AI Drafter 
TaxTMI 
TaxTMI 
2018 (2) TMI 239
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....(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 4. As it is revealed, pursuant to the registration of the FIR by CBI, which is a scheduled offence under the PML Act, ECIR/01/STSZO/2016 was registered by the respondent No.2 - Enforcement Directorate, which has been converted into PMLA Case No.5 of 2017 for the offences punishable under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 and, thereafter, the investigation commenced for the alleged offence under the PML Act. Ultimately, it lead to the investigation and the arrest of the Applicant. Therefore, the Applicant filed an application for grant of bail before the Sessions Court and thereafter before this Court. 5. After considering the material and rival submissions made by both the sides, this court vide order dated 12.1.2018 dismissed the application for the reasons recorded, referring to the provisions of the PML Act. 6. As it transpires, a Writ Petition (Criminal) No. 67/2007 came to be filed by one Nikesh Tarachandra Shah raising the issues including the constitutional validity of Section 45 of the PML Act. The Hon'ble Apex Court has made the observations with regard to the ba....
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....he present Application for bail may be considered afresh keeping in mind that the twin conditions as mentioned in Section 45 of the PML Act would no longer be applicable, and therefore, this Application may now be considered as per Section 439 of the Code of Criminal Procedure. He referred to the provisions of Sections 3 and 4 of the PML Act. Learned Senior Counsel Shri Raju submitted that Section 3 is the charging section and Section 4 provides for the punishment. He emphasized that the punishment provided is; "May extend to 7 years." Learned Senior Counsel Shri Raju submitted that the offences are not falling in Part 'A' of paragraph 2 of the Schedule, and therefore, as the offence is punishable for 7 years, the bail could be granted as a matter of course as required under Section 439 of Cr.PC once the rigors of Section 45 of the PML Act are no longer applicable. Learned Senior Counsel Shri S.V.Raju submitted that when the sentence is only for seven years, the bail is required to be granted ordinarily. In support of his submission, he has referred to and relied upon the judgment of the Hon'ble Apex Court in case of Mohan Singh, Advocate v. Union Territory, Chandig....
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....u submitted that the present application may be considered. He referred to both the FIRs and other papers and also the definition of 'Proceeds of Crime' referred to in Section 2(11) of the PML Act. Learned Senior Counsel Shri S.V.Raju strenuously submitted that there is no schedule offence as suggested in the CBI Charge Sheet and still the case against the Applicant under the PML Act is initiated. However, he submitted that in light of the background of the facts, the present application for bail deserves to be considered when the Hon'ble Apex Court has clarified and remitted the matter back for fresh consideration with observation that twin conditions as provided in Section 45 of the PML Act would not be applicable. 11. There is another facet whether this court should consider or whether the applicant should move the trial court first as the reservation was made by learned Assistant Solicitor General Shri Devang Vyas. Learned Senior Counsel Shri S.V.Raju submitted that when the observation made by the Hon'ble Apex Court is "concerned court" and when it has been clearly observed "remitted back", it would mean that the matter is remitted back to the concerned High Cour....
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....rimes and other connected activities which are required to be curbed and these provisions have been made which are self-contained code. 13. Learned Assistant Solicitor General Shri Devang Vyas emphasized the far-reaching effects of such wide spread economic offence which have a bearing on the economy of the nation, and therefore, he submitted that when the special statute like the PML Act 2002 have been enacted which is a self-contained enacted code, the provisions have to be considered. He pointedly referred to Section 24 of the PML Act and submitted that it provides for burden of proof and submitted that in the proceedings relating to the proceeds of crime under this Act, when the person is charged with the offence of money laundering under Section 3 of the PML Act, the court is required to presume that such proceeds of crime are involved in the money laundering. He emphasized the provisions of Section 24(a) of the PML Act which reads: "in the case of a person charged with the offence of money-laundering under section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crime are involved in money laundering;" Similarl....
