TMI Blog2017 (11) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... ision furthers a compelling State interest for tackling serious crime. Absent any such compelling State interest, the indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. Provisions akin to Section 45 have only been upheld on the ground that there is a compelling State interest in tackling crimes of an extremely heinous nature. We declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail. All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld follow in order to assist the law enforcement agencies in tackling the problem of money-laundering. (c) the Financial Action Task Force established at the summit of seven major industrial nations, held in Paris from 14th to 16th July, 1989, to examine the problem of money-laundering has made forty recommendations, which provide the foundation material for comprehensive legislation to combat the problem of money-laundering. The recommendations were classified under various heads. Some of the important heads are- (i) declaration of laundering of monies carried through serious crimes a criminal offence; (ii) to work out modalities of disclosure by financial institutions regarding reportable transactions; (iii) confiscation of the proceeds of crime; (iv) declaring money-laundering to be an extraditable offence; and (v) promoting international co-operation in investigation of money-laundering. (d) the Political Declaration and Global Programme of Action adopted by United Nations General Assembly by its Resolution No. S-17/2 of 23rd February, 1990, inter alia , calls upon the member States to develop mechanism to prevent financial institutions from being used fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (j) the punishment for vexatious search and for false information may be enhanced from three months imprisonment to two years imprisonment, or fine of rupees ten thousand to fine of rupees fifty thousand or both; (k) the word good faith may be incorporated in the clause relating to Bar of legal proceedings. The Central Government have broadly accepted the above recommendations and made provisions of the said recommendations in the Bill. 3. In addition to above recommendations of the standing committee the Central Government proposes to (a) relax the conditions prescribed for grant of bail so that the Court may grant bail to a person who is below sixteen years of age, or woman, or sick or infirm, (b) levy of fine for default of non-compliance of the issue of summons, etc. (c) make provisions for having reciprocal arrangement for assistance in certain matters and procedure for attachment and confiscation of property so as to facilitate the transfer of funds involved in moneylaundering kept outside the country and extradition of the accused persons from abroad. 4. The Bill seeks to achieve the above objects. 4. Though the Act was passed by Parliament in the year 2002, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concealed, transferred or dealt with in any manner which may result in frustrating any proceedings relating to confiscation of such proceeds of crime under this Chapter, he may, by order in writing, provisionally attach such property for a period not exceeding one hundred and eighty days from the date of the order, in such manner as may be prescribed: Provided that no such order of attachment shall be made unless, in relation to the scheduled offence, a report has been forwarded to a Magistrate under section 173 of the Code of Criminal Procedure, 1973 (2 of 1974), or a complaint has been filed by a person authorised to investigate the offence mentioned in that Schedule, before a Magistrate or court for taking cognizance of the scheduled offence, as the case may be, or a similar report or complaint has been made or filed under the corresponding law of any other country: Provided further that, notwithstanding anything contained in first proviso, any property of any person may be attached under this section if the Director or any other officer not below the rank of Deputy Director authorised by him for the purposes of this section has reason to believe (the reasons for such bel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 44. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) an offence punishable under section 4 and any scheduled offence connected to the offence under that section shall be triable by the Special Court constituted for the area in which the offence has been committed: Provided that the Special Court, trying a scheduled offence before the commencement of this Act, shall continue to try such scheduled offence; or (b) a Special Court may, upon perusal of police report of the facts which constitute an offence under this Act or upon a complaint made by an authority authorised in this behalf under this Act take cognizance of offence under section 3, without the accused being committed to it for trial; (c) if the court which has taken cognizance of the scheduled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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. Section 46. Application of Code of Criminal Procedure, 1973 to proceedings before Special Court.