The special PMLA court while rejecting the bail plea of Akram Shafi, the kingpin in the Rs125 crore Malegaon bank money laundering case, has noted that it cannot be said that the money laundering probe cannot be initiated in cases registered under the new law, the Bharatiya Nyaya Sanhita (BNS) which replaced Indian Penal code, as the new law has not been added in the list of schedule offences to initiate proceeding for money laundering under PMLA Act.
Shafi was arrested by the Enforcement Directorate (ED) on November 21.
Shafi's lawyer had moved bail claiming the offences under BNS are not scheduled offences, as no incorporation by legislation in PMLA of the BNS, and therefore, only on this count, in absence of any scheduled offence, the applicant is entitled to be released on bail.
The defence had contended that there has to be specific amendment in the PMLA and government resolution (GR) on which the complainant is relying cannot take place of amendment particularly when the legislature is by incorporation and not by reference.
The plea was objected by the ED on the ground that after incorporation of BNS, the Central government has issued notification under section 8 of the General Clauses Act, notifying, “Where any reference of the Indian Penal Code, 1860 or the Code of Criminal Procedure, 1973 or the Indian Evidence Act, 1872 or any provisions thereof is made in any Act made by Parliament for the time being in force, such reference shall respectively be read as the reference of the Bhartiya Nyaya Sanhita, 2023, the Bharatiya Nagarik Suraksha Sanhita, 2023 or the Bharatiya Sakshya Adiniyam, 2023 and the corresponding provisions of such law shall be construed accordingly.”
After hearing both sides the court said, “By applying Section 8(1) of the General Clauses Act, this court has to read the corresponding provisions of the BNS in the schedule of PMLA as a scheduled offence. Therefore, it cannot be said that there is no scheduled offence. As scheduled offence which classifies registration of instant ECIR is there, therefore, no case is made out by the applicant/accused for grant of bail on the technical point raised in the application.”
