2024 (10) TMI 1550 - HC - Money Laundering

Money Laundering - predicate offence - delay in trial proceedings - hamper to right to life and liberty of the applicants, who have been in custody since 24 months and 25 months respectively - applicability of Section 45 of the PMLA - HELD THAT - 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. 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. The issue of long incarceration and right of speedy trial also cropped up in MANISH SISODIA VERSUS CENTRAL BUREAU OF INVESTIGATION 2023 (11) TMI 63 - SUPREME COURT 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 provisions. PREM PRAKASH VERSUS UNION OF INDIA THROUGH THE DIRECTORATE OF ENFORCEMENT 2024 (8) TMI 1412 - SUPREME COURT is another recent decision where it has been reiterated that the 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 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 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 - 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. 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 - 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. 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, 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 further fulfilment of conditions imposed - bail application allowed.

Summary

Issues Involved:

1. Delay in trial and its impact on the right to life and liberty under Article 21.
2. Applicability of Section 45 of the Prevention of Money Laundering Act (PMLA) in light of prolonged incarceration.
3. Parity in bail decisions with co-accused.
4. The role of Section 436A CrPC in granting bail.
5. Conditions for granting bail.

Detailed Analysis:

1. Delay in Trial and Right to Life and Liberty:

The applicants have been in custody for over 24 months, and the trial has not commenced, highlighting a significant delay. The court emphasized that the right to a speedy trial is a fundamental constitutional right under Article 21, which must take precedence over statutory provisions. The delay in trial proceedings, not attributable to the applicants, severely impacts their right to life and liberty. The court reiterated that "bail is the rule and jail is the exception," stressing that prolonged pre-trial detention violates constitutional rights.

2. Applicability of Section 45 of PMLA:

Section 45 of the PMLA imposes stringent conditions for granting bail, but it does not create an absolute bar. The court noted that when there is no reasonable prospect of trial concluding soon, the constitutional mandate of Article 21 supersedes the conditions under Section 45. The court cited several Supreme Court judgments, including Senthil Balaji and Manish Sisodia, which held that the power to grant bail can be exercised when prolonged incarceration violates constitutional rights, notwithstanding statutory provisions.

3. Parity in Bail Decisions:

The applicants sought parity with a co-accused who was granted bail. The court acknowledged that parity is a relevant consideration in bail decisions under the PMLA, as held in Abhishek Boinpally. The court noted that the main accused had been granted bail, and there was no evidence suggesting the applicants were flight risks or had tampered with evidence during their interim bail periods.

4. Role of Section 436A CrPC:

The court addressed the respondent's contention regarding Section 436A CrPC, clarifying that it does not mandate denial of bail until the accused has undergone a specified period of detention. Instead, it allows for bail after the accused has served half of the maximum sentence. The court emphasized that the constitutional right to a speedy trial should not be subjugated by statutory provisions, as elucidated in the Manish Sisodia case.

5. Conditions for Granting Bail:

The court granted bail to the applicants, subject to several conditions, including furnishing personal bonds, not leaving Delhi/NCR without permission, surrendering passports, providing contact details, and refraining from contacting prosecution witnesses or tampering with evidence. The court stressed that the decision to grant bail was based on the prolonged delay in trial and was not an expression on the merits of the case.

Conclusion:

The court ordered the release of the applicants on regular bail, emphasizing the importance of constitutional rights over statutory constraints when faced with prolonged pre-trial incarceration. The decision underscores the judiciary's role in safeguarding individual liberties and ensuring justice is not delayed unduly.