- (1) Save as otherwise provided in this Act, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) (including the provisions as to bails or bonds), shall apply to the proceedings before a Special Court and for the purposes of the said provisions, the Special Court shall be deemed to be a Court of Session and the persons conducting the prosecution before the Special Court, shall be deemed to be a Public Prosecutor: Provided that the Central Government may also appoint for any case or class or group of cases a Special Public Prosecutor. (2) A person shall not be qualified to be appointed as a Public Prosecutor or a Special Public Prosecutor under this section unless he has been in practice as an advocate for not less than seven years, under the Union or a State, requiring special knowledge of law. (3) Every person appointed as a Public Prosecutor or a Special Public Prosecutor under this section shall be deemed to be a P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as very sparsely populated, in that it comprised of two paragraphs only consisting of two offences under the Indian Penal Code, 1860 and 9 offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. These offences were considered extremely heinous by the legislature and were, therefore, classified apart from offences under Part B, which dealt with certain other offences under the Indian Penal Code and offences under the Arms Act 1959, Wildlife (Protection) Act 1972, Immoral Traffic (Prevention) Act, 1956 and the Prevention of Corruption Act, 1988. According to learned senior counsel, this classification was maintained right until the Amendment Act of 2012, which then incorporated Part B offences into Part A of the Schedule, resulting in offences under 26 Acts, together with many more offences under the Indian Penal Code, all being put under Part A. This, according to learned senior counsel, was done because the definition of scheduled offence in Section 2(y) of the Act made it clear that, if offences are specified under Part B of the Schedule at the relevant time, the total value involved for such offences should be ₹ 30 lakhs or more. The idea behind the 2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009 in which the petitioner was granted bail by the Sessions Court by an order dated 10.12.2015. When the offence under the 2002 Act was added to the aforesaid offences, thanks to the applicability of the twin conditions in Section 45(1), he was denied bail with effect from 27.11.2015, which itself shows that Section 45(1) is being used in an extremely manifestly arbitrary fashion to deny bail for offences which extend only to seven years under the 2002 Act, as opposed to predicate offences which may extend even to life imprisonment. Also, according to learned senior counsel, the threshold of three years and above contained in Section 45 of the 2002 Act is itself manifestly arbitrary in that it has no reference to the offence of money laundering under the 2002 Act, but only to three years and more of the predicate offence. There is no condition, so far as the 2002 Act is concerned, of classification based on the amount of money that is laundered, which perhaps may be a valid basis for classification. Also, according to learned senior counsel, if the twin conditions of Section 45(1) are to be satisfied at the stage of bail, the defendants will have to disclose their defence at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in two ways. First, the expression there are reasonable grounds for believing that he is not guilty of such offence must be read as the making of a prima facie assessment by the Court of reasonable guilt. Secondly, according to the learned Attorney General, in any case the conditions contained in Section 45(1)(ii) are there in a different form when bail is granted ordinarily insofar as offences generally are concerned and he referred to State of U.P. through C.B.I . v. Amarmani Tripathi , (2005) 8 SCC 21 for this purpose. According to the learned Attorney General, if harmoniously construed with the rest of the Act, Section 45 is unassailable. He relied upon Section 24 of the Act, which inverts the burden of proof, and strongly relied upon Gautam Kundu v. Directorate of Enforcement (Prevention of Money- Laundering Act) , (2015) 16 SCC 1 and Rohit Tandon v. The Enforcement Directorate , Criminal Appeal Nos.1878-- 1879 Of 2017 decided on 10th November, 2017. In answer to Shri Rohatgi s argument on the object of the 2012 Amendment Act, according to the learned Attorney General, it is well settled that where the language of the Act is plain, no recourse can be taken to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the proceeds of crime involved in money laundering relate to a predicate offence under paragraph 2 of Part A of the Schedule, the sentence then gets extended from 7 years to 10 years. 8. Under Section 5 of the Act, attachment of such property takes place so that such property may be brought back into the economy. Coming now to Chapter VII of the Act with which we are really concerned, Section 43 lays down that Special Courts to try offences under the Act are to be designated for such area or areas or for such case or class or group of cases as may be specified by notification. Section 44 is very important in that the Section provides for the trial of a scheduled offence and the offence of money laundering together by the same Special Court, which is to try such offences under the Code of Criminal Procedure as if it were a court of sessions. Under Section 46, read with Section 65 of the Act, the provisions of the Code of Criminal Procedure apply to proceedings before the Special Court and for the purpose of the said provisions, the Special Court shall be deemed to be a court of sessions. 