# Anirudh Kamal Shukla v. U.O.I

- **Citation:** (2022) 3 ILRA 57
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-21
- **Case number:** Criminal Misc. Anticipatory Bail Application U/S 438 CR.P.C. No. 307 of 2022
- **Bench:** Krishan Pahal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anirudh-kamal-shukla-v-u-o-i-48216
- **Pages:** 9

## Headnote

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 438 - Indian
Prevention of Money Laundering Act, 2002
- Section 3/4-seeking for bail-proceeds of
crime-scheduled offence-alleged money
scam- money laundering has been
committed by the accused-applicant with
other co-accused and he has continously
projected the same as being untaintedtwin conditions of section 45(1) of the
PMLA Act is mandatory in nature and must
be complied before granting bail to the
accused-Being a special enactment it has
overriding effect on general law-prima
facie, the parameters of Section 45(1)
PMLA is not satisfied-Hence, for moneylaunderers "jail is the rule and bail is an
exception".(Para 1 to 30)

B. In the instant case, accused-applicant
entered into a criminal conspiracy with
some
unknown
persons
and
got
sanctioned 08 housing loans on the basis
of false and fictitious documents. the said
loan account turned NPA in the name of
non-existent borrowers causing a loss to
the tune of Rs. 1.17 crores approximately
to the Bank of India in lieu of wrongful
gain.(Para 6)

C. Section 45 of PMLA Act imposes two
conditions for grant of bail:
58 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 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 20
to 23)

D. Economic offences constitute a class
apart and need to be visited with different
approach in the matter of bail. the
economic offences having deep-rooted
conspiracies and involving huge loss of
public funds need to be viewed seriously
and considered as grave offences affecting
the economy of the country as a whole and
thereby posing serious threat to the
financial health of the country.(Para 24 to
26)

The application is dismissed. (E-6)

List of Cases cited:

## Text

3 All. Anirudh Kamal Shukla Vs. U.O.I.
57
only it can be challenged under the
provisions of Section 34 of the Arbitration
Act. The power vested under Section 34 (4)
of the Arbitration Act to cure defects can be
utilised in cases where the arbitral award
does not provide any reasoning or if the
award has some gap in the reasoning or
otherwise and that can be cured so as to
avoid a challenge based on the aforesaid
curable defects under Section 34 of the
Arbitration Act. However, in this case such
remand to the Tribunal would not be
beneficial as this case has taken more than
25 years for its adjudication. It is in this
state of affairs that we lament that the
purpose of arbitration as an effective and
expeditious forum itself stands effaced."

41. On perusal of judgments in
respect of quantum of compensation
mentioned in the memo of appeal on which
reliance has been placed by the appellant, I
find that none of them is applicable in the
facts of the present case since those
judgments have been referred under the
Indian Stamp Act whereas the present case
is under the Act, 1996 wherein Section 3-G
(7) stipulates the criteria which the
Arbitrator shall consider in determining the
compensation.

42. Accordingly, this Court for the
reasons given above finds that the District
Judge has rightly modified the award and
directed for payment of compensation
treating the land to be commercial land.

43. Thus, for the reasons given above,
the appeal lacks merit and is accordingly,
dismissed. There shall be no order as to
costs.
----------
(2022)03ILR A57
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 21.03.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Anticipatory Bail Application U/S
438 CR.P.C. No. 307 of 2022

Anirudh Kamal Shukla ...Applicant
Versus
U.O.I. ...Opposite Party

Counsel for the Applicant:
Purnendu Chakravarty, Anuuj Taandon

Counsel for the Opposite Party:
A.S.G.I., Shiv P. Shukla

A. Criminal Law - Code of Criminal
Procedure,1973 - Section 438 - Indian
Prevention of Money Laundering Act, 2002
- Section 3/4-seeking for bail-proceeds of
crime-scheduled offence-alleged money
scam- money laundering has been
committed by the accused-applicant with
other co-accused and he has continously
projected the same as being untaintedtwin conditions of section 45(1) of the
PMLA Act is mandatory in nature and must
be complied before granting bail to the
accused-Being a special enactment it has
overriding effect on general law-prima
facie, the parameters of Section 45(1)
PMLA is not satisfied-Hence, for moneylaunderers "jail is the rule and bail is an
exception".(Para 1 to 30)

