TaxTMI 
TaxTMI 
2023 (4) TMI 12
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.... Complaint Case-cum-Special Trial No.(PMLA)04 / 2020 arising out of ECIR No.PTZO 02/2017 instituted under Sections 4 of the Prevention of Money Laundering Act, 2002. 3. As per the prosecution story: (i) the Assistant Director, Directorate of Enforcement (Prevention of Money Laundering Act, 2002) Patna filed Complaint Case under Section 45 (1) of Prevention of Money Laundering Act, 2002 (henceforth for short 'the 2002 Act') against the accused persons namely, Ramadhar Ram his wife, Anita Devi and son Bikash Kumar stating therein that the Superintendent of Police, Economic Offence Unit 3, Bihar, Patna vide Letter No. 4245/ C dated 05.09.2014 forwarded a copy of FIR No. 220/ 2013 dated 18.06.2013 registered against him by the then Executive Engineer, PHED, Siwan for commission of offence punishable under Section 13 (2) read with Section 13 (1) (e) of Prevention of Corruption Act, 1988 (henceforth for short 'the PC Act'); (ii) subsequently, charge sheet bearing No. 28/17 dated 04.10.2017 was filed in that case against Ram Adhar Ram, Anita Devi and Bikash Kumar for the offence under Section 13 (2) read with the Section 13 (1)(e) of 'the P.C. Act' and Section 109/ 120 (B) of the IPC....
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....s is/are that: (i) Ramadhar Ram was appointed on 12.07.1979 as Junior Engineer in the Department of P.H.E.D. and promoted as an Executive Engineer and during the period of 34 years of service, he received Rs.36,26,399/- as salary, Rs.7,54,952/- as subsistence allowance, Rs.11,23,191/- as G.P.F. amount as also the Group Insurance amount of Rs.2,66,569/- totalling Rs.57,71,111/- (to check the totals); (ii) further Ramadhar Ram received Rs.5000/- month as rent between 2006 to 2013 and Rs,6000/- month thereafter from his tenant, Abhay Kumar Singh as also Rs.4000/- since 2010 till date from another tenant Sakaldeep Paswan, totalling Rs.12,84,000/-; (iii) further 7.69 acre of land was recorded in the name of his great grand father and after his death devolved upon his grand father and then to his father and uncle and finally to him (1.78 acres) on which Sisam, Sagwan, Litchi, Juice fruit and Simar trees were planted; (iv) as per the report of the Circle Officer, Chiraiya, East Champaran, he earned Rs.3,27,000/- per annum from the sale of goods, fruits, agricultural produce which between 1998 to 2019 will come to more than Rs.50 lacs; (v) further, son, Bikash Kumar was running a....
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.... 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 special order made in this behalf by that Government. (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." 3. Subsequent to the Supreme Court's decision, in case of Nikesh Tarachand Shah (supra), certain amendments were made in various provisions of the Act including Section 45(1) of the Act. The amending provision, which is relevant for the issue which has arisen in the present matter, reads thus : - "For the words 'punishable for a term of imprisonment of more than three years under Part A of the Schedule', the words 'under this Act' shall be substituted." 4. Evincibly, consequent upon....
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....said amendment in Section 45(1) of the Act. 9. Learned Single Judge further took note of the Hon'ble Apex Court in Nikesh Tarachand Shah (supra) in which it was held as follows: "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 heinous nature, Supreme Court noted. For the benefit of quick refe....
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....f 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. ......... ...... 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. 5,66,000/-. Further, a sum of Rs. 6,95,000/- has been allegedly deposited in the savings bank account of the petitioner by the said accused Ashok Kumar Yadav. In addition, a sum of Rs.2,99,500/- is lying in the account of the deceased husband of the petitioner. 29. Considering the nature o....
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....nducted by EOU, Bihar. His claim to have got annual agricultural income of Rs. 3-4 lakhs also appears, to be an afterthought as earlier he did not declared his agricultural income in the ITR. 16. Ramadhar Ram had deposited huge cash amounting to Rs.25,29,000/- in his various savings accounts, Rs. 12,85,900/- in the saving accounts of his wife, Anita Devi and Rs.36,37,500/- into the saving accounts of his son, Bikash Kumar. 17. Further, 4 (Four) bank accounts were opened in the name of Ramadhar Ram, Anita Devi and Pinki Kumari with the fruits of proceeds of crime, the available bank balance into the new accounts are also liable for attachment. The cash deposits are not in commensurate with their illicit source of income and these deposits have subsequently been used for acquisition of immovable and movable properties. 18. Ramadhar Ram made huge investments in landed properties in his name and in the name of his wife, son and his daughter-in-law and constructed two houses, one in his name and the other in his son's name. The acquisition of said properties are not commensurate with his justifiable salaried income. He stated to have incurred Rs.8-9 lakhs on the house constructed....
