GORAV KATHURIA Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner is an Advocate and it is his claim that he is desirous of instituting Criminal case alleging duty evasion in import of Heavy Melting Scrap classifiable under Customs Tariff Heading 7204 4900 at ICD Ludhiana and laundering by the offender of the proceeds of crime so generated. According to him the imports are being made by mis-declaring the relevant particulars to evade duty and prohibition. He also apprehends that there is active connivance of some customs officials in such mis-declared imports. However, for the limited purpose of the instant petition, any detailed elaboration of the allegations and particulars is not necessary. According to him the allegations would construe offences mainly under ption 132 of the Customs Act, 1962, which is a Scheduled Offence specified in Part B of the Schedule to Prevention of Money Laundering Act (for short PMLA). He further contends that laundering of the proceeds of crime relating to this Scheduled Offence would attract offence under Section 3 of PMLA, which would be punishable under Section 4 thereof.

(2.) The instant petition challenges the vires of firstly Section 2(y)(ii) of PMLA as amended vide section 145( (ii) of the Finance Act, 2015 enhancing the monetary threshold for the offences specified under Part B of the Schedule from the total value involved in such offences from "Rs. 30 lakhs or more" to "Rs. One crore or more", and secondly the insertion of Section 132 of Customs Act, 1962 in Part-B of the Schedule in PMLA, vide section 151 of the said Finance Act, 2015. These impugned amendments, which are applicable with effect from 14.05.2015, are claimed by him as unconstitutional and ultra vires, unless read down so as to make them constitutional, stringent and harmonious with the objects of PMLA. According to him presently these impugned provisions are contrary to the objects of PMLA, which warrant stringent conditions for grant of bail in criminal cases under PMLA. He submits that ends of justice would be met, if these impugned provisions are interpreted and read down in such manner so that the stringent provisions under Section 45(1) of PMLA imposing limitations for grant of bail shall necessarily apply in the matters of money laundering in respect of the said Scheduled offence under Section 132 of Customs Act, 1962, which has been erroneously placed under Pp B of the Schedule to PMLA. To suggest that the legislative intent is to put limitations in grant of bail in an offence under PMLA, he referred to two judgments of the Hon'ble Supreme Court in the matter of Union of India v. Hassan Ali, 2011 10 SCC 235 and Gautam Kundu v. Manoj Kumar, 2016 AIR(SC) 106. According to him the impugned provisions are therefore required to be read down so as to make them constitutional, stringent and harmonious with the objects of PMLA, which warrant stringent conditions for grant of bail in criminal cases under PMLA.

(3.) The petitioner has annexed a copy of the Prevention of Money-Laundering (Amendment) Bill, 2011, which vide clause 33 proposed amendment in the Schedule to PMLA. For the then existing Part A, a new Part A was proposed to be substituted, while omitting paragraphs 1 to 25 in the then existing Part B. Consequently, all those offences which were under these paragraphs 1 to 25 of Part B, and all heinous offences which were under the then existing Part A, were proposed to be put together in the new proposed Part A. As per the petitioner, consequent to the said amendment the pre-requisite for grant of bail to any person arrested under PMLA as mentioned in sub-section (1) of section 45 was now made applicable in respect of allegation of laundering of proceeds of crime relating to all Scheduled offences, irrespective of their gravity and magnitude, as even all earlier Part-B offences were now incorporated in Part-A of the Schedule. According to him this amendment was obviously made to make the provisions of bail more stringent in all matters of money laundering irrespective of the magnitude or gravity of the scheduled offence.