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2023 (10) TMI 1377 - HC - Money LaunderingSeeking grant of Regular bail - Money Laundering - bail sought on medical grounds - applicant have argued that the applicant herein is 'sick' and 'infirm', and thus, should be granted regular bail in the present ECIR - twin conditions u/s 45 of PMLA satisfied or not - HELD THAT - A Co-ordinate Bench of this Court in case of Kewal Krishan Kumar v. Enforcement Directorate 2023 (3) TMI 746 - DELHI HIGH COURT , while dealing with a case wherein regular bail had been sought under PMLA on medical grounds, had analyzed as to who would qualify as a 'sick' or 'infirm' person under the proviso to Section 45 of PMLA, which is also analogous to the proviso under Section 437 of Cr.P.C. Further, a Co-ordinate Bench of this Court in Sanjay Jain (in JC) v. Enforcement Directorate 2023 (6) TMI 1324 - DELHI HIGH COURT , while relying upon the observations in case of Kewal Krishan Kumar, had also observed that power to grant bail on medical grounds under PMLA is discretionary and must be exercised in a judicious manner. Importance of Right to Medical Treatment of the Prisoners - HELD THAT - There is no denying that the act of preserving health of a prisoner/undertrial is one of the rights of the prisoners as interpreted by various judgments in India as well as in International Law. The prisoners in jail have acceptable medical infrastructure in consonance with the duty and legal obligation of the State to provide access to medical care for all prisoners and under trials - The jurisprudence of medical care and attention to the prisoners mandates that timely medical care must be available to all undertrials/ prisoners, and in appropriate cases, timely medical care includes regular access to specialized diagnostic care or post surgery care etc. which should be made available without interruption. This Court is of the opinion that all the basic medical facilities have been provided to the applicant in the jail dispensary itself and as far some other specialized activities are concerned, the same have been taken care of by the order dated 04.09.2023 passed by this Court which has been discussed in preceding paragraph. In any case, the report of the Medical Board of AIIMS has suggested that the applicant can be treated on an outpatient basis at any of the jail referral hospitals - this Court does not wish to comment on whether the fall was intentional to seek bail as suggested by the respondent or whether it was actual as pleaded by the applicant, since this Court is not solely relying upon only one incident to decide the present bail application. Right of Accused to Medical Treatment in Custody Duty of The Court - HELD THAT - This Court has already discussed in extenso the present medical condition of the applicant and the fact that he does not even require hospitalization. There is no denying the fact that the applicant has undergone about five surgeries in the past, however, as on date, he is recovering in the jail itself and as per the report of AIIMS, he is only required to follow the medical and rehabilitation protocols as suggested to him and supplement the same by regular exercise and physiotherapy. It is also important to note that to address the issue that certain rehabilitation protocols cannot be followed by the applicant owing to non-availability of necessary equipment in jail, this Court has already directed vide order dated 04.09.2023 that the applicant be taken to VNA Hospital for rehabilitation sessions twice a week. In the present case, the attention of this Court was drawn to the report dated 03.10.2023 prepared by Senior Medical Officer of Tihar Jail in which it was mentioned that as per the directions issued vide order dated 04.09.2023 by this Court, the applicant was being regularly taken to VNA Hospital for follow-up and physiotherapy sessions. It was also informed that the applicant was being kept in the jail dispensary and was under constant follow-up from doctors on duty as well as jail visiting specialists. It is also important to consider that the Medical Board of AIIMS, New Delhi had suggested that the applicant may be taken to any of the Jail Referral Hospital for periodic follow-ups and he need not be admitted in any hospital. Medical Facilities and Policies in Delhi Prisons - HELD THAT - This Court notes that while the medical facility in Delhi provides both primary medical care and provision of medical services in prison, the orders dated 10.02.2011 and 27.06.2022 contain guidelines that streamline the outside OPD and referrals which provides an exhaustive list of measures which aim to attain the goal of preserving the health of prisoners. Right of Accused to receive Medical Treatment vs. Right of Prosecuting Agency to Investigate Fairly - HELD THAT - The allegations against the present applicant in the present FIR have been that he was one of the main conspirators and a key player in the formulation of the excise policy and its exploitation later, and was also involved in the formulation of a super cartel between the manufacturers, wholesalers and retailers. The applicant had allegedly earned huge profits of around Rs. 192 crores against meagre investment of Rs. 15 crores, in his firm M/s. Indo Spirits which is the proceeds of crime. As regards the conduct of applicant, it is the case of respondent that the applicant had not cooperated during the investigation and had not provided the relevant details, and on his behest, his counsels had also made attempts to influence the witnesses, who were the employees of applicant, who had been called for investigation by the respondent. The applicant had allegedly also destroyed the evidence i.e. his mobile phone at least four times at the time of alleged scam being exposed in public - while the applicant‟s right to healthcare and medical treatment is a fundamental consideration, it cannot be allowed to overshadow the pressing need to investigate fairly and ensure that due legal processes are followed. Thus, this Court is of the opinion that the applicant is not suffering from any life threatening condition or sickness or infirmity which involves danger to his life and for which treatment cannot be provided to the applicant in jail - there are no grounds to enlarge the applicant on regular bail in the present ECIR. Bail application dismissed.
