TMI Blog2021 (6) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... punishable for a term of imprisonment of more than three years under Part A of the Schedule with the words under this Act especially without there being any amendment with regard to the twin conditions for grant of bail which had specifically been declared to be unconstitutional as also in the absence of any validating law in this regard with retrospective effect. The investigations in the case are complete since a report under Section 173 Cr.P.C. as also a supplementary report under Section 173(8) Cr.P.C. by the Haryana Police and a complaint under Sections 44/ 45 of the PMLA by the ED have already been filed; both the petitioners have been in custody since 16.02.2021; all the relevant documents on the basis of which the prosecution seeks to prosecute the petitioners already stand seized in the course of 16 raids conducted by the ED on different premises of the petitioners; the petitioner in CRM-M-12901-2021 has joined the investigation 11 times whereas the petitioner in CRM-M-12459-2021 has joined the investigation on 13 occasions; properties of both the petitioners, to the extent of the alleged money laundered by them, already stands attached - this Court is of the consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t before the DTCP. On favourable consideration of the application, on 22.11.2008, Chintels and DTCP entered into an agreement on the basis of which a licence bearing No.190/2008 dated 24.11.2008 was issued in favour of Chintels. As per the relevant term of the agreement, on which the licence was based, Chintels was required to reserve 25% of the developed residential plots on a 'No Profit No Loss' (for short NPNL) basis. It was further agreed between the parties that 75% of the NPNL plots would be allotted to registered applicants through a draw of lots (if so required) and the remaining 25% would be allotted to Non Resident Indians against Foreign Exchange; land owners whose land had been purchased by Chintels for setting up the colony; plots falling in small pockets which subsequently are acquired by the colonizers as part of an area already developed as a colony by Chintels and to such persons whom Chintels may like at its discretion (provided that such allotment did not exceed 5% of the total number of NPNL plots). Two other licences bearing Nos.58/2013 and 79/2014 for 3.947 acres and 13.375 acres respectively, which also contained similar terms with regard to rese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in quashing of the ECIR. Such petition was disposed of on 07.08.2020 with a direction that since at that stage the impugned ECIR was sans any scheduled offence under the PMLA the same be treated as closed. However, liberty was granted to the ED to revive the ECIR in case on the filing of a supplementary charge sheet and/ or framing of a charge against the accused they are sought to be prosecuted for any scheduled offence(s) under the PMLA. On 20.08.2020 the Haryana Police filed a supplementary charge sheet under Section 173(8) Cr.P.C. through which it was inter-alia alleged that qua licences Nos. 58/2013 and 79/2014 Chintels had not obtained any permission from the DTCP for change in beneficiary interest/ joint development rights and since for seeking such permission a fee was required to be paid, which remained unpaid, financial loss had been caused to the government resulting in playing of fraud with the public as also the State of Haryana. Accordingly, in addition to Section 10 of the 1975 Act, the accused were also sought to be prosecuted under Section 420 IPC. On the happening of such an event, in terms of the liberty granted by the Delhi High Court, the ED revived the ECIR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntels/ QVC much before the issuance of the licence. It has been contended on behalf of the petitioners that they have been falsely implicated in this case; the petitioners are in custody since 16.02.2021; both of the petitioners have already been questioned by the ED on over ten occasions and during such questioning they have duly cooperated with the investigating agency; since in the case in hand investigation is complete and even the supplementary report under Section 173(8) Cr.P.C. / complaint under Sections 44 and 45 of the PMLA has been filed the petitioners are neither needed by the prosecution for investigation purposes nor are they in any position to influence the investigation; the entire case of the prosecution is based on documents which have already been seized in the course of several raids conducted by the ED on the premises of both the petitioners; properties of both the petitioners for over ₹ 50 crores and ₹ 60 crores respectively have already been siezed by the ED; the ECIR itself is illegal as the only scheduled offence under the PMLA on which the ECIR rests i.e. Section 420 IPC, is not made out because the allegations to attract applicability of Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r recording a satisfaction that there were reasonable grounds for believing that the petitioners were not guilty of the alleged offences and that while on bail they were not likely to commit any offence; though in Nikesh Tarachand Shah vs. Union of India and another (2018) 11 SCC 1 Section 45(1 ) of the PMLA, as it then stood, had been declared unconstitutional by the Supreme Court but the defect pointed out by the Supreme Court which formed the basis to declare Section 45(1) to be unconstitutional had since been cured by the Legislature through its Act No.13 of 2018 which came into force from 19.04.2018; as per Act No.13 of 2018 the offending expression punishable for a term of an imprisonment of more than three years under Part A of the Schedule has been substituted with under this Act ; in view of the afore amendment the twin conditions prescribed under Section 45(1) of