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2018 (2) TMI 239

l by the Respondent agency, the fact remains that most of the material has been seized and collected and the severity of the punishment, which has been emphasized by learned Senior Counsel Shri S.V.Raju, clearly suggest that it is punishable up to 7 years, meaning thereby, it is not punishable with life imprisonment or death. - The consideration of the present application for bail even in light of the submissions and the prima facie case suggesting the involvement of the Applicant accused for the alleged offence would not dis-entitle the Applicant accused from bail having regard to the broad guidelines regarding grant of bail. However, in order to protect the interest of the Respondent or the public interest, suitable stringent conditions can be imposed particularly when learned Assistant Solicitor General Shri Devang Vyas has voiced an apprehension that even though the Applicant accused is in jail, there is no cooperation by his family members for the investigation and further details. Therefore the present application deserves to be allowed and accordingly stands allowed. - The Applicant JIGNESH KISHOREBHAI BHAJIAWALA is ordered to be released on bail in connection wit .....

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Act. The Hon'ble Apex Court has made the observations with regard to the bail application where the offence under the PML Act 2002 is made observing that such an application may be heard without application of twin conditions as contained in Section 45 of the PML Act. Therefore, the present petitioner also moved Criminal Appeal No. 2184 of 2017 [Arising out of SLP (Crl.) No. 6341 of 2017]. The order passed in the said Criminal Appeal No. 2184 of 2017 is reproduced herein after: Leave granted. In writ petition (Criminal) No. 67 of 2017 (Nikesh Tarachand Shah Vs. Union of India & Anr.) decided on 23-11-2017, the following operative directions were passed:- 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 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 t .....

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Territory, Chandigarh, reported in (1978) 2 SCC 366. He also referred to and relied upon the judgment of the Hon'ble Apex Court in case of Gurcharan Singh & Ors. v. State (Delhi Administration), reported in (1978) 1 SCC 118. Learned Senior Counsel Shri S.V.Raju also referred to Sections 437 and 439 of Cr.PC as well as the guidelines or the relevant criteria for the grant of bail. 9. Learned Senior Counsel Shri S.V.Raju also referred to the background of the facts to emphasize that as such no case is made out and unless it is established with regard to the money laundering that it is a proceed of crime, the presumption could not be made and the provisions of the PML Act may not be readily accepted. He also referred to the charge sheet and submitted that the submissions are made but the charge sheet referred to only one crore and he submitted that the CBI has already submitted the charge sheet and the investigation is over, and therefore, there is no justification to languish the petitioner in jail. He therefore emphasized the relevant criteria for grant of bail. However, learned Senior Counsel Shri S.V.Raju referred to the complaint on page 73 and the FIR filed by the CBI at .....

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Court, and therefore, this court may consider this application instead of relegating the applicant to file before the trial court first. 12. Learned Assistant Solicitor General Shri Devang Vyas referred to the order of the Hon'ble Apex Court as stated above and submitted that the concerned court would be the trial court as the applicant is required to approach there where his application for bail was initially considered and declined. Therefore, learned Assistant Solicitor General Shri Devang Vyas submitted that when the Hon'ble Apex Court has not referred to concerned court it would imply the concerned trial court , and therefore, this court may not consider such application on merits and the bail application is required to be filed in the first instance before the trial court. Learned Assistant Solicitor General Shri Devang Vyas referred to the background of the facts with details to highlight the modus operandi and how the provisions of the PML Act are attracted with regard to the offence under the PML Act. Learned Assistant Solicitor General Shri Devang Vyas submitted that the FIR by the CBI is a separate issue as it is filed by CBI for the alleged offence under the Pr .....

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o Section 23 which provides; Presumption in inter-connected transactions. Learned Assistant Solicitor General Shri Devang Vyas submitted that Section 46 provides for; Application of the Code of Criminal Procedure, 1973 to proceedings before Special court. but it has to be read with Section 71. Learned Assistant Solicitor General Shri Devang Vyas submitted that Section 71 of the PML Act clearly provides; Act to have overriding effect. He therefore submitted that the provisions of the Code of Criminal Procedure may be complimentary or supplementary but cannot be in consistent with the provisions of the special statute like the PML Act. He therefore strenuously submitted that having regard to the provisions of the PML Act and in particular Sections 23 and 24, a presumption has to be made that such money is the proceeds of crime, and therefore, unless the burden is discharged, prima facie case is established, and therefore, looking to the nature and gravity of the economic offence, the present application may not be entertained. Learned Assistant Solicitor General Shri Devang Vyas submitted that Sections 22 and 23 read with Section 24 of the PML Act refers to the presumption or the inf .....