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....ly. 23. The counsel for the Enforcement Directorate finally cited the decision of Bombay High Court in Ajay Kumar vs. Directorate of Enforcement decided on 28-01- 2022 in Cr. Application (BA) No.1149 of 2021 in which it has been held as follows: QUESTION REFERRED :- "Whether the twin conditions in section 45(1) of the 2002 Act, which was declared unconstitutional by the judgment of the Apex Court in Nikesh T. Shah Vs. Union of India (2018) 11 SCC 1, stand revived in view of the Legislative intervention vide Amendment Act 13 of 2018?" In turn, we are called upon to answer the above referred question. 06. We have exhaustively heard learned Senior Counsel Mr.Sunil Manohar for the applicant-accused and learned Additional Solicitor General of India (ASGI) Mr. (7) criaba1149.21 Anil Singh on behalf of the ED. Both of them made elaborate submissions on the issue involved in context with the relevant provisions in different enactments like, The Terrorist and Disruptive Activities (Prevention) Act, 1987, Narcotic Drugs and Psychotropic Substances Act, 1985, The Maharashtra Control of Organised Crime Act, 1999, The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act....
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....lent about its retrospective effect. Therefore, as of today, there is no rigor of said twin conditions. 13. The second decision of this Court in line was in case of Union of India Vs. Yogesh Narayanrao Deshmukh (supra). In said case, the learned Single Judge took note of earlier two decisions of this Court in cases of Sameer Bhujbal (supra) and Deepak Virendra Kochar Vs. Directorate of Enforcement (Cri.B.A. No.1322/2020 Bombay High Court). It is expressed that, in Nikesh Shah's case the Hon'ble Apex Court has struck down Section 45 of the PML Act, as a whole having found it arbitrary and violative of Article 14 and 21 of the Constitution of India and not just applicability of twin conditions to scheduled offences and, therefore expressed its agreement with the view taken in earlier decisions in the cases of Sameer Bhujbal (supra) and Deepak Kochhar (supra) along with decision of Delhi High Court in Upendra Rai's case. In short, taking a note of the Supreme Court's decision in case of Nikesh Shah coupled with the views expressed by this Court in earlier two decisions, same view has been reiterated. In the said decision, we are unable to find much deliberation on th....
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....gainst the decision of Delhi High Court in case of Bimal Kumar Jain (supra) taking contrary view, however, by reiterating the earlier view and expressing that there is presumption in favour of constitutionality the review petition was rejected." Further held, "26. Learned ASGI took us through preamble of the PML Act which inter alia provides that it is an enactment to prevent money laundering and to provide confiscation of property derived from or involved in money laundering and or matters connected there with or incidental thereto. It is submitted that the offence of money laundering poses serious threat to the financial system of the country. Learned ASGI Mr. Anil Singh has submitted that already the Supreme Court has upheld the validity of twin conditions, namely, section 45(1) in its earlier decision in the case of Gautam Kundu Vs. Directorate of Enforcement (2015) 15 SCC 1 later on approved by the Supreme Court in another decision in case of Rohit Tandon Vs. Director of Enforcement (2018) 11 SCC 46. His line of argument is that in case of Nikesh Shah (supra) per se applicability of the twin conditions to the PML Act has not been struck down but considering the defects abou....
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....llenge to the constitutional validity, at least prima facie acceptable grounds in support have to be pleaded to sustain and entertain the challenge. The said exercise would be, of course, by appropriate proceeding in proper way. The Supreme Court in the case of A.C. Estates Vs. Serajuddin & Co. (1973) 2 SCC 324 has observed that when the question of ultra vires is wholly foreign to the scope and jurisdiction of initial authority, then it will not be open to the High Court to go into those questions in proceeding arising out of said initial proceeding. 43. We may note that there is no proper challenge to the constitutional validity of the Amending Act. Neither there are grounds of challenge nor pleadings to that effect, since obviously the reference was made while dealing bail application. The Supreme Court in reported case of New Delhi Municipal Committee Vs. State of Punjab, AIR 1997 SC 2847 has observed that courts should, particularly in constitutional matters, refrain from expressing opinions on points not raised or not fully and effectively argued by counsel on either side. Learned Sr. Counsel Mr.Sunil Manohar raised several grounds by reading judgment of Nikesh Shah (supra)....
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.... the Supreme Court in its above pronouncement even after taking note of the decision of Nikesh Shah (supra) has expressed that the rigor of Section 45 of the PML Act would be attracted while dealing with bail application. 46. It is argued that the Amendment Act has not reintroduced twin conditions in Section 45 of the Act. In this regard, we may take a note of the decision of the Supreme Court in the case of Shamrao V. Parulekar Vs. The District Magistrate, Thana, Bombay 1952 SCR 683, of which para 7 reads as below :- "The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all. x x x xxx x " The above observations are useful to decide the objection about requirement of reintroduction of twin conditions. 47. The Amending Act has changed the entire complexion. Notably section 45 of the ....
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....ovision of the Act. The amended provision has not been struck down by the Court and as such the same cannot be watered down. Thus, it cannot be said that until and unless the entire section gets amended, the decision in Nikesh Tarachand Shah (supra) will prevail. The Bombay High Court also took note of the decision cited by the learned counsel for the petitioners in Most. Ahilya Devi vs. The State of Bihar (supra) while passing the order aforesaid. 27. Thus in the considered view of the Court the twin conditions in section 45(1) of the 2002 Act after amendment stands revived until any decision comes in the matter by the Hon'ble Apex Court. 28. Now, coming to case in hand, admittedly, the disproportionate asset assessed by the Enforcement Directorate is/are to the tune of Rs.82,10,661/- which is less than one crore. 29. The amended Section 45 of the PMLA, 2002 read as follows: "45. Offences to be cognizable and nonbailable.-( 1) 1[Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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....