JUDGMENT (Prayer: Criminal Original Petition is filed under Section 439 of Cr.P.C. praying to enlarge the petitioner on bail in Spl. C.C.No.7 of 2021 in ECIR No. ECIR/CEZO-II/05/2017 on the file of the learned XII Additional Special Judge for CBI & PMLA Cases at Chennai and on the file of the Deputy Director, Directorate of Enforcement, CZO, Chennai respectively.) 1. The petitioner, who was arrested and remanded to judicial custody on 28.01.2022 for the offences under Sections 3 & 4 of the Prevention of Money Laundering Act, 2002 (herein after referred to as “the PMLA”) in Spl.C.C.No.7 of 2021 in ECIR No. ECIR/CEZO-II/05/2017 on the file of the learned XII Additional Special Judge for CBI & PMLA Cases at Chennai, seeks bail. 2. As per the report, the respondent registered Enforcement Case Information Report (ECIR) No. for the offences under Sections 465, 467, 468, 471 and 420 of IPC on the file of the CCB-I and Office of the Commissioner of Police, Egmore, Chennai. Since the offence under Sections 420, 467 & 471 of IPC are scheduled offences under Sections 2(1)(x) and 2(1)(y) of PMLA, the respondent recorded in CEZO/05/2017 dated 01.04.2017. M/s.BK Electro Tool Products is the sole proprietorship concern owned by one, B.Kannan. The account holder / A1 opened a current account in the name and style of M/s.BK Electro Tool Products with Indian Bank, Thousand Light Branch, Chennai on 31.08.2016. It was operated from 31.08.2016 to 05.10.2016. During that period, the account holder who is arrayed as first accused, made foreign outward remittances to the tune of USD 1,205,550.69 equivalent to Indian Rupee i.e. Rs.8,09,17,723 on 13 different occasions towards direct import of goods. He had opened current account impersonating himself as B.Kannan by submitting fabricated documents relating to the business of M/s.Electro Tool Products owned by the said Kannan who is arrayed as second accused. He was arrested and remanded to judicial custody in pursuant to the crime No.63 of 2017. He was examined under Section 50 of PMLA and revealed that the person whose photograph is appearing in the account opening form identified the person S.R.Kavin Sidhaarth @ R.Senthil Kumar. He categorically admitted that he had entered inside the premises of Indian Bank, Thousand Lights Branch for the purpose of opening current account in the name and style of M/s.BK Electro Tool Products. Thereafter, he obtained cheque book. He categorically admitted that he had entered inside the premises of Indian Bank, Thousand Lights Branch for the purpose of opening current account in the name and style of M/s.BK Electro Tool Products. Thereafter, he obtained cheque book. Therefore, the said Kannan affixed photo of one, S.R.Kavin Sidhaarth @ R.Senthil Kumar and opened a current account. 2.1 Further, the third accused who layered a sum of Rs.4,78,39,852/- through his business entity i.e. M/s.Levensun Global Solutions Private Limited into the account of M/s.BK Electro Tool Products. He categorically stated that the funds which are layered by the petitioner herein who is arrayed as A8, using his business entity in the name of M/s.Levensun Global Solutions Private Limited. Likewise, the fourth accused imported documents for and on behalf of M/s.BK Electro Tool Products. A5 also filled the account opening form of M/s.BK Electro Tool Products thereby using one and the same Pan No. in the name of M/s.BK Electro Tool Products A1 and A2 made overseas wire transfer to the tune of Rs.33,79,45,856/- through four banks and the second accused made overseas wire transfer to the tune of Rs.25,67,57,904/- through three banks without making any corresponding imports into the country. A6 issued five certificates in Form 15CB in favour of M/s.BK Electro Tool Products that resulted in making foreign outwards remittances of Rs.3,45,45,182/- through SBT, Mount Road Branch, Chennai. He was identified and as per his statement, the revelation corroborated with disclosure made by the other accused. The petitioner assisted first and third accused in opening current account with the Indian Overseas Bank, Royapuram in the name of M/s.Levensun Solutions Private Limited and thereby involved in the activity connected with layering of funds to the extent of Rs.82,00,001/- into the bank account of M/s.BK Electro Tool Products. He also assisted the first accused by referring sole proprietor concern of M/s.I Square Enterprises to the tune of Rs.1,26,00,000/- was layered into the account of M/s.BK Electro Tool Products. 