2024 (9) TMI 1303 - HC - Money Laundering

Seeking grant of Regular bail - Money Laundering - scheduled offence - Long incarceration - completion of 3 years and 6 months i. e. half of the punishment - right to speedy trial under Article 21 of the Constitution - HELD THAT - It is required to be noted that the Supreme Court in the case of Vijay Madanlal Choudhary 2022 (7) TMI 1316 - SUPREME COURT considered the applicability of Section 436A of the Cr. P. C. which is concerning the maximum punishment for which an under trial prisoner can be detained. It has been held that Section 436A of the Cr. P .C. has come into effect on 23.06.2006 and the said provision is the subsequent law enacted by the Parliament and the same will prevail and will apply in spite of rigors of Section 45 of the PMLA Act. As per the settled legal position whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail as enacted under Section 45 of the PMLA Act 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 - inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India. It is also required to be noted that the Applicant is 72 years old and is suffering from cancer. The Applicant states that as several witnesses are residing in the same locality as that of the Applicant, the Applicant will therefore not reside within District - Pune and that the Applicant will reside at the residence of Mr. Shivajirao Patil, R/o. Vikram Bungalow, Chintamani Nagar, Madhavnagar Road, Sangli 416 416 and will attend the Sanjay Nagar Police Station, Sangli - The Applicant does not appear to be at risk of flight. The Applicant can be enlarged on bail subject to fulfilment of conditions imposed - bail application allowed.

Issues Involved:
1. Application for regular bail under Section 439 of Cr.P.C. r/w Section 45 of PMLA.
2. Long incarceration and right to speedy trial under Article 21 of the Constitution.
3. Compliance with Section 45 of PMLA.
4. Applicability of Section 436A of Cr.P.C.
5. Health condition of the Applicant.
6. Risk of flight and conditions for bail.

Detailed Analysis:

1. Application for regular bail under Section 439 of Cr.P.C. r/w Section 45 of PMLA:
The Applicant filed a regular Bail Application under Section 439 of Cr.P.C. read with Section 45 of PMLA in ECIR/MB/ZO-II/03/2020 lodged by the Directorate of Enforcement (ED). The Applicant was arrested on 05.03.2021 and has been in custody since then. The maximum punishment under the present offence is 7 years, and the Applicant has already completed 3 years and 6 months, which is half of the total punishment.

2. Long incarceration and right to speedy trial under Article 21 of the Constitution:
The Applicant's counsel argued that the Applicant has been incarcerated for more than 4 years and 7 months, violating the right to a speedy trial under Article 21 of the Constitution. The counsel cited several judgments, including Javed Gulam Nabi Shaikh vs. State of Maharashtra, Vijay Madanlal Choudhary vs. Union of India, and Manish Sisodia vs. Directorate of Enforcement, emphasizing that prolonged incarceration without trial violates fundamental rights.

3. Compliance with Section 45 of PMLA:
Section 45 of PMLA stipulates that no person accused of an offence under this Act shall be released on bail unless the Public Prosecutor has been given an opportunity to oppose the application, and the court is satisfied that there are reasonable grounds for believing that the accused is not guilty and is not likely to commit any offence while on bail. The court noted that the Public Prosecutor opposed the bail application, thus fulfilling the first requirement. The court then considered whether the twin conditions were met.

4. Applicability of Section 436A of Cr.P.C.:
The Supreme Court in Vijay Madanlal Choudhary held that Section 436A of Cr.P.C., which limits the maximum period for which an undertrial prisoner can be detained to half of the maximum period of imprisonment specified for the offence, applies despite the rigors of Section 45 of PMLA. The Applicant has completed more than half of the maximum punishment, entitling him to the benefit of Section 436A.

5. Health condition of the Applicant:
The Applicant is 72 years old and suffering from stage 4 colon cancer. This health condition was considered by the court while deciding on the bail application.

6. Risk of flight and conditions for bail:
The court noted that the Applicant does not appear to be at risk of flight. The Applicant's counsel stated that the Applicant would reside outside District Pune and report to the Sanjay Nagar Police Station, Sangli. The court imposed several conditions for bail, including furnishing a P.R. Bond of Rs. 5,00,000/-, not entering District Pune except for trial-related purposes, reporting weekly to the police station, and surrendering his passport.

Order:
The court granted bail to the Applicant with specific conditions, ensuring that the Applicant does not tamper with evidence, influence witnesses, or seek unnecessary adjournments. The Bail Application was disposed of accordingly, with a clarification that the observations made are prima facie and the trial court shall decide the case on its merits.

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