Bail as per S. 45(1) PMLA Not Necessary in Absence of Arrest under PMLA: Calcutta HC allows release under BNSS [Read Order]

The Calcutta High Court has held that a bail application under section 45(1) PMLA is not necessary in the absence of arrest under the Prevention of Money Laundering Act, 2002 (PMLA). It was held that if an accused is not arrested during investigation under Section 19 of the PMLA, the Special Court should issue summons instead of a warrant of arrest after filing of complaint. The accused should be directed to furnish bond in terms of Section 91 of the BNSS.

Tridip Pal, the petitioner, was arrested in connection with a case under Section 135 of the Customs Act, 1962 on April 25, 2017. He was released on bail in June, 2017. The prosecution complaint was filed by the Directorate of Revenue Intelligence, Kolkata ( DRI) on June 12, 2019. On the basis of such a complaint, ECIR was registered by the Enforcement Directorate ( the E.D.) against the petitioner and four others on November 22, 2019. After completion of the investigation, a prosecution complaint was filed by the E.D. on November 21, 2024 under Section 3/4 of the Prevention of Money Laundering Act, 2002 (PMLA).

Summons were issued upon the petitioner and others on November 26, 2024. The petitioner appeared before the Court on April 16, 2025 and filed two petitions, one seeking bail and the other seeking release in terms of Section 91 of the BNSS. Bail prayer of the petitioner was turned down by the Court considering the nature and gravity of the offence and material in the complaint. The petitioner was taken into custody and has been in custody since then.

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Aggrieved by the said order, the petitioner has come up before the Court for quashing the order and releasing him in terms of Section 91 of the BNSS. Counsel for the petitioner has placed reliance on the authority in Tarsem Lal v/s. Directorate of Enforcement Jalandhar Zonal Office reported in (2024) and submitted that if an accused is not arrested during investigation under Section 19 of the PMLA, the Special Court should issue summons instead of a warrant of arrest after filing of complaint. The accused should be directed to furnish bond in terms of Section 91 of the BNSS.

The Supreme Court has deprecated the practice of taking the accused into custody in such a situation and has declared such custody to be in violation of the principle as envisaged under Article 21 of the Constitution of India. No application for further investigation was filed by the E.D. before the Court based on which the petitioner could have been taken into custody. He is on bail in connection with the predicate offence. Since the petitioner was not arrested under Section 19 of the PMLA before filing of the prosecution complaint, he ought to have been released upon furnishing bond in terms of Section 91 of the BNSS.

Vehemently opposing the prayer, counsel for the E.D. has submitted that the petitioner did not respond to the summons issued upon him by the authority during the investigation and avoided the same on the pretext of health issues. Incriminating documents, cash and foreign currency were recovered from his two houses in Kolkata. In his statement recorded under Section 50 of the PMLA, the petitioner admitted his involvement in smuggling gold and receiving commission to the tune of Rs. 12 to 15 lakhs. He played the principal role in smuggling of gold from Bangladesh and is a habitual offender.

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Counsel has submitted that the issue which fell for consideration before the Supreme Court in Tarsem Lal can be distinguished from the present case and the observation made therein cannot be said to be the ratio decidendi applicable herein. The Supreme Court, in paragraph 21 of the judgment, has spoken about the practice followed by the Special Courts under the PMLA and observation made in the judgment does not restrain the Special Courts to take into custody any accused in an appropriate situation.

The bail prayer of the petitioner was rejected by the Special Court considering the material on record and prima facie involvement of the petitioner in the alleged crime. In view of the stringent conditions of bail laid down under Section 45 of the PMLA, the petitioner is not entitled to any relief.

The court viewed that the petitioner was not arrested by the E.D. under Section 19 of the PMLA in course of investigation till filing of prosecution complaint. Summons was issued upon the petitioner by the learned Special Court pursuant to which the petitioner appeared before the Court and filed two petitions, one for bail and the other for his release under Section 91 of the BNSS. The second application was not taken into consideration by the learned Court. The bail application was rejected considering the material on record.

The Supreme Court has made it clear that the judgment deals with a fact situation where the accused is not arrested by the E.D. in exercise of power under Section 19 of the PMLA till the complaint was filed.

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The Court has misdirected itself in applying the rigours of Section 45(1) of the PMLA in rejecting the bail application when no bail application was required to be filed at all. This Court cannot remain oblivious of the fact that despite serious allegations against the petitioner, the E.D. chose not to arrest him during investigation by invoking Section 19 of the Act.

A single bench of Justice Suvra Ghosh held that despite the gravity of the allegations against the petitioner and material that has transpired against him during investigation, the petitioner ought to be released forthwith upon execution of bond under Section 91 of the BNSS in view of the law laid down by the Supreme Court in Tarsem Lal.

Further set aside the order passed by the Chief Judge, City Sessions Court, Calcutta, designated as the Special Court under the PMLA. The petitioner be released at once upon furnishing bond under Section 91 of the BNSS subject to condition that he shall appear before the Special Court on every date of hearing and shall not tamper with evidence or intimidate witnesses in any manner whatsoever.

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