Supreme Court of India
V. Senthil Balaji vs The Deputy Director on 26 September, 2024
Author: Abhay S. Oka
Bench: Abhay S Oka
2024 INSC 739
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.4011 OF 2024
(Arising out of Special Leave Petition (Crl.) No. 3986 of 2024)
V. Senthil Balaji … Appellant
versus
The Deputy Director, Directorate of
Enforcement ... Respondent
J U D G M E N T
ABHAY S. OKA, J.
FACTUAL ASPECTS
1. Leave granted.
2. This appeal takes exception to the judgment and order
dated 28th February 2024 passed by a learned Single Judge of
the High Court of Judicature at Madras by which a bail
application preferred by the appellant under Section 439 of
Signature Not Verified
the Code of Criminal Procedure, 1973 has been rejected. The
Digitally signed by
Anita Malhotra
bail application was filed in connection with an alleged offence
Date: 2024.09.26
13:46:17 IST
Reason:
under Section 3 of the Prevention of Money Laundering Act,
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 1 of 25
2002 (for short, ‘the PMLA’), which is punishable under
Section 4 of the PMLA.
3. Between 2011 and 2016, the appellant was holding the
post of Transport Minister in the Government of Tamil Nadu.
Broadly, the allegation against the appellant is that while
discharging his duties as a Minister, in connivance with his
personal assistant and his brother, he collected large
amounts by promising job opportunities to several persons in
various positions in the Transport Department. This led to the
registering of three First Information Reports against the
appellant and others. The said First Information Reports are
FIR no.441 of 2015 dated 29th October 2015 (CC Nos. 22 and
24 of 2021), FIR No.298 of 2017 registered on 9 th September
2017 (CC No.19 of 2020) and FIR no. 344 dated 13 th August
2018 (CC No. 25 of 2020). In the first FIR, six charge sheets
have been filed. More than 2000 accused have been named
in the charge sheets. 550 witnesses have been named. In the
case of the second FIR, there are 14 accused named in the
chargesheet. In connection with this FIR, 24 witnesses have
been cited. In the third FIR, 24 accused have been named in
the charge sheet and 50 prosecution witnesses have been
cited. The offences alleged in the aforementioned crimes are
mainly under Sections 120B, 419, 420, 467 and 471 of the
Indian Penal Code and Sections 7, 12, 13(2) read with Section
13(1)(d) of the Prevention of Corruption Act, 1988. Section 34
of the Indian Penal Code has been invoked. These offences
are scheduled offences within the meaning of Section 2(y) of
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 2 of 25
the PMLA. Therefore, relying on the final reports filed in
aforementioned scheduled offences, for an offence of money
laundering under Section 3 of the PMLA punishable under
Section 4, the Enforcement Directorate (ED) registered an
Enforcement Case Information Report (for short “ECIR”)
bearing ECIR No. MDSZO/21/2021 on 29th July 2021.
4. The appellant was arrested on 14 th June 2023 in
connection with the said ECIR and was remanded to judicial
custody. A complaint was filed for the offence under Section
3 of the PMLA Act, which is punishable under Section 4, on
12th August 2023. The appellant is the only accused named
in the complaint. Cognizance has been taken based on the
complaint by the Special Court under the PMLA. The
scheduled offences cases have been transferred to the learned
Assistant Sessions Judge, Additional Special Court for Trial of
Criminal Cases related to Elected Members of Parliament and
Members of Legislative Assembly of Tamil Nadu (Special
MPMLA Court), Chennai.
