The main legal point established in the judgment is the unconstitutionality of the twin conditions for release on bail as per Section 45(1) of the PML Act, 2002, as declared by the Supreme Court in Nikesh Tarachand Shah vs. Union of India and another, (2018) 11 SCC 1.

JUDGMENT

1. Present application has been filed under Section 439, Cr.P.C. praying to release the Petitioner on bail in connection with Crl. Misc. (PMLA) Case No34 of 2016 pending in the court of learned Sessions Judge-cum-Special Judge, Bhubaneswar.

2. The facts of the case reveal that, initially Kharavela Nagar P.S. Case No.44 of 2013 and 45 of 2013 were registered against Arthatatwa Group of Companies and others. Subsequently, Central Bureau of Investigation (CBI) took up investigation of the said cases along with other cases in pursuance to the directions issued by the Supreme Court of India. As such, SPE Case No.42 of 2014 (arising out of Kolkata CBI/SCB/RC/No.47/S/2014-Kol. dated 5th June, 2014) has been registered alleging commission of offences under Section 120-/294/341/406/409/420/467/468/471/506/34 of the Indian Penal Code and Sections 3/4/5 of the Prize Cheat and Money Circulation Scheme (Banning) Act, 1976. Keeping in view the nature of allegations and as materials surfaced revealing commission of schedule offences under the Prevention of Money Laundering Act, 2002 (hereinafter 'PML Act') the complaint under Section 45 was lodged before the learned Special Judge, Bhubaneswar which was registered as Crl. Misc. (PMLA) Case No.34 of 2016 and the learned Special Judge, Bhubaneswar by order dated 1st November, 2016 took cognizance of the offences under Section 3 of the PML Act, punishable under Section 4 of the said Act. The present Petitioner is one amongst seven accused persons in the afore-stated case.

3. The allegations leveled against the Petitioner are that, he was the Director of Arthatatwa Infra India Pvt. Ltd. and also the Finance Manager of Arthatatwa Consultancy Pvt. Ltd. The Petitioner was looking after accounts related deposits collected from the public and thereafter depositing the cheques and supervising the works related to accounts, deposits, payments, etc. He being aware of all the financial transactions and collection of money from public with false promise of high returns was actively involved in commission of offences of Money Laundering with the principal accused Pradeep Kumar Sethy and enjoyed the proceeds of crime to his personal benefits.

4. It needs to be mentioned here that the prayer for bail of the Petitioner was earlier rejected by this Court in BLAPL No.4165 of 2020 vide order dated 24.09.2021.

5. It is submitted by the counsel for the Petitioner that in the meantime the principal accused of the case, namely, Pradeep Kumar Sethy has been released on bail in BLAPL No.5606 of 2020 vide order dated 17.12.2021 and one more accused, namely, Jyoti Prakash Jay Prakash has also been released on anticipatory bail in ABLAPL No.15091 of 2019 vide order dated 27.10.2021 by different coordinate Benches of this Court.

6. Mr. G. Agarwal, learned counsel for the Enforcement Directorate (ED) (complainant) submits that there are ample materials against the Petitioner evidencing commission of offences of Money Laundering where the Petitioner has taken active role to siphon public money in close association of other accused persons.

7. After hearing both the parties, it reveals that two other co- accused persons, namely, Pradeep Kumar Sethy and Jyoti Prakash Jay Prakash, whose release on bail has been referred by the Petitioner were granted on bail upon reliance of the decision of the Supreme Court in the case of Nikesh Tarachand Shah vs. Union of India and another, (2018) 11 SCC 1, wherein the Supreme Court held the twin conditions prescribed for release on bail as per Section 45(1) of the PML Act, 2002 to be unconstitutional as violative of Articles 14 and 21 of the Constitution of India.

8. The Supreme Court in the case of Nikesh Tarachand Shah (supra) at paragraphs 46 and 54 have observed that:

'46. We must not forget that Section 45 is a drastic provision which turns on its head the presumption of innocence which is fundamental to a person accused of any offence. Before application of a section which makes dr