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Showing contexts for: 45 pmla in Gautam Thapar vs Directorate Of Enforcement on 2 March, 2022Matching Fragments
(I) On these facts, even the scheduled offence is not made out against the applicant. As the scheduled offence is not made out, the question of applicant's role in money laundering does not arise. Further, in the scheduled offence, neither charge sheet has been filed nor the applicant has been arrested.
(J) While referring to Section 45 PMLA, it was submitted that the twin conditions set out in sub-clause (1) thereof, having been struck down in Nikesh Tarachand Shah v. Union of India reported as (2018) 11 SCC 1, are not applicable to the present case. Notably, the Special Court also did not apply Section 45 PMLA against the applicant.
(H) On Section 45 PMLA, it was submitted that the provision was amended by way of Finance Act, 2018 to cure the defects pointed out by the Supreme Court in Nikesh Tarachand Shah (Supra). Till date, the amendment has not been struck down or declared ultra vires. As such, the twin conditions under Section 45(1) PMLA stand revived.
Reference was made to the judgment dated 28.01.2022 passed in Ajay Kumar v. Directorate of Enforcement, Criminal Application (BA) No. 1149/2021, where a Division Bench of the Bombay High Court, while answering a reference in respect of Section 45 PMLA post the decision in Nikesh Tarachand Shah (Supra) and the amendment made in the provision by virtue of Finance Act, 2018, has held that the twin conditions in Section 45(1) PMLA stand revived.
27. Be that as it may, in 2017, the constitutional validity of Section 45 PMLA came to be challenged before the Supreme Court in Nikesh Tarachand Shah (Supra), wherefore, by a judgment rendered in 2018, explicating the defects inherent in the provision and the challenges posed thereby, the Supreme Court held that the twin conditions imposed by Section 45(1) PMLA were manifestly arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India.
28. Post the decision in Nikesh Tarachand Shah (Supra), an amendment was made to Section 45 PMLA vide the Finance Act, 2018 and brought into effect from 19.04.2018. The new Section 45(1) PMLA reads as follows:-
"45. Offences to be cognizable and non-bailable.--(1) [Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless--]