (Amendment Bill) 2011 was only for the sole object of overcoming the threshold limit of ₹ 30 lacs for invocation of the PML Act in respect of laundering of proceeds of crime involved in those offences. He therefore submitted that the limitation under Section 45 of the PML Act regarding grant of bail would not be applicable qua the persons who are accused of the offences which were earlier in Part-B. Again, learned Senior Counsel Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roof and submitted that the Applicant is not required to discharge the burden, and therefore, as per the Scheme of the PML Act, the provisions of the Cr.PC would be applicable. He pointedly referred to the PML Act and submitted that it has been expressly and specifically stated in Section 46 of the PML Act that the Code of Criminal Procedure shall be applicable, and therefore, the submission that it is a special statute and the application for bail has to be considered as per Section 45 of the PML Act are misconceived and would not be attracted in light of the amendment made, by which, the offences in Schedule B are clubbed with the offence in Schedule-A, and therefore, it has to be considered as per the provisions of Section 439 of Cr.PC regarding grant of bail. He therefore submitted that the present Criminal Misc. Application may be allowed particularly when the issue is very much alive and not settled, and therefore, the present Application may be allowed. 7. Per contra, learned Assistant Solicitor General Shri Devang Vyas referred to the papers and the background of the facts as well as affidavit-in- reply. He also referred to the judgment of the Hon'ble Apex Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sfied that there are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. (30.) The conditions specified under Section 45 of the PMLA are mandatory and needs to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. Section 65 requires that the provisions of Cr.P.C. shall apply in so far as they are not inconsistent with the provisions of this Act and Section 71 provides that the provisions of the PMLA shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the special statute. He further submitted that as explained in detail in the affidavit in reply, there is a sufficient prima facie material, including the statement made before the authorities and the Income Tax authorities, and therefore, it would attract the provisions of the PML Act. Learned Assistant Solicitor General Shri Devang Vyas submitted that the Applicant has to show by material that he is not involved in any offence or is not guilty. He pointedly referred to the burden of proof as well as the aspect of presumption as provided in the PML Act and submitted that the burden is cast on the Applicant who comes before the court seeking bail. He submitted that reference to the other judgments referring to the provisions of Section 167 of the Cr.PC has no application as the issue is totally different and it is not with regard to any default bail, and therefore, it has no relevance. Learned Assistant Solicitor General Shri Devang Vyas also pointedly referred to the aspect of precedent to support his contention that the submissions regarding the doctrine of merger are misconceived as it cannot be said to be any binding precedent. For that purpose, he again made reference to the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confirmed the judgment of the Hon'ble Punjab Haryana High Court, would amount to a precedent on the principle of merger. He therefore submitted that the application may be considered. Learned Senior Counsel Shri Vikram Chaudhary further submitted that the aspect of burden of proof as referred to in Section 24 of the PML Act would not be attracted as the Applicant is not required to discharge the burden unless the foundation has been laid by the Respondent with regard to the offence and the guilt of the Applicant / Accused. He also referred to and relied upon the judgment of the Delhi High Court in case of Anand Chauhan v. Directorate of Enforcement (supra) and submitted that it may not have any application. Therefore learned Senior Counsel Shri Vikram Chaudhary submitted that the provisions of the PML Act may have to be interpreted as it has been considered in other special statute, but it cannot be said that the criminal procedure code will not have any application for the purpose of deciding the bail application. He therefore submitted that the present application may be granted. 12.In view of these rival submissions, it is required to be considered whether the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly provide that the limitation on grant of bail specified in sub Section (1) of Section 45 of PML Act is an addition to the limitation under the Code of Criminal Procedure, meaning thereby, both will have the application. The provisions of the PML Act as a special statute will have the application over and above the provisions of Section 439 of Cr.PC providing for the additional limitation or the rigors for grant of bail. 16.Thus the stringent provision has been made for grant of bail in respect of the offences under the PML Act as referred to in the Schedule. It clearly provides that the limitations are over and above the limitation criteria for grant of bail. Further, the provisions of Section 45 starts with non-obstante clause and Section 45(1)(ii) provides: (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule shall be released on bail or on his own bond unless - (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther provision or clarification, it would be suggestive of the fact that the legislature was conscious to make a specific provision with reference to the offences punishable for a term of imprisonment of three years. This itself would imply that the offences under the Act falling in Part-A of the Schedule, where the term of sentence is more than three years, the rigors of Section 45 of the PML Act would be attracted. In other words the submission that the offences which were originally in Part-B and which have been clubbed with Part-A after the amendment, would not attract rigors of Section 45 of the PML Act, is misconceived. 17.The statement of objects and reasons providing for background of the enactment suggesting the intention of the legislature would make the position clear that the PML Act has been enacted when it was realised world over that the money laundering poses a serious threat not only to the financial system of the countries but also to the integrity and sovereignty, and therefore, to curb the money laundering, which, in turn may have a bearing on drug trafficking and other offences and for which the United Nations General Assembly passed a resolution to provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rewith contained in any other law for the time being in force. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section 24 provides that unless the contrary is proved, the Authority or the Court shall presume that proceeds of crime are involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. Thus, while recording the submissions, the Hon'ble Apex Court has emphasized and observed as stated above that the conditions enumerated in Section 45 of the PML Act will have to be complied with even in respect of the application for bail under Section 439 of Cr.PC. It is further observed referring to Section 24 of the PML Act that unless the contrary is proved, the authority or the court may presume about the proceeds of crime that such a money involved in laundering are proceeds of crime . In other words, the burden of proof with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erved: In Union of India v. Hassan Ali Khan, (2011) 10 SCC 235, this Court has laid down that what will be the burden of proof when attempt is made to project the proceeds of crime as untainted money. It is held in the said paragraph that allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifted on the accused persons under Section 24 of the PML Act, 2002. 19.Again, such stringent provisions have also to be found in other special statute like NDPS Act where there is a similar or pari materia provision casting an obligation upon the court to reach to the satisfaction about the fact that the accused is not guilty. 20.In the facts and circumstances, particularly with reference to the background of the facts referred to in the affidavit-in-reply filed by the Respondent authority, it can hardly be said that such a satisfaction could be arrived at this stage. 21.It may not be out of place to emphasize that even the investigation is not over and even if the investigation is required to be made or is made by the other authority under the other Act like I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has in a judgment in case of Government of Karnataka v. Gowramma , reported in 2007 (13) SCC 482 has observed: 9. Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge s decision binding a party is the principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it the ratio decidendi. According to the wellsettled theory of precedents, every decision contains three basic postulates - (I) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich have been relied upon, including the judgment of the Hon'ble Division Bench of the Punjab Haryana High Court as well as the judgment of the Hon'ble Division Bench of this High Court and also the judgment of the Punjab Haryana High Court in case of Gorav Kathuria (supra) dismissing the Appeal, read with the judgment of the Hon'ble Apex Court in case of Gautam Kundu (supra) would not leave any doubt that if an accused is facing the charge for an offence under Sections 3 and 4 of the PML Act, the rigors of Section 45 of the PML Act would be attracted. Lord Halsbury in Quinn v. Leathem , reported in (1901) AC 495, p. 506 has observed: Every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law but govern and are qualified by the particular facts of the case in which such expressions are to be found. 24.Assuming for the sake of argument, the submissions which have been made that every offence may not be heinous and may not invite and may not be treated on the same footing, even then, it is for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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