TMI Blog2022 (2) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... . Consequently, also this Court deems it fit to accord the indulgence of bail to the bail applicant-petitioner. The reason being till the validating amendment to Section 45 of the PML Act, as made, post the decision in case Nikesh Tara Chand's case [ 2017 (11) TMI 1336 - SUPREME COURT ], becomes upheld, by the Hon'ble Apex Court, thereupto, it may not be appropriate to fetter the personal liberty of the bail applicant-petitioner. The granting of bail to the bail applicant-petitioner, is subject to conditions imposed - petition allowed. - CRM-M No. 51885 of 2021 (O&M) - - - Dated:- 27-1-2022 - HON'BLE MR. JUSTICE SURESHWAR THAKUR Present: Mr. Vikram Chaudhri, Senior Advocate with Mr. Parvez Chaudhary, Advocate for the petitioner. Mr. Zoheb Hossain, Advocate for the respondent. **** SURESHWAR THAKUR, J. 1. Through the instant petition, as cast under Section 439 Cr.P.C., the petitioner seeks relief of his being released from judicial custody. The petitioner is in judicial custody in respect of FIR No. ECIR/02/STF/2021 of 21.1.2021, whereins, becomes constituted an offence embodied under Section 3, as, punishable under Section 4 of the Preve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who is under the age of sixteen years, or is a woman or is sick or infirm, may be released on bail, if the Special Court so directs: Section 45 post to Nikesh Tara Chand Shah 45. Offence to be cognizable and non-bailable) (2) Notwithstanding contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce under the 2002 Act. 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. 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 were all lifted into Part A). In this illustration, again, Mr. X would be liable to be enlarged on bail under Section 439 of the Code of Criminal Procedure by the Special Court/High Court, with or without conditions, as Section 45 of the 2002 Act would have no application. 33. The fourth illustration would be an illustration in which Mr. X is prosecuted for an offence under the 2002 Act and an offence punish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) of the 2002 Act. Also, Mr. A may well be prosecuted for an offence which falls within Part A of the Schedule, but which does not involve money laundering. Such offences would be liable to be tried under the Code of Criminal Procedure, and despite the fact that it may be the very same Part A scheduled offence given in the illustration above, the fact that no prosecution for money laundering along with the said offence is launched, would enable Mr. A to get bail without the rigorous conditions contained in Section 45 of the 2002 Act. All these examples show that manifestly arbitrary, discriminatory and unjust results would arise on the application or non application of Section 45, and would directly violate Articles 14 and 21, inasmuch as the procedure for bail would become harsh, burdensome, wrongful and discriminatory depending upon whether a person is being tried for an offence which also happens to be an offence under Part A of the Schedule, or an offence under Part A of the Schedule together with an offence under the 2002 Act. Obviously, the grant of bail would depend upon a circumstance which has nothing to do with the offence of money laundering. On this ground alone, Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reserved to the investigating agency concerned to file supplementary charge sheet against the additional accused concerned, if so advised. 8. The dismissal of the above respective criminal revision petitions, of the aggrieved (supra), occurred post or subsequent to the verdict of conviction becoming pronounced on 31.10.2017, vis-a-vis the co-accused (supra). 9. The aggrieved preferred SLP bearing No. 9063 of 2017, before the Hon'ble Apex Court. On the SLP (supra), the Hon'ble Apex Court, made an order on 1.12.2017. Through the order (supra), the Hon'ble Apex Court, ordered for stay of proceedings before the trial Court concerned. The above made order of the Hon'ble Apex Court, has not been shown to be vacated. In consequence, the concurrent orders, as made upon the prosecution's application, cast under Section 319 Cr.P.C., hence against the bail applicant-petitioner, and, others, does not, at this stage hold any force. Moreover, the Hon'ble Apex Court, did also make apposite directions, on cases respectively titled 'Sukhpal Singh Khaira versus State of Punjab, and, Joga Singh and another versus State of Punjab, reported in (2019) 6 Supreme Court Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opportunity to cast any light about the validity of the summoning orders, as, pronounced after the passing of the judgment. Therefore, the Hon'ble Apex Court, after accepting the