TMI Blog2018 (8) TMI 1848X X X X Extracts X X X X X X X X Extracts X X X X ..... en Notification dated 29.3.2018 thereby amending Section 45(1) of PMLA Act which came into effect from 19.4.2018, is silent about its retrospective applicability. The applicant is 62 years of age and is an MBBS doctor by profession and is practicing and having number of medical institutes. He is permanent resident of Indore and in all other cases of Scheduled offences in which he was enlarged on bail, he never misused the terms and conditions of the bail. There is no reason to presume that applicant would abscond or temper or influence the witnesses - the applicant is entitled to be released on bail, without expressing any opinion on merits of the case, the application for grant of bail is allowed on various terms. - MCRC 34201/2018 - - - Dated:- 29-8-2018 - P.K. JAISWAL, J. For the Applicant : Shri A. Yadav, Advocate and Shri Nikhil Pandey, Advocate For Non-Applicant : Shri Deepak Rawal, learned ASG ORDER Heard. 2. An ECIR / INSZO / 02 / 2014 was registered by the respondent on 31.03.2016. By a provisional attachment order dated 31.3.2016, arising out of ECIR No.2 of 2014, properties worth ₹ 8,93,50,085/- belong ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2002 is manifestly arbitrary and thus contravenes Article 14 and 21 of the Constitution of India. Para 52 and 54 of order dated 23.11.2017 reads as under :- 52. In Gorav Kathuria (supra), the 2012 Amendment Act was read down having regard to the object sought to be achieved by the amendment, namely, that Part B of the Schedule is being made Part A of the Schedule, so that the provision of a monetary threshold limit does not apply to the offences contained therein. The High Court concluded: 33. Guided by the aforesaid principles laid down by the Hon'ble Supreme Court regarding statutory interpretation and the duty of the Court to secure the ends of justice, we have no hesitation in holding that in 2013, Part B of the Schedule was omitted and the Scheduled Offences falling thereunder were incorporated in Part A with the sole object to overcome the monetary threshold limit of ₹ 30 lakhs for invocation of PMLA in respect of the laundering of proceeds of crime involved in those offences. No substantive amendment was proposed with express intention to apply limitations on grant of bail as contained in Section 45(1) in respect of persons accused of such o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough the Punjab High court Judgment appears to be correct, it is unnecessary for us to go into this aspect any futher, in view of the fact that we have struck down Section 45 of the 2002 Act as a whole...... 8. He also submitted that in the present case, the prosecution has cited total 231 witnesses and there are in all 83 accused persons. The trial of the PMLA case would take considerable time to conclude and thus, keeping in view the observations made by the Hon'ble Supreme Court in Nikesh Tarachand Shah's case (supra), applicant cannot be kept in custody for an indefinite period to deny his right to defend themselves in accordance with postulates of our constitution especially Article 21 thereof. Applicant is on bail in the concerned Scheduled offences. The bail orders have attained finality and the concerned investigating agency viz. ACB have acquiesced into the same. 9. In the present PMLA case, the applicant was duly cooperating with the investigation and no prayer was ever been made by the non-applicant to arrest him during the investigation. It is also pointed out that in terms of ratio Nikesh Tarachand Shah's case (supra) various under tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for bail of the applicant has to be considered in view of the amended provision of Section 45(1) of the PMLA Act. He lastly submitted that looking to the prima facie evidence available against the applicant, he is not entitled for grant of bail and prayed for rejection of the bail application. 12. The Supreme Court in the case of Nikesh Tarachand Shah (supra) has in unequivocal terms held in para 44 that 'we have struck down Section 45 of the Act as a whole'. It is further held by the Supreme Court in para 45 that, we declare Section 45(1) of the PMLA Act in so far 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. 13. It is to be noted here that, after effecting amendment to Section 45(1) of the PMLA Act the words under this Act are added to Sub Section (1) of Section 45 of the PMLA Act. However, the original Section 45(1) (ii) has not been revived or resurrected by the said Amending Act. The learned counsel appearing for the applicant and the learned ASG are not disputing about the said fact situation and in fact have conceded to the same. It is further to be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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