B. In the instant case, accused-applicant
entered into a criminal conspiracy with
some
unknown
persons
and
got
sanctioned 08 housing loans on the basis
of false and fictitious documents. the said
loan account turned NPA in the name of
non-existent borrowers causing a loss to
the tune of Rs. 1.17 crores approximately
to the Bank of India in lieu of wrongful
gain.(Para 6)

C. Section 45 of PMLA Act imposes two
conditions for grant of bail:
58 INDIAN LAW REPORTS ALLAHABAD SERIES
(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 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 20
to 23)

D. Economic offences constitute a class
apart and need to be visited with different
approach in the matter of bail. the
economic offences having deep-rooted
conspiracies and involving huge loss of
public funds need to be viewed seriously
and considered as grave offences affecting
the economy of the country as a whole and
thereby posing serious threat to the
financial health of the country.(Para 24 to
26)

The application is dismissed. (E-6)

List of Cases cited:

1. Nikesh Tarachand Shah Vs U.O.I. &
anr.(2018) 11 SCC 1

2. Ramji Singh Vs C.B.I. Anti Corruption Branch
Lko.(Crl.Misc. Anticipatory Bail No. 12682 of 2021)

3. Prakash Jay Prakash Vs U.O.I. (ED) ABLAPL
No. 15091 of 2019

4. Siddharth Vs St. of U.P. & anr.,CRLA No. 838 of
2021 (arising out of SLP Crl. No. 5442 of 2021)

5. Asst. Dir. Vs Dr. V.C. Mohan, SLP Crl. No.
8441 of 2021

6.
Pankaj
Grover
Vs
U.O.I.
(Crl.
Misc.
Anticipatory Bail No. 7661 of 2021)

7. St. of M.P. Vs Ram Krishna Balothia &
anr.(1995) 3 SCC 221

8. St. of V. Vijay Sai Reddy Vs ED, Cr. Petition
Nos. 1073 & 1074 of 2021

9. Jai Prakash Singh Vs St. of Bih. & anr.(2012)
4 SCC 379
10. Gautam Kundu Vs ED (2015) 16 SCC 1

11. UOI Vs Varinder Singh (2017) SCC Online SC
1314

12. Y.S. Jagan Mohan Reddy Vs C.B.I. (2013) 7
SCC 439

13. St. of Guj. Vs Mohanlal Jitamalji Porwal
(1987) 2 SCC 364

14. P. Chidambaram Vs ED (2019) 9 SCC
24

(Delivered by Hon'ble Krishan Pahal, J.)

1. Heard Sri Anuj Tandon, learned
counsel for the applicant, Sri Shiv P.
Shukla,
learned
counsel
for
the
Enforcement Directorate and perused the
material placed on record.

2. The present anticipatory bail
application has been filed on behalf of the
applicant in Complaint Case No.15 of
2019,
E.C.I.R.
No.
ECIR/15/PMLA/LZO/2010, under Section
3/4 of Prevention of Money Laundering
Act, 2002 at Police Station- Directorate
Enforcement, District Lucknow with a
prayer to enlarge him on anticipatory bail.

3. The applicant is stated to have
moved an anticipatory bail application
before the Special Judge, PMLA Lucknow,
which was rejected by it vide order dated
07.01.2022

Facts in Brief

4. The Enforcement Directorate
lodged
an
ECIR
on
26.08.2010
in
pursuance of the schedule offence bearing
F.I.R. No. RC-8A/2007 dated 31.03.2007.
After issuance of provisional attachment
order No.01 of 2016 dated 28.03.2016, a
complaint under Sections 44 and 45 of
3 All. Anirudh Kamal Shukla Vs. U.O.I.
59
P.M.L.A., 2002 has been filed against the
applicant and other co-accused persons for
an offence under Sections 3/4 of P.M.L.A.,
2002.

