TMI Blog2021 (6) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... ons do not get revived and hence, are inapplicable to the bail application filed under the PMLA - However, a contrary view has been taken by the Hon'ble High Court of Orissa at Cuttack in the matter of MOHAMMAD ARIF VERSUS DIRECTORATE OF ENFORCEMENT, GOVT. OF INDIA [ 2020 (7) TMI 425 - ORISSA HIGH COURT] and by the Hon'ble High Court of Patna in the matter of VIDYUT KUMAR SARKAR VERSUS THE STATE OF BIHAR AND ORS. [ 2020 (7) TMI 581 - PATNA HIGH COURT] . Further, till date, no court has declared the twin conditions mentioned in the amended Section 45 of PMLA to be unconstitutional on the ground of it being violative of Article 14 of the Constitution of India. Further, having regard to the fact that twin conditions in the amended Section 45 of the PMLA have not been struck down being unconstitutional till date by any court in India, therefore, twin conditions as mentioned in Section 45 of the PMLA are required to be made applicable to the present bail application. It is apparent that accused played a major role by getting the illegal commission transferred from M/s. Uralkali General Trading, Gibralter and Gulf Marine, Dubai into the account of entities owned by Raji ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the present accused and other accused persons. The present accused was a Senior Vice President of M/s. Jyoti Trading Corporation, at the relevant time. The accused persons named in the CBI case entered into a criminal conspiracy during 2007 to 2014 and cheated and defrauded IFFCO and Indian Potash Limited (IPL), the share holders of those entities and the Government of India by fraudulently importing fertilizers and other materials for fertilizer production at inflated prices and claimed higher subsidy from Government of India causing loss of several crores of rupees. They allegedly siphoned off the commission received from the suppliers through a complex web of fake commercial transactions through multiple companies owned by the accused persons, registered outside India in order to camouflage the fraudulent transactions. It is claimed that IFFCO set up its 100% subsidiary namely M/s. Kisan International Trading FZE in Dubai for importing fertilizers and other raw materials from foreign companies. Bills were raised by the suppliers in favour of M/s. Kisan International Trading at inflated rates to cover up the bribe money to be paid to the accused persons and similar modus was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 45 of the PMLA but the twin conditions mentioned in Section 45 of PMLA are not required to be considered, being inapplicable. 7. It was submitted that prior to the amendment of Section 45 of PMLA, the twin conditions mentioned in Section 45 of PMLA were struck down by the Hon'ble Supreme Court of India in the matter of Nikesh Tarachand Shah Vs. Union of India and another, (2018) 11 SCC 1 wherein it was held that twin conditions mentioned in Section 45 of PMLA are arbitrary and hence, held to be unconstitutional and were struck down . 8. It was further submitted that thereafter, Section 45 of PMLA was amended and the twin conditions were again revived in amended Section 45 of PMLA. It was further submitted that the twin conditions mentioned in the amended Section 45 of PMLA came into consideration before the various Hon'ble High Courts and they have taken a consistent view that twin conditions as mentioned in amended Section 45 of PMLA do not stand revived pursuant to the amendment and hence, are not applicable while deciding the bail application. In support of his submission, Ld. Senior Counsel for accused has relied upon the following judgments: (1) Sai Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or for any other exigency, then he will only go after taking due permission from the court. 14. It was further submitted that there is no chance of accused fleeing from this country if released on bail as he has got deep roots in the society. It was submitted in this regard that accused is a sitting Rajya Sabha Member of Parliament and is unmarried. It was further submitted that accused's sister and brother in law are very much settled in India. Therefore, there is no question of accused making himself not available to stand trial in the present case. 15. It was further submitted that gravity of allegations is not a ground to deny bail. In support of his submission, Ld. Senior Counsel for accused has relied upon the following judgments: (1) Prabhakar Tiwari Vs. State of Uttar Pradesh and Anr., (2020) 11 SC 648; (2) Anil Mahajan Vs. Commissioner of Customs and Anr., (2000) 53 DRJ 501; and (3) H.B. Chaturvedi Vs. CBI. 16. It was submitted that in the present case, first complaint was made to the CBI in 2013 and the case has been registered in 2021 only i.e. after eight years of the alleged offence. It was further submitted that in economic offences, evidence is ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the PMLA. In support of his submission, Ld. Special Counsel for ED has relied upon the following judgments: (1) Mohammed Arif vs. Directorate of Enforcement; and (2) Vidyut Kumar Sarkar vs. The State of Bihar and Ors. 23. It was further submitted that accused has himself filed the present bail application under Section 45 of PMLA being fully aware of the twin conditions mentioned in Section 45 of PMLA. Therefore, he cannot take the plea that the same are not applicable. 24. It was further submitted that twin conditions in amended Section 45 of PMLA are not declared to be constitutionally invalid till date by any court. Therefore, Section 45 of PMLA will be applicable to the present bail application. 25. Secondly, it was submitted that even as per proviso to Section 45 of PMLA, accused does not deserve the discretionary relief of bail on the ground of he being sick and infirm. It was submitted that accused is not suffering from any disease which is life threatening and as per his own admission made in the interim application for house arrest, the malignancy of lymphatic cancer is controlled and he has to visit U.S.A. for a regular follow up only. 26. It was fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33. It was further submitted that till the investigation conducted so far, accused has not co-operated in the investigation. It was further submitted that accused is an influential person as he is a sitting Rajya Sabha MP and is also a member of Parliamentary Standing Committee of Fertilizers and as such, he may influence witnesses, if released on bail. 34. It was further submitted that investigation of this case is at a crucial stage and if accused is released on bail, then it might hamper the investigation. Accordingly, a prayer was made to dismiss the bail application. In support of his submission, Ld. Special Counsel for ED has relied upon the following judgments: (1) State of Gujarat Vs. