Rajasthan High Court - Jaipur
Mohit Sharma S/O Shri Mahesh Chand ... vs Directorate Of Enforcement on 5 February, 2021
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Criminal Miscellaneous Bail Application No. 14691/2020
Mohit Sharma S/o Shri Mahesh Chand Sharma, R/o Rag Hospital
Mansarovar, Jaipur (Currently in Judicial Custody at Central Jail
Jaipur)
----Petitioner
Versus
Directorate Of Enforcement through Sharad Kumar, Assistant
Director, Enforcement Directorate, Jaipur Regional Office Second
Floor Jeevan Nidhi Life Insurance Corporation Building Bhawani
Singh Road Jaipur 302005
----Respondent
For Petitioner(s) : Mr. Swadeep Singh Hora
Mr. Dharmendra Gurjar
For Respondent(s) : Mr. Anand Sharma
HON'BLE MR. JUSTICE PANKAJ BHANDARI
Order
ORDER RESERVED ON :: 27/01/2021
ORDER PRONOUNCED ON :: 05/02/2021
1. Petitioner has filed this bail application under Section 439 Cr.P.C.
2. ECIR No.JPZO/02/2014 was registered at Enforcement Directorate, Jaipur, for offences under Sections 3 and 4 of Prevention of Money Laundering Act, 2002 (hereinafter referred to as "the Act of 2002").
3. In brief, the factual matrix of the case are that an FIR bearing No.289/2013 was registered by the Anti Corruption Bureau, Jaipur against father of the petitioner and two others, for offences under Sections 7, 13(1)(d) and 13(2) of the Prevention of (Downloaded on 05/02/2021 at 11:00:31 PM) (2 of 7) [CRLMB-14691/2020] Corruption Act and Sections 384 and 120-B of IPC pertaining to a bribe amount of Rs.5 lacs. The petitioner was neither made accused in the FIR nor he was charge-sheeted. Another FIR bearing No.394/2013 was registered by the A.C.B. under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act and Section 109 of IPC pertaining to allegation of disproportionate assets. Initially, the FIR was registered only against father and mother of the petitioner, but subsequently, in the charge-sheet, petitioner was also arrayed as an accused by the A.C.B. The petitioner was granted bail in FIR No.394/2013.
4. The Enforcement Directorate registered ECIR No.JPZO/02/2014. The investigation continued for a period of six years and the petitioner was arrested on 4.9.2020. The Court below has taken cognizance against 13 accused persons under the Act of 2002.
5. It is contended by counsel for the petitioner that petitioner was granted bail in the predicate offence on 23.8.2017. His involvement in the offence under the Act of 2002 is not made out. The petitioner is MBBS, MD (Pediatrics). There is no chance of petitioner fleeing from justice or winning over the witnesses. It is also contended that as per the complaint filed, it is revealed that the petitioner has purchased a flat worth Rs.14 lacs only.
6. Counsel for the petitioner has placed reliance on the judgment passed by the Supreme Court in Nikesh Tarachand Shah Versus Union of India: (2018) 11 SCC 1, wherein the Apex Court has held the twin conditions provided under Section 45 of the Act of 2002 to be unconstitutional, being violative of Articles 14 and 21 of the Constitution of India. It is contended that the minimum sentence provided under the Act of 2002 is 3 years, (Downloaded on 05/02/2021 at 11:00:31 PM) (3 of 7) [CRLMB-14691/2020] which may be extended to 7 years. It is further contended that the petitioner has remained in custody for a period of 5 months. It is also contended that the Apex Court as well as the High Courts have been enlarging accused on bail under the Act of 2002 and as recently as on 13.8.2020, bail was granted by the Apex Court in Ashok Singhvi Versus Umanand Vijay & Anr.: SLP (Crl.) No.3122/2020, a case pertaining to money laundering.
7. Counsel for the petitioner has also placed reliance on the judgment in Sanjay Chandra Versus CBI: 2012 (1) SCC 40 wherein relevant considerations for grant of bail were discussed. The Apex Court in that case observed that the law in regard to grant or refusal of bail is very well settled and the Court granting bail should exercise its discretion in a judicious manner. Though at the stage of granting bail, a detailed examination of evidence and elaborate discussion of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the Court granting bail to consider among other circumstances, the following factors; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.
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8. It is contended by counsel for the petitioner that in P. Chidambaram Versus Directorate of Enforcement: (2019) 9 SCC 24, bail was granted by the Apex Court wherein allegation was with regard to the offence under the Act of 2002. It is also argued that Delhi High Court in D.K. Shivakumar Versus Directorate of Enforcement: 2019 SCC OnLine Del 10691 bail was granted and the Apex Court has dismissed the SLP filed by the Directorate of Enforcement on 15.11.2019.