SUBMISSIONS
5. Learned senior counsel appearing in support of the
appeal pointed out that in this case, ED is relying upon
material collected by the investigating agencies investigating
the scheduled offences. He submitted that five articles were
allegedly seized during the search on 6 th February 2020 in the
appellant’s premises. He invited our attention to the
averments made in the complaint and, in particular,
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 3 of 25
paragraph no.14.5, which deals with incriminating
documents relating to money collected for providing jobs in
the posts of Drivers, Conductors, Junior Tradesmen, Junior
Engineers, Assistant Engineers, etc. He pointed out that the
prosecution mainly relies upon a file named CS AC, allegedly
found in the seized pen drive. The file allegedly gives details
regarding the amounts received against each post. He
submitted that the Tamil Nadu Forensic Science Laboratory
(TNFSL)’s analysis of the seized pen drive shows that the said
file CS AC was not found on the pen drive, and a file named
csac.xlsx was found. As regards the allegation of the
prosecution of the deposit of cash amount of Rs.1.34 crores in
the appellant’s bank account, the learned senior counsel
urged that said amount represents the income received by
way of remuneration as MLA and agriculture income. Learned
senior counsel submitted that in any event, all the documents
and all relevant electronic evidence have been seized in the
predicate offences and statements of the witnesses under
Section 50 of the PMLA have been recorded. He submitted
that the appellant has undergone incarceration under the
PMLA Act for more than 14 months. He pointed out that as
far as three predicate offences are concerned, charges have
not even been framed. There are more than 2000 accused and
600 prosecution witnesses in the predicate offences and
therefore, there is no possibility of trial of scheduled offences
getting over in the near future. He submitted that unless the
trials pertaining to scheduled offences are concluded, the
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 4 of 25
complaint under the PMLA cannot be finally decided. He
would, therefore, submit that there is no possibility of the
trial for the PMLA offence concluding within five to six years
and hence, the appellant deserves to be enlarged on bail. The
learned senior counsel extensively relied upon a recent
decision of this Court in the case of Manish Sisodia1 and
especially what is observed in paragraph 54. He submitted
that on facts, this case is similar to the case of Manish
Sisodia1. He also relied upon a decision of this Court in the
case of Union of India v. K.A. Najeeb2.
6. The learned Solicitor General of India and learned
counsel appearing for the E.D. have made separate detailed
submissions. The first submission is that there is no
discrepancy in the description of file name CS AC in the pen
drive and the file name of the same file in the TNFSL report
dated 31st March 2023, which shows collection of the sum of
Rs. 67.74 crores by the appellant for providing employment in
the various posts in the Transport Department. He submitted
that if the TNFSL report is perused, the document at Sr.No.24
has the same name, CS AC. He submitted that the portion
“.xlsx” is only a file extension, which signifies that it is a
Microsoft Excel sheet. He submitted that a printout of the
Microsoft Excel spreadsheet file with the name CS AC found
in the seized pen drive was certified by the Special MPMLA
Court, which is relied upon in the complaint. He submitted
1 (2024) SCC OnLine SC 1920
2 (2021) 3 SCC 713.
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 5 of 25
that at this stage, there is no reason to doubt the correctness
of the printout of the file CS AC provided by the Special
MPMLA Court. The learned counsel appearing for ED also
pointed out that there is no discrepancy in the seizure of the
H.P. hard disk. The learned counsel submitted that the
salary/remuneration payable to MLAs is directly credited to
the bank account of the concerned MLAs. Therefore, there is
no question of any cash amount being received on the said
count. He pointed out that the appellant claims that there is
a cash deposit of salary to the tune of 68 lakhs in his
account. He also pointed out that the appellant’s agricultural
income between 2014 and 2020 is to the tune of Rs. 20.24
lakhs, and therefore, the justification that a substantial part
of the deposit of Rs.1.34 crores is his agricultural income
must be rejected. Learned counsel pointed out that there is
an unexplained cash deposit of Rs. 20.24 lakhs even in the
appellant’s wife’s account.
7. Learned counsel also pointed out other documentary
evidence indicating the appellant’s involvement in the job
racket scam, including the file AC1.xlsx. He pointed out that
there is sufficient material on record to show that the posts of
Drivers, Conductors, Junior Assistants and Technicians were
priced and sold at Rs.1.5 lakhs, Rs.2.0 lakhs, Rs.1.25 lakhs
and Rs.4 lakhs, respectively. He submitted that there is
material on record to show that an amount of at least Rs.38
crores was collected from candidates by giving them the
promise of providing jobs. He submitted that there are a large
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 6 of 25
number of email communications indicating more than prima
facie material about the involvement of the appellant. His
submission is that, in fact, the twin conditions under clause
(ii) of subsection (1) of Section 45 of the PMLA have not been
satisfied in this case.
8. The Learned Solicitor General of India pointed out that
three rounds of litigations have travelled to this Court arising
out of scheduled offences. He pointed out that the decisions
of this Court indicate how the complainants were won over
and how a socalled compromise between the complainants
and the accused was brought about. He submitted that the
appellant had been a minister for a long time in the Tamil
Nadu government. He pointed out that he continued to be a
Minister without portfolio, even during the first few months of
his detention, and that he continues to be a Member of
Legislative Assembly (MLA).
