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TMI Blog2021 (10) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of an F.I.R. on 07.02.2013, after investigation, charge-sheet was filed on 10.07.2013. Another F.I.R. being received at the same Police Station on 27.05.2013, investigation being made, charge-sheet was also filed on 28.07.2013. When the matter stood thus, the Central Bureau of Investigation (CBI) took up investigation of these cases together with one case with similar allegation as had been registered at Sahadev Khunta Police Station and some more cases being clubbed together. Upon investigation at their level on 11.12.2014 they filed the first charge-sheet in the Court of learned Special Chief Judicial Magistrate, Bhubaneswar, placing 23 persons to stand their trial for commission of offence under Section 120- B/294/341/406/409/420/467/468/471/506/34 of the IPC read with Section 4/5 & 6 of the Prize Chit and Money Circulation Scheme (Banning) Act, 1978. The present Petitioner is one among them in F.I.R. No. RC47/S/2014-SCB/ Kol dated 05.06.2014 registered as CBI, SPE, SCI Kolkata corresponding SPE Case No.42 of 2014 on the file of CJM (CBI), Bhubaneswar. In that case supplementary charge-sheets were also filed. 5. The Enforcement Directorate on the basis of the initiation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein. 7. The Petitioner being the accused in connection with the criminal cases which ultimately were investigated by the SIT of CBI, he was charge-sheeted therein. This Petitioner being thus arrested on 24.08.2014, continued to remain in custody in that case for more than three and half years. This Court having directed for release of the Petitioner on bail in that case by its order dated 17.03.2018, the Petitioner being not able to fulfill the condition as regards the deposit of cash of Rs. 2.00 crore, he suffered further imprisonment. Then having apprehended the Hon'ble Apex Court in CRLA No.1266 of 2017, when the Hon'ble Apex Court on 23.02.2018 reduced the quantum of deposit to Rs. 1 crore and directed for its deposit in three instalments, the Petitioner having complied that condition as also other conditions was released from custody on 17.03.2018. It is stated that having disposed of some paternal property, money being arranged condition as to deposit of Rs. 1 crore was fulfilled. The order of this Court is at Annexure-2. The Petitioner in that case being finally released from custody on 17.03.2018, he has been fulfilling the conditions as imposed in granting bail to him, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs. Union of India and Others; (2018) 11 SCC, the Hon'ble Supreme Court has declared Clause (ii) of sub-Section (1) of Section 45 of PMLA ultra vires Articles 14 and 21 of the Constitution of India. The provision of section 45(1) of the PMLA as it then stood reads as under:- "45. Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) every offence punishable under this Act shall be cognizable; b) no person accused of an offence punishable for a term of imprisonment of more than three years under Part A of the Schedule 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 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: Provided further that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have revived by introducing amendment of the nature as noted above. He 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. 15. Learned counsel for the E.D. placed reliance on Hon'ble Supreme Court's later decision in case of P.Chidambaram (supra), and submitted that applying the provision under Section 45(1) of the PMLA, the petition for grant of anticipatory bail was rejected in that case. Placing reliance upon the decisions in the cases of Y.S.Jagan Mohan Reddy and Rohit Tandon Vrs.CBI; (2013)7 SCC 439 he submitted that in economic offences, an accused is not entitled for anticipatory bail as gravity of economic offences affects the entire society, and, therefore, constitute a class apart and need to be visited with a different approach in the matter of grant of bail. According to him, the Hon'ble Supreme Court in the case of Nikesh Tarachand Shah (supra) declared clause (ii) of Sub-section (1) of Section 45 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pproach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country." In Rohit Tandon Vrs. Directorate of Enforcement (2018) 11 SCC 46, the Hon'ble Supreme Court held:- "21. The consistent view taken by this Court is that economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered A.B. No. 42 of 2020 P a g e | 34 as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country. Further, when attempt is made to project the proceeds of crime as untainted money and also that the allegations may not ultimately be established, but having been made, the burden of proof that the monies were not the proceeds of crime and were not, therefore, tainted shifts on the accused persons under Section 24 of the 2002 Act." 18. In paragraph 26 to 30 of the judgment of the Hon'ble Supreme Court in Nikesh Tarachand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 20. The third and fourth illustration as at paragraph-32 and 37 are:- "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." "In this illustration, the Special Court/High Court would enlarge Mr. X on bail only if the conditions specified in Section 45(1) are satisfied and not otherwise. In the fourth illustration, Section 45 would apply in a joint trial of offences under the Act and under Part A of the Schedule because the only thing that is to be seen for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of an extremely heinous nature." The Hon'ble Apex Court clearly held that indiscriminate application of the provision of Section 45 of the PMLA will certainly violate Article 21 of the Constitution of India. 22. In the aforesaid background, it is to be seen as to if by the amendment introduced in Section 45 of the PMLA, as noted above, by Act No. 13 of 2018; the entire Section 45 has been reframed in reviving and resurrecting the requirement of twin-conditions under sub-Section (1) of Section 45 of the PMLA for grant of bail. In view of clear language used in paragraph 46 of the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah (supra), this Court is of the considered view that the amendment in sub-Section (1) of Section 45 of the PMLA introduced after the Hon'ble Supreme Court's decision in case of Nikesh Tarachand Shah (supra) 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of arrest and the justification of exercise of it. If the Investigating Officer has no reason to believe that the accused will abscond or disobey the summons and when he has in fact throughout cooperated with the investigation, there arises no compulsion to arrest the accused. (Ref.:- Sidharth Vrs. State of Uttar Pradesh & Another in Criminal Appeal No.838 of 2021 arising out of SLP (Crl.) No.5442 of 2021 decided by the Hon'ble Apex Court on 16.08.2021). 27. As culled out from the submission of the learned counsel for the E.D. as also from the objection affidavits the present prayer as advanced by the Petitioner has further been resisted on the following grounds:- (i) that in these cases of commission of offences; the prayer as advanced has no merit; (ii) that the possibility of the Petitioner fleeing from justice is not ruled out; (iii) that as the investigation is still on for identifying further proceeds of crime for attachment under PMLA, there remains the possibility of tampering the evidence at the instance of the Petitioner; and (iv) that the Petitioner may influence the witnesses. 28. During all these period, after the initiation of the case by the E.D. till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so stands too remote a possibility. Moreover, the stage so as to infer that further custodial interrogation at present would be qualitatively more elicitation oriented than his being questioned while under the protective umbrella is over. In view of all the aforesaid, it is directed that in the event of arrest of the Petitioner or upon his surrender before the Court in seisin of the case in connection with CMC (PMLA) Case No.34 of 2016, he shall be released on bail on the conditions that :- (i) that he shall furnish bond of Rs. 2,00,000/- (Rupees two lakh) with two solvent sureties each for the like amount; (ii) that he shall not directly or indirectly make any inducement, threat or promise to any person who is acquainted with the facts of the case as to dissuade him to disclose such facts to the Investigating Agency or before the Court; (iii) that he shall not directly or indirectly influence any witness and attempt to tamper the evidence; (iv) that he shall not leave the country without prior permission of the Court in seisin of the case; and (v) that he shall present himself before the officials of the E.D./ Court as the case may be as and when required in connection ..... 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