TaxTMI 
TaxTMI 
2021 (12) TMI 1149
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....rge-sheet dated 28.07.2013 of the same P.S. but different P.S. Case No.145 dated 27.5.2013 was filed before the jurisdictional Court of learned S.D.J.M., Bhubaneswar against the Petitioner and others of Artha Tatwa Group. Petitioner was arrested on 13.05.2013 and since then he is in custody. This investigation emerged from the case wherein ED has lodged the complaint. ii. The CBI, pursuant to directions of Hon'ble Supreme Court, took over the said investigations and filed a charge-sheet dated 11.12.2014 against the Petitioner and others under Sections 120B, 294, 341, 406, 409, 467, 471, 506 read with 34 of the I.P.C. and Sections 3, 4 and 5 of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978 (hereinafter referred to as "the PCMCSB Act" for brevity) before the learned Special C.J.M., CBI, Bhubaneswar. On 07.01.2015, ED took the Petitioner to custody and recorded his statement under Section 50 of the PML Act and the said recording continued till 15.01.2015. Learned Sessions Judge, Khurda, upon an application/ Complaint case filed by ED, took cognizance of the offence under Section 3 of the PML Act, 2002 on 01.11.2016 and was pleased to issue summons to t....
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....Nikesh Tarachand Shah vs. Union of India (supra), Section 45 of the PML has been amended by Act 13 of 2018 and Act 23 of 2019 and the same was considered by Hon'ble Apex Court in case of P.Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24. Further, as the offence under the PML Act is cognizable and non-bailable, triable by the Special Court, the Counsel's appearance cannot be accepted without the accused being personally present in Court in view of Section 45 of the PML Act and Section 88 of the Cr.P.C has no application in any way. Hence, the learned trial court has rightly rejected the bail application of the Petitioner, as he has confessed his guilt in many other cases and is a convict serving sentence. 7. Section 45 of the PML Act departs from the rule of presumption of innocence in as much as it introduces two further pre-conditions that may be satisfied before an accused can be enlarged on bail. The pre-amendment Section 45 of the PML Act provides the following: 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 s....
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....the 2002 Act. Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly." 10. Learned Counsel for the Enforcement Directorate has submitted that the particular section i.e., Section 45(1) has already been amended and therefore the above case cannot be a provision for bail anymore. By Act 13 of 2018 Section 45(1) of the PML Act was sought to be amended w.e.f 19.04.2018. Through such amendment the words "punishable for a term of imprisonment of more than three years under Part A of the Schedule" as occurring in Section 45(1) before the judgment of the Supreme Court in Nikesh Tarachand Shah's case (supra) were substituted with the words "under this Act". As per learned counsel for the ED, after such amendment, the defect on the basis of which the Supreme Court had declared Section 45(1) of the PML Act to be unconstitutional was cured and consequently the twin conditions prescribed in Section 45(1) stood revived. 11. At this juncture, it is pertinent to peruse the post amendment Section a....
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....14 and 21 of Constitution of India...." 14. The Bombay High Court in Sameer M. Bhujbal v. Assistant Director Directorate of Enforcement Order dated 06.06.2018 in Bail Application No. 286 of 2018, addressed a similar objection raised on behalf of the ED and repelled the same through the following observations: "9. It is to be noted here that, after effecting amendment to Section 45(1) of the PMLA Act the words "under this Act" are added to Sub Section(1) of Section 45 of the PMLA Act. However, the original Section 45(1)(ii) has not been revived or resurrected by the said Amending Act. The learned counsel appearing for the applicant and the learned Additional Solicitor General of India are not disputing about the said fact situation and in fact have conceded to the same. It is further to be noted here that, even Notification dated 29.3.2018 thereby amending Section 45(1) of the PMLA Act which came into effect from 19.4.2018, is silent about its retrospective applicability. In view thereof, the contention advanced by the learned A.S.G. cannot be accepted. It is to be further noted here that, the original Sub-section 45(1)(ii) has therefore neither revived nor resurrected b....
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....ice system. At the same time, "justice hurried is justice buried" and therefore, there has always existed a need to strike a balance between the two adages in the delivery of justice to the people. The importance of speedy trial has been emphasized in Hussainara Khatoon & Ors v. Home Secretary, State of Bihar 1979 AIR 1369, wherein the Hon'ble Supreme Court has iterated that: "Speedy trial is, as held by us in our earlier judgment dated 26th February, 1979, an essential ingredient of 'reasonable, fair and just' procedure guaranteed by Article 21 and it is the constitutional obligation of the State to device such a procedure as would ensure speedy trial to the accused. The State cannot be permitted to deny the constitutional right of speedy trial to the accused on the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrative and judicial apparatus with a view to ensuring speedy trial." 18. P.N. Bhawati, J. in Hussainara Khatoon (supra) said that although the right to speedy trial is not "specifically enumerated as a fundamental right, it is implicit in the broad sweep and content of Articl....
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....v. State of Bihar A.I.R. 1982 S.C. 1167 the Hon'ble Supreme Court re-emphasised that right to speedy trial was a fundamental right and the aggrieved person may approach the court for necessary directions to the state government and other appropriate authorities for enforcement of the right of the person. Recently, in Abdul Rahman Antulay v. R.S. Nayak [(1992) 1 SCC 225, the right was reemphasized in the following words by the Hon'ble Supreme Court: "Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily." 22. The fundamental right to speedy trial is peculiar in character and is generically different from other constitutional rights of the accused. The right is in the interest of the accused if he is innocent. He does not suffer unduly for a long period. But it also works against him if he is actually guilty of the offence. The right is also in the interest of prosecution because it does not face the problems such as non-availability of witnesses and disappearance of evidence etc. But sometimes, it also goes against the prosecution specially when the prosecution does not have hundred per cent foo....