9. He submitted that observations made by this Court
indicate that the appellant will be able to influence the
witnesses if he is enlarged on bail. Learned Solicitor General
relied upon a decision of this Court in the case of P.
Dharamraj v. Shanmugam and others3. He submitted that
the High Court’s decision to quash one of the scheduled
offences based on an alleged compromise between bribe givers
and bribe recipients was under scrutiny in the case. He
pointed out that this Court heavily came down on such
3 (2022) 15 SCC 136
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 7 of 25
compromises in the said decision. He relied upon various
paragraphs of the said decision. He submitted that the
argument of learned senior counsel for the appellant in the
said case that one Shri Shanmugam, who is allegedly
involved, was not his personal assistant, has been expressly
rejected. This Court found that he was working as a personal
assistant of the appellant.
10. Learned SG relied upon a decision of this Court in the
case of Y. Balaji v. Karthik Desari and Another4. He
pointed out observations made from paragraph 17 onwards of
the said decision. He pointed out that this Court objected
strongly to not registering offences under the Prevention of
Corruption Act, 1988. He pointed out the observations of this
Court regarding the compromise entered in the scheduled
offence. It was observed that two teams were created just for
the record, and an investigation was carried out as if it were a
friendly match between the complainants and the accused.
This Court further observed that it was only because of the
position of the appellant as a Minister that the complainants
purported to enter into a compromise. He submitted that
there is very strong material on record to show the appellant’s
involvement in the offence punishable under Section 4 of the
PMLA and the predicate offences. He submitted that the
appellant brought about such an illegal settlement between
bribe givers and bribe receivers. Therefore, there is no
manner of doubt that once he comes out, he will influence the
4 (2023) SCC OnLine SC 645
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 8 of 25
witnesses proposed to be examined by the prosecution, as he
wields considerable influence in the State due to his political
clout.
11. He submitted that though there are a large number of
accused and witnesses in the scheduled offences, if a
competent special public prosecutor is appointed, perhaps the
prosecution may be in a position to drop a large number of
witnesses. He submitted that in Misc. Application no.1381 of
2024 arising out of the decision of this Court in Criminal
Appeal no.1677 of 2023, there is already a prayer made for
the appointment of a special public prosecutor.
12. We have also heard learned senior counsel for the
intervenors who supported the ED.
CONSIDERATION OF SUBMISSIONS
13. We have carefully considered the submissions. The
main document relied upon by the ED showing incriminatory
material against the appellant is a part of the pen drive seized
by the State police from the appellant’s premises in
connection with scheduled offences. The concerned Court
dealing with the scheduled offences has provided the printed
version of the soft files in the seized pen drive. There is no
reason, at this stage, to doubt the authenticity of the soft
files. There is also prima facie material to show a deposit of
cash amount of Rs.1.34 crores in the appellant’s bank
account. At this stage, the contention of the appellant
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 9 of 25
regarding the deposit of remuneration received as MLA and
agriculture income cannot be accepted in the absence of any
prima facie evidence to show the existence of the appellant’s
cash income as MLA and the appellant’s agriculture income.
Therefore, at this stage, it will be very difficult to hold that
there is no prima facie case against the appellant in the
complaint under Section 44 (1)(b) of the PMLA and material
relied upon therein.
EFFECT OF THE DELAY IN DISPOSAL OF THE CASES
14. As of now, the appellant has been incarcerated for more
than 15 months in connection with the offence punishable
under Section 4 of the PMLA. The minimum punishment for
an offence punishable under Section 4 is imprisonment for
three years, which may extend to seven years. If the
scheduled offences are under paragraph 2 of Part A of the
Schedule in the PMLA, the sentence may extend to 10 years.
In the appellant’s case, the maximum sentence can be of 7
years as there is no scheduled offence under paragraph 2 of
Part A of Schedule II alleged against the appellant.
15. We have already narrated that there are three scheduled
offences. In the main case (CC Nos. 22 and 24 of 2021), there
are about 2000 accused and 550 prosecution witnesses cited.
Thus, it can be said that there are more than 2000 accused in
the three scheduled offences, and the number of witnesses
proposed to be examined exceeds 600.