9. When the Prevention of Money Laundering Bill, 1999 was tabled before Parliament, Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commons denied King Charles I the means to conduct military operations abroad. The King was unwilling to give up his military ambition and resorted to the expedient of a forced loan to finance it. A number of those subject to the imposition declined to pay, and some were imprisoned; among them were those who became famous as the Five Knights . Each of them sought a writ of habeas corpus to secure his release. One of the Knights, Sir Thomas Darnel, gave up the fight, but the other four fought on. The King s Bench, headed by the Chief Justice, made an order sending the knights back to prison. The Chief Justice s order was, in fact, a provisional refusal of bail. Parliament being displeased with this, invoked Magna Carta and the statutes of Westminster, and thus it came about that the Petition of Right was presented and adopted by the Lords and a reluctant King. Charles I reluctantly accepted this Petition of Right stating, let right be done as is desired by the petition . Among other things, the Petition had prayed that no free man should be imprisoned or detained, except by authority of law. 11. In Bushel s case, decided in 1670, Chief Justice Sir John Vaughan was able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose of granting bail is set out with great felicity as follows:- 27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the Meerut Conspiracy cases observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etion in granting or cancelling bail. 30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806, para 39), it is stated: Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end. It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. 15. The stage is now set for an examination of the constitutional validity of Section 45 of the 2002 Act. 16. At this stage, it is important to advert to the tests for the violation of Article 14, both in its discriminatory aspect and its manifestly arbitrary aspect. It is settled by a catena of cases that Article 14 permits cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... classification for the purposes of legislation. If we look to the provisions of the impugned Act closely it would appear that the legislature classified the offences punishable under Sections 161, 165 or 165-A of the Indian Penal Code or sub-section (2) of Section 5 of the Prevention of Corruption Act, 1947 in one group or category. They were offences relating to bribery or corruption by public servants and were thus appropriately classified in one group or category. The classification was founded on an intelligible differentia which distinguished the offenders thus grouped together from those left out of the group. The persons who committed these offences of bribery or corruption would form a class by themselves quite distinct from those offenders who could be dealt with by the normal provisions contained in the Indian Penal Code or the Code of Criminal Procedure, 1898 and if the offenders falling within this group or category were thus singled out for special treatment, there would be no question of any discriminatory treatment being meted out to them as compared with other offenders who did not fall within the same group or category and who continued to be treated under th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xclusive jurisdiction to try the same and were also empowered to take cognizance thereof without the accused being committed to them for trial, and follow the procedure prescribed for the trial of warrant cases by Magistrates. The proceedings before the Special Judges were thus assimilated to those before the courts of sessions for trying cases without a jury or without the aid of assessors and the powers of appeal and revision invested in the High Court were also similarly circumscribed. All these provisions had the necessary effect of bringing about a speedier trial of these offences and it cannot be denied that this intelligible differentia had rational relation to the object sought to be achieved by the impugned Act. Both these conditions were thus fulfilled and it could not be urged that the provisions of the impugned Act were in any manner violative of Article 14 of the Constitution. 18. In so far as manifest arbitrariness is concerned, it is important to advert to the majority judgment of this Court in Shayara Bano v. Union of India and others , (2017) 9 SCC 1. The majority, in an exhaustive review of case law under Article 14, which dealt with legislation being st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith by Kurian, J. in paragraph 5 of his judgment. 19. Article 21 is the Ark of the Covenant so far as the Fundamental Rights chapter of the Constitution is concerned. It deals with nothing less sacrosanct than the rights of life and personal liberty of the citizens of India and other persons. It is the only article in the Fundamental Rights chapter (along with Article 20) that cannot be suspended even in an emergency (See Article 359(1) of the Constitution). At present, Article 21 is the repository of a vast number of substantive and procedural rights post Maneka Gandhi v. Union of India (1978) 1 SCC 248. Thus, in Rajesh Kumar (supra) at 724-726, this Court held: 56. Article 21 as enacted in our Constitution reads as under: 21. Protection of life and personal liberty .