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2023 (4) TMI 1078 - HC - Money LaunderingSeeking grant of Regular Bail - Money Laundering - pecuniary advantage/illegal gratification was obtained by the accused out of the funds received from UAE Red Crescent meant for flood victims in Kerala though Life Mission Project - reception of bribe in foreign currency and rooting of the sam e through the diplomatic channel - case of petitioner is that the entire case is built up as a political hit by the Enforcement Directorate to falsely implicate the petitioner and by extension, the executive head of the State and his family members - bail sought also on medical grounds (Section 45 of PMLA). HELD THAT - Since this Court is considering bail plea at the instance of the petitioner in the instant crime on scrutiny of the relevant materials in the present case, this Court cannot consider the said aspect without going into niceties of the facts of the two cases in detail. Therefore, I leave the said question to be decided at an appropriate stage after referring all the materials in both these crimes meticulously. As of now, for the just disposal of the bail application, I am inclined to accept the argument tendered by the learned ASGI that a portion of the bribe being converted into foreign currency and taken to diplomatic channel to the foreign country, emanated from the predicate offence as pointed out by the learned ASGI, and the said aspect is a matter within the ambit of PML Act for which detailed investigation shall go on. Whether the petitioner is liable to be released on bail by resorting to proviso to Section 45(1) of PML Act? - HELD THAT - It is interesting to note that the Act doesn't define the term either sick' or infirm'. The term sick' as per the Oxford English dictionary means, affected by illness; unwell, ailing . Similarly, the term infirm' means not physically strong or healthy; weak; feeble, especially through old age . Therefore, the sick' or infirm' condition of a person has to be inferred from the materials available in each individual case. However, it is pertinent to note that the statute provides release of an accused on bail, who are covered by the proviso reading the same disjunctively and the statute used the word may'. Thus it has to be held that release of a person covered by the proviso to Section 45(1) of PML Act is not mandatory and the same is the discretion of the court. Three judgements of Supreme Court referred - STATE THRU DY. COMMISSIONER OF POLICE SPL. BRANCH DELHI VERSUS JASPAL SINGH GILL 1984 (6) TMI 264 - SUPREME COURT , DIRECTORATE OF ENFORCEMENT VERSUS SHRI ASHOK KUMAR JAIN AND VICE-VERSA 1998 (1) TMI 529 - SUPREME COURT and State of U.P. v. Gayatri Prasad Prajapati 2020 (10) TMI 1281 - Supreme Court - Reading the ratio of the above decisions, if the jail authorities or the prosecution agency could arrange proper and adequate treatment, even a sick person need not be released on bail. No doubt, crime No.ECIR/KCZO/31/2020 arose out of predicate offence registered by the Vigilance and Anti-corruption Bureau and CBI and the present crime arose out of predicate offence in OR.No.7/2020, registered by the Customs (Preventive) Commissionerate of Cochin and Crime No.2/2020, registered by NIA and, therefore, as I have already pointed out, there is no reason to hold at this stage that registration of this crime is bad in law. In the instant case, the petitioner could not be held as a person who would flee from trial. However, his propensity to tamper with the evidence and to influence witnesses could be foreseeable, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala. It is apposite to refer that even after his initial arrest and subsequent release on bail, the petitioner was reinstated in service w.e.f 6.1.2022 and he continued the same till his retirement holding pivotal post in the State of Kerala, ignoring his involvement in serious crimes. That is to say, his involvement in serious crimes prior to this crime, in no way affected his official stature because of his authority in the State Government. - Since it has been discussed that the petitioner is not cooperating with the treatment offered, I am not inclined to release him on medical ground since his sickness would be addressed by the prosecution agency/jail authorities by providing adequate treatment. Similarly, his chance of propensity to tamper with evidence or influencing witnesses, is very much there, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala. In this matter, the investigation is at the initial stage. Many accused are yet to be arrested including Smt.Swapna Prabha Suresh. Why the prosecution is delaying the arrest of Swapna Prabha Suresh is also a matter of serious concern, though she had an active role in the present crime - Bail application dismissed.
Issues Involved:
1. Whether the petitioner is entitled to regular bail under Section 439(1) of the Code of Criminal Procedure read with Section 45 of the Prevention of Money Laundering Act, 2002 (PML Act). 2. Whether the petitioner can claim exemption from the rigour of Section 45 of the PML Act on medical grounds. 3. Whether the allegations in the current crime are identical to those in a previously registered crime, thereby making the current registration illegal. Summary of Judgment: 1. Entitlement to Regular Bail: The petitioner, the 9th accused in the case, is alleged to have committed offences under Section 3 and 4 of the PML Act, involving pecuniary advantage/illegal gratification from funds received from UAE Red Crescent meant for flood victims in Kerala through the 'Life Mission Project'. The prosecution contended that the petitioner orchestrated money laundering and bribery, including converting a portion of the bribe into foreign currency and transporting it through diplomatic channels. The court noted that the investigation is at an initial stage and many accused are yet to be arrested. The petitioner's influence in the ruling party and his non-cooperation during the investigation were significant factors against granting bail. 2. Exemption from Rigour of Section 45 on Medical Grounds: The petitioner sought bail on medical grounds, claiming to be a cancer patient who underwent surgery thrice. The court observed that the petitioner had refused surgery offered by the prosecution and continued in service till his retirement without undergoing further treatment. The court held that the petitioner is not a "sick person" within the meaning of the proviso to Section 45(1) of the PML Act, as he claimed sickness only when arrest was imminent. The court emphasized that the jail authorities could provide adequate medical treatment, and thus, the petitioner was not entitled to bail on medical grounds. 3. Allegations in Current Crime vs. Previously Registered Crime: The petitioner argued that the allegations in the current crime are identical to those in Crime No.ECIR/KCZO/31/2020, making the current registration illegal. The court left this issue to be decided at an appropriate stage after perusing the entire case records of both crimes. The court accepted the prosecution's argument that the current crime involves a distinct aspect of converting a portion of the bribe into foreign currency and transporting it through diplomatic channels, which falls within the ambit of the PML Act. Conclusion: The court dismissed the bail application, citing the petitioner's non-cooperation, potential to tamper with evidence, and influence in the ruling party. The investigation's initial stage and the petitioner's ability to receive adequate medical treatment in custody were also significant factors in the decision.
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