Delhi High Court
Vaibhav Jain vs Directorate Of Enforcement on 29 October, 2024
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on :22.10.2024
Pronounced on :29.10.2024
+ BAIL APPLN. 3301/2024, CRL.M.(BAIL) 1529/2024
VAIBHAV JAIN .....Petitioner
Through: Mr. Siddarth Aggarwal, Sr. Advocate
with Mr. Malak Bhatt, Ms. Neeha
Nagpal, Mr. Shreyansh Chopra and
Mr. Vishwajeet Singh Bhati, Advs.
versus
DIRECTORATE OF ENFORCEMENT .....Respondent
Through: Mr. Zoheb Hossain, Special Counsel
for ED with Mr. Vivek Gurnani,Panel
Counsel,Mr. PranjalTripahti&Mr.
Kunal Kochar, Advocate.
+ BAIL APPLN. 3406/2024
ANKUSH JAIN .....Petitioner
Through: Ms. Rebecca M. John Sr. Advocate
with Dr. Sushil Kumar Gupta, Mrs.
Sunita Gupta, Mr. Sushil Kumar
Satrawala, Mr. Sakshit Bhardwaj, Mr.
Parvir Singh and Ms. Anushka
Baruah, Advocates.
versus
DIRECTORATE OF ENFORCEMENT .....Respondent
Through: Mr. Zoheb Hossain, Special Counsel
For ED with Mr. Vivek Gurnani,
Panel Counsel, Mr. PranjalTripahti&
Mr. Kunal Kochar, Advocates
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By:GAUTAM ASWAL
Signing Date:29.10.2024
13:42:25
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
JUDGMENT
1. By way of present bail applications, the petitioners/applicants seek
regular bail in the Complaint Case No. 23 of 2022 arising out of ECIR No.
ECIR/HQ/14/2017 dated 30.08.2017.
2. Since the applicants are similarly situated and the submissions urged
in their respective bail applications are also similar, the applications are
being decided by way of a common judgement.
3. Learned Senior Counsels appearing on behalf of the applicants, at the
outset, concede that the applications are not pressed on merits however, at
the same time the right to life and liberty of the applicants, who have been in
custody since 24 months and 25 months respectively, has been severely
hampered on account of the delay in the commencement of trial for reasons
which are not attributable to them. It is submitted that while usually the case
is that parameters of Section 45 of Prevention of Money Laundering Act,
2002 (hereafter, PMLA) must be met, but where the system is not able to
demonstrate that the trial would conclude in a reasonable amount of time
and the incarceration is long, the same would override the consideration
under Section 45 of PMLA.
4. It is submitted that both the applicants were arrested on 30.06.2022.
They were released on interim bails on different occasions, a concession
which they have not misused. It is stated that while Vaibhav Jain was
released on interim bail from 18.08.2023 to 27.12.2023 on account of the
illness of his mother, Ankush Jain was released on interim bail from
18.09.2023 and 27.12.2023 on grounds of illness of his son.
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13:42:25
5. Learned Senior Counsels for the applicants contend that the snail’s
pace of the trial proceedings have severely affected the fundamental right to
life and liberty of the present applicants. It is submitted that in the PMLA
case, prosecution complaint stood filed on 27.07.2022, following which the
arguments on charge were commenced. While the arguments on charge were
duly addressed on behalf of the present applicants but before it could be
concluded on behalf of other accused, the Presiding Officer demitted office
on 30.09.2024 and a new Presiding Officer is yet to be appointed.
6. Insofar as the predicate offence is concerned, it is submitted that
though the CBI had filed chargesheet without arrest on 03.12.2018 but on
ED’s request, CBI is conducting further investigation. CBI has sought
repeated extensions from the concerned court to conclude further
investigation and file the supplementary chargesheet. In this regard,
reference is made to the status reports filed by the CBI before the concerned
court on 05.06.2024, 19.09.2024 and 05.10.2024. Moreover, attention is also
drawn to the para 5.7 of order dated 04.09.2024 passed by the Special court
wherein while dismissing the bail application of the main accused, ED’s
submission is recorded to the effect that further investigation in the present
ECIR is still ongoing.