3. Mr.A.Ganesh, the learned counsel appearing for the petitioner would submit that the petitioner was summoned on 27.01.2021. He appeared before the respondent and his statement was recorded under Section 50 of PMLA, thereby he was called for and arrested by the respondent. He is neither proprietor nor partner in M/s.Levensun Solutions Private Limited or M/s.I Square Enterprises. 3. Mr.A.Ganesh, the learned counsel appearing for the petitioner would submit that the petitioner was summoned on 27.01.2021. He appeared before the respondent and his statement was recorded under Section 50 of PMLA, thereby he was called for and arrested by the respondent. He is neither proprietor nor partner in M/s.Levensun Solutions Private Limited or M/s.I Square Enterprises. He neither directed the first accused or the third accused to layer a sum of Rs.82,00,000/- or Rs.1,26,00,000/- into the account of M/s.BK Electro Tools Products. Even as per the statement of the first accused, there is nothing whispered about the petitioner's role. Also reading of statement of A3, nothing whispered about the role played by the petitioner. That apart, there is no evidence to show that he layered such amounts to the account of M/s.BK Electro Tools Products. He further submitted that M/s.BK Electro Tool Products had imported goods from abroad by filing bill of entry and cleared the customs after payment of appropriate duty. After clearance of the goods, it has to pay the supplier and they made payment through Indian Bank, Thousand Lights Branch, Chennai. According to the case of the prosecution, an excess payment were made for non existence import with fake bill of entry. Therefore, the petitioner has nothing to do with the allegations made by the respondent. Since he never operated any account maintained with the HSBC account, there is no evidence to show that the petitioner is an account holder of M/s.Decent Mount Limited or M/s.Flourish Noble Limited which is situated in Hongkong. In fact, the petitioner never had visited Hong Kong and dealt with those companies. He also produced details of endorsement made in the passport. Therefore there is absolutely no prima facie evidence to show that the petitioner also involved in the offence as alleged by the prosecution. Mere identifying through photograph shows that the person is known to the petitioner. That does not mean that the petitioner is hand in glove with the other accused person. Statement of co accused is not an evidence as it cannot be testified and inadmissible as against the petitioner. 3.1 He further submitted that the powers and Act itself Prevention of Money Laundering and it is not like Customs or GST or Income Tax Act wherein Officers are enquiring classification of goods and the tax paid therein. In that case, statement is admissible. 3.1 He further submitted that the powers and Act itself Prevention of Money Laundering and it is not like Customs or GST or Income Tax Act wherein Officers are enquiring classification of goods and the tax paid therein. In that case, statement is admissible. Whereas in the case on hand, the Officers are appointed to investigate the case of money laundering and as such, the statement recorded under Section 50 of the PMLA is inadmissible in evidence. He further submitted that the petitioner is incarcerating imprisonment from the date of his arrest i.e. 28.01.2022. Now the matter is pending before the trial court in Spl.CC.No.7 of 2021 and as such, the custodial interrogation is not at all required and he prayed for bail to the petitioner. 4. Mr.N.Ramesh, Special Public Prosecutor for ED cases submitted that already the petitioner's bail application was dismissed by this Court on 24.06.2022. There is absolutely no change of circumstances to grant bail to the petitioner. He further submitted that if the petitioner is released on bail, there is possibility of fleeing away from country and the entire trial will be stalled. The economic offence, particularly the international trade based money laundering, carried out by the highly placed persons in the society and carried out by exploiting the poverty of the name lenders. A3 had acted at the behest of the petitioner herein. He received forged identity documents and forged import documents of M/s.BK Electro Tool Products from the petitioner. Therefore, he carried out white collar crime by engaging name lenders, exploiting their poor status in the society. Therefore, the role played by the petitioner for the offence of money laundering is clearly made out. The ingredients of offence of money laundering could be established only during the course of trial. 