JUDGMENT :

M. Duraiswamy, J.

Common Prayer: Criminal Original Petition filed under Section 45 of the Prevention of Money Laundering Act, 2002 read with section 439 of the Criminal Procedure Code, to enlarge the petitioners on bail pertaining to ECIR No.ECIR/MDSZO/04/2018 pending investigation on the file of the respondent.

1. The petitioners, namely, N.Umashankar @ N.M.Umashankar V.Janarthanan, N.Arunkumar and Saravanakumar, are arrayed as accused Nos. 2, 3, 4 and 9, respectively in ECIR No.ECIR/MDSZO/ 04/2018, on the file of the Court of Principal Sessions Judge, City Civil Court, Chennai.

2. The Division Bench of this Court, by order dated 10.03.2021, granted bail to the petitioners. Aggrieved over the order passed by the Division Bench, the respondent filed Appeals before the Hon'ble Supreme Court in S.L.P. (Crl.) Nos. 7563-7565 of 2021 and the Apex Court, by order dated 22.11.2021, set aside the order dated 10.03.2021 and relegated the parties before this Court for reconsideration of Criminal Original Petitions to be decided in accordance with law.

3. Pursuant to the order passed by the Apex Court, the learned counsel on either side made their submissions in the bail petitions.

4. It is not in dispute that the petitioners were arrested by the respondent for the alleged offence under Section 3 of the Prevention of Money Laundering Act (hereinafter referred to as "PMLA") and punishable under Section 4 of PMLA. The petitioners filed petitions in Crl.O.P.Nos.673, 675 and 677 of 2021 seeking for bail. The said petitions were dismissed on 02.02.2021 on the ground that investigation was pending. The Economic Offences Wing of Tamil Nadu Police had registered a case in Crime No.6 of 2016 on 02.06.2016, for the alleged commission of offences under Sections 406, 420, 120B of IPC read with Section 5 of the Tamil Nadu Protection of Interest of Depositors (in Financial Establishment) Act, 1997 (TNPID Act) and they were granted Anticipatory Bail and subsequently, the Anticipatory Bail granted to them came to be cancelled and during their incarceration, the Committee of Administrator appointed by the Hon'ble First Bench of this Court had seized and got over almost all documents pertaining to the properties and some of the properties are also brought for sale and this Court had also confirmed the sale in respect of some of the properties.

5.1 Mr.R.Jayaprakash, learned counsel appearing for the petitioners submitted that since the investigation done by the respondent has been completed and complaint has also been filed, which is yet to be taken on file, the question of hampering investigation and tampering of witnesses would not arise. The learned counsel also submitted that the passports of the petitioners were also ordered to be surrendered, in connection with the case in Crime No.6 of 2016, registered by the Economic Offences Wing of Tamil Nadu Police and as such, the question of fleeing from the hands of justice also would not arise.

5.2 The learned counsel further submitted that the provisions of section 45 of the PMLA has no application for the reason that the Hon'ble Supreme Court in its Judgment reported in 2018 (11) SCC -1 [Nikesh Tarachand Shah v. Union of India and another], had declared section 45(1) of the Act as unconstitutional. Further the learned counsel submitted that the amendment brought in section 45 of the Act on 19.04.2018 is also having no application for the reason that the provisions of section 45 has already been struck down by the Apex Court.

5.3 It is the contention of the learned counsel for the petitioners that once section 45 of the Act has been struck down by the Apex Court, the legislature cannot bring in amendment to the said provision, which is not in existence. The learned counsel also submitted that the petitioners are law abiding citizens and they would co-operate with the investigation, hence, bail may be granted as per the provisions of section 45(1)(ii).

5.4 In support of his contention, the learned counsel,