7. While seeking parity and claiming change in circumstance after the
dismissal of applicants’ bail application by Supreme Court on 18.03.2024, it
is urged that now the main accused has been enlarged on regular bail by the
Trial Court vide order dated 18.10.2024. It is also submitted that as the trial
is not likely to conclude in a reasonable period, the constitutional mandate of
Article 21 would supersede the conditions stipulated under Section 45 of the
PMLA. Reliance is placed upon the decision of the Supreme Court in
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By:GAUTAM ASWAL
Signing Date:29.10.2024
13:42:25
Abhishek Boinpally v. Directorate of Enforcement1 and Manish Sisodia v
Directorate of Enforcement2.
8. Mr Zoheb Hossain, learned Special Counsel for the respondent
agency, while opposing the applicants’ prayer, submitted that the delay in
trial is attributable to all the accused persons who sought repeated
adjournments.
It is next contended that the bail applications having been already
rejected on merits, the only option available with the applicants is to seek
the same on completions of the period of incarceration stipulated under
Section 436A Cr.P.C.
On the aspect of further investigation, learned Special Counsel
submits that as of now, no further investigation is being conducted.
However, on a specific query, Mr Hossain states that there is a possibility of
respondent filing a supplementary complaint if in the supplementary challan
to be filed by CBI, any further proceeds of crime are detected.
9. Opposing the applicants’ claim of seeking parity with the main
accused, learned Special Counsel submits that Trial Court while granting
bail to the main accused i.e., Satyendra Jain on 18.10.2024 failed to
appreciate that repeated adjournments were taken which contributed to the
delay in the commencement of trial. Lastly, it is submitted that the
applicants’ also cannot seek benefit of the decision in Manish Sisodia
(Supra) as the fact situation in the said case was different as there are lesser
numbers of accused, witness and documents. Moreover, in the said case, an
undertaking was given on behalf the agency to conclude investigation which
1
Abhishek Boinpally v. Directorate of Enforcement, decided in Crl.A. No. 4188/2024 dated 14.10.2024
2
Manish Sisodia v Directorate of Enforcement, reported as 2024 SCC OnLine SC 1920
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By:GAUTAM ASWAL
Signing Date:29.10.2024
13:42:25
is not so in the present case.
10. I have heard learned Senior Counsels for the applicants and the
learned Special Counsel for the ED and also gone through the material on
record.
11. Bail is the rule and jail is the exception. This principle is nothing but a
crystallisation of the constitutional mandate enshrined in Article 21, which
says that that no person shall be deprived of his life or personal liberty
except according to the procedure established by law. Liberty is the usual
course of action and deprivation of it a detour. The deprivation of liberty
must only by procedure established by law, which should be fair and
reasonable. Right of the accused to speedy trial is an important aspect which
the Court must keep in contemplation when deciding a bail application as the
same are higher sacrosanct constitutional rights, which ought to take
precedence.
Section 45 of the PMLA while imposing additional conditions to be
met for granting bail, does not create an absolute prohibition on the grant of
bail. When there is no possibility of trial being concluded in a reasonable
time and the accused is incarcerated for a long time, depending on the nature
of allegations, the conditions under Section 45 of the PMLA would have to
give way to the constitutional mandate of Article 21. What is a reasonable
period for completion of trial would have to be seen in light of the minimum
and maximum sentences provided for the offence, whether there are any
stringent conditions which have been provided, etc. It would also have to be
seen whether the delay in trial is attributable to the accused.3
3
V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement reported as 2024 INSC 739
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Signing Date:29.10.2024
13:42:25
12. In Senthil (Supra), the Supreme Court while reiterating the ratio
enunciated in Union of India v. K.A. Najeeb (Three Judge bench)4, also held
that if the Constitutional Court comes to the conclusion that the trial would
not be able to be completed in a reasonable time, the power of granting bail
could be exercised on the grounds of violation of Part III of the
Constitution of India notwithstanding the statutory provisions. It was held
that:-
“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.
25…Inordinate delay in the conclusion of the trial and the higher
threshold for the grant of bail cannot go together. It is a well settled
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.
xxx
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,4
(2021) 3 SCC 713Signature Not Verified
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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. Najeeb, 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 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.”