Issues Involved:
1. Grant of Bail under PMLA: Section 45 and its Exceptions 2. Importance of Right to Medical Treatment of the Prisoners 3. The Medical Condition of Applicant: Examining the AIIMS Report and the Jail Report 4. Right of Accused to Medical Treatment in Custody: Duty of The Court 5. Medical Facilities and Policies in Delhi Prisons 6. Right of Accused to receive Medical Treatment vs. Right of Prosecuting Agency to Investigate Fairly Summary: (i) Grant of Bail under PMLA: Section 45 and its Exceptions The applicant sought bail under Section 439 of Cr.P.C. read with Sections 45 and 65 of PMLA on medical grounds. Section 45 of PMLA prescribes twin conditions for bail: reasonable grounds for believing the accused is not guilty and the accused is not likely to commit any offense while on bail. However, exceptions exist for those under 16, women, sick, or infirm, or if the alleged money laundering is less than one crore rupees. The applicant argued he falls under the "sick" and "infirm" category. The court referenced the case of Kewal Krishan Kumar v. Enforcement Directorate, which interpreted "sick or infirm" as life-threatening conditions requiring treatment unavailable in jail hospitals. (ii) Importance of Right to Medical Treatment of the Prisoners The court emphasized the right to health as a human right, even for prisoners, referencing the case of In Re Inhuman Conditions in 1382 Prisons, which mandates timely medical care for prisoners, including specialized diagnostic and post-surgery care. (iii) The Medical Condition of Applicant: Examining the AIIMS Report and the Jail Report The applicant's medical condition was examined by a Medical Board from AIIMS, which concluded he did not require hospitalization but needed to follow rehabilitation protocols. The court noted the applicant's argument that the report suggested treatment at "home" was misinterpreted, as "home" referred to his current residence in jail. The court found the jail dispensary provided basic medical facilities, and specialized treatments were addressed by allowing visits to VNA Hospital. (iv) Right of Accused to Medical Treatment in Custody: Duty of The Court The court reiterated that while prisoners have the right to medical treatment, it must be balanced with the State's right to conduct a fair investigation. The court referenced State v. Jaspal Singh Gill and State of U.P. v. Gayatri Prasad Prajapati, emphasizing that bail on medical grounds should only be granted if the prison cannot provide necessary treatment. (v) Medical Facilities and Policies in Delhi Prisons The court reviewed the Jail Hospital Referral Policy, which categorizes referral hospitals for prisoners based on their medical condition, ensuring access to necessary medical care. (vi) Right of Accused to receive Medical Treatment vs. Right of Prosecuting Agency to Investigate Fairly The court balanced the applicant's right to healthcare with the State's interest in a fair investigation. The court noted the applicant had received adequate medical care and that the jail authorities complied with previous court orders for his treatment. Conclusion The court concluded the applicant was not suffering from a life-threatening condition that required treatment unavailable in jail. The applicant's request for regular bail was denied, but the court directed the jail authorities to ensure continued medical care and follow-up treatments as needed. The judgment emphasized that the observations made should not influence the merits of the ongoing case.
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