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 10 of 25
16. This Bench is also dealing with MA no.1381 of 2024
seeking various reliefs such as a transfer of investigation of
scheduled offences, appointment of special public prosecutor
etc. The orders passed in the said application would reveal
that the sanction to prosecute all public servants, including
the appellant, has now been granted. Charges have not been
framed in the scheduled offences.
17. Thus, on the issue of framing of charge or discharge, a
large number of accused will have to be heard. The trial of
the scheduled offences will be a warrant case. Therefore, even
if the trials of the scheduled offences are expedited, the
process of framing charges may take a few months as many
advocates representing more than 2000 accused persons will
have to be heard. There are bound to be further proceedings
arising out of orders on charge. After that, more than 600
witnesses will have to be examined. Documentary and
electronic evidence is relied upon in the scheduled offences.
Even if few witnesses are dropped, a few hundred witnesses
will have to be examined. Presence of all the accused will have
to be procured and their statements under Section 313 of the
Code of Criminal Procedure,1973 will have to be recorded.
Therefore, even in ideal conditions, the possibility of the trial
of scheduled offences concluding even within a reasonable
time of three to four years appears to be completely ruled out.
18. In the offence under the PMLA, the charge has not been
framed. In view of Clause (d) of subsection (1) of Section 44
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 11 of 25
of PMLA, the procedure for sessions trial will have to be
followed for the prosecution of an offence punishable under
Section 4 of the PMLA. In view of clause (c) of subsection (1)
of Section 44, it is possible to transfer the trial of the
scheduled offences to the Special Court under the PMLA.
19. The offence of money laundering has been defined under
Section 3 of the PMLA which reads thus:
“3. Offence of moneylaundering.—
Whosoever directly or indirectly attempts
to indulge or knowingly assists or
knowingly is a party or is actually involved
in any process or activity connected with
the [proceeds of crime including its
concealment, possession, acquisition or
use and projecting or claiming] it as
untainted property shall be guilty of
offence of moneylaundering.
[Explanation.—For the removal of doubts,
it is hereby clarified that,—
(i) a person shall be guilty of offence of
moneylaundering if such person is found
to have directly or indirectly attempted to
indulge or knowingly assisted or
knowingly is a party or is actually involved
in one or more of the following processes
or activities connected with proceeds of
crime, namely:—
(a) concealment; or
(b) possession; or
(c) acquisition; or
(d) use; or
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 12 of 25
(e) projecting as untainted property;
or
(f) claiming as untainted property, in
any manner whatsoever;
(ii) the process or activity connected with
proceeds of crime is a continuing activity
and continues till such time a person is
directly or indirectly enjoying the proceeds
of crime by its concealment or possession
or acquisition or use or projecting it as
untainted property or claiming it as
untainted property in any manner
whatsoever.]
20. Existence of proceeds of crime is a condition precedent
for the offence under Section 3. Proceeds of crime have been
defined in Section 2(u) of the PMLA which reads thus:
“2 ……………………………………………
(u) “proceeds of crime” means any
property derived or obtained, directly or
indirectly, by any person as a result of
criminal activity relating to a scheduled
offence or the value of any such property
or where such property is taken or held
outside the country, then the property
equivalent in value held within the
country [or abroad];
Explanation.—For the removal of doubts,
it is hereby clarified that “proceeds of
crime” include property not only derived
or obtained from the scheduled offence
but also any property which may directly
or indirectly be derived or obtained as a
result of any criminal activity relatable to
the scheduled offence;”
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 13 of 25
21. Hence, the existence of a scheduled offence is sine qua
non for alleging the existence of proceeds of crime. A property
derived or obtained, directly or indirectly, by a person as a
result of the criminal activity relating to a scheduled offence
constitutes proceeds of crime. The existence of proceeds of
crime at the time of the trial of the offence under Section 3 of
PMLA can be proved only if the scheduled offence is
established in the prosecution of the scheduled offence.
Therefore, even if the trial of the case under the PMLA
proceeds, it cannot be finally decided unless the trial of
scheduled offences concludes. In the facts of the case, there is
no possibility of the trial of the scheduled offences
commencing in the near future. Therefore, we see no
possibility of both trials concluding within a few years.
