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2021 (12) TMI 1149 - HC - Money LaunderingSeeking grant of Bail - Smuggling - rule of presumption of innocence - Section 45(1) of the PML Act - constitutional validity of the provision - HELD THAT - This Court is of the opinion that the declaration by the Supreme Court in Nikesh Tarachand Shah's 2017 (11) TMI 1336 - SUPREME COURT would render the twin conditions prescribed in Section 45(1) of the PML Act for release of an accused on bail to be void in toto ; such conditions have to be disregarded of any legal force from its inception. They cease to be law and are rendered inoperative to the extent that they are to be regarded as if they had never been enacted. That being so, the twin conditions for grant of bail under Section 45(1) of the PML Act as are now sought to be pressed into service by the ED cannot be considered to have revived or resurrected only on the prospective substitution of the words punishable for a term of imprisonment of more than three years under Part A of the Schedule with the words under this Act especially without there being any amendment with regard to the twin conditions for grant of bail which had specifically been declared to be unconstitutional as also in the absence of any validating law in this regard with retrospective effect. It was also brought to this Court s notice that the Petitioner has been in custody for a period of about 8 years. Justice delayed is justice denied is the cornerstone in delivering justice and a speedy trial forms the essence of the entire criminal justice system. At the same time, justice hurried is justice buried and therefore, there has always existed a need to strike a balance between the two adages in the delivery of justice to the people. The fundamental right to speedy trial is a result of judicial activism shown in respect of Article 21. In USA, the right to speedy trial has been guaranteed by the VI Amendment of the US Constitution. The VI Amendment of the US Constitution says that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial - The fundamental right to speedy trial is peculiar in character and is generically different from other constitutional rights of the accused. The right is in the interest of the accused if he is innocent. He does not suffer unduly for a long period. But it also works against him if he is actually guilty of the offence. The right is also in the interest of prosecution because it does not face the problems such as non-availability of witnesses and disappearance of evidence etc. But sometimes, it also goes against the prosecution specially when the prosecution does not have hundred per cent foolproof case against known or hardened criminals. It is a matter of great concern that the Petitioner has been in detention for more than 8 years as on today, however, the trial in the instant case has not yet been commenced. The longevity of detention of the under-trial prisoners without commencement of trial defeats the very purpose of Criminal Justice System. It is directed that the Petitioner be released on bail with some stringent terms and conditions as deemed just and proper by the learned court in seisin over the matter with further conditions imposed - application allowed.
Issues Involved:
1. Legality of the Petitioner's continued custody under the Prevention of Money Laundering Act (PML Act). 2. Applicability of Section 45 of the PML Act post the Supreme Court's judgment in Nikesh Tarachand Shah vs Union of India. 3. Petitioner's right to bail considering the duration of detention and the status of the trial. Issue-wise Detailed Analysis: 1. Legality of the Petitioner's Continued Custody under the PML Act: The Petitioner, in custody since 13.05.2013 in connection with ECIR No.BSZO/04/2014 under Section 3 read with Sections 70(1) and 70(2) of the PML Act, filed a petition under Section 439 of the Cr.P.C. for bail. The prosecution's case includes multiple charge sheets under various sections of the IPC and the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. The Petitioner was convicted by the Special C.J.M., Bhubaneswar, and sentenced to 7 years imprisonment. The learned Sessions Judge, Khurda, issued a production warrant and remanded the Petitioner to custody, rejecting his bail application. 2. Applicability of Section 45 of the PML Act Post the Supreme Court's Judgment in Nikesh Tarachand Shah vs Union of India: The Petitioner's counsel argued that the learned Sessions Judge erroneously relied on Section 45 of the PML Act, which the Supreme Court declared unconstitutional in Nikesh Tarachand Shah vs Union of India (2018) 11 SCC 1. The Supreme Court held that the twin conditions for bail under Section 45(1) violated Articles 14 and 21 of the Constitution. Despite amendments to Section 45(1) by Acts 13 of 2018 and 23 of 2019, the twin conditions were not revived. Various High Courts, including Bombay, Delhi, Madhya Pradesh, and Patna, have consistently rejected the revival of these conditions post-amendment. 3. Petitioner's Right to Bail Considering the Duration of Detention and the Status of the Trial: The Petitioner has been in custody for about 8 years, and the trial in the PMLA case has not commenced. The right to a speedy trial is a fundamental right under Article 21, as emphasized by the Supreme Court in Hussainara Khatoon & Ors v. Home Secretary, State of Bihar (1979 AIR 1369). The prolonged detention without trial undermines the Criminal Justice System. Given the Petitioner's completed sentence in the CBI case and the lack of trial commencement in the PMLA case, the Court directed the Petitioner's release on bail with stringent conditions to ensure his appearance in court, prevent similar future activities, and avoid tampering with evidence. Conclusion: The Court ordered the Petitioner's release on bail, emphasizing the unconstitutionality of the twin conditions under Section 45(1) of the PML Act and the Petitioner's prolonged detention without trial. The decision underscores the importance of the right to a speedy trial and the necessity of balancing justice delivery with the protection of individual liberty.
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