the PMLA stood revived; the amended Section 45(1) of the PMLA has not been challenged by the petitioners and therefore the petitioners as also this Court was bound by the aforesaid twin conditions prescribed therein; in terms of the law laid down by the Supreme Court in Nagaland Senior Government Employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so determined by the DTCP for the NPNL plots and to adjust the lower price of the land for such plot inflated the cost of construction; no person on the general public could benefit with regard to the allotments to be made under the NPNL category; all this was due to the fraudulent acts of the petitioners as also their greed; while joining investigation the petitioners have always been evasive/ non-cooperative and that since the petitioners are having deep pockets, if they released on bail, they are likely to influence the course of their trial. With regard to applicability of Section 420 IPC to the facts of the present case the learned ASG relied on the following observations of the Supreme Court in Tulsi Ram etc. vs. State of Uttar Pradesh AIR 1963 SC 666:- 17. But, in an offence under Section 420 IPC a pecuniary question necessarily arises. The first part of Section 464 IPC provides that a person is said to make a false document who dishonestly or fraudulently makes, signs etc., a document with a particular intention and covers cases both of acts which are dishonest and acts which are fraudulent. Where no pecuniary question arises the element of dishonesty need not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and that where the Public Prosecutor opposed such plea the Court could order release of the accused on bail only after recording a satisfaction that there were reasonable grounds for believing that the person to be released was not guilty of the offence he was accused of and that while on bail he was not likely to commit any offence. The constitutional validity of the afore quoted provision imposing the twin conditions for grant of bail was questioned before the Supreme Court in Nikesh Tarachand Shah's case (supra) and the Supreme Court, after holding that the prescribed twin conditions for release on bail were violative of Articles 14 and 21 of the Constitution of India declared Section 45(1) of the PMLA, to that extent, to be unconstitutional. The operative part of judgment of the Supreme Court is as follows:- 54. 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 conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the ED was considered and repelled through the following observations:- 9. 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 Additional Solicitor General of India are not disputing about the said fact situation and in fact have conceded to the same. It is further to be noted here that, even Notification dated 29.3.2018 thereby amending Section 45(1) of the PMLA Act which came into effect from 19.4.2018, is silent about its retrospective applicability. In view thereof, the contention advanced by the learned A.S.G. cannot be accepted. It is to be further noted here that, the original Sub-section 45(1)(ii) has therefore neither revived nor resurrected by the Amending Act and therefore, as of today there is no rigor of said two further conditions under original Section 45(1)(ii) of PMLA Act for releasing the accused on bail under the said Act. 10. In view of the above, when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision is still in the field. Although it is contended that, the decision has been challenged before Apex Court, it has not been set aside nor there is stay on the decision. To the same effect are the following observations by the Delhi High Court in Sai Chandrasekhar vs. Directorate of Enforcement 2021 SCC Online Delhi 1081: 17. Twin conditions mentioned in Section 45 of the PML Act continue to be struck down as being unconstitutional in view of the judgment of the Apex Court in the case of Nikesh Tarachand Shah vs. Union of India (2018) 11 SCC 1. The amendment in Section 45 by the Finance Act 2018 is only with respect to substituting the term 'offence punishable for 3 years' with 'offence under this Act'. The said amendment does not revive the twin conditions already struck down by the aforesaid judgment. 18. Since the twin conditions for bail in section 45 of the PML Act have been struck down by the Hon'ble Supreme Court and the same are neither revived nor resurrected by the Amending Act therefore, as of today there is no rigor of said two conditions under original Section 45(l)(ii) of the PML Act for releasing the Petitioner on bail. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding thereupon may prejudice either party's right to a fair trial. After considering the entire matter with the seriousness that it deserves and in particular that investigations in the case are complete since a report under Section 173 Cr.P.C. as also a supplementary report under Section 173(8) Cr.P.C. by the Haryana Police and a complaint under Sections 44/ 45 of the PMLA by the ED have already been filed; both the petitioners have been in custody since 16.02.2021; all the relevant documents on the basis of which the prosecution seeks to prosecute the petitioners already stand seized in the course of 16 raids conducted by the ED on different premises of the petitioners; the petitioner in CRM-M-12901-2021 has joined the investigation 11 times whereas the petitioner in CRM-M-12459-2021 has joined the investigation on 13 occasions; properties of both the petitioners, to the extent of the alleged money laundered by them, already stands attached; both the petitioners are senior citizens aged 61 and 75 years respectively with presently there being an emergent situation in this country due to spike in infected cases under Covid-19 warranting decongestion of prisons and that the ..... 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