Section 45 of PMLA

IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON 2
nd June, 2023
% PRONOUNCED ON -3
rd July,2023
+ BAIL APPLN. 1178/2023
VIJAY NAIR ..... Petitioner
Through: Ms. Rebecca Memmon John, Sr. Adv.
with Mr. Samudra Sarangi, Ms. Nitya
Jain, Ms. Alisha Luthra and Mr.
Pravir Singh, Advs.
versus
DIRECTORATE OF ENFORCEMENT ..... Respondent
Through: Mr.S.V.Raju, learned ASG with Mr.
Zoheb Hossain, Special counsel for
ED with Mr. Vivek Gurnani and
Mr.Kartik Sabharwal, Advocates
CORAM:
HON'BLE MR. JUSTICE DINESH KUMAR SHARMA41. Section 45 of PMLA provides that notwithstanding anything contained
in the Code of Criminal Procedure, 1973, no person accused of an
offence under this Act shall be released on bail or on his own bond
unless(i) the Public Prosecutor has been given an opportunity to
oppose the application for such release; and (ii) where the Public
Prosecutor opposes the application, the court is satisfied that there are
reasonable grounds for believing that he is not guilty of such offence
and that he is not likely to commit any offence while on bail. It is also
pertinent to mention here that Section 45 also provides that this
condition is in addition to the limitations imposed under Section 439 of
the Code of Criminal Procedure, 1973 or any other law for the time
being in force on granting of bail. It is settled proposition Section 45
PMLA do not impose an absolute restraint on the grant of bail and the
court at this stage is to prima facie consider whether applying the
standard of broad probabilities the material against the applicant would
result in conviction. It is also a settled proposition that at this stage the
Court is only required to examine the material to find out whether the
accused was possessed of the requisite mens rea. It is also no longer
res integra that the court is not required to record a positive finding that
the accused had not committed the offence under the Act. It is also a
settled proposition that the court at this stage is not required to weigh
the evidence meticulously. The court is only required to arrive at a
BAIL APPLN. 1178/2023 Page 32 of 45
finding on the basis of broad probabilities. It is also a settled
proposition that the court is not required to hold a mini trial at this
stage and is required to examine the case on the basis of broad
probabilities. It is also to be kept in mind that while exercising the
jurisdiction under Section 45 of PMLA, the court is required to take
into consideration the limitations prescribed under Section 439 Cr.P.C.
42. In regard to the limitation under Section 439 Cr.P.C. in Kalyan
Chandra Sarkar vs Rajesh Ranjhan (2004) 7 SCC 528 it has been
held as under:
The law in regard to grant or refusal of bail is very well settled.
The court granting bail should exercise its discretion in a
judicious manner and not as a matter of course. Though at the
stage of granting bail a detailed examination of evidence and
elaborate documentation of the merit of the case need not be
undertaken, there is a need to indicate in such orders reasons for
prima facie concluding why bail was being granted particularly
where the accused is charged of having committed a serious
offence. Any order devoid of such reasons would suffer from nonapplication of mind. It is also necessary for the court granting bail
to consider among other circumstances, the following factors also
before granting bail; they are:
(a) The nature of accusation and the severity of punishment in
case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or
apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge.