TaxTMI 
TaxTMI 
2020 (6) TMI 90
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.... 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 the Special Court shall not take cognizance of any offence punishable under section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or State Government authorised in writing in this behalf by the Central Government by a general or s....
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....der this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.] (2) The limitation on granting of bail specified in clause (b) of sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail." 5. It can be easily deciphered, on comparative reading of Section 45(1) of the Act, pre-amendment and post-amendment, that Clause (ii) of sub-Section (1) remained as it stood before amendment. 6. In the aforesaid background, the primordial and the only legal issue, which has arisen in the present matter, is as to whether the Supreme Court's decision in case of Nikesh Tarachand Shah (supra) can be said to have lost its significance because of the aforesaid amendment in Section 45(1) of the Act. 7. It is eminent that clause (ii) of sub-Section (1) of Section 45 of the Act places two conditions for release of a person accused of an offence under the Act, on bail, if a Public Prosecutor opposes the bail application, namely; the Court is satisfied (i) that there are reasonable grou....
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....m protection by an order of this Court dated 30.09.2019. 12. Mr. Y.V.Giri, learned Senior Counsel appearing on behalf of the petitioner, has submitted that introduction of the words 'under this Act' would not amount to reviving twin pre-conditions for grant of bail imposed in sub-Section (1) of Section 45 of the Act, which is the view rightly taken by the High Court of Judicature at Bombay in its decision rendered on 6th June, 2018 in Bail Application No. 286 of 2018 (Sameer M. Bhujbal vs. Assistant Director, Directorate of Enforcement and Anr.) and the High Court of Delhi, in its decision dated 9th July, 2019, in Bail Application No. 249 of 2019 (Upendra Rai vs. Directorate of Enforcement). He has given much emphasis on the observations made by the Supreme Court in paragraph 46 of the decision in case of Nikesh Tarachand Shah (supra) to submit that once the said two provisions have been declared violative of Article 21 of the Constitution of India, the same cannot be said to have revived by introducing amendment of the nature as noted above. He has submitted that the amendment introduced in 2018 in sub-Section (1) of Section 45 of the Act does not amount to reenactment of the p....
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....ently amended. He has submitted that the prescription of twin-conditions for grant of bail in clause (ii) of Sub-section (1) of Section 45 of the Act has not been held to be ultra vires Articles 14 and 21 of the Constitution of India per se. According to him, the amended provision of the Act has completely altered the situation. He has argued that with the substitution of the words 'such offences under the Act', now the conditions for bail apply with respect to an offence of money laundering, which is a heinous economic offence as laid down by the Supreme Court in various cases including the recent decision in case of P. Chidambaram (supra). He has contended that the twin conditions, mentioned in Section 45(1) of the Act, imperative for grant of bail have been declared ultra vires by the Supreme Court in case of Nikesh Tarachand Shah (supra) not because of any inherent defect in these two conditions in itself, but because of its dependence on the applicability, relatable only to the offences in Part A of the Schedule; for the reason that the offences under Part A of the Schedule are not offences of money laundering rather different predicate offences. 15. According to him, the a....
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.... have not been enlarged on bail under the Code of Criminal Procedure and thereafter convicted or acquitted. The proceeds of crime from such scheduled offence may well be discovered much later in the hands of Mr. X, who now becomes charged with the crime of money laundering under the 2002 Act. The predicate or scheduled offence has already been tried and the accused persons convicted/acquitted in this illustration, and Mr. X now applies for bail to the Special Court/High Court. The Special Court/High Court, in this illustration, would grant him bail under Section 439 of the Code of Criminal Procedure the Special Court is deemed to be a Sessions Court and can, thus, enlarge Mr. X on bail, with or without conditions, under Section 439. It is important to note that Mr. X would not have to satisfy the twin conditions mentioned in Section 45 of the 2002 Act in order to be enlarged on bail, pending trial for an offence under the 2002 Act." 18. The second illustration finds place in paragraph 32 of the judgment in case of Nikesh Tarachand Shah (supra), in a situation, when a person being charged with an offence in Part A of the Schedule together with a predicate offence in Part B of the....
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....e that the offence of money laundering is being tried with the Schedule A offence without more cannot naturally lead to the grant or denial of bail (by applying Section 45(1)) for the offence of money laundering and the predicate offence." 21. The Supreme Court thus noticed anomalies in prescribing conditions for entertaining an application for grant of bail under Section 45(1) of the Act with reference to the Scheduled offences. The Supreme Court, in paragraph 46 of the judgment in case of Nikesh Tarachand Shah (supra), has unequivocally held that Section 45 of the Act is a drastic provision which makes drastic inroads into the fundamental right of personal liberty guaranteed under Article 21 of the Constitution of India. The Court observed that before application of such provision, one must be doubly sure that it furthers a compelling State interest in tackling serious crimes. Absent any such compelling State's interest, indiscriminate application of the provisions of Section 45 will certainly violate Article 21 of the Constitution. The provisions akin to Section 45 have been upheld on the ground that there was compelling State interest in tackling crimes of an extremely heino....
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.... case of P. Chidambaram (supra). The application for anticipatory bail in case of P. Chidambaram (supra) was rejected on merits of the allegation and other materials. 26. In view of the above discussions, I do not find any reason to take a different view from what has been taken by the High Court of Judicature at Bombay in case of Sameer M. Bhujbal (supra), High Court of Delhi in case of Upendra Rai (supra) and that of the High Court of Madhya Pradesh Bench at Indore in case of Dr. Vinod Bhandari (supra). 27. Mr. Y.V. Giri, learned senior counsel, has referred to various judicial precedents in support of his submissions. In view of the opinion, which I have formed, as indicated above, the said precedents have not been referred to. 28. Coming to the merits of the case, I have already outlined the case of the prosecution. The petitioner is the widow of deceased younger brother of the main accused Ashok Kumar Yadav against whom there are 26 criminal cases and in course of investigation carried out against him in respect of commission of offence under the Act, it emerged that he had purchased properties in the name of the petitioner and her deceased husband to the tune of Rs. ....