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2022 (3) TMI 275 - HC - Money LaunderingSeeking grant of regular bail - criminal conspiracy - forgery - diversion/misappropriation of the public money - grant of various credit facilities to borrowers, in violation of banking norms and against receipt of illegal gratification - Sections 44/45 of the Prevention of Money Laundering Act, 2002 - HELD THAT - Article 21 of the Constitution of India guarantees a right to personal liberty to every person, and thus, there is no gainsaying that bail is the rule and jail an exception. Time and again, it has been opined by Courts across the country that bail is the rule and jail an exception. Besides reiterating this view, the Supreme Court in Sanjay Chandra 2011 (11) TMI 537 - SUPREME COURT has further laid down that both factors, i.e. severity of the punishment and gravity of the offence, have to be simultaneously weighed while determining whether or not to grant bail to an accused. In P. Chidambaram 2019 (12) TMI 186 - SUPREME COURT , it was held by the Supreme Court that even though gravity of the offence is an important factor for determining whether or not to grant bail, and economic offences of the nature involved in the case were prima facie grave, it is not a rule that bail shall inevitably be denied. No case may be seen as setting a precedent with respect to grant/rejection of bail, except on principle, and it will be for the Court concerned to determine the gravity of the charged offence in each case based on the facts and circumstances. Further, the gravity of the offence is a factor which is in addition to the triple test/tripod test. In matters of regular bail under Section 439 Cr.P.C., a Court must consider aspects, including but not limited to, the larger interest of the State or public, whether the accused is a flight risk, whether there is likelihood of his tampering with evidence, whether there is likelihood of his influencing witnesses, etc. Apart from these, another factor relevant to the question of bail would be the gravity of the alleged offence and/or nature of the allegations levelled, which may serve as an additional test and can be applied while keeping in view the severity of the punishment that the offence entails - It is equally well-settled that economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude. Albeit these offences are likely to adversely impact the economic fabric of the country, bail shall not be denied to a person accused of an economic offence in a routine manner. Each case must be adjudged on the basis of the peculiar facts and circumstances, while striking a balance between the right to personal liberty of the accused and the interest of the society in general. Applicability of Section 45(1) of PMLA - HELD THAT - In 2017, the constitutional validity of Section 45 PMLA came to be challenged before the Supreme Court in NIKESH TARACHAND SHAH VERSUS UNION OF INDIA AND ANR. 2017 (11) TMI 1336 - SUPREME COURT , wherefore, by a judgment rendered in 2018, explicating the defects inherent in the provision and the challenges posed thereby, the Supreme Court held that the twin conditions imposed by Section 45(1) PMLA were manifestly arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India - Post the decision in Nikesh Tarachand Shah, an amendment was made to Section 45 PMLA vide the Finance Act, 2018 and brought into effect from 19.04.2018. Coming to the present case, it is noted that while rejecting the applicant s bail application on 30.10.2021, the learned Special Judge held that the complaint having been filed and the documentary evidence having been collected, there was no possibility of the applicant tampering with the evidence. It was further held that the evidence having been collected and the witnesses having been examined, chances of the applicant influencing witnesses were remote - this Court concurs that the apprehensions of the applicant tampering with evidence and influencing witnesses are unfounded. Insofar as the apprehension of the applicant being a flight risk is concerned, it is noted that the respondent has already issued LOCs against the applicant, who is also willing to surrender his passport. In this backdrop, this Court is of the opinion that the applicant s presence during the trial can be secured by taking adequate measures, including surrender of his passport, and imposing necessary conditions. This Court is not inclined to admit the present applicant on bail. The bail application is accordingly dismissed.
Issues Involved:
1. Applicability of Section 45(1) PMLA and its twin conditions. 2. Prima facie guilt of the applicant. 3. Likelihood of the applicant committing an offence while on bail. 4. Applicant's flight risk. 5. Applicant's tampering with evidence or influencing witnesses. 6. Impact of economic offences on society. 7. Applicant's cooperation with the investigation. 8. Balancing personal liberty with societal interest. Issue-wise Detailed Analysis: 1. Applicability of Section 45(1) PMLA and its twin conditions: The court examined the amendment to Section 45 PMLA post the decision in *Nikesh Tarachand Shah v. Union of India*, which had struck down the twin conditions. The amendment in 2018 substituted the term "punishable for a term of imprisonment of more than three years under Part A of the Schedule" with "under this Act." The court noted that the Supreme Court in *The Directorate of Enforcement v. Parkash Gurbaxani* and *Dr. V.C. Mohan* had indicated that the twin conditions must be considered even after the amendment. 2. Prima facie guilt of the applicant: The court found that the applicant, as the ultimate beneficiary and Chairman of the Avantha Group, was involved in generating proceeds of crime amounting to ?500.11 crores. The agreements between OBPL, JPL, and JPIL were alleged to be sham, with no actual services rendered, and the term loan was siphoned off for repaying pre-existing loans of the Avantha Group. 3. Likelihood of the applicant committing an offence while on bail: The court emphasized that the applicant's involvement in the alleged offences and the gravity of the charges indicated a possibility of him committing similar offences if released on bail. The court referenced *Rohit Tandon v. Directorate of Enforcement* to highlight that the court must maintain a balance and consider the broad probabilities of the case. 4. Applicant's flight risk: The court acknowledged the Special Judge's concern about the applicant being a flight risk due to his NRI status and family ties abroad. However, it noted that the applicant was willing to surrender his passport and that LOCs had already been issued against him, which could secure his presence during the trial. 5. Applicant's tampering with evidence or influencing witnesses: The court concurred with the Special Judge that the applicant was unlikely to tamper with evidence or influence witnesses, as the documentary evidence had already been collected, and witnesses had been examined. 6. Impact of economic offences on society: The court reiterated that economic offences are grave and affect the financial health of the country. It emphasized that such offences must be viewed seriously, referencing *Y.S. Jagan Mohan Reddy v. Central Bureau of Investigation* and *P. Chidambaram v. Directorate of Enforcement*. 7. Applicant's cooperation with the investigation: The court noted that the applicant had cooperated with the investigation and had been in custody since 03.08.2021. However, it also considered the ongoing investigation and backtracking of funds sent abroad, indicating that the applicant's release could hinder further investigation. 8. Balancing personal liberty with societal interest: The court acknowledged the principle that bail is the rule and jail the exception, as emphasized in *Sanjay Chandra v. Central Bureau of Investigation*. However, it balanced this with the severity of the alleged offences and the societal interest in preventing economic crimes. Conclusion: The court denied the bail application, concluding that the applicant did not satisfy the twin conditions of Section 45(1) PMLA and that the gravity of the offences warranted his continued detention. The court emphasized that its decision did not reflect on the merits of the case and would not affect the trial.
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