22. In the case of K.A. Najeeb2, in paragraph 17 this Court
held thus:
“17. It is thus clear to us that the
presence of statutory restrictions like
Section 43D(5) of the UAPA per se does
not oust the ability of the constitutional
courts to grant bail on grounds of
violation of Part III of the Constitution.
Indeed, both the restrictions under a
statute as well as the powers
exercisable under constitutional
jurisdiction can be well harmonised.
Whereas at commencement of
proceedings, the courts are expected
to appreciate the legislative policy
against grant of bail but the rigours
of such provisions will melt downCriminal Appeal @ SLP (Crl) No.3986 of 2024 Page 14 of 25
where there is no likelihood of trial
being completed within a reasonable
time and the period of incarceration
already undergone has exceeded a
substantial part of the prescribed
sentence. Such an approach would
safeguard against the possibility of
provisions like Section 43D(5) of the
UAPA being used as the sole metric
for denial of bail or for wholesale
breach of constitutional right to
speedy trial.”
(emphasis added)
23. In the case of Manish Sisodia v. Directorate of
Enforcement1 in paragraphs 49 to 57, this Court held thus:
“49. We find that, on account of a long
period of incarceration running for
around 17 months and the trial even not
having been commenced, the appellant
has been deprived of his right to speedy
trial.
50. As observed by this Court, the right to
speedy trial and the right to liberty are
sacrosanct rights. On denial of these rights,
the trial court as well as the High Court
ought to have given due weightage to this
factor.
51. Recently, this Court had an occasion to
consider an application for bail in the case
of Javed Gulam Nabi Shaikh v. State of
Maharashtra6 wherein the accused was
prosecuted under the provisions of
the Unlawful Activities (Prevention) Act,Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 15 of 25
1967. This Court surveyed the entire law
right from the judgment of this Court in the
cases of Gudikanti Narasimhulu v. Public
Prosecutor, High Court of Andhra
Pradesh , Shri
7
Gurbaksh Singh
Sibbia v. State of Punjab , Hussainara
8Khatoon (I) v. Home Secretary, State of
Bihar9, Union of India v. K.A.
Najeeb10 and Satender Kumar
Antil v. Central Bureau of Investigation11. The
Court observed thus:
“19. If the State or any prosecuting
agency including the court concerned
has no wherewithal to provide or
protect the fundamental right of an
accused to have a speedy trial as
enshrined under Article 21 of
the Constitution then the State or any
other prosecuting agency should not
oppose the plea for bail on the ground
that the crime committed is serious.
Article 21 of the Constitution applies
irrespective of the nature of the crime.”
52. The Court also reproduced the
observations made in Gudikanti
Narasimhulu (supra), which read thus:
“10. In the aforesaid context, we may
remind the trial courts and the High
Courts of what came to be observed by
this Court in Gudikanti
Narasimhulu v. Public Prosecutor, High
Court reported in (1978) 1 SCC 240.
We quote:
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 16 of 25
“What is often forgotten, and therefore
warrants reminder, is the object to keep
a person in judicial custody pending
trial or disposal of an appeal. Lord
Russel, C.J., said [R v. Rose, (1898) 18
Cox]:
“I observe that in this case bail was
refused for the prisoner. It cannot be
too strongly impressed on the,
magistracy of the country that bail is
not to be withheld as a punishment, but
that the requirements as to bail are
merely to secure the attendance of the
prisoner at trial.””
53. The Court further observed that, over
a period of time, the trial courts and the
High Courts have forgotten a very well
settled principle of law that bail is not to
be withheld as a punishment. From our
experience, we can say that it appears that
the trial courts and the High Courts attempt
to play safe in matters of grant of bail. The
principle that bail is a rule and refusal is an
exception is, at times, followed in breach.
On account of nongrant of bail even in
straight forward open and shut cases, this
Court is flooded with huge number of bail
petitions thereby adding to the huge
pendency. It is high time that the trial
courts and the High Courts should recognize
the principle that “bail is rule and jail is
exception”.
54. In the present case, in the ED matter
as well as the CBI matter, 493 witnesses
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 17 of 25
have been named. The case involves
thousands of pages of documents and
over a lakh pages of digitized documents.
