Amendment in Section 45(1) of PMLA doesn’t have effect of reviving twin conditions for Grant of Bail: Patna HC grants Anticipatory Bail [Read Order]

PMLA - anticipatory bail -Taxscan

The High Court of Patna granted the anticipatory bail and held that the amendment in sub-Section (1) of Section 45 of the  Prevention of Money Laundering Act(PMLA), 2002 introduced after Supreme Court’s decision in case of Nikesh Tarachand Shah does not have the effect of reviving the twin conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of the Constitution of India.

The petitioner is the widow of the 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 the commission of an 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.

It is eminent that clause (ii) of sub-Section (1) of Section 45 of the Act places two conditions for release of a person accused of an offence under the Act, on bail, if a Public Prosecutor opposes the bail application, namely; the Court is satisfied that there are reasonable grounds for believing that the accused is not guilty of such offence and that he is not likely to commit any offence while on bail.

Whether substitution of the words ‘under this Act’ in place of the words ‘punishable for a term of imprisonment of more than three years under Part A of the Schedule’ in Section 45(1) of the Act, has the impact of meeting with the reasonings and logic incorporated and discussed by the Supreme Court in case of Nikesh Tarachand Shah for declaring the Clause (ii) of Sub-section (1) of Section 45 of the Act ultra vires.

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 can be said to have lost its significance because of the aforesaid amendment in Section 45(1) of thJustice Chakradhari Sharan Singhe Act.

The single bench consisting of granted the anticipatory bail and held that the amendment in sub-Section (1) of Section 45 of the  Prevention of Money Laundering Act, 2002 introduced after Supreme Court’s decision in case of Nikesh Tarachand Shah does not have the effect of reviving the twin conditions for grant of bail, which have been declared ultra vires Articles 14 and 21 of the Constitution of India.

“This is subject to the condition that the petitioner shall present herself before the Police/Court, as the case may be, as and when required and in the event of failure on her part to appear before the Court on two consecutive occasions, her bail bonds shall be liable to be Cancelled,” the court while directing the petitioner to furnish a bail bond of Rs. 10,000/- said.

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