9911796707
TMI Blog2021 (7) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... rate got registered FIR No.179/2018 with the EOW Cell for Scheduled Offences under the Prevention of the Money Laundering Act, 2002 (hereinafter referred as PMLA) i.e. Sections 419/420/467/468/471/476/120B IPC.. Thereafter, instant ECIR No.05/HIU/2018 was recorded by the Enforcement Directorate and petitioners appeared before the Enforcement Directorate from November 2018 on several occasions. It is alleged the petitioner Naresh Jain appeared at least 25 times, however, on 01.09.2020 he was arrested under Section 19 PMLA. Searches were conducted by the Enforcement Directorate on 23.10.2020 under PMLA at the residential premises of the petitioner Bimal Jain also. 4. On 28.10.2020, the prosecution complaint was filed before the learned Special Judge, PMLA against eight accused persons, including the petitioners herein. Petitioner Bimal Kumar Jain also joined the investigation of FEMA as also PMLA on various occasions. However, on 02.11.2020, an application was filed by the Assistant Director of Enforcement Directorate claiming interalia Bimal Jain had not deliberately received the summons and prayer was made for issuance of NBWs. Such NBWs were issued on 02.11.2020. In the meanwhile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision under Section 19 of the PMLA could not be adhered to. Admittedly, Bimal Jain was arrested in execution of the NBW by the learned Special Judge, PMLA while taking cognizance of prosecution complaint filed by the Enforcement Directorate and thus there was no occasion to comply with the requirement of Section 19 of the PMLA. The very fact the complaint was filed by the Enforcement Directorate arraying petitioner Bimal Jain as accused No.2, prima facie show there were reasons to believe the person was guilty of offence punishable under Section PMLA as the complaint is filed only against a person who is presumed to be guilty. Admittedly, the learned Special Judge, PMLA took cognizance of the complaint filed by the Enforcement Directorate as he reasonably believed petitioner Bimal Jain, being guilty of offence of money laundering. 11. Coming to his second argument viz the complainant and the Investigating Agency cannot be same, I may refer to Mukesh Singh vs State (NCT) of Delhi 2020 (10) SCC 120 wherein it was held:- "8. The question which is referred to the larger Bench is, whether in case the investigation is conducted by the informant/police officer who himself is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Schedule was held arbitrary and discriminatory and invalid in Nikesh Tarachand Shah v. Union of India (2018)11 SCC 1. Insofar as the twin conditions for release of the accused on bail under Section 45 of the Act are concerned, the Supreme Court held (at SCC p. 15. para 3) the same to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. Subsequently, Section 45 has been amended by Amendment Act 13 of 2018. The words "imprisonment for a term of imprisonment of more than three years under Part A of the Schedule" has been substituted with "accused of an offence under this Act...". 14. Further, in Mohd. Arif vs. Govt. of India, 2020 SCC OnLine Ori 544, the Orissa High Court has held as under:- "23. While deciding a bail application, the provisions of Section 45 read with Section 24 which reverses the burden of proof and creates presumption of guilt required to be dislodged by the accused, will mandatorily apply. A similar view of the matter has been reiterated in Rohit Tandon v. Directorate of Enforcement. It may further be held that the reliance placed by the petitioner on Nikesh Tarachand Shah v. Union of India is untenable in view of the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ors. vs State of Punjab & Ors. (1969) 1 SCC 475, it was held:- "7. We are unable to accept the argument that since the High Court of Punjab by their judgment in Mohinder Singh Sawhney case struck down the Act, Act 6 of 1968 had ceased to have any existence in law, and that in any event, assuming that, the judgment of the Punjab High Court in Mohinder Singh Sawhney case did not make the Act nonexistent, as between the parties in whose favour the order was passed in the earlier writ petition, the order operated as res judicata, and on that account the Act could not be enforced without re-enactment." 19. Therefore, merely because the entire section is not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable. Therefore, once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision. 20. Thus, there is a presumption in favour of constitutionality since the amended section 45(1) of the PMLA has not been struck down, (see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Crores to 973 beneficiaries. Petitioner Bimal Jain was made a director in various companies in which proceeds of crime generated by Naresh Jain and his accomplices were projected as untainted properties and is in possession of proceeds of crime to the tune of Rs. 35,78,53,638/-. 24. It is alleged both the petitioners are well connected in India and abroad and there is an apprehension that they will flee from the country to evade trial in case they are enlarged on bail. As alleged above, Bimal Jain has evaded the summons issued by the department and had refused to join investigation. The apprehension qua Naresh Jain finds support from the following fact: "It was further informed that Dubai Police had arrested Naresh Jain and his 9 accomplices for money laundering activities. Naresh Jain in his statement dated 11.09.2017 recorded under Section 37 of FEMA, 1999 and taken on record in this case vide his statement dated 27.08.2020 recorded under Section 50 of PMLA, 2002, informed that he was arrested in February, 2007 in Dubai and got bail in August, 2007. However, he fled from Dubai in May, 2009 through Nepal. Government of Dubai had sent a report on the case of Naresh Jain which wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