5. In pursuance of F.I.R. No. RC8A/2007, under Sections 120B, 420, 467,
468 and 471 IPC and Section 13(2) r/w
13(1)(d) of Prevention of Corruption Act,
several charge-sheets have been filed
against
different
co-accused
persons
including the one against the applicant and
his brother Ashwani Kumar Shukla along
with one other co-accused person.

6. As per the F.I.R. lodged by the
C.B.I./A.C.B., Lucknow in 2007 during the
period of 14.11.2005 to 7.11.2016, V.K.
Srivastava, Senior Manager, R.K. Mishra,
Senior
Manager,
Naresh
Chandra
Bhardwaj, Senior Manager, Dinesh Kumar,
Clerk of Bank of India and Vikram Dixit
entered into a criminal conspiracy with
some unknown persons and got sanctioned
08 housing loans on the basis of false and
fictitious documents such as I.T.R., PAN,
Sale Deeds, Voter I.D. etc. The said loan
accounts turned NPA in the name of non
existent borrowers causing a loss to the
tune of Rs.1.17 crores approximately to the
Bank of India in lieu of wrongful gain.
During investigation, proceeds of crime to
the tune of Rs.19,49,000/- in the form of
movable/immovable property was attached
and
was
confirmed
by Adjudicating
Authority vide order dated 16.09.2016. The
applicant- Anirudh Kamal Shukla is stated
to have entered into a criminal conspiracy
with R.K. Mishra, Senior Branch Manger
Credit and Vinny Sodhi @ Vikram Dixit
and applied for sanction of an overdraft
limit of Rs.24.60 lakhs for the business
purpose against the mortgage of property of
Ram Nath Sharma and applied jointly
along with the name of his brother Ashwani
Kamal Shukla by submitting fake ITRs,
PAN Card, NEC, Valuation Report in
respect of property mortgaged, mutation
certificate, will and sale deed. The
investigation revealed that Rs.25,000/- was
transferred to the current account of the
applicant
on
06.11.2006,
which
was
utilized in business and the same is stated
to have been admitted by the applicant.

Rival Contentions

7. Learned counsel for the applicant
has stated that he has no previous criminal
history except the present complaint cases
and the predicate offence filed against him.
There is no possibility of the applicant
fleeing from justice or directly or indirectly
inducing, threat or promise to any person.
The present ECIR has been registered
purely on the basis of predicate offence
bearing
F.I.R.
No.RC-81/2007
dated
31.03.2007. The charge-sheet has been
filed against the applicant and the other coaccused persons in the case filed by C.B.I.
and the applicant is already on bail in it
vide order dated 28.10.2010 passed by this
Court in Bail No.8010 of 2010.

8. Learned counsel for the applicant
has further stated that the predicate offence
relates to OD mortgaged loan account
opened in the name of his brother Ashwani
Kumar Shukla with the Bank of India,
Harsh
Nagar,
Kanpur.
The
property
mortgage is found to be fake. The loan is
alleged to have been applied by Ashwani
Kumar Shukla along with the applicant.
The only allegation against the applicant is
that a sum of Rs.25,000/- was transferred
from OD mortgaged loan account to the
current account of co-borrower Ashwani
Kumar Shukla which was utilized in the
business. It has further been stated that the
entire proceeds of crime originating from
60 INDIAN LAW REPORTS ALLAHABAD SERIES
the schedule offence was transcribed in the
provisional attachment order and the
present applicant was not named as
defendant in the original complaint. The
brother of the applicant is only named in
that complaint as defendant no.7 for the
limited role that a sum of Rs.25,000/- was
transferred from OD mortgaged loan
account to the current account and
subsequently
the
said
amount
was
deposited with ED in the form of FDR.
Learned counsel for the applicant has
further submitted that no proceeds of crime
has been deciphered and derived in respect
of the applicant. There is no provisional
attachment issued in respect of the
applicant. There is no evidence with regard
to possession, acquisition or use and
projecting or claiming any proceeds of
crime as tainted property qua applicant.
The applicant himself is stated to have got
an FIR lodged against Vikram Dixit on
20.10.2007 at Case Crime No.338 of 2007,
under Sections 406, 420, 504 and 506 IPC,
Police Station Kakadev Kanpur, wherein
charge-sheet has been filed. The applicant
is unaware of the entire transactions as he
is a resident of Thane, Maharashtra.

