TaxTMI 
TaxTMI 
TaxTMI 
2022 (2) TMI 202
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....he is not guilty of such offence, and, that he is not likely to commit any offence while on bail. 3. The afore submission is further rested, upon an amendment, being made to Section 45 of the PML Act, hence subsequent to the decision, as, rendered by the Hon'ble Apex Court, in case titled 'Nikesh Tara Chand Shah', reported in 2018 (11) Supreme Court Cases 1. He has, therefore, submitted that though in judgment (supra), the Hon'ble Apex Court had annulled the validity of the apposite pre-amended twin conditions, as cast in Section 45 of the PML Act. Nonetheless, he has submitted that since post the verdict (supra), as made by the Hon'ble Apex Court in case (supra), rather through an amendment, being made to Section 45 of PML Act, the legislature resurrecting, reviving, and, validating the apposite twin conditions, which earlier became struck down, in Nikesh Tara Chand's case (supra). Therefore, he argues that unless this Court makes an objective satisfaction, that there are reasonable grounds of believing, that he is not guilty of such offence, and, that he is not likely to commit any offence while on bail, rather the facility of bail, be not accorded to the....
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....f Section 45 of the PML Act, are carried in paragraphs 31 to 34 of the verdict (supra), as drawn by the Hon'ble Apex Court. The afore paragraphs are extracted hereinafter. 31. The statutory history of Section 45, read with the Schedule, would, thus show that in its original avatar, as Clause 44 of the 1999 Bill, the Section dealt only with offences under the Act itself. Section 44 of the 2002 Act makes it clear that an offence punishable under Section 4 of the said Act must be tried with the connected scheduled offence from which money laundering has taken place. The statutory scheme, as originally enacted, with Section 45 in its present avatar, would, therefore, lead to the same offenders in different cases having different results qua bail depending on whether Section 45 does or does not apply. The first would be cases where the charge would only be of money laundering and nothing else, as would be the case where the scheduled offence in Part A has already been tried, and persons charged under the scheduled offence have or have not been enlarged on bail under the Code of Criminal Procedure and thereafter convicted or acquitted. The proceeds of crime from such scheduled offe....
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....granting bail, under this Section, is the alleged occurrence of a Part A scheduled offence, which has imprisonment for over three years. The likelihood of Mr. X being enlarged on bail in the first three illustrations is far greater than in the fourth illustration, dependant only upon the circumstance that Mr. X is being prosecuted for a Schedule A offence which has imprisonment for over 3 years, a circumstance which has no nexus with the grant of bail for the offence of money laundering. The mere circumstance 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. 34. Again, it is quite possible that the person prosecuted for the scheduled offence is different from the person prosecuted for the offence under the 2002 Act. Mr. X may be a person who is liable to be prosecuted for an offence, which is contained in Part A of the Schedule. In perpetrating this offence under Part A of the Schedule, Mr. X may have been paid a certain amount of money. This money is ultimately traced to Mr. Y, who is charged wi....
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....d in FIR No. 35 of 5.3.2015. Sessions case No. 289 of 2015, as arose from the above FIR, became decided on 31.10.2017. Through the verdict (supra) accused Harbans Singh, Subhash Chander, Gurdev Chand, Gurdev Singh, Manjit Singh son of Boota Singh, Sonia, Manjit Singh son of Satnam Singh, Shunty Singh, and, Nirmal Singh @ Nimma, became convicted by the learned Special Court, Fazilka. However, through an order made on the date (supra), the learned Additional Sessions Judge, Fazilka also allowed the application, as became preferred under Section 319 Cr.P.C., by the prosecution rather seeking the addings as accused in FIR supra, of Joga Singh, PSO of Sukhpal Singh Khaira, Sukhpal Singh Khaira, Manish, P.A. of Sukhpal Singh Khaira, Charanjit Kaur, and, Major Singh Bajwa. The aggrieved (supra) challenged the above order, through instituting Criminal Revision Petition No. 4070 of 2017, and, Criminal Revision Petition No. 4113 of 2017, before this Court. This Court, through an order, made on 17.11.2017, upon the petitions (supra), dismissed the revisions petitions, and, it also passed the hereinafter extracted directions:- i) Criminal Revision No. 4070 of 2017 and Criminal Revision No. 4....
