When a person has been convicted of charges under the Prevention of Money Laundering Act, 2002, twin section of the act are no longer to be applied as they are unconstitutional. The petitioner must turn only to the provisions of the CrPC for this purpose. This was decided in the case of Sai Chandrasekhar vs. Directorate of Enforcement [Bail Appln. 3791/2020} In the High Court of Delhi by Hon’ble Justice Rajnish Bhatnagar.
This case is one of a kind, dealing with bail application from the accused for fraud with company. The facts of the case are that an FIR was registered by Economic Offence Wing (EOW) on the complaint for offence U/s 409/420 and 120B IPC of deliberately manipulating/falsifying stocks, inventories of M/s Bush Foods Pvt. Ltd which resulted in huge account fraud of approximately Rs.1000 crore.
It is submitted by the counsel for the petitioner that the complaint pursuant to the investigation already stands filed and the investigation is complete. The counsel stated that further investigation cannot be a ground for continued incarceration and rejection of bail. It is further submitted that none of the evidences have been tampered ever since 2013 and the evidence in the present case is documentary in nature and has seized all the documents, digital devices like computers, hard drives, mobiles etc. which cannot be now tampered as they are in the possession of the respondent.
On the other hand, we see that the counsel for the respondent has said that the petitioner had conspired with other rival companies to cheat the company in question. It is noted that the petitioner had a key role in negotiations and personally monitored the inventory verification. The counsel for the respondent also tries to bring the fact to the fore that the petitioner overruled the questionnaire prepared for the distributor’s due diligence exercise on his understanding that the distributors were genuine and carried out amendments in a distributor survey. All this actions prove that he had an intention to commit fraud and manipulate the stock. It was pleaded that court shall observe how the present case involves the commission of grave economic offence of laundering of the proceeds of crime.
Since the twin conditions for bail in section 45 of the PML Act have been struck down by the Hon’ble Supreme Court and the same are neither revived nor resurrected by the Amending Act therefore, as of today there is no rigor of said two conditions under original Section 45(l)(ii) of the PML Act for releasing the Petitioner on bail. The provisions of section 439 of Cr.P.C and the conditions therein will only apply in the case of the Petitioner for grant of bail.
The court clearly observed “Since the twin conditions for bail in section 45 of the PML Act have been struck down by the Hon’ble Supreme Court and the same are neither revived nor resurrected by the Amending Act therefore, as of today there is no rigor of said two conditions under original Section 45(l)(ii) of the PML Act for releasing the Petitioner on bail. The provisions of section 439 of Cr.P.C and the conditions therein will only apply in the case of the Petitioner for grant of bail.”
It further said “At the stage of granting bail, detailed examination of evidence and elaborate documentation of the merits of the case should be avoided, so that no party should have the impression that his case has been prejudiced as observed in Niranjan Singh and another V. Prabhakar Rajaram Kharote and others (1980) 2 SCC 559.”