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364; (2) State of Bihar Vs. Amit Kumar, (2017) 13 SCC 751; (3) Nimmagadda Prasad Vs. CBI, (2013) 7 SCC 466; (4) Central Bureau of Investigation Vs. Ramendu Chattopadhyay, Criminal Appeal No. 1711 Of 2019; (5) Serious Fraud Investigation Office Vs. Nittin Johari, (2019) 9 SCC 165; (6) Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439; (7) Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129; (8) Kalyan Chandra Sarkar Vs. Rajesh Ranjan, (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that material witnesses or evidence of this case are not tempered with in any manner and accused makes him available for the purpose of interrogation as and when it is required by the investigating officer. Accordingly, it was again prayed that application for grant of bail be allowed. 39. I have considered the rival submissions of respective parties and have carefully perused the judgments relied upon by respective counsels. I have also summoned the case file at my house and have carefully perused the same. 40. The first point which is required to be dealt with while deciding the present bail application is that whether the twin conditions mentioned in Section 45 of PMLA are to be applied or not in the present case? 41. It is true that the Hon'ble Supreme Court of India in the matter of Nikesh Tarachand Shah's case (supra) had held that the twin conditions in the un-amended Section 45 of PMLA were unconstitutional as they were violative of Article 14 of the Constitution of India, being arbitrary. The Hon'ble Supreme Court of India had declared twin conditions to be unconstitutional as Section 45 of PMLA did not make a reasonable classification for appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reat the judgment of the Hon'ble Delhi High Court delivered in Dr. Shivendra Mohan Singh' case (supra) as precedent, has to be treated as a direction not to treat any other case as a precedent where any other Hon'ble High Court has taken a similar view to that of the Hon'ble High Court of Delhi. Further, as of today, the view expressed by the Hon'ble High Court of Orissa at Cuttack in the matter of Mohammad Arif's case (supra) and by the Hon'ble High Court of Patna in the matter of Vidyut Kumar Sarkar's case (supra) holding that twin conditions of Section 45 of PMLA stand revived pursuant to amendment, has neither been stayed nor set aside by the Hon'ble Supreme Court of India. 44. Further, having regard to the fact that twin conditions in the amended Section 45 of the PMLA have not been struck down being unconstitutional till date by any court in India, therefore, twin conditions as mentioned in Section 45 of the PMLA are required to be made applicable to the present bail application. 45. In the present case, allegations in brief as per ECIR are that during the period from 2007 to 2014, 100% subsidiary of IFFCO i.e. M/s. Kisan Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xena when confronted with present accused during recording of his statement under Section 50 of PMLA) and had transferred around 11 million US Dollars in the year 2013 from their bank account at Banque Heritage based in Geneva, Switzerland to Rajiv Saxena, for the purpose of real estate investments. This fact is further supported by the email dated 30.11.2013 of Lake Village Assets Corp. addressed to Rajiv Saxena confirming the transfer of 1 million US dollar on 29.04.2013 and the email dated 30.11.2013 of Summerpark Corporation addressed to Rajiv Saxena confirming the transfer of 9,750,000/- US Dollar (around 10 million) during the period from 16.11.2012 to 21.06.2013. Both these transfers were made from the bank account maintained at Banque Heritage at Geneva. 48. It has also come during the course of investigation that the present accused had formed a Trust by the name of Bonus Capital Trust and he was the first beneficiary of that trust and on his death, second beneficiary was his sister and other family members. The said Trust was also formed in 2014. 49. The accused in his statement made on 03.07.2019 before the Income Tax Authorities had given an evasive reply as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in and present accused were known to each other and had also met him in Dubai with regard to transfer of funds. 55. Further, from the statement of Sunil Kumar, it is apparent that accused had received a large amount running into several crores in cash either himself or on his behalf, it was received by Faizal Ali, Chandraji and Sanjeev Jain. Further, the amount received by present accused in his two companies i.e. M/s. Jyoti Trading Corporation and S.A. Trading, Delhi is without there being any real business as accused failed to show any document regarding the business while his statement was recorded under Section 50 of PMLA and, therefore, the said entities indulged in sham transactions. 56. Further, as per statement of Rajiv Saxena, two companies by the name of Summerpark Corporation and Lake Village Assets Corp. were also owned by the present accused and from these two companies, around 11 million U.S. Dollars were transferred by accused to Rajiv Saxena. 57. The accused in his statement under Section 50 of PMLA has not been able to give the source of such huge funds received by him in cash or in the entities owned by him. Therefore, there is a prima facie materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lows him to take foreign travels. Therefore, this submission made by Ld. Senior Counsel for accused also shows that sickness of the accused is not that serious which might affect his health due to continued incarceration. Therefore, accused does not deserve to be enlarged on bail as per proviso to Section 45 of PMLA. 63. Even assuming that twin conditions as mentioned in amended Section 45 of PMLA are not applicable, then also accused is not entitled to bail. 64. It is a well settled principle of law that while dealing with the application for grant of bail, the court has to take into consideration certain factors like (1) nature of accusation and severity of punishment; (2) reasonable apprehension of tampering with the witness; (3) prima facie satisfaction of the court in support of the charge; (4) likelihood of the accused fleeing from justice; (5) Character, behavior, means, position and standing of the accused; and (6) likelihood of the offence being repeated. 65. If the aforementioned factors are considered, then the accusation against accused are serious in nature as he is an accused, who is involved in money laundering of around ₹ 685 Crores. Further, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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