[S. 45 PMLA] Twin Conditions For Bail Not Required To Be Fulfilled When Release In Police Custody Ordered: Punjab & Haryana High Court

The Punjab & Haryana High Court made it clear that the twin condition under Section 45 of the Prevention of Money Laundering Act (PMLA), is not required to be complied with when the Court has ordered release in police custody.

According to Section 45 of the PMLA, bail can be granted to an accused in a money laundering case only if twin conditions are satisfied - there should be prima facie satisfaction that the accused has not committed the offence and that he is not likely to commit any offence while on bail.

Justice Anoop Chitkara said, "The condition would have applied only when the Court had released the petitioner on bail, whereas the Court never released him on interim bail but made arrangements to take him out of prison in police custody to file a proper response to the notice issued under Section 8(1) of PMLA 2002."

The Court elucidated that the release from prison in police custody is neither bail nor interim bail. While out of prison in police custody, the inmate gets out of the prison's four walls but is under continued detention.

"Meanwhile, while on bail or interim bail, the accused is not detained but only has an undertaking through bond to appear before the Court or surrender to the prison. The primary concerns for a Judge while ordering an inmate's release in police custody are the accused being forcibly released by their accomplices, the accused being a flight risk, or the existence of a risk to the accused's life," it added.

Thus, the twin conditions of Section 45 of the Prevention of Money Laundering Act, 2002 neither attract nor are required to be complied with while passing an order for release in police custody. the Court opined.

These observations came in response to the plea filed by ED under Section 482 CrPC challenging the Special Court's order to release an accused for four days to enable him to procure documents to file a reply to the show cause notice issued by the Adjudicating Authority under Section 8(1) of PMLA 2002.

ED had arrested the accused and filed the complaint before the Special Court. After that, on receipt of a notice under Section 8(1) of the PMLA, the accused applied for interim bail before the Special Judge. It was stated that the accused is required to collect documents to file a reply to the show cause notice regarding the retention of cash, jewellery, digital devices, FDRs, etc., which had already been taken in possession by the ED.

The accused contended that in order to prepare his defence, it is important to visit offices such as banks and the income tax department personally, as well as to meet with people including his Chartered Accountant.

The Special Court did not grant interim bail but it allowed the accused to be sent out for four days to collect various documents in police custody. Specific directions were made that the accused should prepare a schedule with dates of his visit to different offices and meetings with different persons, and for such schedule to be handed over to the Superintendent, Central Prison, Ambala, who was further directed to allow him to visit for the said schedule in police custody.

Aggrieved with this, the central probe agency moved the High Court.

After examining the submissions, the Court dismissed the petition.

Detailed story can be read here.