TaxTMI 
TaxTMI 
2022 (11) TMI 154
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....used Brajesh Thakur, de facto owner of the NGO namely Sewa Sankalp Ewam Vikas Samiti, in connivance with other accused persons has used this NGO as a tool for money laundering and received huge donations/funds from the Government and other sources which have been siphoned off and concealed for acquiring properties. It is alleged against this petitioner that the petitioner being mother of main accused Brajesh Thakur has received total amount of Rs. 47,14,458/- in her bank accounts from the bank accounts of Sewa Sankalp Ewam Vikas Samiti which establishes that funds received by the NGO have been laundered through the bank account of this petitioner. It is further alleged that the petitioner created fixed deposits in her bank account in DCCB, Samastipur out of illegal and unaccounted cash and loans were taken against these FDs and utilized the same for purchase of vehicles. However, the repayment of loans has been made through cash for which no supporting documents regarding cash utilized for creation of these FDs and utilized for repayment of loans have been submitted by the petitioner. Thus, Brajesh Thakur and his family members have diverted and transferred the funds of the NGO for....
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....n have admitted in its complaint that main accused Brajesh Thakur was controlling/managing the account of the petitioner. 7. Section 3 of the PMLA reads as under:- "Offence of money-laundering-Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. Explanation-For the removal of doubts, it is hereby clarified that,- (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely: (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever. (ii) The process or activity connected with proceeds of crime is a continuing activity an....
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....sions of Hon'ble Apex Court and High Courts including the decision of Hon'ble Apex Court in Nikesh Tarachand Shah versus Union of India and Another, reported in (2018) 11 SCC 1 and the amendment in Section 45 of the PMLA Act through Finance Act, 2018, has categorically held that amendment in sub-section 1 of section 45 of the Act introduced after Supreme Court's decision in the case of Nikesh Tarachandra Shah(supra) does not have the effect of reviving the twin conditions for grant of bail, which have been declared ultra-virus Articles 14 and 21 of the Constitution of India. 11. Mr. Giri, further argued that petitioner is a senior citizen having 70 years of age and at this age, she finds it difficult to walk without help of others and iron rod has been fixed in knee when she had suffered dislocation of bone and thereafter she is under continuous treatment. Moreover, even Section 45 of the PMLA Act will not be a bar for granting bail to the petitioner as the case of the petitioner is covered by the proviso of Section 45 of the Act since the petitioner is a woman and the amount alleged against the petitioner for proceeds of crime as stated in the complaint is less than one crore. 1....
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..... After considering the submissions of the parties, in my opinion, the offence of money laundering damages the economic and financial system of the country and it can put the economy on hold or can derail it. It is more serious than the murder. The money laundering is not only used for the drug trading but also for terrorist activities and such crime affect the integrity and sovereignty of the country. 15. It is submitted that the reliance placed on Most. Ahilya Devi versus The State of Bihar reported in (2020) 4 BLJ 1 is misplaced. 16. The Hon'ble Apex Court in the case of Vijay Madanlal Choudhary & Ors versus Union of India & Ors [SLP(Crl.) 4634/2014 dt. 27.07.2022) has held that expression and occurring in Section 3 has to as per to give full play to Section 3 of PMLA. The relevant paragraph is extracted as under:- "187. In light of the above analysis, we now proceed to summarise our conclusion on seminal points in issue in the following terms:- (v)(a) Section 3 of the 2002 Act has a wider reach and captures every process and activity, direct or indirect, in dealing with the proceeds of crime and is not limited to the happening of the final act of integration of tainted pr....
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....hus:- "Section 45.-Offences to be cognizable and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act 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 in infirm, or is accused either on his own or along with other co-accused of money laundering a sum of less than one crore rupees 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 authorized in writing in this behalf by the Central Government by a general o....