IMPORTANT POINTS
(1) Bail – Twin conditions in Section 45(1) of 2002 Act, which was declared unconstitutional by judgment of Apex Court in Nikesh T. Shah Vs. Union of India (2018) 11 SCC 1, stand revived in view of Legislative intervention vide Amendment Act 13 of 2018.
(2) A Statute must be given its effect unless it is struck down – Always there is presumption about constitutionality of provisions of law.

JUDGMENT

Vinay Joshi, J.—Reference made by learned Single Judge dated 03.12.2021 has occasioned us to deliberate upon the conflicting views expressed by the learned Single Judges on the issue involved. The center of focus revolves around the effect of post-amended section 45 of the Prevention of Money-Laundering Act, 2002 (PML Act) in terms of amendment introduced w.e.f. 19.04.2018, after decision of the Supreme Court in the case of Nikesh Tarachand Shah Vs. Union of India (2018) 11 SCC 1. The applicant (accused) has preferred an application in terms of section 439 of the Code of Criminal Procedure, 1972 (code) read with section 65 of the PML Act, for grant of bail in ECIR/NGSZO/13/2021 registered at the Director of Enforcement (ED), Sub-Zonal Office, Nagpur, in connection with the offence of money laundering in terms of section 3 of the PML Act punishable under section 4 of the said Act.

Background for Reference :-

2. During the course of hearing of bail application, learned Counsel appearing for applicant-accused canvassed that rigor of complying duel conditions incorporated in section 45(1)(ii) of the PML Act would not apply in view of the decision of the Supreme Court in the case of Nikesh Shah (supra). It is the contention that the Supreme Court has declared section 45(1) of the PML Act unconstitutional to the extent of twin conditions incorporated therein for grant of bail. The said submission appears to have been countered by the prosecution stating that due to subsequent amendment introduced vide Act No.13 of 2018, the twin conditions have been revived and therefore the statutory mandate would apply while considering the bail application.

3. To substantiate the contention about non-applicability of twin conditions post decision of the Supreme Court in the case of Nikesh Shah (Supra), reliance was placed on two decisions of this Court in the case of Sameer M. Bhujbal Vs. Assistant Director, Directorate of Enforcement, (B.A. No.286/2018 – Bombay High Court) and the case of Union of India Vs. Yogesh Narayanrao Deshmukh (2021) SCC Online Bom 2905. Besides that some decisions of other High Courts in cases of Dr. Shivinder Mohan Singh Vs. Directorate of Enforcement (2020) SCC Online Del 766 (Delhi High Court), Upendra Rai Vs. Directorate of Enforcement (2019) SCC Online Del 9086 (Delhi High Court), Dr. Vinod Bhandari Vs. Assistant Director (2018) SCC Online MP 1559 (Madhya Pradesh High Court) and Most. Ahilya Devi Vs. State of Bihar & Ors. (Cri.Misc. Appl. No.41413/2019) (Patna High Court) have been pressed into service. The learned Counsel Mrs. Mugdha Chandurkar appearing for the Enforcement Directorate (ED) in bail application, expressed her reservation about the view expressed in above decisions by reiterating that due to subsequent amendment, twin conditions would revive. In that regard she relied on the decision of Delhi High Court in cases of Bimal Kumar Jain Vs. Director of Enforcement, 2021 SCC Online Del 3847. Her submission appears to be that the subsequent amendment introduced by the Legislation in section 45(1) has cured the defects pointed out by the Constitutional Court in the case of Nikesh Shah (supra). Since the very foundation which was the basis for declaring twin conditions incorporated in section 45(1) of the Act unconstitutional has been removed, the twin conditions would squarely apply. The Reference Court also took note of the decision of Orissa High Court in case of Mohammad Arif Vs. Directorate of Enforcement, 2020 SCC OnLine Ori 544 and the decision of the Supreme Court in the case of P. Chidambaram Vs. Directorate of Enforcement (2020) 13 SCC 791 while making reference.

4. On confronting with rival submissions, the learned Single Judge of this Court expressed that the very foundation of the declaration of the unconstitutionality was that the stringent twin conditions operated indiscriminately before amendment. According to the learned referal Judge, the basis and foundation of the declaratio