Rajasthan High Court
Mohit Sharma S/O Shri Mahesh Chand ... vs Directorate Of Enforcement on 5 February, 2021
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
(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,
(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.
(4 of 7) [CRLMB-14691/2020]
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
(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
(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
(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
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