9. Learned counsel for the applicant
has placed much reliance on the case law
settled by the Supreme Court in case of
Nikesh Tarachand Shah vs. Union of
India & Anr.1, wherein the Supreme
Court has declared twin conditions for
grant of bail under Section 45(1) of
P.M.L.A. as unconstitutional. Learned
counsel for the applicant has further
stated that there is no chance of the
applicant tempering with evidence and he
may be admitted to anticipatory bail. The
applicant has not been arrested by the
Enforcement Directorate since filing of
complaint during last eight years and the
applicant
is
co-operating
with
the
department since then. There is no
likelihood of the offence being repeated
by the applicant.

10.
Learned
counsel
for
the
applicant has also placed much reliance
on the judgment of this Court passed in
the case of Ramji Singh vs. Central
Bureau of Investigation Anti Corruption
Branch Lko.2 dated 02.03.2022 and on
the judgment of Orissa High Court in
case of Jyoti Prakash Jay Prakash vs.
Union of India (E.D.)3and also on the
judgment of Supreme Court passed in the
case of Siddharth vs. State of Uttar
Pradesh & Anr.4.

11. Per contra, Sri Shiv P. Shukla,
learned counsel for the Enforcement
Directorate has vehemently opposed the
anticipatory bail application stating that
the OD mortgaged loan account was
opened in the name of Ashwani Kumar
Shukla along with applicant with Bank of
India, Harsh Nagar Branch on the basis of
forged
property
documents
made
available by co-accused person Vikram
Dixit
through
Ram
Nath
Sharma
(Guarantor). This property situated at
122/212, Lajpat Nagar, Kanpur was not
clear in title and the same was not in
physical possession of Ram Nath Sharma
as a Legal Suit No.1815 of 1996 is
already pending in the court between
Ram Nath Sharma and his sister in
respect of ownership.

12. The brother of the applicant is
stated to have admitted that Rs.25,000/-
was tainted money. The said amount of
Rs.25,000/-
was
paid
vide
cheque
no.215054 dated 06.11.2006 to M/S D.K.
Agricultural
and
Engineering.
The
Enforcement Directorate has examined and
recorded the statement of the applicant and
3 All. Anirudh Kamal Shukla Vs. U.O.I.
61
all co-accused persons under Section 50 of
P.M.L.A., 2002 wherein the applicant is
stated to have confessed his crime.

13.

Learned
counsel
for
the
Enforcement Directorate has further stated
that the provisional attachment order dated
28.03.2016 finds the reference of the
aforesaid transaction of Rs.25,000/- at
serial no.7. He has further submitted that
the applicant along with his brother had
entered into a criminal conspiracy with
R.K. Mishra, Senior Branch Manager
Credit and Vinny Sodhi @ Vikram Dixit for
sanction of an overdraft limit of Rs.2.50
lakhs for business purpose against the
mortgaged of property of Ram Nath
Sharma by submitted fake documents.
Learned counsel for the E.D. has stated that
the charge-sheet in the present case had
already been filed on 27.11.2018 and the
cognizance has been taken on 11.04.2019.
Summons and non bailable warrants have
already been issued against the co-accused
persons. There is no reason for entertaining
an anticipatory bail of the applicant at this
stage.
The
accused
himself
should
surrender before the Special Court and
apply for regular bail.

14. Sri Shiv P. Shukla, learned
counsel for the Enforcement Directorate
has placed much reliance on the judgment
of Supreme Court in case of Assistant
Director vs. Dr. V.C. Mohan5, wherein it
has been held that the rigors of Section 45
of the PMLA would be applicable to the
petitioners who file applications for grant
of anticipatory bail in the case of offences
under the PMLA. The relevant excerpt
from the judgment is reproduced below for
ready reference:-

"...........The observations made
herein have been misunderstood by the
respondent. It is one thing to say that
Section 45 of the PMLA Act to offences
under the ordinary law would not get
attracted
but
once
the
prayer
for
anticipatory bail is made in connection
with offence under the PMLA Act, the
underlying principles and rigors of Section
45 of the PMLA Act must get triggered -
although the application is under section
438 of Code of Criminal Procedure."

