LexGAUTAM KUNDU versus MANOJ KUMAR ASSISTANT DIRECTOR, EASTERN REGION, DIRECTORATE OF ENFORCEMENT(PREVENTION OF MONEY LAUNDERING ACT) GOVT. OF INDIA
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[2015] 15 S.C.R. 499 GAUTAM KUNDU v. MANOJ KUMAR ASSISTANT DIRECTOR, EASTERN REGION, DIRECTORATE OF ENFORCEMENT A (PREVENTION OF MONEY LAUNDERING ACT) B GOVT. OF INDIA (Criminal Appeal No. 1706 of2015) DECEMBER 16, 2015 [PINAKI CHANDRA GHOSE AND R. K. AGRAWAL, JJ.] C Bail - Prosecution u/s. 4 of Prevention of Money Laundering Act, 2002 (PMLA) - Proceedings u/s. 24 of Securities and Exchange Board of India Act, 1992 (SEBI Act) pending - Bail application u/s. 439 Cr.P. C. - Rejected by High Court on the ground that there was no order holding D that no offence was made out u/s. 24 against the applicant- Held: In view of s. 5 of Cr.P. C. and non-obstante clause of s. 45 of PMLA, PMLA being a special statute will prevail over the general provisions of Cr.P.C. in case of any conflict - The conditions for grant of bail enumerated in s. 45 of PMLA E have overriding effect on the provisions of s. 439 Cr.P. C.- u/ s. 24 of SEBI Act, unless the contrary is proved the Authority/ Court shall presume that proceeds of crime are involved in money laundering - In the facts and circumstances of the case, High Court rightly refused the· bail - Code of Criminal F Procedure, 1973 - s. 439- Prevention of Money Laundering Act, 2002 - s. 4 - Securities and Exchange Board of India Act, 2002 - s. 24. Dismissing the appeal, the Court HELD 1. The Prevention of Money Laundering Act, 2002 (PMLA) deals with the offence of money laundering and the Parliament has enacted this law as per commitment of the country to the United Nations General 499 G H 500 SUPREME COURT REPORTS [2015] 15 S.C.R. A Assembly. PMLA is a special statute enacted by the . Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local B law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. [Para 28) [515- A-C] 2. Section 45 of the PMLA starts with a non-obstante C clause which indicates that the provisions laid down in Section 45 of the PM LA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any D person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA: (i) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) That the Court must be satisfied that there E are reasonable grounds for believing that the accused person is not guilty of such offence and that he is not likely to commit any offence while on bail. [Para 29] [515- D-E] 3. The conditions specified under Section 45 of the F PMLA are mandatory and need to be complied with which is further strengthened by the provisions of Section 65 and also Section 71 of the PMLA. PMLA has an overriding effect and the provisions of Cr.P.C. would apply only if they are not inconsistent with the provisions G of this Act. Therefore, the conditions enumerated in Section 45 of PMLA will have to be complied with even in respect of an application for bail made under Section 439 of Cr.P.C. That coupled with the provisions of Section · 24 of Securities and Exchange Board of India Act, 1992 H provides that unless the contrary is proved, the Authority GAUTAM KUNDU v. MANOJ KUMARASSISTANT 501 DIRECTOR or the Court shall presume that proceeds of crime are A involved in money laundering and the burden to prove that the proceeds of crime are not involved, lies on the appellant. [Para 30] [515-H; 516·A·B] 4. There is no doubt that the conditions laid down under Section 45 of the PMLA, would bind the High Court 8 as the provisions of special law having overriding effect on the provisions of Section 439 of Cr.P.C. for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of C Cr.P.C. [Para 33] [518-G] Subrata Chattoraj v. Union of India and Ors. 2014 (6) SCR 783 : (2014) 8 sec 768; Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation 0 (2013) 7 SCC 439; Union of India v. Hassan Ali Khan 2011 (11) SCR 778: (2011) 10 sec 235- referred
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