It is thus clear that there is not even the
remotest possibility of the trial being
concluded in the near future. In our view,
keeping the appellant behind the bars for
an unlimited period of time in the hope
of speedy completion of trial would
deprive his fundamental right to liberty
under Article 21 of the Constitution. As
observed time and again, the prolonged
incarceration before being pronounced
guilty of an offence should not be
permitted to become punishment without
trial.
55. As observed by this Court in the case
of Gudikanti Narasimhulu (supra), the
objective to keep a person in judicial custody
pending trial or disposal of an appeal is to
secure the attendance of the prisoner at
trial.
56. In the present case, the appellant is
having deep roots in the society. There is no
possibility of him fleeing away from the
country and not being available for facing
the trial. In any case, conditions can be
imposed to address the concern of the State.
57. Insofar as the apprehension given by the
learned ASG regarding the possibility of
tampering the evidence is concerned, it is to
be noted that the case largely depends on
documentary evidence which is already
seized by the prosecution. As such, there is
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 18 of 25
no possibility of tampering with the
evidence. Insofar as the concern with regard
to influencing the witnesses is concerned,
the said concern can be addressed by
imposing stringent conditions upon the
appellant.
……………………………………….”
(emphasis added)
24. There are a few penal statutes that make a departure
from the provisions of Sections 437, 438, and 439 of the Code
of Criminal Procedure, 1973. A higher threshold is provided
in these statutes for the grant of bail. By way of illustration,
we may refer to Section 45(1)(ii) of PMLA, proviso to Section
43D(5) of the Unlawful Activities (Prevention) Act, 1967 and
Section 37 of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (for short, ‘NDPS Act’). The provisions
regarding bail in some of such statutes start with a non
obstante clause for overriding the provisions of Sections 437
to 439 of the CrPC. The legislature has done so to secure the
object of making the penal provisions in such enactments.
For example, the PMLA provides for Section 45(1)(ii) as money
laundering poses a serious threat not only to the country’s
financial system but also to its integrity and sovereignty.
25. Considering the gravity of the offences in such statutes,
expeditious disposal of trials for the crimes under these
statutes is contemplated. Moreover, such statutes contain
provisions laying down higher threshold for the grant of bail.
The expeditious disposal of the trial is also warranted
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 19 of 25
considering the higher threshold set for the grant of bail.
Hence, the requirement of expeditious disposal of cases must
be read into these statutes. Inordinate delay in the
conclusion of the trial and the higher threshold for the grant
of bail cannot go together. It is a wellsettled principle of our
criminal jurisprudence that “bail is the rule, and jail is the
exception.” These stringent provisions regarding the grant of
bail, such as Section 45(1)(iii) of the PMLA, cannot become a
tool which can be used to incarcerate the accused without
trial for an unreasonably long time.
26. There are a series of decisions of this Court starting
from the decision in the case of K.A. Najeeb2, which hold that
such stringent provisions for the grant of bail do not take
away the power of Constitutional Courts to grant bail on the
grounds of violation of Part III of the Constitution of India.
We have already referred to paragraph 17 of the said decision,
which lays down that the rigours of such provisions will melt
down where there is no likelihood of trial being completed in a
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence. One of the reasons is that if, because of such
provisions, incarceration of an undertrial accused is
continued for an unreasonably long time, the provisions may
be exposed to the vice of being violative of Article 21 of the
Constitution of India.
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 20 of 25
27. Under the Statutes like PMLA, the minimum sentence is
three years, and the maximum is seven years. The minimum
sentence is higher when the scheduled offence is under the
NDPS Act. When the trial of the complaint under PMLA is
likely to prolong beyond reasonable limits, the Constitutional
Courts will have to consider exercising their powers to grant
bail. The reason is that Section 45(1)(ii) does not confer
power on the State to detain an accused for an unreasonably
long time, especially when there is no possibility of trial
concluding within a reasonable time. What a reasonable time
is will depend on the provisions under which the accused is
being tried and other factors. One of the most relevant factor
is the duration of the minimum and maximum sentence for
the offence. Another important consideration is the higher
threshold or stringent conditions which a statute provides for
the grant of bail. Even an outer limit provided by the relevant
law for the completion of the trial, if any, is also a factor to be
considered. The extraordinary powers, as held in the case of
K.A. Najeeb2, can only be exercised by the Constitutional
Courts. The Judges of the Constitutional Courts have vast
experience. Based on the facts on record, if the Judges
conclude that there is no possibility of a trial concluding in a
reasonable time, the power of granting bail can always be
exercised by the Constitutional Courts on the grounds of
violation of Part III of the Constitution of India
notwithstanding the statutory provisions. The Constitutional
Courts can always exercise its jurisdiction under Article 32 or
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 21 of 25
Article 226, as the case may be. The Constitutional Courts
have to bear in mind while dealing with the cases under the
PMLA that, except in a few exceptional cases, the maximum
sentence can be of seven years. The Constitutional Courts
cannot allow provisions like Section 45(1)(ii) to become
instruments in the hands of the ED to continue incarceration
for a long time when there is no possibility of a trial of the
scheduled offence and the PMLA offence concluding within a
reasonable time. If the Constitutional Courts do not exercise
their jurisdiction in such cases, the rights of the undertrials
under Article 21 of the Constitution of India will be defeated.
