TMI Blog2022 (2) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) of the PML Act, 2002 to be unconstitutional as violative of Articles 14 and 21 of the Constitution of India. The present Petitioner is inside custody since 30.5.2013 relating to Kharavela Nagar P.S. Case No.44 of 2013 and in respect of the present case since 16.10.2017. It is admitted by the parties that despite such long detention of the Petitioner inside custody, the trial has not commenced yet. Thus keeping in view the period of detention of the Petitioner inside custody, the delay in trial, release of other two co-accused persons, namely, Pradeep Kumar Sethy and Jyoti Prakash Jay Prakash as well as the observations rendered by this Court and other High Courts with regard to applicability of the provisions of Section 45 of the PML ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar which was registered as Crl. Misc. (PMLA) Case No.34 of 2016 and the learned Special Judge, Bhubaneswar by order dated 1st November, 2016 took cognizance of the offences under Section 3 of the PML Act, punishable under Section 4 of the said Act. The present Petitioner is one amongst seven accused persons in the afore-stated case. 3. The allegations leveled against the Petitioner are that, he was the Director of Arthatatwa Infra India Pvt. Ltd. and also the Finance Manager of Arthatatwa Consultancy Pvt. Ltd. The Petitioner was looking after accounts related deposits collected from the public and thereafter depositing the cheques and supervising the works related to accounts, deposits, payments, etc. He being aware of all the financial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother, (2018) 11 SCC 1, wherein the Supreme Court held the twin conditions prescribed for release on bail as per Section 45(1) of the PML Act, 2002 to be unconstitutional as violative of Articles 14 and 21 of the Constitution of India. 8. The Supreme Court in the case of Nikesh Tarachand Shah (supra) at paragraphs 46 and 54 have observed that: 46. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 45 of the PML Act after the decision in the case of Nikesh Tarachand Shah (supra) does not have the effect of reviving those twin conditions in the PML Act. It is observed as follows: 13. That clause (ii) of sub-Section (1) of Section 45 of the PMLA places two conditions for release of a person accused of an offence under the PMLA, on bail, if that the Public Prosecutor opposes the bail application, the Court has to arrive at the satisfactions (i) that there are reasonable grounds for believing that the accused is not guilty of such offence and (ii) that he is not likely to commit any offence while on bail. Whether substitution of the words under this Act‟ in place of the words punishable for a term of imprisonment of mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the provisions akin to Section 45 have been upheld on the ground that there was compelling State interest in tackling crimes of an extremely heinous nature. For better appreciation, paragraph 46 in the case of Nikesh Tarachand Shah (supra) is quoted below:- 46. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes drastic inroads into the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India, we must be doubly sure that such provision furthers a compelling State interest for tackling serious crime. Absent any such compelling State intere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n bail after taking note of the decisions rendered in the case of Nikesh Tarachand Shah (supra) and other decisions rendered by Bombay High Court in the case of Deepak Virendra Kochhar vs. Directorate of Enforcement (Order dated 25.3.2021 in Bail Application No.1322 of 2020), Sameer M. Bhujbal vs. Assistant Director, Directorate of Enforcement, (Order dated 06.06.2018 in Bail Application No.286 of 2018), by Delhi High Court in the case of Sai Chandrasekhar vs. Directorate of Enforcement, 2021 SCC OnLine Delhi 1081, and the decisions of various other High Courts. 11. The present Petitioner is inside custody since 30.5.2013 relating to Kharavela Nagar P.S. Case No.44 of 2013 and in respect of the present case since 16.10.2017. It is admitt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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