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word High Court is not used, would not justify such an argument. He submitted that remitted back would mean, consideration afresh by the court and the matter is remitted back to the High Court. He submitted that though the submissions are made that the investigation is not over, in fact the material has been seized and all the details and relevant materials are with the Respondents or with the CBI which can be considered, and therefore, there is no scope of manipulation or tampering with the record. He therefore submitted that the court is required to consider the present application as per Section 439 of Cr.PC in light of the order of the Hon'ble Apex Court. He emphasized that since the severity of the offence and the punishment are considered as one of the relevant criteria for grant of bail under Section 439 of Cr.PC, the present application deserves to be allowed. He again referred to the details and submitted that the presumption cannot be made about the proceeds of crime without sufficient material and, it is a matter of appreciation of evidence at the trial. Learned Senior Counsel Shri S.V.Raju referred to the role attributed to the applicant and submitted that he is sa .....

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ed with reference to all the details with regard to the different accounts and different bank accounts which have been handled and managed by the petitioner suggesting the prima facie involvement and prima facie case under the PML Act, even then, the present application is required to be considered on its own merits under Section 439 of Cr.PC. 18. Much reliance placed by learned Assistant Solicitor General Shri Devang Vyas on the provisions of Sections 23 and 24 of the PML Act and the emphasis about the burden of proof, presumption is required to be scrutinized closely. As stated that when a person is charged with the offence of money laundering under Section 3, the authority or the court shall presume that such proceeds of crime are involved in money laundering. In other words unless the burden is discharged, the person who is charged with the offence of money laundering, the presumption is required to be made that it is a proceed of crime involved in money laundering. Therefore, it refers to the presumption or inference to be drawn and the burden is on the accused, which is required to be discharged. However, it may have to be considered on the basis of material and evidence at t .....

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ditional liberty. Stroud s Judicial Dictionary (4th Edn., 1971) spells out certain other details. It states: ? when a man is taken or arrested for felony, suspicion of felony, indicted of felony, or any such case, so that he is restrained of his liberty. And, being by law bailable, offereth surety to those which have authority to bail him, which sureties are bound for him to the King s use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed - that is to say, set at liberty until the day appointed for his appearance. Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice. 7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the .....

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onflicting rights of an individual and the investigating agency. 22. A useful reference can be also be made to the observations made by the Hon'ble Apex Court in a judgment in case of State of U.P. v. Amarmani Tripathi reported in (2005) 8 SCC 21 wherein the Hon ble Apex Court has considered relevant criteria, which are required to be considered for the purpose of bail. 23. Therefore, as per the settled principles and guidelines at the stage of grant of bail, the discretion is required to be exercised by the courts balancing the right of an individual and the investigating agency or the society, at that stage a detailed examination of material and evidence or the elaborate discussion is not necessary and the court is not required to have any perception that prima facie case is established which would be sufficient to deny the bail. In fact the prima facie case may be considered but the relevant criteria for grant of bail has other facets like prima facie case, the nature of accusation and severity of punishment and also the reasonable apprehension of tampering with the witnesses. Therefore, at that stage, the prima facie satisfaction about the involvement of the Applicant accus .....

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amount to the satisfaction of the lower Court and subject to the conditions that : (a) he shall not take undue advantage of his liberty or abuse his liberty. (b) he shall not to try to tamper or pressurize the prosecution witnesses or complainant in any manner. (c) he shall not act in any manner injurious to the interest of the prosecution. (d) he shall maintain law and order and should cooperate the investigating officers. (e) he shall mark his presence every month before the concerned Police Station from 1st to 10th of each calendar month between 11:00 AM to 5:00 PM. (f) the applicant and his family members will respond to the summons and shall cooperate with the Respondent Agency - Directorate of Enforcement for the purpose of any inquiry, investigation or any material that may be required. (g) it will be open for the Respondent Agency to move an application for cancellation of bail in case of failure to cooperate with the Respondent Agency (h) he shall furnish the address of his residence to the Investigating Officer and also to the Court at the time of execution of the bond and shall not change his residence without prior permission of the Court. (i) he shall surrender his pa .....

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