2024 (2) TMI 1415 - HC - Money Laundering

Seeking grant of bail - money laundering - proceeds of crime - scheduled offences - invocation of Section 436-A of Cr.P.C - right to speedy trial - HELD THAT - It is an undisputed position that right to speedy trial has been ingrained in Article 21 of the Constitution of India and undue delay in concluding a trial has always been frowned upon as violation of the right to life and personal liberty as guaranteed by Article 21 which has to be clubbed with the right guaranteed by Article 14 which also promises justness fairness and reasonableness in procedural matters. The provision in form of Section 436-A which is sought to be pressed into service for securing the release of the Applicant by way of proviso contemplate that the Court may after hearing the Public Prosecutor and for reasons to be recorded by it in writing order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties - It is thus the discretion of the Court whether to secure release of a person awaiting his trial on the ground that he has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified but necessarily contemplate that the Court may at time continue the detention of an accused despite having undergone more than one-half of the sentence and this may be justified on the ground of seriousness of an offence the role played by the accused in such an offence and when his release on bail may prove to be harmful to the society. The applicant (A10) is not entitled to bail/temporary bail on medical ground. However alternative arrangement for his medical treatment can be directed whenever the same prevails upon. It has to be noted that none of the medical issues i.e. Cataracts knee replacement due to arthritis and also hip bone issue is life threatening to consider it a genuine sickness as required under First Proviso to Sec.45(1) of the PML Act - Similarly the applicant (A10) is not entitled to be released on bail as required under Sec.436A Cr.P.C. even if contention of ED that punishment provided for Scheduled Offence is for 10 years is not legal when the application is preferred for an offence under the PML Act wherein the maximum punishment is to the extend of 7 years and the applicant (A10) is not in judicial custody in respect of any of the Predicate Offences/cases. Section 436-A cannot be invoked at this stage since the offence registered against Iqbal Mirchi involve an offence under Section 302 of the IPC as well as the offence under the NDPS Act though the present Applicant is not an accused in any of the Scheduled Offences. The accusation faced by him alongwith the main accused Iqbal Mirchi is about layering and laundering of the money acquired by Iqbal Mirchi and its use in purchasing the three properties and since the genesis of this money lies in the three offences registered at the instance of Anti Narcotic Cell in the year 1992 1993 and 1994 respectively and hence in my considered opinion no case is made out for invocation of Section 436-A as the punishment imposed in the subject complaint would be the one falling in Part II of Section 4 i.e. maximum punishment may extend up to ten years of rigorous imprisonment. The argument that not a single Scheduled Offence under the NDPS Act is alleged to have been committed between 1986 to 1989 is ultimately a matter to be appreciated when the merits of the matter is considered as it is the specific case of the Directorate of Enforcement that the money has been layered by Iqbal Mirchi into various transactions and purchase of properties and this will ultimately a matter to be determined at the end of the trial. Thus no case is made out by the Applicant for exercise of power under Section 436-A on the ground that he has undergone one-half of the maximum punishment which would be imposed upon him under the Act of 2002 if convicted - application dismissed.

Summary

Issues Involved:
1. Application for bail under Section 439 of the Cr.P.C.
2. Applicability of Section 436-A of the Cr.P.C. for release on bail.
3. Parity with co-accused granted bail.
4. Role in the offence and evidence against the applicant.
5. Seriousness of the offence and impact on national economy.

Detailed Analysis:

1. Application for Bail under Section 439 of the Cr.P.C.:
The applicant sought release on bail under Section 439 of the Cr.P.C., citing long incarceration since 22/10/2019. Previous bail applications were rejected on 16/09/2020 and 18/11/2022. This third application is based on having undergone three years and nine months of imprisonment without trial commencement.

2. Applicability of Section 436-A of the Cr.P.C. for Release on Bail:
The applicant's counsel argued that under Section 436-A, the applicant is entitled to bail as he has served more than half of the maximum sentence of seven years under Section 4 of the PMLA. The counsel relied on the Supreme Court's decision in Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors., which construed Section 436-A as a statutory bail provision applicable to money-laundering offences.

3. Parity with Co-accused Granted Bail:
The applicant's counsel referenced the order dated 12/05/2023, where a co-accused (Accused No.8) was granted bail under Section 436-A after three years and six months of judicial custody. The counsel argued that the applicant should receive similar treatment. However, the Special Judge had previously rejected the applicant's claim for parity, noting differences in their roles and involvement in the offence.

4. Role in the Offence and Evidence Against the Applicant:
The Enforcement Directorate (ED) opposed the bail, highlighting the applicant's crucial role in brokering illegal dealings for Iqbal Mirchi, arranging meetings, and laundering proceeds of crime. The applicant's involvement was supported by material evidence, including his statements and the complaint. The court had previously rejected bail applications based on the applicant's active participation in money-laundering activities.

5. Seriousness of the Offence and Impact on National Economy:
The ED emphasized that the PMLA was enacted to curb serious economic offences with a deleterious impact on the national economy. The applicant's offence involved deep-rooted conspiracies and significant public fund losses, posing a serious threat to the financial health of the nation. The court noted that economic offences require a different approach in bail matters due to their grave repercussions on the country's development.

Conclusion:
The court, after considering the arguments and evidence, concluded that the applicant's role in the offence and the seriousness of the crime justified continued detention. The court found no merit in the applicant's claim for parity with the co-accused and rejected the application for bail under Section 436-A, as the maximum punishment could extend up to ten years due to the involvement of NDPS Act offences. The application for bail was thus rejected.