(emphasis added)
13. The issue of long incarceration and right of speedy trial also cropped
up in Manish Sisodia v Directorate of Enforcement,5 wherein it has been
held by the Supreme Court that the right to bail in cases of delay in trial,
coupled with long period of incarceration would have to be read into the
Section 439 CrPC as well as Section 45 of PMLA while interpreting the said
5
Manish Sisodia v Directorate of Enforcement, reported as 2024 SCC OnLine SC 1920
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provisions.
37. Insofar as the contention of the learned ASG that since the conditions
as provided under Section 45 of the PMLA are not satisfied, the appellant
is not entitled to grant of bail is concerned, it will be apposite to refer to
the first order of this Court. No doubt that this Court in its first order in
paragraph 25, after recapitulating in paragraph 24 as to what was stated
in the charge-sheet filed by the CBI against the appellant, observed that,
in view of the aforesaid discussion, the Court was not inclined to accept
the prayer for grant of bail at that stage. However, certain paragraphs of
the said order cannot be read in isolation from the other paragraphs. The
order will have to be read in its entirety. In paragraph 28 of the said
order, this Court observed that the right to bail in cases of delay, coupled
with incarceration for a long period, depending on the nature of the
allegations, should be read into Section 439 Cr.P.C. and Section 45 of the
PMLA. The Court held that the constitutional mandate is the higher law,
and it is the basic right of the person charged of an offence and not
convicted that he be ensured and given a speedy trial. It further observed
that when the trial is not proceeding for reasons not attributable to the
accused, the court, unless there are good reasons, would be guided to
exercise the power to grant bail. The Court specifically observed that this
would be true where the trial would take years. It could thus clearly be
seen that this Court, in the first round of litigation between the parties, has
specifically observed that in case of delay coupled with incarceration for a
long period and depending on the nature of the allegations, the right to
bail will have to be read into Section 45 of PMLA.
xxx
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.
14. Prem Prakash v. Union of India through the Directorate of
Enforcement,6 is another recent decision where it has been reiterated that the
6
Prem Prakash v. Union of India through the Directorate of Enforcement, reported as 2024 SCC OnLine
SC 2270
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fundamental right enshrined under Article 21 cannot be arbitrarily
subjugated to the statutory bar in Section 45 of the Act and the constitutional
mandate being the higher law, the right to speedy trial must be ensured and
if the trial is being delayed for reasons not attributable to the accused, his
incarceration should not be prolonged on that account. The relevant extract
of the said judgement is enacted below for convenience:-
“11….All that Section 45 of PMLA mentions is that certain conditions are to
be satisfied. The principle that, “bail is the rule and jail is the exception” is
only a paraphrasing of Article 21 of the Constitution of India, which states
that no person shall be deprived of his life or personal liberty except
according to the procedure established by law. Liberty of the individual is
always a Rule and deprivation is the exception. Deprivation can only be by the
procedure established by law, which has to be a valid and reasonable
procedure. Section 45 of PMLA by imposing twin conditions does not re-write
this principle to mean that deprivation is the norm and liberty is the exception.
As set out earlier, all that is required is that in cases where bail is subject to
the satisfaction of twin conditions, those conditions must be satisfied.
12. Independently and as has been emphatically reiterated in Manish Sisodia
(II) (supra) relying on Ramkripal Meena v. Directorate of Enforcement (SLP
(Crl.) No. 3205 of 2024 dated 30.07.2024) and Javed Gulam Nabi
Shaikh v. State of Maharashtra, 2024 SCC OnLine SC 1693, where the
accused has already been in custody for a considerable number of months and
there being no likelihood of conclusion of trial within a short span, the rigours
of Section 45 of PMLA can be suitably relaxed to afford conditional liberty.
Further, Manish Sisodia (II) (supra) reiterated the holding in Javed Gulam
Nabi Sheikh (Supra), that keeping persons behind the bars for unlimited
periods of time in the hope of speedy completion of trial would deprive the
fundamental right of persons under Article 21 of the Constitution of India and
that prolonged incarceration before being pronounced guilty ought not to be
permitted to become the punishment without trial. In fact, Manish Sisodia
(II) (Supra) reiterated the holding in Manish Sisodia (I) v. Directorate of
Enforcement (judgment dated 30.10.2023 in Criminal Appeal No. 3352 of
2023) where it was held as under:–
“28. Detention or jail before being pronounced guilty of an
offence should not become punishment without trial. If the trial gets
protracted despite assurances of the prosecution, and it is clear that
case will not be decided within a foreseeable time, the prayer for bail
may be meritorious. While the prosecution may pertain to anSignature Not Verified
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economic offence, yet it may not be proper to equate these cases with
those punishable with death, imprisonment for life, ten years or more
like offences under the Narcotic Drugs and Psychotropic Substances
Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass
violence, etc. Neither is this a case where 100/1000s of depositors
have been defrauded. The allegations have to be established and
proven. The right to bail in cases of delay, coupled with incarceration
for a long period, depending on the nature of the allegations, should
be read into Section 439 of the Code and Section 45 of the PML Act.
