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791. Lastly, he has placed reliance on the judgment of the Kerala High Court dated 25.01.2021 passed in Bail Application No.7878 of 2020 rendered in the case of M. Sivasankar vs. Union of India, and submitted that even if, prima facie, the complicity of the applicant is established, clause (ii) of sub- section 1 of Section 45 of the PMLA Act envisages two eventualities, first being that, the Court must be satisfied that there are reasonable grounds for believing that an accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. It is submitted that even if it is assumed that the twin conditions of section 45 of the PMLA Act are applied then also the applicant is entitled to bail in view of the Proviso attached to section 45 of the PMLA Act, which exempts the accused, who is sick and if the sum of money laundering is less than one crore since as per the case of the E.D, the applicant has allegedly cheated the Government to the tune of Rs.70,0000/- and rest of the amount of Rs.2 Crores concerns only the private agencies and not a single private agency has filed any complaint against the applicant. He has submitted that in the present case, it is not the case of the Enforcement Directorate that the applicant will indulge R/CR.MA/2774/2021 JUDGMENT again in the same offence, if he is released on bail. He has also submitted that since now further custodial interrogation of the applicant is not needed and the trial proceedings will also take considerable time as there is only one Court which is dealing with such offences, the applicant may be released on bail by imposing suitable conditions. Lastly, it is urged by the learned advocate for the applicant that considering the aforesaid aspects of the matter, the applicant may be released on bail.

Ltd., had violated the advertisement contract given to them and have illegally gained the aforesaid amount. While referring to the provisions of Section 45 of the PMLA Act, he has submitted that after the decision of the Apex Court in the case of Nikesh Tarachandra Shah (supra), the Legislature has amended the provisions and in fact, the amended provisions do not dilute the two conditions. In this regard reference is also made to the decision of the Apex Court in the case of P.Chidambram vs Enforcement Directorate, 2019 (9) S.C.C. 24. He has submitted that the applicant has satisfied that he is not guilty of the offence and he will not again commit the same offence while on bail. Further, reference is also made to Section 24 of the PMLA Act, which shows that the burden is on the accused to prove R/CR.MA/2774/2021 JUDGMENT contrary that he is not involved in the money laundering. Mr.Vyas has also referred to Section 3 of the PMLA Act, which stipulates that the offence of money laundering and Section 50 of the PMLA Act, which prescribes the production of records, receiving evidence on affidavits, issuing commissions for examination of witnesses and documents, etc. It is submitted by Mr.Vyas that the applicant was given various opportunities to satisfy that he has not gained Rs.2,70,00,000/- and after threadbare examination of the evidences, including the affairs of the Company, its revenue and expenditures, the Department has arrived at the aforesaid amount. It is also submitted that the contention raised by the applicant with regard to the loss caused to the Government of Rs.70 lacs will not make any difference since the total amount of illegal gains as per the investigation comes to Rs.2.70 crores. Mr.Vyas has also placed reference on the decision dated 11.06.2020 of the High Court of judicature at Patna passed in Cr.Misc. No7305 of 2019, wherein it is referred that the issue is pending before the Supreme Court in the case of E.D. Vs. Upendra Rai, Criminal Diary No.5150 of 2020, wherein, the Apex Court has stayed the judgment of the High Court of Delhi rendered in the case of Upendra Rai vs. Directorate of Enforcement. To further fortify his submissions, he has placed reliance on the decisions of Apex Court reported in (2018) 11 S.C.C. 46 (Rohit Tandon vs. Directorate of Enforcement Supreme Court), (2019) 9 S.C.C. 165 (Serious Fraud Investigation Office vs. Nitin Johari), (2013) 7 S.C.C. 439 (Y S Jagan Mohan Reddy v/s Central Bureau of Investigation), Criminal Misc. No.73325/2019 (Vidyut Kumar Sarkar @ Ashok Das v/s State of Bihar and Ors.) (Patna High Court), and (2019) S.C.C. OnLine P&H 4985 Jainam Rathod v/s State of Haryana and Ors.