contentions of the aggrieved, that the above extracted portions, as carried in the Constitution Bench Judgment, delivered in Hardeep Singh's case (supra), rather cannot become diluted, except by a Bench strength of the Hon'ble Apex Court, larger in size, than the one, which was dealing with the lis concerned, also hence proceeded to formulate the hereinafter extracted substantial questions of law. (i) Whether the trial court has the power under Section 319 of CrPC for summoning additional accused when the trial with respect to other co-accused has ended and the judgment of conviction rendered on the same date before pronouncing the summoning order? (ii) Whether the trial court has the power under Section 319 of the CrPC for summoning additional accused when the trial in respect of certain other absconding accused (whose presence is subsequently secured) is ongoing/pending, having been bifurcated from the main trial? (iii) What are the guidelines that the competent court must follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, a conjoint reading of the application cast under Section 319 Cr.P.C., and, of the apposite complaint, rather becomes necessitated. Predominantly, in the application cast under Section 319 Cr.P.C., as instituted against the bail applicant-petitioner, and, others, the incriminatory evidence, as gathered, by the investigating officer concerned, is comprised in his receiving a secret information, that Gurdev Singh, Ex-Chairman, and, Manjit Singh son of Boota Singh, being engaged in cross border smuggling of heroin, gold, and, illegal weapons. Moreover, it is also referred in the application, that the investigating officer concerned, after conducting search, had rather recovered, 300 grams of heroin from accused Harbans Singh, 290 grams of heroin from accused Subhash Chander, 260 grams of heroin from accused Gurdev Chand, 350 grams of heroin from accused Gurdev Singh, 300 grams of heroin from accused Manjit Singh son of Boota Singh, and, 100 grams of heroin each from accused Sonia, Shunty, and, Nimma @ Nirmal. The above application is filed in sessions trial, arising from FIR No. 35 of 5.3.2015. In the complaint filed under Section 44 read with Section 45 of the PML Act, against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the alleged moneys, drawn by the bail applicant-petitioner, from his allegedly committing the scheduled predicate offence (supra), has also resulted in his allegedly committing an offence under the PML Act. Moreover, since the Hon'ble Apex Court has made an unvacated order of stay of trial, upon, the concerned, upon the apposite SLP, directed against the concurrent orders, as made by the learned Special Judge concerned, and, latter affirmed by this Court, upon the prosecution application, cast under Section 319 Cr.P.C. Therefore, also prima facie, at this stage, the bail applicant is not an offender in the predicate offence, and, nor qua the offence constituted in the PML Act, emphasizingly when there is an interlink inter se both. Moreover also, as stated above, upon the convicts' concerned conviction becoming set aside, thereupon, prima facie, there may be no occasion for the bail applicant-petitioner, for his being tried along with others, nor also there may be any permissible re-opening of trial, against the bail applicant-petitioner along with other convicts, vis-a-vis charges, as arise from FIR No. 35 of 5.3.2015. The legal consequences of the above, are but obvi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -petitioner. In other words, reiteratedly it cannot, prima facie, at this stage, be concluded that the bail applicant-petitioner, has, committed the offence under the PML Act. However, it is clarified that the above observations are only for the decision of the bail application, and, they shall not effect the merits of the main case, nor shall bar the prosecution to move an appropriate application before the learned Special Judge concerned, and, nor shall bar the latter to make a decision thereons, in accordance with law. 18. Though, the learned counsel for the respondent has contended that the offence of money laundering, as embodied in Section 3 of the Act, is an independent offence, and, has submitted that since explanation (i) to Section 44, as is extracted hereinafter, does not make dependent, the jurisdiction of the Special Court, while dealing with the offence under this Act, especially during inquiry or trial thereof, rather upon any orders passed in respect of a scheduled or a predicate offence, also hence, alleged to be committed by the bail applicant-petitioner. Offences triable by Special Courts.