2022 (2) TMI 202 - HC - Money Laundering

Court Grants Bail Under Section 439 Cr.P.C.

Sukhpal Singh Khaira Versus Assistant Director, Directorate of Enforcement

The court granted bail to the petitioner under Section 439 Cr.P.C., emphasizing that bail is the rule and jail is the exception. The court found no ... Seeking grant of bail - predicate and scheduled offences - pre-amended twin conditions, as cast in Section 45 of the PML Act, satisfied or not - HELD THAT:- There are divergent views expressed by the Hon'ble Apex Court, with respect to the resurrection, or, revival of twin conditions, as, carried in Section 45 of the PML Act, upon, a validating amendment being made thereto, post the decision made in Nikesh Tara Chand's case. Obviously, this Court is left with no alternative but to, in view of the above discussion, rather grant, than deny bail to the applicant, as the rule is of grant of bail, than of denial of bail. Moreover, when no evidence has been adduced, at this stage, by the prosecution, that in the event of grant of bail to the bail applicant-petitioner, there is any likelihood of his fleeing from justice, and, tampering with the prosecution evidence. Since the question, appertaining to the apposite validating amendment, rather reviving, or resurrecting the twin conditions, 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 [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. Issues Involved:1. Bail application under Section 439 Cr.P.C.2. Applicability of Section 45 of the Prevention of Money Laundering Act (PML Act) post-amendment.3. Interlink between predicate offences under the NDPS Act and offences under the PML Act.4. Validity of concurrent orders under Section 319 Cr.P.C.5. Impact of pending substantial questions of law before the Supreme Court.6. Divergent judicial opinions on the application of twin conditions under Section 45 of the PML Act.Detailed Analysis:1. Bail Application under Section 439 Cr.P.C.:The petitioner sought release from judicial custody under Section 439 Cr.P.C. in relation to an FIR involving offences under the PML Act. The respondent opposed the bail, arguing that the court must be satisfied that there are reasonable grounds for believing the petitioner is not guilty and will not commit any offence while on bail.2. Applicability of Section 45 of the PML Act Post-Amendment:The respondent emphasized the necessity of meeting the twin conditions under Section 45 of the PML Act, which were reinstated by a legislative amendment post the Supreme Court's decision in 'Nikesh Tara Chand Shah'. The court examined the pre and post-amendment provisions of Section 45, highlighting the conditions for bail.3. Interlink Between Predicate Offences under the NDPS Act and Offences under the PML Act:The court noted that the predicate offence under the NDPS Act, for which the petitioner was implicated, was linked to the PML Act offence. The court discussed the implications of the Supreme Court's stay on proceedings related to the predicate offence and the impact on the PML Act charges.4. Validity of Concurrent Orders under Section 319 Cr.P.C.:The court discussed the validity of orders made under Section 319 Cr.P.C., which added the petitioner and others as accused in the predicate offence. These orders were challenged and stayed by the Supreme Court, raising substantial questions of law regarding the timing and validity of such orders.5. Impact of Pending Substantial Questions of Law Before the Supreme Court:The court acknowledged the pending substantial questions of law before the Supreme Court concerning the application of Section 319 Cr.P.C. and its impact on the trial of the petitioner for the predicate offence. The unresolved questions influenced the court's decision on the bail application.6. Divergent Judicial Opinions on the Application of Twin Conditions under Section 45 of the PML Act:The court noted divergent views from various High Courts and the Supreme Court on the applicability of the twin conditions under Section 45 of the PML Act post-amendment. The Bombay High Court and other High Courts had granted bail without applying these conditions, while the Supreme Court had taken a contrary view in some cases.Judgment:The court granted bail to the petitioner, emphasizing the principle that bail is the rule and jail is the exception. The court found no evidence suggesting the petitioner would flee or tamper with evidence. The court imposed conditions on the petitioner, such as furnishing bonds, surrendering the passport, and not leaving the jurisdiction without permission. The court clarified that the observations made in the bail order would not affect the trial's merits.The application CRM-42476-2021 was disposed of as infructuous following the decision on the main petition.