15. It has also been held by this Court
in the case of Pankaj Grover vs. Union of
India6 as follows:-

"42..........
In
socio-economic
offences proceed of crimes are larger and
further, offenders are economically sound,
therefore,
in
releasing
them
on
bail/anticipatory
bail
probability
of
abscondance not within country but beyond
country is more probable. Usually socioeconomic offenders abscond to some other
country and after that it becomes difficult
to bring them back and complete the
criminal proceeding against them. Further,
their
monetary
sound
condition
particularly proceed of crime obtained not
by honest working but by deceiving others
causes more prone situation for influencing
witnesses
and
other
evidences.
Furthermore,
status
and
position
of
offender provides opportunity to influence
investigation and prosecution."

16.

Learned
counsel
for
the
Enforcement Directorate has further stated
that the anticipatory bail application of the
co-accused- Naresh Chandra Bhardwaj has
already been dismissed vide order dated
24.12.2021 passed in Criminal Misc.
Anticipatory Bail Application U/S 438
Cr.P.C. No.11679 of 2021. Learned counsel
for the Enforcement Directorate has further
stated that the right of anticipatory bail is
62 INDIAN LAW REPORTS ALLAHABAD SERIES
not part of Article 21 of the Constitution of
India as has been held in case of State of
M.P. vs. Ram Krishna Balothia and
Another7.

17. It is further submitted that
provision of PML Act makes it clear though
the commission of scheduled offence is a
essential
pre-requiste
for
initiating
proceeding under PML Act, the offence of
money laundering is independent of the
scheduled offence. In support of his
contention he relied upon Judgment of
Hon'ble Telangana High Court in case of
State
of
V.
Vijay
Sai
Reddy
vs
Enforcement Directorate8, wherein it was
held that trial for the offence of money
laundering is independent trial and it is
governed by its own provisions and it need
not get interfered by the trial of scheduled
offences.

18. It is further submitted that PML
Act is Special Act to deal with economic
offences. Offence under PML Act is made
as
cognizable
and
non-bailable
and
granting anticipatory bail may hamper the
societal and national interest. In support of
his contention learned counsel relied upon
Judgment of Supreme Court in the case of
Jai Prakash Singh v. State of Bihar &
Anr.9, wherein it is held that "parameters
for grant of anticipatory bail in a serious
offence are required to be satisfied and
further while granting such relief, the Court
must
record
the
reasons
therefor.
Anticipatory bail can be granted only in
exceptional circumstances where the Court
is prima facie of the view that the applicant
has falsely been enroped in the crime and
would not misuse his liberty."

19. It is further submitted that the
offence of money laundering has been
committed by the accused-applicant with
other co-accused and he has continuously
projected the same as being untainted.
Section 3 specifically provided that directly
or indirectly attempts to indulge or
knowingly assists or knowingly is a party
or is actually involved in any process or
activity connected with the proceeds of
crime and projecting it as untainted
property shall be guilty of offence of
money-laundering." The offence of money
laundering would be counted from the day
on which the proceeds of crime had been
projected as being untainted.

20. In order to examine the
contentions it would be useful to advert to
section 45 of PML Act, 2002. The same
read thus:-

"45. Offences to be cognizable
and
non-bailable.--(1)
Notwithstanding
anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), no person
accused of an offence punishable for a term
of imprisonment of more than three years
under Part A of the Schedule 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:

Provided that a person, who, is
under the age of sixteen years, or is a
woman or is sick or infirm, may be released
on bail, if the Special Court so directs:

Provided further that the Special
Court shall not take cognizance of any
offence punishable under Section 4 except
upon a complaint in writing made by--
3 All. Anirudh Kamal Shukla Vs. U.O.I.
63

(i) the Director; or

(ii) any officer of the Central
Government
or
a
State
Government
authorised in writing in this behalf by the
Central Government by a general or a
special order made in this behalf by that
Government.