The reason is that the constitutional mandate is the higher law, and it
is the basic right of the person charged of an offence and not
convicted, that he be ensured and given a speedy trial. When the trial
is not proceeding for reasons not attributable to the accused, the
court, unless there are good reasons, may well be guided to exercise
the power to grant bail. This would be truer where the trial would
take years.”
It is in this background that Section 45 of PMLA needs to be understood and
applied. Article 21 being a higher constitutional right, statutory provisions
should align themselves to the said higher constitutional edict.”
(emphasis added)
15. The view taken in the Manish Sisodia and Prem Prakash cases (Supra)
was reiterated recently by the Supreme Court in the case of Vijay Nair v.
Directorate of Enforcement,7 where it was held that liberty guaranteed under
Article 21 of the Constitution does not get abrogated. It was held that:-
12. Here the accused is lodged in jail for a considerable period and there
is little possibility of trial reaching finality in the near future. The liberty
guaranteed under Article 21 of the Constitution does not get abrogated
even for special statutes where the threshold twin bar is provided and such
statutes, in our opinion, cannot carve out an exception to the principle of
bail being the rule and jail being the exception. The cardinal principle of
bail being the rule and jail being the exception will be entirely defeated if
the petitioner is kept in custody as an under-trial for such a long duration.
This is particularly glaring since in the event of conviction, the maximum
sentence prescribed is only 7 years for the offence of money laundering.
16. On similar lines, is the decision of Supreme Court, in Sunil Dammani
7
Vijay Nair v. Directorate of Enforcement, 7decided on 02.09.2024 in SLP (Crl) Diary No. 22137/2024
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v. Directorate of Enforcement8, where considering the one-year custody of
the accused and the factum of investigation being complete, the bail was
granted noting that the prosecution had cited 98 witnesses.
17. The right to speedy trial was also upheld and other special legislations
where provisions akin to Section 45 PMLA exist. Notable ones being, the
decision in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra9,
wherein Supreme Court while granting bail to an accused under UAPA,
observed as under:-
“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.”
(Emphasis added)
On similar lines is the case of Union of India v. K.A. Najeeb (Supra),
wherein the Supreme Court held as under:-
“12. Even in the case of special legislations like the Terrorist and
Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and
Psychotropic Substances Act, 1985 (“the NDPS Act”) which too have
somewhat rigorous conditions for grant of bail, this Court in Paramjit
Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi),
(1999) 9 SCC 252 : 1999 SCC (Cri) 1156] , Babba v. State of
Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006)
2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of
Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the
accused on bail when they had been in jail for an extended period of time
with little possibility of early completion of trial. The constitutionality of
harsh conditions for bail in such special enactments, has thus been
primarily justified on the touchstone of speedy trials to ensure the
protection of innocent civilians.
8
Criminal Appeal No. 4108/2024 decided on 03.10.2024
9
2024 SCC OnLine SC 1693
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15. This Court has clarified in numerous judgments that the liberty
guaranteed by Part III of the Constitution would cover within its
protective ambit not only due procedure and fairness but also access to
justice and a speedy trial. In Supreme Court Legal Aid Committee
(Representing Undertrial Prisoners) v. Union of India [Supreme Court
Legal Aid Committee (Representing Undertrial Prisoners) v. Union of
India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39] , it was held that
undertrials cannot indefinitely be detained pending trial. Ideally, no
person ought to suffer adverse consequences of his acts unless the same is
established before a neutral arbiter. However, owing to the practicalities
of real life where to secure an effective trial and to ameliorate the risk to
society in case a potential criminal is left at large pending trial, the courts
are tasked with deciding whether an individual ought to be released
pending trial or not. Once it is obvious that a timely trial would not be
possible and the accused has suffered incarceration for a significant
period of time, the courts would ordinarily be obligated to enlarge them
on bail.