4.1 He further submitted that the petitioner indulged in layering of Page 7 of funds into the account of M/s.BK Electro Tool Products through the name lenders A1 and A3 from their account in the name of M/s.Levensun Global Solutions Private Limited and M/s.I Square Enterprises. He operated the said account where the proceeds of crime parked at Hong Kong. Even according to the case of the prosecution, the petitioner is neither Director of M/s.Levensun Global Solutions Private Limited or employee of M/s. I Square Enterprises. He operated the said account where the proceeds of crime parked at Hong Kong. Even according to the case of the prosecution, the petitioner is neither Director of M/s.Levensun Global Solutions Private Limited or employee of M/s. I Square Enterprises. He engaged A3 and A1 as a name lender for layering the funds through M/s.Levensun Global Solutions Private Limited and M/s.I Square Enterprises. A1 and A3 were identified that they acted at the instance of the petitioner. He operated the accounts and received the proceeds of crime at Hong Kong. Therefore, the petitioner committed very serious white collar crime and he is the main conspirator of the money laundering. Therefore, he prayed for dismissal of the bail petition. 5. Insofar as the twin conditions as contemplated under Section 45 of PML Act, the Hon'ble Supreme Court of India repeatedly held in many cases that the duty of the Court is to examine the jurisdictional facts including the mandate of Section 45 of the PML Act, which must be kept in mind. Even post Nikesh Tavachand Shah Vs. Union of Idia & anr. case, the Section 45 of the PML Act saw amendment vide from 19.04.2018. After effecting amendment to Section 45(1) of the PML Act, the words “under this Act” are read to sub Section (1) of Section 45 of the PML Act. On a comparative reading of Section 45(1) of the PML Act, pre-amendment and post-amendment, as could be observed, original sub-Section 45(1)(ii) is neither revived or resurrected by the amending Act. The notification dated 29.03.2018 is silent about its retrospective applicability. Therefore, the legislature has not withdrawn the twin conditions from Section 45 of the PML Act, though in the case of Nikesh Tavachand Shah Vs. Union of Idia & anr., the Hon'ble Supreme Court of India has struck down the same as being unconstitutional. Therefore, the twin conditions under Section 45 of the PML Act still remain in the Statute book. 6. Further the Hon'ble Supreme Court of India has directed the concerned Court to hear the matters on merits, without application of the twin conclusion contained in Section 45 of the Act, as declared as unconstitutional. But the twin conditions still continue. Therefore, the twin conditions under Section 45 of the PML Act still remain in the Statute book. 6. Further the Hon'ble Supreme Court of India has directed the concerned Court to hear the matters on merits, without application of the twin conclusion contained in Section 45 of the Act, as declared as unconstitutional. But the twin conditions still continue. The amendment Act of 2018 which introduces the expression “under this Act” to Section 45 of the PML Act, in no uncertain terms can obliterate or dilute the direction issued by the Hon'ble Supreme Court of India. In view of the offence committed by the petitioner this Court is not satisfied with the grounds raised by the petitioner for grant of bail. Therefore, the twin conditions as contemplated under Section 45(1) of the amendment Act have to satisfy not withstanding of the judgment of the Hon'ble Supreme Court of India in the case of Nikesh Tavachand Shah Vs. Union of Idia & anr., 7. That apart, during investigation it was found that the material evidence against the petitioner in carrying out the offence of money laundering in the matter of sending the proceeds of crime to the tune of Rs.59.47 crores to the undisclosed beneficial owner and end use at Hong Kong. Therefore, prosecution will be able to marshal all the evidence during the course of trial. Therefore, analysis of jargons like 'preponderance of probabilities' and 'beyond reasonable doubts' has no basis at the initial stage. Now the petitioner is facing trial for the commission of offence under Section 4 of PMLA. Further, this Court dismissed the earlier bail petition only on 24.06.2022 and there is no change of circumstances to consider the present bail petition. 8. Accordingly, this criminal original petition is dismissed.