In a given case, if an undue delay in the disposal of the trial of
scheduled offences or disposal of trial under the PMLA can be
substantially attributed to the accused, the Constitutional
Courts can always decline to exercise jurisdiction to issue
prerogative writs. An exception will also be in a case where,
considering the antecedents of the accused, there is every
possibility of the accused becoming a real threat to society if
enlarged on bail. The jurisdiction to issue prerogative writs is
always discretionary.
28. Some day, the courts, especially the Constitutional
Courts, will have to take a call on a peculiar situation that
arises in our justice delivery system. There are cases where
clean acquittal is granted by the criminal courts to the
accused after very long incarceration as an undertrial. When
we say clean acquittal, we are excluding the cases where the
witnesses have turned hostile or there is a bona fide defective
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 22 of 25
investigation. In such cases of clean acquittal, crucial years
in the life of the accused are lost. In a given case, it may
amount to violation of rights of the accused under Article 21
of the Constitution which may give rise to a claim for
compensation.
29. As stated earlier, the appellant has been incarcerated
for 15 months or more for the offence punishable under the
PMLA. In the facts of the case, the trial of the scheduled
offences and, consequently, the PMLA offence is not likely to
be completed in three to four years or even more. If the
appellant’s detention is continued, it will amount to an
infringement of his fundamental right under Article 21 of the
Constitution of India of speedy trial.
30. The decisions the learned SG relied upon indicate that
the appellant’s influential position in the State may have
resulted in a socalled compromise between the bribe givers
and the bribe takers. Considering the apprehension of the
appellant tampering with the evidence, stringent conditions
must be imposed.
31. Therefore, the appeal is allowed, and the appellant shall
be enlarged on bail till the final disposal of CC No. 9 of 2023
pending before the Principal Session Judge, Chennai, on the
following conditions:
Criminal Appeal @ SLP (Crl) No.3986 of 2024 Page 23 of 25
a. The appellant shall furnish bail bonds in the sum of
Rs.25,00,000/ (Rupees twentyfive lakhs only) with two
sureties in the like amount;
b. The appellant shall not directly or indirectly attempt to
contact or communicate with the prosecution witnesses
and victims of the three scheduled offences in any
manner. If it is found that the appellant directly or
indirectly made even an attempt to contact any
prosecution witness or victim in the scheduled as well
as offences under the PMLA, it will be a ground to
cancel the bail granted to the appellant;
c. The appellant shall mark his attendance every Monday
and Friday between 11 am and 12 noon in the office of
the Deputy Director, the Directorate of Enforcement at
Chennai. He shall also appear on the first Saturday of
every calendar month before the investigating officers of
the three scheduled offences;
d. Before the appellant is enlarged on bail, he shall
surrender his passport to the Special Court under the
PMLA at Chennai;
e. The appellant shall regularly and punctually remain
present before the Courts dealing with scheduled
offences as well as the Special Court and shall cooperate
with the Courts for early disposal of cases; andCriminal Appeal @ SLP (Crl) No.3986 of 2024 Page 24 of 25
f. If the appellant seeks adjournments on nonexisting or
frivolous grounds or creates hurdles in the early
disposal of the cases mentioned above, the bail granted
to him shall be liable to be cancelled.
32. The appeal is allowed on the above terms.
……………………………….J.
(Abhay S Oka)
..…………………………….J.
(Augustine George Masih)
New Delhi;
September 26, 2024.
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