17. It is thus clear to us that the presence of statutory restrictions like
Section 43-D(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 down 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 43-D(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)
Taking note of above decision, in the case of Sk. Javed Iqbal v. State
of U.P.,10 the Supreme Court held that:-
“42. This Court has, time and again, emphasised that right to life and
personal liberty enshrined under Article 21 of the Constitution of India is
overarching and sacrosanct. A constitutional court cannot be restrained
from granting bail to an accused on account of restrictive statutory
provisions in a penal statute if it finds that the right of the accused-
undertrial under Article 21of the Constitution of India has been infringed.
10
(2024) 8 SCC 293
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In that event, such statutory restrictions would not come in the way. Even
in the case of interpretation of a penal statute, howsoever stringent it may
be, a constitutional court has to lean in favour of constitutionalism and the
rule of law of which liberty is an intrinsic part. In the given facts of a
particular case, a constitutional court may decline to grant bail. But it
would be very wrong to say that under a particular statute, bail cannot be
granted. It would run counter to the very grain of our constitutional
jurisprudence. In any view of the matter, K.A. Najeeb [Union of
India v. K.A. Najeeb, (2021) 3 SCC 713] being rendered by a three-Judge
Bench is binding on a Bench of two Judges like us.”
(Emphasis added)
To the similar extent are the decisions in Mohd. Muslim alias Hussain
v State (NCT of Delhi11, Jitendra Jain v. Narcotics Control Bureau12, Rabi
Prakash v. State of Odisha13 and Man Mandal and Anr. v. State of West
Bengal14, wherein while taking into account the prolonged custody and
unlikelihood of completion of trial in immediate future, the accused was
granted bail.
18. The predicate offence was investigated by the Central Bureau of
Investigation (CBI, AC-1) which culminated into filing of FIR No. RC-AC-
1-2017-A0005 dated 24.08.2017 under Section 109 IPC and Sections 13(2)
r/w 13(1)(e) of Prevention of Corruption Act,1988. CBI filed the chargesheet
without arrest. On basis of scheduled offence, the present ECIR came to be
registered on 30.08.2017. The applicants were arrested on 30.06.2022 and
the prosecution complaint came to be filed on 27.07.2022.
The prosecution has named 10 accused persons and cited 108
witnesses. There are 5172 pages of documents which need to be analysed.
Moreover, it is noted that the Trial is still at the stage of arguments on
11
2023 SCC OnLine SC 352
12
2022 SCC OnLine SC 2021
13
2023 SCC OnLine SC 1109
14
2023 SCC OnLine SC 1868
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charge. In addition, this Court has also been informed that the Presiding
Officer of the Trial Court hearing the matter on charge has demitted office
on 30.09.2024 and a replacement has not yet been appointed to take over the
said Court. There is also likelihood of supplementary challan being filed. It
is thus observed that the delay at present cannot be said to be attributable to
the present applicants.
19. In a situation such as the present case, where there are multiple
accused persons, thousands of pages of evidence to assess, scores of
witnesses to be examined and the trial is not expected to end anytime in the
near future and the delay is not attributable to the accused, keeping the
accused in custody by using Section 45 PMLA a tool for incarceration or as
a shackle is not permissible. Liberty of an accused cannot be curtailed by
Section 45 without taking all other germane considerations into account. It is
also pertinent 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 accused in a money laundering case cannot be equated with
those punishable with death, imprisonment for life, ten years or more like
offences under the Narcotic Drugs and Psychotropic Substances Act, 1985,
murder, cases of rape, dacoity, etc.
As held in the Catena of judgements discussed hereinabove,
Constitutional Courts have the power to grant bails on the grounds of
violation of Part III of the Constitution and Section 45 does not act as an
hindrance to the same. The sacrosanct right to liberty and fair trial is to be
protected even in cases of stringent provisions present in special legislations.
20. In the present case, both the applicants were arrested on 30.06.2022.
They have been in custody since more than 24 months. Moreover, the trial is
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yet to commence and is likely take some time to conclude. It is also
pertinent to note that the main accused Satyendra Jain has already been
granted bail by the Sessions Judge vide order dated 18.10.2024. Parity as a
ground is applicable even in PMLA cases, as held in Abhishek Boinpally
(Supra).