11. Assuming that the twin conditions of section 45 of the PMLA Act still remain in the Statute Book, in that eventuality also the observations of the Supreme Court do not get obliterated. The Schedules attached to the PMLA Act still continue. The insertion of the words "under this Act"by deleting "offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule " only makes an ostensible change. The offence of money laundering as stipulated under section 3 of the PMLA Act stems out of the offences prescribed in the Schedules. The defects which the Supreme Court had pointed out while invalidating the existing law are not substantially removed by the amendment. The Supreme Court has asserted that, the twin conditions prescribed in Section 45 of the PMLA Act would have no nexus whatsoever with a bail application which concerns itself with the offence of R/CR.MA/2774/2021 JUDGMENT money laundering, for if Section 45 of the PMLA Act is to apply, the Court does not apply its mind to whether the person prosecuted is guilty of the offence of money laundering, but instead applies its mind to whether such person is guilty of the scheduled or predicate offence. It is observed that Section 45 of the PMLA Act is a drastic provision which affects the fundamental right of personal liberty guaranteed by Article 21 of the Constitution of India and turns on its head the presumption of innocence which is fundamental to a person accused of any offence. The Supreme Court has held that " that merely reading down the two conditions would not get rid of the vice of manifest arbitrariness and discrimination, as has been pointed out by us hereinabove". Such observations facilitate the Courts to realize and interpret the legal effect of the twin conditions attached to section 45 of the PMLA Act. Finally, the Supreme Court has directed all the concerned Courts to decide the matter on merits without application of the twin conditions contained in section 45 of the PMLA Act as they are declared unconstitutional. The twin conditions still continue. Unquestionably, The amendment Act of 2018 which introduces the expression "under this Act"to section 45 of the PMLA Act, in no uncertain terms can obliterate or dilute the directions issued by the highest Court of land. The same is not written safe from judicial dismemberment. The law declared by the Supreme Court is the law of the land and it is precedent for itself and for all the Courts / Tribunals and the authorities of India. In wake of the aforesaid directions of the Apex Court, this Court cannot genuflect before the impact of the twin conditions even if they stand firm.

14. The Coordinate Bench has directed the applicant to deposit Rs.50,00,000/- before the trial court within a period of 12 (twelve) months. It is also observed that the applicant has allegedly benefited by Rs.70,00,000/-. Prima facie it appears that the complicity of the applicant in the offence with regard to gaining of an amount of Rs.70,0000/- by defrauding the government is established in the present case, however, while considering the aforesaid facts and circumstances and also in light of the Proviso to section 45 of the PMLA Act, which stipulate that "or is accused either on his own or along with other co-accused of money laundering a sum of less than one crore rupees, may be released on bail", this Court is inclined to grant bail to the applicant. However, it is clarified that the observations made by this Court in this regard may not be treated as adverse to the case of the Enforcement Directorate or the applicant in the trial proceedings. Another relevant aspect, which requires consideration is the satisfaction of three factors, viz: I) flight risk, ii) tempering with the evidence and iii) influencing the witnesses. It is not contended that the applicant is neither a flight risk nor it is established that he has the tendency to influence the witnesses or temper with the evidence. It is also not contended by the Enforcement Directorate that there is any propensity or possibility of the applicant of repeating the offence. The case of the prosecution is entirely premised on the documentary evidence, which is already collected by the Enforcement Directorate. The applicant has been in custody since 07.12.2020, he is also subjected to custodial interrogation and this Court finds that further incarceration of the applicant in the judicial custody will not serve any purpose since the R/CR.MA/2774/2021 JUDGMENT complaint is filed under section 45 of the PMLA Act before the Designated Special Court. The Supreme Court in the case of P.Chidambaram (supra) (2020 (13) S.C.C. 791), wherein the accused who was charged with the offence under the PMLA Act, has been released on bail under section 439 of the Cr.P.C by observing that "Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial".