P.K. Jaiswal, J.:— Heard.

2. An ECIR/INSZO/02/2014 was registered by the respondent on 31.03.2016. By a provisional attachment order dated 31.3.2016, arising out of ECIR No. 2 of 2014, properties worth Rs. 8,93,50,085/- belonging to the applicant (Dr. Vinod Bhandari) and his family were provisionally attached. The said provisional attachment was confirmed by adjudicating authority by order dated 31.3.2016. The appeal preferred by the applciant is pending before the PMLA Tribunal.

3. The applicant was duly associated with the investigations both for the predicate offence as well as PMLA and was present as and when called by the respondent agency, but neither he was arrested nor he was ever taken in custody. After investigation charge sheet has been filed by the non-applicant. As per charge sheet filed in PMLA case, total number of witnesses are 231. The prosecution complaint running into 2430 number of pages. At the time of filing of the charge sheet, applicant was present before the learned Special Court. The application for grant of bail filed by the applicant has been rejected on 16.08.2018 and he has been taken into the judicial custody.

4. This application under Section 439 of Cr.P.C, for grant of bail has been filed by the applicant in special Sessions Trial No. 1924/2018, for an offence under Section 45 read with Section 3 and 4 of the the Prevention of Money - Laundering Act, 2002 (herein after referred as ‘PMLA Act’).

5. Learned counsel for the applicant has submitted that the Apex court in case of Rohit Tandon v. Union of India, (2018) 11 SCC 46 dated 10.11.2017, did not examine the Constitutional validity of Section 45(1) of the PMLA. Para 30 of the order dated 10.11.2017 reads as under:—

“30. For the time being, it is not necessary for us to examine the issues arising from the decision of the Punjab and Haryana High Court or the rejection of criminal appeal by this court against that decsion. The constitutional validity of Section 45 of the 2002 Act will have to be examined by this court in the Writ Petition on its own merits. The summary dismissal of the criminal appeal will not come in the way of the considering the correctness of the decision of the Punjab and Haryana High Court in view of the conflict of opinion with the other High court ……”

6. He further submitted that subsequently, the constitutional validity of Section 45(1) of PMLA has been adjudicated by the Hon'ble Supreme Court in the case of Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1, declaring that Section 45 of PMLA, 2002 is manifestly arbitrary and thus contravenes Article 14 and 21 of the Constitution of India. Para 52 and 54 of order dated 23.11.2017 reads as under:—

“52. In Gorav Kathuria (supra), the 2012 Amendment Act was read down having regard to the object sought to be achieved by the amendment, namely, that Part B of the Schedule is being made Part A of the Schedule, so that the provision of a monetary threshold limit does not apply to the offences contained therein. The High Court concluded:

“33. Guided by the aforesaid principles laid down by the Hon'ble Supreme Court regarding statutory interpretation and the duty of the Court to secure the ends of justice, we have no hesitation in holding that in 2013, Part B of the Schedule was omitted and the Scheduled Offences falling thereunder were incorporated in Part A with the sole object to overcome the monetary threshold limit of Rs. 30 lakhs for invocation of PMLA in respect of the laundering of proceeds of crime involved in those offences. No substantive amendment was proposed with express intention to apply limitations on grant of bail as contained in Section 45(1) in respect of persons accused of such offences which were earlier listed in Part B. Therefore, twin limitations in grant of bail contained in Section 45(1) as it stands today, are not applicable qua a person accused of such offences which were earlier listed in Part B.”

54. Regard being had to the above, we declare Section 45(1) of the Prevention of Money Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India. All the matters before us in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail. All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act. Considering that persons are languishing in jail and that personal liberty is involved, all these matters are to be taken up at the earliest by the respective Courts for fresh decision. The writ petitions and the appeals are disposed of accordingly.

7. His submission is that the learned Special PMLA Court has made an error in holding that the constitutional validity of Section 45(1) of PMLA was decided in the case of Rohit Tandon v. Union of India (supra). The learned court failed in appreciating that the case of Rohit Tandon v. Union of India (supra) was cited before the Hon'ble Supreme Court hearing the case of Nikesh Tarachand Shah v. Union of India, (supra) and the same has been dealt with as under:—

“42. The learned Attorney General then relied strongly on Gautam Kundu (supra) and Rohit Tandon (supra). Gautam Kundu (supra) is a judgment relating to an offence under the SEBI Act, which is a scheduled offence, which was followed in Rohit Tandon (supra). In Rohit Tandon (supra), Khanwilkar, J., speaking for the Bench, makes it clear that the judgment does not deal with the constitutional validity of Section 45 of the 2002 Act. Both these judgments proceed on the footing that Section 45 is constitutionally valid and then go on to apply Section 45 on the facts of those cases. These judgments, therefore, are not of much assistance when it comes to the constitutional validity of Section 45 being challenged.

“44 …… We are of the opinion that, even though the Punjab High court Judgment appears to be correct, it is unnecessary for us to go into this aspect any futher, in view of the fact that we have struck down Section 45 of the 2002 Act as a whole ……”

8. He also submitted that in the present case, the prosecution has cited total 231 witnesses and there are in all 83 accused persons. The trial of the PMLA case would take considerable time to conclude and thus, keeping in view the observations made by the Hon'ble Supreme Court in Nikesh Tarachand Shah's case (supra), applicant cannot be kept in custody for an indefinite period to deny his right to defend themselves in accordance with postulates of our constitution especially Article 21 thereof. Applicant is on bail in the concerned Scheduled offences. The bail orders have attained finality and the concerned investigating agency viz. ACB have acquiesced into the same.

9. In the present PMLA case, the applicant was duly cooperating with the investigation and no prayer was ever been made by the non-applicant to arrest him during the investigation. It is also pointed out that in terms of ratio Nikesh Tarachand Shah's case (supra) various under trial prisoners in PMLA offence have already got bail from various court across the country. The entire case of the prosecution is based on Section 50 of the statement and banking trial and there is no question of hampering and tampering with the same. No interrogation whatsoever has been conducted since the applicant has been sent to the judicial custody and, therefore, no purpose will be served by keeping him in custody.

10. The PMLA cases is only an off-shoot of the main case from which alleged proceeds of crime has been driven and allegedly projected as untainted. The applicant is on bail in all the said Scheduled offences (ten cases). The maximum punishment in PMLA offence is seven years and, therefore, in view of the law laid down by the Apex Court in the case of Arnesh Kumar v. State Of Bihar . reported as (2014) 8 SCC 469, it is prayed that the applicant is entitled for grant of bail.

11. Per contra, Shri Deepak Rawal, learned ASG for the non-applicant (Directorate of Enforcement), opposes the prayer on the ground that the offence is grave in nature. He has also drawn my attention to the amended provisions of PMLA Act and submitted that the Hon'ble Supreme Court in the case of Nikesh Tarachand Shah (supra) strike down Section 45 of the PMLA Act, 2002, so far as it imposes further two conditions for release on bail, to be unconstitutional is concerned, the same relates to Scheduled offences or predicate offences. He submitted that now the Government has brought an amendment in the Finance Act, 2018, which has come into effect from 19.4.2018 to Section 45(1) of the PMLA Act, thereby inserting words ‘under this Act’ in Section 45(1) of the said Act. He submitted that in view of the said amendment, the original Sub-section (ii) of Section 45(1) which imposes the said twin conditions automatically stands revived and the said condition therefore, remained on statute book. He submitted that in view of the amendment in Section 45(1) PMLA Act, which came into effect from 19.4.2018, the original Section 45(1)(ii) has to be inferred and treated as it still exists on the statute books and hold the field even as of today for deciding the application for bail by an accused under PMLA Act and the judgment delivered by the Apex Court in the case of Nikesh Tarachand Shah (supra) has become ineffective and, therefore, the prayer for bail of the applicant has to be considered in view of the amended provision of Section 45(1) of the PMLA Act. He lastly submitted that looking to the prima facie evidence available against the applicant, he is not entitled for grant of bail and prayed for rejection of the bail application.

12. The Supreme Court in the case of Nikesh Tarachand Shah (supra) has in unequivocal terms held in para 44 that ‘we have struck down Section 45 of the Act as a whole’. It is further held by the Supreme Court in para 45 that, we declare Section 45(1) of the PMLA Act in so far as it imposes two further conditions for release on bail to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India.

13. It is to be noted here that, after effecting amendment to Section 45(1) of the PMLA Act the words “under this Act” are added to Sub Section (1) of Section 45 of the PMLA Act. However, the original Section 45(1)(ii) has not been revived or resurrected by the said Amending Act. The learned counsel appearing for the applicant and the learned ASG are not disputing about the said fact situation and in fact have conceded to the same. It is further to be noted here that, even Notification dated 29.3.2018 thereby amending Section 45(1) of PMLA Act which came into effect from 19.4.2018, is silent about its retrospective applicability.

14. In view of thereof, the contention advanced by the learned ASG cannot be accepted. It is to be further noted here that, the original Sub-section 45(1)(ii) has therefore neither revived nor resurrected by the Amending Act and, therefore, as of today there is no rigor of said two further conditions under original Section 45(1)(ii) of PMLA Act for releasing the accused on bail under the said Act.

15. The applicant is 62 years of age and is an MBBS doctor by profession and is practicing and having number of medical institutes. He is permanent resident of Indore and in all other cases of Scheduled offences in which he was enlarged on bail, he never misused the terms and conditions of the bail. There is no reason to presume that applicant would abscond or temper or influence the witnesses.

16. As per Annexure P/7, the applicant is suffering from high blood pressure and diabetes mellitus with unstable angina with triple vessel decease with advance vericos veins and on regular medical treatment.

17. In view of the above, the applicant is entitled to be released on bail, without expressing any opinion on merits of the case, the application for grant of bail is allowed on the following terms:—

(i) it is directed that applicant (Dr. Vinod Bhandari) shall be released on bail in Special S.T. No. 1924/2018, registered at police station — ED, pending before II Addl. Sessions Judge, (PMLA) Indore, on his executing PR bond in the sum of Rs. 5,00,000/- (Rs. Five Lacs) with two local sureties in the like amount.

(ii) Till the applicant complies with the process of furnishing sureties, the applicant is directed to be released on his furnishing cash bail of Rs. 5,00,000/- (Rs. Five Lacs) and the applicant shall comply with formalities of furnishing sureties within a period of six weeks from his actual release from Jail.

(iii) Applicant shall submit his residential address along with proof of his staying there to non-applicant and in the event of change of address, shall update the same;

(iv) Applicant shall surrender his passport with the investigation agency, if not already surrendered;

(v) Applicant shall remain present before Special PMLA Court, Indore (M.P.) on the fixed dates without fail unless and until prevented for medical reason;

(vi) Needless to state that respondent shall be at liberty to take recourse as available under law, if applicant violates any of the conditions imposed as aforesaid;

(vii) The applicant shall not tamper with the evidence and/or pressurize the prosecution witnesses.

18. With the aforesaid, the application stands allowed and disposed of.