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....r the scheduled offence. 10. The Hon'ble Apex Court, in the verdict (supra), made a reference therein, to the decision recorded in Hardeep Singh versus State of Punjab reported in (2010) 2 Supreme Court Cases (CRL) 355. The Hon'ble Apex Court, while making a reference to Hardeep Singh's case (supra), had deemed it fit to detail, that in the verdict (supra), the Hon'ble Constitution Bench, had proceeded to assess the ambit of the statutory coinage "trial, and, also the stage, during which the power under Section 319 Cr.P.C., could be validly exercised. In the afore context, the Hon'ble Apex Court, expressed in Sukhpal Singh Khaira versus State of Punjab, and, Joga Singh and another versus State of Punjab, reported in (2019) 6 Supreme Court Cases 638, that in Hardeep Singh's case (supra), the Constitution Bench rather leaning to take the hereinafter extracted view:- "47. Since after the filing of the charge-sheet, the court reaches the stage of inquiry and as soon as the court frames the charges, the trial commences, and therefore, the power under Section 319(1) Code of Criminal Procedure can be exercised at any time after the charge-sheet is filed and befo....
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....been answered by a Bench of the Hon'ble Apex Court, larger in strength, than the one formulating them. The effect of till date no answers, being meted by the Hon'ble Apex Court, to the above formulated substantial questions of law, is that, the concurrent affirmative verdicts, drawn on the prosecution application cast under Section 319 Cr.P.C., rather bringing the inevitable consequence of the trial, against the bail applicant-petitioner, and, others, as arises from FIR No. 35 of 5.3.2015, cannot being permitted to commence. Moreover, it also obviously appears that in case, the Hon'ble Apex Court proceeds to set aside the convicts' conviction, as made upon them, in Sessions case No. 289 of 2015, arising FIR No. 35 of 5.3.2015, thereupon also, the jurisprudential principle of trial of accused, who became added, as such, through an application under Section 319 Cr.P.C., rather commencing or starting simultaneously along with the convicts concerned, hence prima facie, cannot at all become furthered, and, nor also the commission of predicate or the scheduled offence, by the bail applicant-petitioner, can prima facie be construed to be committed by him along with others,....
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....mplicit with the bail applicant-petitioner, in the commission of a scheduled offence, or the predicate offence, and, also to finance the elections of the bail applicant, is the maker of a statement under Section 50 of the PML Act, before the officer concerned. In the complaint, the enforcement officer, also recorded the statement of Gurdev Chand, besides the statements of convicts Sonia, and, Harbans Singh. The statements of the above convicts in sessions trial, as arises from FIR No. 35 of 5.3.2015 decided on 31.10.2017, became recorded in the year 2021, hence post the verdict of conviction (supra) becoming pronounced in the year 2017. 15. Importantly, the statements of all convicts (supra), is made post the verdict of conviction, made upon them. Therefore, prima facie, their respective statements, may not, till each becomes put to cross-examination, rather hold any sanctity. Moreover, when qua the scheduled or predicate offence, as arises from FIR (supra), the convicts concerned, suffered a verdict of conviction, yet post the verdict of conviction (supra), the bail applicant-petitioner along with others, through concurrent orders, becomes ordered to be arrayed as accused in FIR ....
