Twin bail conditions in PMLA cases can be ignored, rules HC

Saurabh Malik

Tribune News Service

Chandigarh, June 3

The Punjab and Haryana High Court has made it clear that twin conditions for bail to a person accused of an offence under the provisions of the Prevention of Money Laundering Act were liable to be ignored.

The conditions were that the public prosecutor was required to be given an opportunity to oppose the pleas before the grant of bail to a person accused of an offence punishable for more than three years under Part A of the schedule attached to the PMLA.

In case of such opposition, the court could order release only after recording satisfaction regarding reasonable grounds to believe the person was not guilty of the offence he was accused of and was not likely to commit any offence while on bail.

The Supreme Court, after holding that the conditions were violative of Articles 14 and 21 of the Constitution, declared Section 45(1) of the PMLA unconstitutional to that extent. But the Enforcement Directorate contended before the High Court Bench of Justice Deepak Sibal that the PMLA was sought to be amended from April 2018.

The words “punishable for a term of imprisonment of more than three years under Part A of the Schedule” were substituted with “under this Act” and the defect on the basis of which the SC declared Section 45(1) unconstitutional was cured. Consequently, the twin conditions stood revived.

Hearing bail pleas by two accused in a case under the provisions of the PMLA, Justice Sibal asserted the declaration by the SC would render the twin conditions to be void in toto. “Such conditions have to be disregarded of any legal force from its inception; they cease to be law; the same are rendered inoperative and that they are to be regarded as if they had never been enacted”.

Justice Sibal added the twin conditions now sought to be pressed into service by the directorate could not be considered as revived or resurrected only on prospective substitution of words, especially without any amendment regarding the twin conditions specifically declared unconstitutional.

Referring to the reasoning given in judgments by different HCs, Justice Sibal asserted the operation of none had been stayed by the SC. “This court has no hesitation to hold that as on date, the twin conditions for grant of bail are liable to be ignored and that the present petitions are required to be considered under Section 438 CrPC,” Justice Sibal asserted.