(1-A) Notwithstanding anything
contained in the Code of Criminal
Procedure, 1973 (2 of 1974), or any other
provision of this Act, no police officer shall
investigate into an offence under this Act
unless specifically authorised, by the
Central Government by a general or
special
order,
and,
subject
to
such
conditions as may be prescribed.

(2) The limitation on granting of
bail specified in sub-section (1) is in
addition to the limitations under the Code
of Criminal Procedure, 1973 (2 of 1974) or
any other law for the time being in force on
granting of bail."

21. Section 45 specially provides two
conditions which is mandatory in nature
and must be complied before granting bail
to accused of offence.

22. The same is reiterated is case of
Gautam
Kundu
vs
Directorate
of
Enforcement10, the Supreme Court held as
under:-

29. Section 45 of PML Act starts
with a non obstante clause which indicates
that the provisions laid down in Section 45
of PML Act will have overriding effect on
the general provisions of the Code of
Criminal Procedure in case of conflict
between them. Section 45 of PML Act
imposes the following two conditions for
grant of bail to any person accused of an
offence
punishable
for
a
term
of
imprisonment of more than three years
under Part A of the Schedule of PML Act:

(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 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.

30.
The
conditions
specified
under Section 45 of PML Act are
mandatory and needs to be complied with,
which is further strengthened by the
provisions of Section 65 and also Section
71 of PML Act. Section 65 requires that the
provisions of CrPC shall apply insofar as
they are not inconsistent with the provisions
of this Act and Section 71 provides that the
provisions
of
PML
Act
shall
have
overriding effect notwithstanding anything
inconsistent therewith contained in any
other law for the time being in force. PML
Act has an overriding effect and the
provisions of CrPC would apply only if
they are not inconsistent with the provisions
of this Act. Therefore, the conditions
enumerated in Section 45 of PML Act will
have to be complied with even in respect of
an application for bail made under Section
439
CrPC.
That
coupled
with
the
provisions of Section 24 provides that
unless the contrary is proved, the authority
or the Court shall presume that proceeds of
crime are involved in money laundering
and the burden to prove that the proceeds
of crime are not involved, lies on the
appellant."

23. In case of Union of India v.
Varinder Singh11, Supreme court observed
that Sec 45 of PML Act imposes conditions
for grant of bail. Bail cannot be granted
without complying with requirements of
section 45 of PML Act.

Conclusion
64 INDIAN LAW REPORTS ALLAHABAD SERIES

24. In case of Y.S jagan Mohan
Reddy v. CBI12, the Supreme Court
observed as under:-

"34. Economic offences constitute
a class apart and need to be visited with a
different approach in the matter of bail. The
economic offences having deep-rooted
conspiracies and involving huge loss of
public funds need to be viewed seriously
and considered as grave offences affecting
the economy of the country as a whole and
thereby posing serious threat to the
financial health of the country."

25. In State of Gujrat v. Mohanlal
Jitamalji Porwal13, the Hon'ble Supreme
Court observed:

"[...] the entire community is
aggrieved if the economic offenders who
ruin the economy of the State are not
brought to book. A murder may be
committed in the heat of moment upon
passions being aroused. An economic
offence is committed with cool calculation
and deliberate design with an eye on
personal
profit
regardless
of
the
consequence to the community. A disregard
for the interest of the community can be
manifested only at the cost of forfeiting the
trust and faith of the community in the
system to administer justice in an evenhanded manner without fear of criticism
from the quarters which view white collar
crimes with a permissive eye unmindful of
the damage done to the national economy
and national; interest [...]"