No evidence has been led to show that the present applicants are a
flight risk. In fact, records would show that both the applicants have joined
investigation on multiple occasions. Both the applicants have been released
once on interim bail and during that period no incident has been alleged by
the respondent to have occurred wherein the applicants have tried to tamper
with evidence or influence witnesses.
In addition, it is also noted that since further investigation by the CBI
is still pending, there is no possibility of the trial commencing, let alone
concluding in the predicate offence in the foreseeable future and
consequently, the present case under the PMLA also cannot be finally
determined and would inevitably be delayed due to the lack of progress of
the trial in the predicate offence. In this regard, the Court deems it apposite
to refer to the decision of Supreme Court in the case of Senthil (Supra),
wherein the Court has held that the trial of the case under PMLA cannot be
finally decided unless the trial of scheduled offence proceeds, since the
existence of the scheduled offence would have to be established in the trial
under PMLA. The relevant extract is reproduced below:-
“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
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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.”
As far as the respondents contention with respect to Section 436A
CrPC is concerned, the same is misplaced as Section 436A does not stipulate
denial of bail till the accused has undergone a specified period of detention.
Rather, aforesaid Section subject to provisos stipulate that on undergoing
one half of the of the maximum period of imprisonment of the offence, the
accused can be released on bail Same is the position of law as elucidated by
the Supreme Court in the Manish Sisodia (Supra) Case, which held as
follows:-
“28. Before considering the submissions of the learned ASG with regard
to maintainability of the present appeals on account of the second order of
this Court, it will be apposite to refer to certain observations made by this
Court in its first order, which read thus:
“26. …. Vijay Madanlal Choudhary (supra), also held that Section 436A
of the Code can apply to offences under the PML Act, as it effectuates the
right to speedy trial, a facet of the right to life, except for a valid ground
such as where the trial is delayed at the instance of the accused himself. In
our opinion, Section 436A should not be construed as a mandate that an
accused should not be granted bail under the PML Act till he has suffered
incarceration for the specified period. This Court, in Arnab Manoranjan
Goswami v. State of Maharashtra, (2021) 2 SCC 427, held that while
ensuring proper enforcement of criminal law on one hand, the court must
be conscious that liberty across human eras is as tenacious as tenacious
can be…”
(emphasis added)
21. Considering the totality of the facts and circumstances, the fact that
the main accused is out on bail, the period of custody undergone, likelihood
of supplementary challan being filed and that the trial is yet to commence,
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keeping in mind the import of the Catena of decisions of Supreme Court
discussed hereinabove, it is directed that both the applicants be released on
regular bail subject to them furnishing respective personal bonds in the sum
of Rs.1,00,000/- with one surety of the like amount each to the satisfaction
of the concerned Jail Superintendent/concerned Court/Duty J.M./link J.M.
and subject to the following further conditions: –
i) The applicants shall not leave Delhi/NCR without prior
permission of the concerned Court and surrender his passport, if
any.
ii) The applicants shall provide his mobile number to the
Investigating Officer on which he will remain available during
the pendency of the trial.
iii) In case of change of residential address or contact details,
the applicants shall promptly inform the same to the concerned
Investigating Officer as well as to the concerned Court.
iv) The applicants shall not directly/indirectly try to get in
touch with the prosecution witnesses or tamper with the
evidence.
v) The applicants shall regularly appear before the
concerned Court during the pendency of the proceedings.
22. The bail applications are disposed of in the above terms.
23. Copy of the order be communicated to the concerned Jail
Superintendent electronically for information.
24. Copy of the order be uploaded on the website forthwith.
25. Needless to state that this Court has not expressed any opinion on the
merits of the case and has made the observations only with regard to present
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bail applications and nothing observed hereinabove shall amount to an
expression on the merits of the case and shall not have a bearing on the trial
of the case as the same has been expressed only for the purpose of the
disposal of the present bail applications.
DASTI
MANOJ KUMAR OHRI
(JUDGE)
OCTOBER 29, 2024
ry/js
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By:GAUTAM ASWAL
Signing Date:29.10.2024
13:42:25