BNSS Provision Capping Maximum Undertrial Term Applies To PMLA : Supreme Court Grants Bail

It has been observed that in the case of Vijay Madanlal

Chaudhary vs. Union of India, (2022) SCC Online SC 926 that

the beneficial provision of Section 436A of the Code of

Criminal Procedure, 1973, (for short, ‘the Cr.P.C.’)may apply

to prosecution under the Prevention of Money-Laundering Act,

2002 (for short, ‘the PMLA’) as Section 436A has come on

statute book subsequent to enactment of the PMLA. Therefore,

a corresponding provision of Section 479(1) of Bharatiya

Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’) will

apply to prosecution under the PMLA. {Para 2}

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION}

CRIMINAL APPEAL NO.________/2024

(Arising Out of Special Leave Petition (Criminal) No.10846/2024)

BADSHAH MAJID MALIK  Vs  DIRECTORATE OF ENFORCEMENT & ORS. 

Dated: October 18, 2024.

1. Leave granted.

2. It has been observed that in the case of Vijay Madanlal

Chaudhary vs. Union of India, (2022) SCC Online SC 926 that

the beneficial provision of Section 436A of the Code of

Criminal Procedure, 1973, (for short, ‘the Cr.P.C.’)may apply

to prosecution under the Prevention of Money-Laundering Act,

2002 (for short, ‘the PMLA’) as Section 436A has come on

statute book subsequent to enactment of the PMLA. Therefore,

a corresponding provision of Section 479(1) of Bharatiya

Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS’) will

apply to prosecution under the PMLA. Section 479(1) reads

thus:

“479. Maximum period for which under trial

prisoner can be detained.

(1) Where a person has, during the period

of investigation, inquiry or trial under

this Sanhita of an offence under any law

(not being an offence for which the

punishment of death or life imprisonment

has been specified as one of the

punishments under that law) undergone

detention for a period extending up to

one-half of the maximum period of

imprisonment specified for that offence

under that law, he shall be released by

the Court on bail:

Provided that where such person is a

first-time offender (who has never been

convicted of any offence in the past) he

shall be released on bond by the Court, if

he has undergone detention for the period

extending up to one-third of the maximum

period of imprisonment specified for such

offence under that law:

Provided further that the Court may, after

hearing the Public Prosecutor and for

reasons to be recorded by it in writing,

order the continued detention of such

person for a period longer than one-half

of the said period or release him on bail

bond instead of his bond:

Provided also that no such person shall in

any case be detained during the period of

investigation, inquiry or trial for more

than the maximum period of imprisonment

provided for the said offence under that

law.

Explanation.-In computing the period of

detention under this section for granting

bail, the period of detention passed due

to delay in proceeding caused by the

accused shall be excluded.”

In the facts of the case, it is not disputed that the

appellant has not been convicted for any offence in the past.

Therefore, the first proviso to sub-section (1) of Section

479 of the BNSS will apply to this case as admittedly, the

appellant has undergone detention for a period of more than

1/3rd of the maximum period of imprisonment provided for the

offence alleged against him.

Learned counsel appearing for the respondent no.1 prays

that second proviso to sub-section (1) of Section 479 of the

BNSS must be invoked and the first proviso should not be

applied. He pointed out that the allegation against the

appellant in the scheduled offence is of indulging in

smuggling of Red Sanders.

However, it is not in dispute that the maximum sentence

for the scheduled offence under Sections 132, 135(1)(a)(ii)

and 135(1)(b)(ii) read with Section 140 of the Customs Act,

1862 is three years.

On facts, this is not a case where this Court should

exercise powers under second proviso to sub-section (1) of

Section 479 of the BNSS and deny the benefit of the first

proviso.

Hence, the appeal is allowed. The appellant is ordered

to enlarged on bail in terms of the first proviso of subSection 1 of Section 479 of the BNSS. For that purpose, we

direct that the appellant shall be produced before the

Special Court within a maximum period of one week from today.

The Special Court shall enlarge the appellant on bail on

appropriate terms and conditions till the disposal of the

case. One of the conditions shall be that the appellant will

remain present before the Courts hearing the case of the

scheduled offence as well as the offence under the PMLA and

shall cooperate with the Courts for early disposal of the

case.

Pending applications stand disposed of.

 ..........................J.

 (ABHAY S.OKA)

 ..........................J.

 (AUGUSTINE GEORGE MASIH)

NEW DELHI;

October 18, 2024.

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