- (1) Notwithstanding anything contained in the Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there being a stay against the concurrent verdicts made by the learned Special Judge concerned, and, by this Court, upon the prosecution application under Section 319 Cr.P.C., yet cannot snatch the jurisdiction of Special Court, to enquire into or enter upon a trial against the bail applicant-petitioner, for an offence (supra) under the PML Act, as it is a distinct, and, separate offence from the above scheduled or predicate offence. 20. The afore made argument would hold vigour, in case the offender in both the scheduled, or, predicate offence, and, the offence under the PML Act, were uncommon, or were different. It prima facie does not hold vigour when the alleged offences became committed by common offenders, and, or when offenders, both in the scheduled or predicate offences, and, in the offence under the PML Act, are common. The reason for taking the above view becomes rested, upon the fact that the explanation (supra), does not take away, or abridge the mandate of clause (c) of Subsection (1) of Section 44 of the PML Act, relevant clause(s) whereof become(s) extracted hereinabove, rather merely makes an explanation thereto. if the court which has taken cognizance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade by the Hon'ble Apex Court, in case titled Dyani Antony Paul and others versus Union of India and others, W.P. No. 38642/2016 , para whereof stands extracted hereinafter. The offence of money laundering under Section 3 of the Act is an independent offence. A reference to criminal activity relating to a schedule offence has wider connotation and it may extend to a person, who is connected with criminal activity relating to schedule offence, but may not be the offender of schedule offence. It is in this background, it has to be necessarily held that money laundering is a stand alone offence under the PML Act. In this background, when Section 44 of the PML Act is perused, it would clearly indicate that special court may take cognizance of the offence upon a complaint by authorized signatory, which means cognizance will be taken of an offence which is separate and independent. The object of issuance of summons is to trace or ascertain the proceeds of crime if any and to take steps in that regard like attaching the proceeds of crime if proved in a given case. 23. The reason being, that in the verdict (supra), the Hon'ble Apex Court has declared the provisions of PML Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the afore order of the Bombay High Court, made in Sameer M. Bhujbal's case (supra), does hold some guiding light for this Court. 26. The learned senior counsel appearing for the bail applicant-petitioner, has submitted, that the afore decision, as made by the Madhya Pradesh High Court, in Vinod Bhandari's case (supra), has attained finality, as the SLP filed against it, has been dismissed by the Hon'ble Apex Court. The learned senior counsel has further submitted, that in the case (supra), the bail applicant-petitioner was granted bail without the making of an objective satisfaction, by this Court, about the bail applicant therein, prima facie, not committing the offence under the PML Act. Therefore, he has submitted that even the verdict (supra) supports the claim for bail as strived for, from this Court. 27. The learned senior counsel for the bail applicant has, further submitted that similarly, the High Court of Chhattisgarh, Bilaspur, in case titled as Anil Tuteja versus Director, Directorate of Enforcement, the High Court of Judicature of Rajasthan Bench at Jaipur in case titled as Mohit Sharma versus Directorate of Enforcement, the High Court of Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly. 31. Since the question(s) supra, appertaining to the apposite validating amendment, rather reviving, or resurrecting the twin conditions (supra), are still sub-judice, before the Hon'ble Apex Court. Consequently, also this Court deems it fit to accord the indulgence of bail to the bail applicant-petitioner. The reason being till the validating amendment to Section 45 of the PML Act, as made, post the decision in case Nikesh Tara Chand's case (supra), becomes upheld, by the Hon'ble Apex Court, thereupto, it may not be appropriate to fetter the personal liberty of the bail applicant-petitioner. 32. Accordingly, the petition is allowed. However, the granting of bail to the bail applicant-petitioner, is subject to following conditions:- i. The bail applicant-petitioner shall furnish personal and surety bonds, in the sum of ₹ 5.00 lacs, with one or two solvent local sureties in the like amount, before, and, to the satisfaction of the learned trial Court concerned. ii. Till the bail applicant complies with the process of furnishing sureties, the applicant ..... X X X X Extracts X X X X X X X X Extracts X X X X
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