26. In case of P. Chidambaram v.
Directorate
of
Enforcement14,
the
Supreme Court observed as under:-

"67. Ordinarily, arrest is a part of
procedure of the investigation to secure not
only the presence of the accused but several
other purposes. Power under Section 438
Cr.P.C. is an extraordinary power and the
same has to be exercised sparingly. The
privilege of the pre-arrest bail should be
granted only in exceptional cases. The
judicial discretion conferred upon the court
has
to
be
properly
exercised
after
application of mind as to the nature and
gravity of the accusation; possibility of
applicant fleeing justice and other factors
to decide whether it is a fit case for grant of
anticipatory bail. Grant of anticipatory bail
to some extent interferes in the sphere of
investigation of an offence and hence, the
court must be circumspect while exercising
such power for grant of anticipatory bail.
Anticipatory bail is not to be granted as a
matter of rule and it has to be granted only
when
the
court
is
convinced
that
exceptional circumstances exist to resort to
that extraordinary remedy. "

27. The PML Act, 2002 deals with the
offence
of
money
laundering
and
Parliament enacted this law to deal and
curb the activities of money laundering.
Being a special enactment it has overriding
effect on general law. Section 71 of PML
Act specially provides that provisions of
PML Act shall have overriding effect on
any other law time being in force. From
aforesaid view it is very clear that
provisions of Code of Criminal Procedure
will not be applicable until there is no
specific provision given in PML Act, 2002.

28. Money Laundering being an
offence is economic threat to national
interest and it is committed by the white
collar offenders who are deeply rooted in
society and cannot be traced out easily.
These kind of offences are committed with
proper conspiracy, deliberate design with
the motive of personal gain regardless of
3 All. Om Prakash Verma Vs. State of U.P.
65
the consequences to the society and
economy of Country. Hence, for moneylaunderers "jail is the rule and bail is an
exception".

29. The arguments tendered by the
counsel for the applicant can be agitated at
the stage of regular bail but not under
Section 438 Cr.P.C.

30. On prima facie reading of the
material placed on record and considering
the parameters of Section 45(1) PMLA as
well as the gravity of the alleged offences,
it cannot be held that the applicant was not
guilty of the alleged offences or that he was
not likely to commit any such offence
while
on
bail
and
accordingly
the
anticipatory bail application is dismissed.

31. However, it is made clear that the
observations
made
hereinabove
are
exclusively
for
deciding
the
instant
anticipatory bail application and shall not
affect the trial or deciding the regular bail
application.
----------
(2022)03ILR A65
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.03.2022

BEFORE

THE HON'BLE KRISHAN PAHAL, J.

Criminal Misc. Bail Application No. 9660 of 2021

Om Prakash Verma ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Karunakar Srivastava

Counsel for the Opposite Party:
G.A.
A. Criminal Law - Code of Criminal
Procedure,1973 - Section 439 - The
Narcotics
Drugs
And
Psychotropic
Substances Act,1985-Section 8/20-bailrecovery of 1 quintal 3 kg290 grams ganja
from 19 packets-Representative samples
not drawn from all the 19 packets-there is
non-compliance of procedure given in
clause 2.4 of the Standing order No. 1 of
1989 which has statutory force and
therefore, accused may not be held guilty
after trial-Bail allowed with conditions.
(Para 1 to 14)

B. The guidelines such as those present in
the Standing Order can not be blatantly
flouted
and
substantial
compliance
therewith must be insisted upon for so
that sanctity of physical evidence in such
cases remains intact. In this case, the
conduct of the prosecution of not drawing
individual
sample
from
each
packet
recovered
will
be
considered
to
be
violation of Standing Order aforesaid.
(Para 5 to 11)

The application is allowed. (E-6)

List of Cases cited:

1. St. of Raj. Vs Tara Singh (2011) 11 SCC 559

2. Aman Fidel Chris Vs Narcotics Control Bureau,
CRLA No. 1027 of 2015 & Crl. M.B. 511 of 2019
& Crl. M.A. 1660 of 2020

3. Noor Aga Vs St. of Punj.(2008) 3 JIC 640 SC

4. St. of Ker. & ors. Vs Kurian Abraham (P) Ltd.
& anr. (2008) 3 SCC 582

5. U.O.I. Vs Azadi Bachao Andolan (2004) 10
SCC 1

6. U.O.I. Vs Shiv Shankar Keshari (2007) 7 SCC
798

(Delivered by Hon'ble Krishan Pahal, J.)

1.

Heard
Sri
Sri
Karunakar
Srivastava,
learned
counsel
for
the