-No person shall be deprived of his life or personal liberty except according to procedure established by law. 57. But this Court in Bachan Singh [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] held that in view of the expanded interpretation of Article 21 in Maneka Gandhi [(1978) 1 SCC 248], it should read as follows: ( Bachan Singh case [(1980) 2 SCC 684 : 1980 SCC (Cri) 580] , SCC p. 730, para 136) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... king through Krishna Iyer, J. held: ( Sunil Batra case [(1978) 4 SCC 494 : 1979 SCC (Cri) 155] , SCC p. 518, para 52) 52 . True, our Constitution has no due process clause or the Eighth Amendment; but, in this branch of law, after Cooper [(1970) 1 SCC 248] and Maneka Gandhi [(1978) 1 SCC 248], the consequence is the same. 60. The Eighth Amendment (1791) to the Constitution of the United States virtually emanated from the English Bill of Rights (1689). The text of the Eighth Amendment reads, Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted . The English Bill of Rights drafted a century ago postulates, That excessive bail ought not to be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted . 61. Our Constitution does not have a similar provision but after the decision of this Court in Maneka Gandhi case [(1978) 1 SCC 248] jurisprudentially the position is virtually the same and the fundamental respect for human dignity underlying the Eighth Amendment has been read into our jurisprudence. 62. Until the decision was rendered in Maneka Gandhi [(1978) 1 SCC 248], Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, is a woman or is sick or infirm, may be released on bail, if the Special Court so directs; Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or State Government authorized in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government. (2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force on granting of bail. At this stage, it is clear that this Section referred only to offences punishable under the Act itself, in which the twin con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 2 dealt with offences under the Narcotic Drugs and Psychotropic Substances Act, 1985. Part B of the Schedule, as originally enacted, referred to certain offences of a heinous nature under the Indian Penal Code, which included murder, extortion, kidnapping, forgery and counterfeiting. Paragraphs 2 to 5 of Part B dealt with certain offences under the Arms Act 1959, Wildlife (Protection) Act 1972, Immoral Traffic (Prevention) Act, 1956 and the Prevention of Corruption Act, 1988. When the Act was originally enacted, it was, thus, clear that the twin conditions applicable under Section 45(1) would only be in cases involving waging of war against the Government of India and offences under the Narcotic Drugs and Psychotropic Substances Act. Even the most heinous offences under the Indian Penal Code were contained only in Part B, so that if bail were asked for such offences, the twin conditions imposed by Section 45(1) would not apply. Incidentally, one of the reasons for classifying offences in Part A and Part B of the Schedule was that offences specified under Part B would get attracted only if the total value involved in such offences was ₹ 30 lakhs or more (under Section 2( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 45, read with the Schedule, would, thus show that in its original avatar, as Clause 44 of the 1999 Bill, the Section dealt only with offences under the Act itself. Section 44 of the 2002 Act makes it clear that an offence punishable under Section 4 of the said Act must be tried with the connected scheduled offence from which money laundering has taken place. The statutory scheme, as originally enacted, with Section 45 in its present avatar, would, therefore, lead to the same offenders in different cases having different results qua bail depending on whether Section 45 does or does not apply. The first would be cases where the charge would only be of money laundering and nothing else, as would be the case where the scheduled offence in Part A has already been tried, and persons charged under the scheduled offence have or have not been enlarged on bail under the Code of Criminal Procedure and thereafter convicted or acquitted. The proceeds of crime from such scheduled offence may well be discovered much later in the hands of Mr. X, who now becomes charged with the crime of money laundering under the 2002 Act. The predicate or scheduled offence has already been tried and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree illustrations is far greater than in the fourth illustration, dependant only upon the circumstance that Mr. X is being prosecuted for a Schedule A offence which has imprisonment for over 3 years, a circumstance which has no nexus with the grant of bail for the offence of money laundering. The mere circumstance that the offence of money laundering is being tried with the Schedule A offence without more cannot naturally lead to the grant or denial of bail (by applying Section 45(1)) for the offence of money laundering and the predicate offence. 