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....concerned, in the year 2021, hence much beyond the formulation of the above substantial questions of law, by the Hon'ble Apex Court, and, also obviously when a decision thereons is still awaited. Importantly also, reiteratedly when there is prima facie an interlink inter se the predicate offence, and, the offence under the PML Act. Moreover, reiteratedly since prima facie, except MLA Gurdev Chand, none has during the pendency of trial arising from FIR No. 35 of 5.3.2015, hence chosen to make inculpatory echoings against the bail applicant-petitioner. Therefore, it appears that prima facie, the respondent concerned, has yet obtained the statements of the convicts concerned. Cumulatively, hence the afore statements, prima facie, at this stage, and, only for the purpose of deciding this bail application, rather can become construed to be made with some tinge of skewedness or over zealousness of the investigating officer. The above also, prima facie, appears to untenably sidetrack, and, to overreach the above formulated unanswered substantial questions of law, by the Hon'ble Apex Court. Therefore, cumulatively, and, for all above reasons, prima facie, at this stage, no firmest ....
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....uled offence is other than the Special Court which has taken cognizance of the complaint of the offence of money-laundering under sub-clause (b), it shall, on an application by the authority authorised to file a complaint under this Act, commit the case relating to the scheduled offence to the Special Court and the Special Court shall, on receipt of such case proceed to deal with it from the stage at which it is committed. (d) a Special Court while trying the scheduled offence or the offence of money-laundering shall hold trial in accordance with the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) as it applies to a trial before a Court of Session. Explanation (i) the jurisdiction of the Special Court while dealing with the offence under this Act, during investigation, enquiry or trial under this Act, shall not be dependent upon any orders passed in respect of the scheduled offence, and the trial of both sets of offences by the same Court shall not be construed as joint trial. (2) Nothing contained in this section shall be deemed to affect the special powers of the High Court regarding bail under section 439 of the Code of Criminal Procedure, 1973 (2 of 1974....
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....led or predicate offence, is different, or, separate from the Special Court, which has taken cognizance on the complaint, as filed for the offence of Money Laundering, under sub clause (b), then, it shall, on an application made by the authorized authority, under the PML Act, commit the case relating to the scheduled offence to the Special Court, and, the Special Court, shall on receipt of such case, proceed to deal with it from the stage, at which it is committed. Since there is order of stay of trial of the scheduled offence against the bail applicant-petitioner, and, others, through, as conjointly stated at the bar, an unvacated order becoming made by the Hon'ble Apex Court. Consequently, the mandate of clause (c) cannot be furthered, whereas, it is to be made workable, than rendered otiose. Therefore, prima facie the officer authorized under the PML Act, cannot, till the Hon'ble Apex Court, makes a decision upon the questions of law (supra), and/or, upon the SLPs filed by the accused concerned, challenging the concurrent orders, as made on the application under Section 319 Cr.P.C., or/and makes a decision on the convicts appeal, hence move an application for committing ....
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....the provisions of PML Act, cannot prima facie, be construed to be stand alone or independent from the predicate or the scheduled offence, as alleged to be committed by the bail applicant-petitioner, and, nor can this Court make any objective conclusion that the bail applicant-petitioner has committed an offence under the PML Act. 24. Be that as it may, assuming that post the verdict in Nikesh Tara Chand's case (supra), the amendment, as made to Section 45 of the PML Act, is resurrected, or, revived. However, in the above light also, the High Court of Bombay, while deciding application No. 286 of 2018, titled as Sameer M. Bhujbal versus Assistant Director, Directorate of Enforcement and another, has proceeded to grant bail to the bail applicant-petitioner, rather without making an objective satisfaction, about the bail applicant therein, prima facie, not allegedly committing the offence under the PML Act. In the above judgment, the Bombay High Court, has concluded, that the apposite twin conditions, irrespective of a validating amendment being carried to Section 45 of the PML Act, rather post the verdict made by the Hon'ble Apex Court, in case titled Nikesh Tara Chand, and,....
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....Appeal No. 21 of 2022, has taken a contrary view, therefore, he has submitted that bail be denied to the bail applicant. 29. However, it is clear from the above, 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. 30. Moreover, also when the Hon'ble Apex Court, in its order made on 23.11.2017, has made therein, the hereinafter extracted directions:- "Regard being had to the above, we declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release o....