TMI Blog2020 (6) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of Section 45 of the Act introduced after Supreme Court s decision in case of Nikesh Tarachand Shah does not have the effect of reviving the twin conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of the Constitution of India. There are no force in submission made on behalf of Union of India that a different view has been taken in case of P. CHIDAMBARAM VERSUS DIRECTORATE OF ENFORCEMENT [ 2019 (9) TMI 286 - SUPREME COURT] by the Supreme Court than the view taken in case of Nikesh Tarachand Shah on the question of constitutional validity of sub-Section (1) of Section 45 of the Act. There is no discussion in this regard in the said judgment in case of P. Chidambaram . The application for anticipatory bail in case of P. Chidambaram was rejected on merits of the allegation and other materials. Merits of the case - HELD THAT:- The petitioner is the widow of deceased younger brother of the main accused Ashok Kumar Yadav against whom there are 26 criminal cases and in course of investigation carried out against him in respect of commission of offence under the Act, it emerged that he had purchased properties in the name of the petitioner and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or 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 (2 of 1974) or any other law for the time being in force on granting of bail. 3. Subsequent to the Supreme Court s decision, in case of Nikesh Tarachand Shah (supra), certain amendments were made in various provisions of the Act including Section 45(1) of the Act. The amending provision, which is relevant for the issue which has arisen in the present matter, reads thus : - For the words punishable for a term of imprisonment of more than three years under Part A of the Schedule , the words under this Act shall be substituted. 4. Evincibly, consequent upon the aforesaid amendment through Finance Act, 2018, Section 45 of the Act, as it now stands, reads thus : - Section 45.- Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offence under the Act, on bail, if a Public Prosecutor opposes the bail application, namely; the Court is satisfied (i) that there are reasonable grounds for believing that the accused is not guilty of such offence and (ii) that he is not likely to commit any offence while on bail. Whether substitution of the words under this Act in place of the words punishable for a term of imprisonment of more than three years under Part A of the Schedule in Section 45(1) of the Act, has the impact of meeting with the reasonings and logic incorporated and discussed by the Supreme Court in case of Nikesh Tarachand Shah (supra) for declaring the Clause (ii) of Sub-section (1) of Section 45 of the Act ultra vires and, therefore, Clause (ii) of sub-Section (1) of Section 45 of the Act is in present form should be treated to be valid, despite Supreme Court s decision in case of Nikesh Tarachand Shah (supra) is the central question to be gone into in the present application. 8. This application has been filed under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail in connection with Complaint Case No. 09 of 2018 PMLA (Patna) arising out of ECIR No. PTZO/0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by introducing amendment of the nature as noted above. He has submitted that the amendment introduced in 2018 in sub-Section (1) of Section 45 of the Act does not amount to reenactment of the provision to the extent it related to imposition of conditions for release on bail, which has been declared ultra vires Articles 14 and 21 of the Constitution of India. He has also relied on a judgment of High Court of Madhya Pradesh Bench at Indore, dated 29th August, 2018, passed in M.Cr.C. No. 34201 of 2018 ( Dr. Vinod Bhandari Vs. Assistant Director, Directorate of Enforcement ) , wherein it has been held that the original Section 45(1) (ii) cannot be said to have revived or resurrected by the Amending Act. 13. Mr. S.D.Sanjay, learned Additional Solicitor General for India, appearing for the Union of India, per contra , has placed reliance on Supreme Court s decision in case of P. Chidambaram vs. Directorate of Enforcement , reported in (2019) 9 SCC 24 , which is a judgment subsequent to the aforesaid amendment in Section 45(1) of the Act and has submitted that applying the provision under Section 45(1) of the Act, the application for grant of anticipatory bail was rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dependence on the applicability, relatable only to the offences in Part A of the Schedule; for the reason that the offences under Part A of the Schedule are not offences of money laundering rather different predicate offences. 15. According to him, the amendment has been introduced with effect from 19.04.2018 after taking note of the decision of the Supreme Court in case of Nikesh Tarachand Shah (supra) and the defects, which were pointed out in the judgment, have thus been rectified, for, in place of the term punishable for a term of imprisonment of more than three years of Part A of the Schedule , under this Act has been substituted. He accordingly submits that the twin conditions have now become referable and relatable to the offence under the Act of 2002. The discrepancy, as pointed out by the Supreme Court, according to him, has thus been removed in the statute book, he contends. He has submitted that decision of the High Court of Delhi in case of Upendra Rai (supra) and that of the High Court of Judicature at Bombay in case of Sameer M. Bhujbal (supra) cannot be relied upon, which have not noticed, in correct perspective, the situation emerging out of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under the 2002 Act. 18. The second illustration finds place in paragraph 32 of the judgment in case of Nikesh Tarachand Shah (supra), in a situation, when a person being charged with an offence in Part A of the Schedule together with a predicate offence in Part B of the Schedule. The Supreme Court observed as under in paragraph 32 : - The second illustration would be of Mr. X being charged with an offence under the 2002 Act together with a predicate offence contained in Part B of the Schedule. Both these offences would be tried together. In this case, again, the Special Court/High Court can enlarge Mr. X on bail, with or without conditions, under Section 439 of the Code of Criminal Procedure, as Section 45 of the 2002 Act would not apply. 19. Third illustration finds place in paragraph 32 itself in following terms :- In a third illustration, Mr. X can be charged under the 2002 Act together with a predicate offence contained in Part A of the Schedule in which the term for imprisonment would be 3 years or less than 3 years (this would apply only post the Amendment Act of 2012 when predicate offences of 3 years and less than 3 years contained in Part B we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng State s interest, indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. The provisions akin to Section 45 have been upheld on the ground that there was compelling State interest in tackling crimes of an extremely heinous nature, Supreme Court noted. For the benefit of quick reference, paragraph 46 of the decision in case of Nikesh Tarachand Shah (supra) is being reproduced hereinbelow : - 46. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceased younger brother of the main accused Ashok Kumar Yadav against whom there are 26 criminal cases and in course of investigation carried out against him in respect of commission of offence under the Act, it emerged that he had purchased properties in the name of the petitioner and her deceased husband to the tune of ₹ 5,66,000/-. Further, a sum of ₹ 6,95,000/- has been allegedly deposited in the savings bank account of the petitioner by the said accused Ashok Kumar Yadav. In addition, a sum of ₹ 2,99,500/- is lying in the account of the deceased husband of the petitioner. 29. Considering the nature of allegation, in my opinion, a case of grant of anticipatory bail is made out. 30. This application is allowed. 31. Let the petitioner above named, in the event of her arrest/surrender within eight weeks from today in the Court below, be released on bail on furnishing bail bond of ₹ 10,000/- (Ten Thousand) with two sureties of the like amount each to the satisfaction of the learned Sessions Judge-cum-Special Judge (PMLA), Patna, in connections with Complaint Case No. 09 of 2018 PMLA (Patna) arising out of ECIR No. PTZO/05/2013 and PTZO/02/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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