The division bench of Madras HC presided by Justice M. Duraiswamy and Justice J.S.N.Prasad rejected a petition which sought for bail to the petitioners who were arrested u/s. 3 of PMLA (‘the Act’) by ED. The bench held that this court is reluctant to hold that petitioners are unlikely to commit an offence while free on bail because it does not consider the petitioners to be innocent of the alleged charges based on their prior behaviour. The Apex court in an earlier judgment providing bail to Petitioners had noted that the HC failed to deal with the issue regarding the bar as put by the statute against bail with regard to the offences of PMLA and referred back the parties to HC for the reconsideration of the petition. The submissions of the petitioners are that SC has struck down sec.45 of the Act and has no application in the instant case. The ED contended that the amendment to Sec.45 of PMLA puts a bar on bail petitions and hence, the petition is liable to be dismissed further the petitioners are bound by Sec.45 as the SLP is pending before SC. Since an SLP is pending before SC against amended Sec.45 of the Act and the apex court has not ordered a stay on the SLP, the bench highlights, the modified sec.45 is in operation and binding upon the petitioner as there is neither operating stay against the said provision. HC further remarked that not amending the entire provisions of sec.45 is inconsequential, as a provision after being declared unconstitutional does not get repealed from the statute and becomes unenforceable only. The bench further highlights that the defect is presumed to be cured till the Parliament comes up to cure the defect as highlighted by a court and hence, the provision has to be presumed to be constitutional. Therefore, the presumption of constitutionality is linked with Sec.45(1) of the Act as well as the same has not been repealed. Finally, hearing the averments of ED that the petitioners were not cooperative even during the police custody and if bail is granted to the petitioners there is a high chance of the petitioners absconding the jurisdiction of the court in order to evade their liability and the process of law, the bench declined bail to petitioners.