9. Counsel appearing for the Directorate of Enforcement has vehemently opposed the bail application. It is argued by the counsel for the Directorate of Enforcement that the petitioner is involved in the offence of money laundering. In addition to purchasing the flat worth Rs.14 lacs, he is the Director of many companies and is also a trustee in a trust in which money was transferred. It is also contended that after the twin conditions were declared as unconstitutional, the Act of 2002 has been amended and after the amendment, the twin conditions are revived.
10. It is contended that whether the twin conditions of the Act of 2002 are revived, was also considered by the Delhi High Court in Upendra Rai Versus Directorate of Enforcement: Bail Application No.249/2019 decided on 9.7.2019 wherein it was held that the twin conditions are not revived. The Supreme Court has stayed the order passed in Upendra Rai (supra).
11. I have considered the conditions.
12. The Apex Court in Nikesh Tarachand Shah (supra) held Section 45 of the Act of 2002 unconstitutional "as a whole". The Apex Court observed that Section 45 of the Act of 2002 was a drastic provision and is inconsistent with the principle of (Downloaded on 05/02/2021 at 11:00:31 PM) (5 of 7) [CRLMB-14691/2020] "presumption of innocence". The Apex Court further observed that Section 45 of the Act of 2002 is akin to Section 20(8) of the TADA and that the latter was upheld only because it was imminent for the State to deal with terrorist activities. In the opinion of the Apex Court, the judgment of Kartar Singh Versus State of Punjab: (1994) 3 SCC 549, which upheld the validity of Section 20(8) of the TADA, could not apply to Section 45 of the Act of 2002.
13. The amendment, which has been incorporated under Section 45 of the Act of 2002 substitutes the words "under this Act" for "punishable for a term of imprisonment of more than three years under Part A of the Schedule". Prior to the amendment, Section 45 of the Act of 2002 was applicable to offences punishable for a term of imprisonment of more than three years under Part A of the Schedule, however, after the amendment, Section 45 of the Act of 2002 was made applicable to the offences punishable under the Act. If this amendment is to be taken note of, even for offences, which are punishable for 3 years, the twin conditions have to be considered. The Apex Court in Nikesh Tarachand Shah case (supra) has already declared the twin conditions as void and unconstitutional being violative of Articles 14 and 21 of the Constitution of India and has directed the High Courts to decide the bail application ignoring the twin conditions. Merely by an amendment and substitution of some words and insertion of the Explanation, the twin conditions would not be revived, as the twin conditions were held to be violative of Articles 14 and 21 of the Constitution.
14. The Apex Court in Arnab Manoranjan Goswami Versus The State of Maharashtra & Ors.: Criminal Appeal (Downloaded on 05/02/2021 at 11:00:31 PM) (6 of 7) [CRLMB-14691/2020] No.742/2020, has observed that the bail applications should not be delayed and right to liberty should not be curtailed. Merely, because the Apex Court has stayed the order passed by the Delhi High Court, the same would not debar the Court from deciding the present bail application as there is a specific direction in Nikesh Tarachand Shah (supra) to decide the bail applications ignoring the twin conditions.
15. The Constitutional Bench of the Apex Court in Shri Prithvi Cotton Mills Ltd. & Anr. Versus Broach Borough Municipality & Ors.: 1970 AIR 192, while dealing with the question of validity of a validation Act passed with a view to bypass the judgment of Apex Court, held that even if, it has competence, the Legislature cannot merely pass a law that a decision of this Court shall not bind as that would tantamount to reversing the decision in exercise of judicial power, which the Legislature does not possess and exercise. It was further observed that a Court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. The present amendment has not fundamentally altered Section 45 of the Act of 2002 so as to bypass the judgment passed in Nikesh Tarachand Shah case (supra). Section 45 of the Act of 2002 still falls short of the constitutional dictums as held in Nikesh Tarachand Shah case (supra).
16. The petitioner was granted bail in the predicate FIR way back on 23.8.2017. As far as assets purchased by the petitioner is concerned, it is a flat worth Rs.14 lacs. The petitioner himself is MBBS, MD (Pediatrics). There is no chance of his fleeing from (Downloaded on 05/02/2021 at 11:00:31 PM) (7 of 7) [CRLMB-14691/2020] justice or threatening the witnesses as the witnesses in this case are government personnel.
17. Taking note of the fact that the sentence provided under the Act of 2002 ranges from 3 years to 7 years, that the petitioner has remained in custody for a period of 5 months, that conclusion of the trial will take time and that the petitioner has been given benefit of bail in predicate FIR, I deem it proper to allow the present bail application.
18. This bail application is, accordingly, allowed and it is directed that the accused petitioner shall be released on bail provided he furnishes a personal bond in the sum of Rs.1,00,000/- (Rupees One Lack Only) together with two sureties in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) each to the satisfaction of the trial Court with the stipulation that he shall appear before that Court and any Court to which the matter be transferred, on all subsequent dates of hearing and as and when called upon to do so.
(PANKAJ BHANDARI),J SUNIL SOLANKI /19 (Downloaded on 05/02/2021 at 11:00:31 PM) Powered by TCPDF (www.tcpdf.org)