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....cant is required to be considered as per the special statute of the PML Act which is a self-contained enacted code, and therefore, the present application may not be entertained. Learned Assistant Solicitor General Shri Devang Vyas again emphasized referring to the papers that the statement recorded under Section 50 of the PML Act are on the same line as the statement recorded under Section 108 of the Customs Act which clearly establish prima facie the guilt of the accused, and therefore, the present application may not be entertained. He further submitted that though it is stated that the investigation is not yet over as certain facts with different details and the statements of the account and the operation of different accounts in different names require a closer verification with reference to individuals and, if the applicant is released on bail, he may influence the witnesses, and therefore, the present application may not be entertained. 14. In rejoinder, learned Senior Counsel Shri S.V.Raju again referred to the background of the facts and submitted that when the Hon'ble Apex Court has remitted the matter back would mean that the matter has gone to the Hon'ble Ape....
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....nd discussed with reference to the provisions of Section 45, the court had declined as there were limitations on grant of bail specified in Section 45 of the PML Act. Therefore, even at that time reference was made to the judgment of the Punjab and Haryana High Court in case of Gorav Kathuria v. Union of India CRWP No.595 of 2016. The Application for bail was not entertained in view of the provisions of Section 45(2) of the PML Act and also considered that the present PML Act is a special statute or self-contained code and therefore it would have overriding effect over the provisions of Section 439 of the Cr.PC which has also been highlighted and pressed into service by the learned Assistant Solicitor General Shri Devang Vyas. 17. However, after the rigors of Section 45 of the PML Act and the twin conditions which require the High Court to satisfy itself that there are reasonable grounds for believing that he is not guilty of any such offence, has been removed. The court is not therefore required to satisfy at this stage for grant of bail with regard to the issues involved with regard to the violation of the PML Act particularly the proceeds of crime. Apart from that, even assum....
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....ect of bail and liberty. 20. Similarly in a subsequent judgment in case of Sanjay Chandra v. Central Bureau of Investigation reported in (2012) 1 SCC 40, the Hon'ble Apex Court has made the observations referring to the aspect of bail and has quoted from the earlier judgment of the Hon'ble Apex Court in case of Vaman Narain Ghiya v. State of Rajasthan reported in (2009) 2 SCC 281. It has been quoted: "The concept and philosophy of bail was discussed by this Court in Vaman Narain Ghiya v. State of Rajasthan, (2009) 2 SCC 281 : (AIR 2009 SC 1362), thus (Paras 13 to 16 of AIR) : "6. "Bail" remains an undefined term in Cr.P.C. Nowhere else has the term been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints. Since the UN Declaration of Human Rights of 1948, to which India is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression "bail" denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb "bailer" which means to "give" or "to deliver",....
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....leged criminal. An accused is not detained in custody with the object of punishing him on the assumption of his guilt." 21. Thus, the concept of bail has been evolved as a mechanism where the personal liberty of an individual is considered vis-a-vis the investigating agency or the public interest. In other words the balance has to be struck between the right of an individual person for the liberty which is also an important segment of the fundamental rights and, on the other hand, the interest of the investigating agency or the State to secure the presence and to protect the society. Thus, it reflects two conflicting claims. On one hand the requirement of the society which is required to be protected from the hazards of being exposed to the misadventures of a person alleged to have committed a crime and on the other hand the individual liberty of a person like the applicant accused. The concept of the individual liberty or the fundamental canon of criminal jurisprudence viz., namely the presumption of innocence of accused till he is found guilty. Further, as it has been evolved by judicial pronouncements over a period of time by the Hon'ble Apex Court, the law of bail as a b....
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....hich may have a bearing on the public interest or the national interest, the fact remains that when the rigors of Section 45 of the PML Act provides for a twin condition as stated above have been taken away, the consideration of the present application for bail even in light of the submissions and the prima facie case suggesting the involvement of the Applicant accused for the alleged offence would not dis-entitle the Applicant accused from bail having regard to the broad guidelines regarding grant of bail. However, in order to protect the interest of the Respondent or the public interest, suitable stringent conditions can be imposed particularly when learned Assistant Solicitor General Shri Devang Vyas has voiced an apprehension that even though the Applicant accused is in jail, there is no cooperation by his family members for the investigation and further details. Therefore the present application deserves to be allowed and accordingly stands allowed. 25. The Applicant - JIGNESH KISHOREBHAI BHAJIAWALA is ordered to be released on bail in connection with ECIR/01/STSZO/2016 registered with Directorate of Enforcement, Surat converted into PMLA Case No.5 of 2017 pending before th....