27. Again, it is quite possible that the person prosecuted for the scheduled offence is different from the person prosecuted for the offence under the 2002 Act. Mr. X may be a person who is liable to be prosecuted for an offence, which is contained in Part A of the Schedule. In perpetrating this offence under Part A of the Schedule, Mr. X may have been paid a certain amount of money. This money is ultimately traced to Mr. Y, who is charged with the same offence under Part A of the Schedule and is also charged with possession of the proceeds of crime, which he now projects as being untainted. Mr. X applies for bail to the Special Court/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laundering is involved, if Section 45 is to be applied, the Court must be satisfied that there are reasonable grounds for believing that he is not guilty of the offence under Part A of the Schedule, which is not the offence of money laundering, but which is a completely different offence. In every other Act, where these twin conditions are laid down, be it the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985, the reasonable grounds for believing that the accused is not guilty of an offence is in relation to an offence under the very Act in which such section occurs. (See for example, Section 20(8) of TADA and Section 37 of the NDPS Act). It is only in the 2002 Act that the twin conditions laid down do not relate to an offence under the 2002 Act at all, but only to a separate and distinct offence found under Part A of the Schedule. Obviously, the twin conditions laid down in Section 45 would have no nexus whatsoever with a bail application which concerns itself with the offence of money laundering, for if Section 45 is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... having no rational relation to the object sought to be achieved by an Act dealing with money laundering. Again a few illustrations would suffice to prove the point. 30. An extremely heinous offence, such as murder, punishable with death or life imprisonment, which is now contained in Part A of the Schedule may yield only ₹ 5,000/- as proceeds of crime. On the other hand, an offence relating to a false declaration under Section 132 of the Customs Act, punishable with a sentence of upto 2 years, which is an offence under Part B of the Schedule, may lead to proceeds of crime in crores of rupees. In short, a classification based on sentence of imprisonment of more than three years of an offence contained in Part A of the Schedule, which is a predicate offence, would have no rational relation to the object of attaching and bringing back into the economy large amounts by way of proceeds of crime. When it comes to Section 45, it is clear that a classification based on sentencing qua a scheduled offence would have no rational relation with the grant of bail for the offence of money laundering, as has been shown in the preceding paragraphs of this judgment. Even in the judgments ci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment stamps under Section 255 is roped into Part A of the Schedule, which is also punishable with life imprisonment. If such person is to apply for bail, the twin conditions contained in Section 45 would apply to him. Similar is the case with offences where a punishment of maximum of 10 years is given. Section 240 dealing with delivery of Indian coin possessed with knowledge that it is counterfeit; Section 251 dealing with delivery of Indian coin possessed with knowledge that it is altered; Sections 372 and 373 which deal with the selling and buying of minors for the purpose of prostitution, are all offences which are outside Part A of the Schedule and are punishable with the maximum of 10 years sentence. Each of these offences may involve money laundering, but not being in Part A of the Schedule, a person prosecuted for these offences would be able to obtain bail under Section 439 of the Code of Criminal Procedure, without any further conditions attached. On the other hand, if a person is charged with extortion under Sections 386 or 388, (such sections being included in Part A of the Schedule) and Section 4 of the 2002 Act, the person prosecuted under these sections would only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 439 of the Code of Criminal Procedure without satisfying the same twin conditions as are contained in Section 45 of the 2002 Act, under Section 37 of the NDPS Act. By assimilating all these three contraventions and bracketing them together, the 2002 Act treats as equal offences which are treated as unequal by the NDPS Act itself, when it comes to imposition of the further twin conditions for grant of bail. This is yet another manifestly arbitrary and discriminatory feature of the application of Section 45. 34. A reference to paragraph 23 of Part A of the Schedule would also show how Section 45 can be used for an offence under the Biological Diversity Act, 2002. If a person covered under the Act obtains, without the previous approval of the National Biodiversity Authority, any biological resources occurring in India for research or for commercial utilization, he is liable to be punished for imprisonment for a term which may extend to 5 years under Section 55 of the Act. A breach of this provision, when combined with an offence under Section 4 of the 2002 Act, would lead to bail being obtained only if the twin conditions in Section 45 of the 2002 Act are satisfied. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions under Section 45 would have to be applied. We are afraid that, for all the reasons given by us earlier in this judgment, we are unable to agree. The learned Attorney General asked us to read down Section 45 in that when the Court is satisfied that there are reasonable grounds for believing that a person is not guilty of an offence, it only meant that the Court must prima facie come to such a conclusion. Secondly, the fact that he is not likely to commit any offence while on bail would only be restricted to any offence of a like nature. Again, we are afraid that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove. Also, we cannot agree with the learned Attorney General that Section 45 imposes two conditions which are akin to conditions that are specified for grant of ordinary bail. For this purpose, he referred us to Amarmani Tripathi (supra) at para 18, in which it was stated that, for grant of bail, the Court has to see whether there is prima facie or reasonable ground to believe that the accused has committed the offence, and the likelihood of that offence b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the person arrested is likely to commit future crimes would violate substantive due process and the 8th amendment to the US Constitution. This it did with reference to an earlier judgment, namely, Stack v. Boyle, 342 US 1, where Chief Justice Vinson stated that unless pre-trial bail is preserved, the presumption of innocence secured only after centuries of struggle would lose its meaning. The dissenting judgment concluded: It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. United States v. Rabinowitz, 339 U.S. 56, 69, 70 S.Ct. 430, 436, 94 L.Ed. 653 (1950) (Frankfurter, J., dissenting). Honoring the presumption of innocence is often difficult; sometimes we must pay substantial social costs as a result of our commitment to the values we espouse. But at the end of the day the presumption of innocence protects the innocent; the shortcuts we take with those whom we believe to be guilty injure only those wrongfully accused and, ultimately, ourselves. Justice Stevens also dissented, agreeing with Justice Marshall s analysis. 38. We must not forget that Section 45 is a drastic pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be an unreasonable condition infringing the principle of Article 21 of the Constitution. It is clear that this Court upheld such a condition only because the offence under TADA was a most heinous offence in which the vice of terrorism is sought to be tackled. Given the heinous nature of the offence which is punishable by death or life imprisonment, and given the fact that the Special Court in that case was a Magistrate and not a Sessions Court, unlike the present case, Section 20(8) of TADA was upheld as being in consonance with conditions prescribed under Section 437 of the Code of Criminal Procedure. In the present case, it is Section 439 and not Section 437 of the Code of Criminal Procedure that applies. Also, the offence that is spoken of in Section 20(8) is an offence under TADA itself and not an offence under some other Act. For all these reasons, the judgment in Kartar Singh (supra) cannot apply to Section 45 of the present Act. 40. A similar provision in the Maharashtra Control of Organised Crime Act, 1999, also dealing with the great menace of organized crime to society, was upheld somewhat grudgingly by this Court in Ranjitsing Brahmajeetsing Sharma v. State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is able to maintain a delicate balance between a judgment of acquittal and conviction and an order granting bail much before commencement of trial. Similarly, the court will be required to record a finding as to the possibility of his committing a crime after grant of bail. However, such an offence in futuro must be an offence under the Act and not any other offence. Since it is difficult to predict the future conduct of an accused, the court must necessarily consider this aspect of the matter having regard to the antecedents of the accused, his propensities and the nature and manner in which he is alleged to have committed the offence. 41. The learned Attorney General relied heavily on Section 24 of the 2002 Act to show that the burden of proof in any proceeding relating to proceeds of crime is upon the person charged with the offence of money laundering, and in the case of any other person i.e. a person not charged with such offence, the Court may presume that such proceeds are involved in money laundering. Section 45 of the Act only speaks of the scheduled offence in Part A of the Schedule, whereas Section 24 speaks of the offence of money laundering, and raises a presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in Section 45(1) as it stands today, are not applicable qua a person accused of such offences which were earlier listed in Part B. The matter came to this Court by a certificate of fitness granted by the High Court. Sikri, J and Ramana, J., by their order dated 12th August, 2016, stated: Though the High Court has granted certificate to appeal, we have heard the learned counsel for some time and are of the opinion that the impugned judgment of the High Court is correct. This appeal is, accordingly, dismissed. The complaint of the learned Attorney General is that this was done at the very threshold without hearing the Union of India. Be that as it may, we are of the opinion that, even though the Punjab High Court judgment appears to be correct, it is unnecessary for us to go into this aspect any further, in view of the fact that we have struck down Section 45 of the 2002 Act as a whole. 45. Regard being had to the above, we declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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