Page 48 - ELT_3rd_1st May 2020_Vol 372_Part

A106 EXCISE LAW TIMES [ Vol. 372
post-import condition of exemption notification was not sustainable when no
such proposal made in the show cause notice and the demand under Section 28
of Customs Act, 1962 proposed in the said show cause notice was dropped.
REPRESENTED BY : Mr. Tushar Mehta, SG, Mr. B. Krishna Prasad, AOR,
Mr. Zoheb Hossain, Mr. Rajat Nair, Mr. Rupesh Ku-
mar and Mr. Dharmendra Gupta, Advocates, for the
Appellant.
(1) Prevention of Money Laundering Act, 2002 — Scope of
Section 3
(2) Prevention of Money Laundering Act, 2002 — Constitu-
tionality of Section 45
(3) Money Laundering — Availability of presumption as
to burden of proof against person charged with
scheduled offences mentioned in Section 45 of Pre-
vention of Money Laundering Act, 2002
The Supreme Court Bench comprising Hon’ble Mr. Justice Rohinton Fali
Nariman and Hon’ble Mr. Justice S. Ravindra Bhat on 25-11-2019 issued notice
in Miscellaneous Application Diary No. 41766 of 2019 in Writ Petition (Criminal)
No. 67 of 2017 filed by Nikesh Tarachand Shah against their Judgment and Order
dated 23-11-2017 passed in the aforesaid Writ Petition as reported in 2018 (360)
E.L.T. 203 (S.C.) (Nikesh Tarachand Shah v. Union of India). While issuing notice,
the Supreme Court passed the following order :
“Issue notice, returnable in two weeks.
Dasti service, in addition, is permitted.”
The Supreme Court in its aforesaid order had held that the words “who-
soever”, “directly or indirectly” and “attempts to indulge” occurring in Section 3
of the Prevention of Money Laundering Act, 2002, would cover even all those
persons who are remotely involved in the offence of money laundering.
The Supreme Court had also held that the twin conditions viz. (i) oppor-
tunity to Public Prosecutor to oppose bail application, and (ii) satisfaction of
Court about reasonable grounds for believing that accused person not guilty of
such offence and not likely to commit any [offence] while on bail, imposed vide
Section 45(1) of the Prevention of Money Laundering Act, 2002 for granting bail
to the persons accused of offence punishable with imprisonment for a term of
more than three years under Part A of the Schedule to the said Act, was mani-
festly arbitrary, discriminatory, unjust, and violative of Articles 14 and 21 of the
Constitution of India. The Supreme Court had struck down Section 45 ibid as a
whole.
The Supreme Court had also held that the presumption under Section 24
of the Prevention of Money Laundering Act, 2002 as to the burden of proof lies
on the person charged with the offence of money laundering and such presump-
tion would not be available to the scheduled offences mentioned in Section 45 of
the Prevention of Money Laundering Act, 2002.
REPRESENTED BY : Mr. Avadh Bihari Kaushik, AOR, for the Petitioner.
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