TaxTMI 
TaxTMI 
2023 (4) TMI 12
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....e petitioners apprehend their arrest in connection with 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 ....
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....49/ and the same has been mentioned in paragraph no. 14 (B3) of the said Complaint petition. 4. The case of the accused persons 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....
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.... 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 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 ....
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....mendment, 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. 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. A....
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....of Union of India that a different view has been taken in case of P. Chidambaram (supra) by the Supreme Court than the view taken in case of Nikesh Tarachand Shah (supra) on the question of constitutional validity of sub-Section (1) of Section 45 of the Act. There is no discussion in this regard in the said judgment in 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. ......... ...... 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 unde....
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.... ECIR bearing No. PTZO/02/2017 dated 04.05.2017 was recorded by Enforcement Directorate, Patna Zonal Office against Ramadhar Ram and others, as offences defined under Section 13(2) read with Section 13(1)(e) under Prevention of Corruption Act, 1988 are scheduled offences under the schedule (Part- A) of the PML Act, 2002. 15. Ramadhar Ram was a Government Servant holding a responsible post, yet he did not file his ITR regularly. The only ITR he filed was for the AY 2013-14 after the raids conducted 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 wit....
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....t v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105: 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail." 22. In view of the above case laws cited and considering the grave nature of offence, learned counsel for the E.D. submitted that the petitioners are not entitled for any relief as there is every likelihood that the accused petitioners are seeking anticipatory bail only to frustrate the due process of law and delay the trial inordinately. 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 ex....
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....l's case) that the Supreme Court in Nikesh Shah's case has struck down section 45 of the Act as a whole. The Supreme Court expressed in para 45 that 'we declare section 45(1) of the PML Act insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India'. It is expressed that even after amendment original section 45(1) (ii) has neither been revived or resurrected by the Amending Act. Moreover, the notification dated 29.03.2018 thereby amending section 45(1) of the PML Act is silent 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 vi....
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.... cases, respective High Courts have reiterated the view expressed by this Court in case of Sameer Bhujbal ( 18 ) criaba1149.21 (supra). 18. The learned ASGI has assiduously pointed out that the view taken by Delhi High Court in case of Upendra Rai Vs. Directorate of Enforcement (supra) has been stayed by the Supreme Court in SLP (Cri) 2598/2020 vide its order dated 03.06.2020. Likewise, the decision taken in case of Dr. Shivinder Singh (supra) has also been stayed by the Supreme Court in its order dated 31.07.2020 in SLP (Cri) No.3474/2020. The learned ASGI has submitted that the review petition was filed against 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 ....
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.... submission by contending that all (39) criaba1149.21 the defects pointed out by the Supreme Court stood cured by the Amendment Act 13 of 2018. The issue whether the Amendment Act 13 of 2018 has cured all the defects directly connects to the aspect of validity of the Amendment Act 13 of 2018, which is not the matter for consideration nor can be dealt under this reference arising out of bail application filed under the statutory provision. The Bombay High as such held: "41. Undeniably there has been no assail to the constitutional validity of the Amendment Act, since the reference arose out of bail application. In order to raise the challenge 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....
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....d anticipatory bail in connection with offence under the PML Act. It is observed that though offence under the PML Act is dependent on the predicate offences that does not mean that while considering the prayer for bail, in connection with offence under the PML Act, the mandate of section 45 of the PML Act would not come into play. Pertinent to note that the judgment in Nikesh Shah's case was brought to the notice of the Supreme Court. However, it is observed that the underlying principles and rigor of section 45 of the Act must get triggered although the application is under section 438 of the Cr.P.C. The ( 45 ) criaba1149.21 reading of said judgment conveys that 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 ....
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.... 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. 24. The learned counsel thus submit that it is not a fit case for extending anticipatory bail to the petitioners herein. 25. This Court has gone through the facts of both the cases, as also the rival submissions put forward by the respective parties. 26. This Court is in complete agreement with the Division Bench decision of the Bombay High Court (Nagpur Bench) in Ajay Kumar vs. Directorate of Enforcement (supra) that the legislature have the power to and competence to amend the provision 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. Th....