Allahabad High Court: In a bail application plea filed by the accused for the offences under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002, Rajesh Singh Chauhan, J held that the Trial Court has taken custody of the accused without following the settled proposition of law in Aman Preet Singh v. C.B.I., 2021 SCC OnLine SC 941 and Satender Kumar Antil v. CBI, (2022) 10 SCC 51
The Court took note of Section 45 of the Prevention of Money-laundering Act, 2002 (‘PMLA’) which provides that before granting bail, the twin conditions have to be seen carefully. The Court said that considering the proper cooperation of the accused in the investigation , the Investigating Officer did not find it proper to arrest him under Section 19 of the PMLA. Thus, his arrest was not warranted during investigation. Further, it is clear from the records that after proper cooperation of the accused in the investigation, the prosecution complaint was filed by the Enforcement Directorate(‘ED’) where the Trial Court took cognizance and issued summons to the accused, and he appeared before the Trial Court pleading his bonafide conduct, seeking bail and giving undertaking that he shall cooperate in the trial proceedings in the same manner as he has cooperated in the investigation, but on the request of E.D. to file objection, the bail application was adjourned.
The Court said that the accused’s interim bail application was also rejected without considering the decisions of Supreme Court in Aman Preet Singh (supra) and Satender Kumar Antil. Even his regular bail application has been rejected on the ground that the twin conditions of Section 45 of the PMLA are not being satisfied, whereas in the present case, the accused has not been arrested by the Investigating Agency under Section 19 of the PMLA and ED was properly heard by the Trial Court, therefore, rigours of Section 45 of the PMLA should not be made applicable.
The Court took note of sub-clause (2) of Section 44 of PMLA which provides that nothing contained in this section shall be deemed to affect the special power of the High Court regarding bail under Section 439 CrPC. Further, it placed reliance on Vijay Madanlal Choudhary v. Union of India, 2021 SCC OnLine SC 3286, wherein it was held that, “the twin conditions, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretion vests in the Court, which is not arbitrary or irrational but judicial, guided by the principles of law as provided under Section 45 of the 2002 Act.”
Placing reliance on Aman Preet Singh (supra) and Satender Kumar Antil (supra) wherein, it was observed “that arrest of any person is not mandatory in each case, but before curtailing the liberty of an accused person, the relevant facts and circumstances should be visualised”, said that there was no requirement to take the accused into custody when he appeared before the Trial Court pursuant to the summons being issued, as he has never flouted the process of law, he cooperated in the investigation throughout, the Investigating Agency has never thought to arrest him under Section 19 of the PMLA despite he appeared before the E.D. to record his statement twice, pursuant to the summons being issued under Section 50 of the PMLA and there was no request of the E.D before the Trial Court to the effect that arrest of the accused is warranted.
Therefore, it held that the Trial Court has taken custody of the accused without following the settled proposition of law by the Supreme Court.
[Govind Prakash Pandey v Directorate of Enforcement Govt. India, 2023 SCC OnLine All 58, decided on 20-02-2023]
Order by: Justice Rajesh Singh Chauhan
Advocates who appeared in this case :
Counsel for Applicant: Advocate Aviral Raj Singh, Advocate Alok Kumar Singh, Advocate Dhruv Kumar Singh, Advocate Palash Banerjee, Advocate Ritwick Rai, Advocate Vaibhav Tiwari;
Counsel for Opposite Party: Advocate Rohit Tripathi.
