2023 (3) TMI 743 - HC - Money Laundering

Seeking grant of bail - Money Laundering - mass loot of public money deposited by innocent prospective home buyers and have laundered the said money - discharge of burden of proof - HELD THAT - In the present case, undoubtedly, the present applicant was taken into custody on 11.10.2018 for the same allegations for which the E.D. has filed ECIR in question. However, EOW of Delhi Police has taken custody of the present applicant on 26.10.2019 and the E.D. has taken custody on 03.12.2019. Therefore, for all practical purposes the present applicant is in judicial custody for more than four years and four months and if the period of judicial custody, so taken by the E.D. is considered, it is more than three years and three months. Undisputedly, the maximum punishment for the offence wherein the trial is going on is seven year. Therefore, in both the situations the present applicant has served half of the sentence. Since the learned counsel for the E.D. has been heard at good length and a some of Rs.28.95 crores have already been recovered from the applicant in furtherance of the proceed of crime and considering the statement that nothing remains to be recovered from him now, it is found appropriate that the present applicant may be enlarged on bail as rigour of Section 45 of PMLA are satisfied, particularly in view of the fact that the present applicant has already served more than half of the punishment, has not misused the liberty of interim bail granted by the Apex Court and there is no possibility or likelihood to conclude the trial with expedition inasmuch as there are total 150 prosecution witnesses and only two prosecution witnesses have been examined by now. Let the present applicant (Shiv Priya) be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the conditions imposed - application allowed.

Issues Involved:
1. Prolonged Judicial Custody
2. Delay in Trial Proceedings
3. Compliance with Bail Conditions
4. Examination of Prosecution Witnesses
5. Application of Supreme Court Judgments
6. Recovery of Alleged Amounts
7. Role and Responsibility of the Applicant
8. Misuse of Interim Bail
9. Statutory Restrictions under PMLA

Detailed Analysis:

1. Prolonged Judicial Custody:
The applicant has been in judicial custody since 11.10.2018, initially taken by Noida Police and later by the Enforcement Directorate (E.D.) on 03.12.2019. The total period in custody exceeds four years and four months, with more than three years under the E.D.'s custody. The maximum punishment for the alleged offense is seven years, and the applicant has already served more than half of this duration.

2. Delay in Trial Proceedings:
The trial has seen significant delays, with charges framed on 26.04.2022. Despite 15 dates fixed for prosecution witness examination since 21.05.2022, only two witnesses have been examined, and the chief examination of the third witness completed on 01.02.2023. The prosecution's lack of cooperation has been noted, and with 150 prosecution witnesses remaining, the trial is unlikely to conclude within a reasonable time, potentially taking another five or six years.

3. Compliance with Bail Conditions:
The applicant was granted interim bail by the Apex Court from 22.08.2022 to 07.11.2022 and complied with all conditions, surrendering promptly after the bail period ended. There has been no misuse of the liberty granted during the interim bail period.

4. Examination of Prosecution Witnesses:
The prosecution has not cooperated adequately, leading to delays in examining witnesses. With only two out of 150 witnesses examined over several months, the trial's progress is notably slow.

5. Application of Supreme Court Judgments:
The applicant's counsel cited the Supreme Court's judgment in Union of India vs. K.A. Najeeb, emphasizing that prolonged incarceration without a timely trial warrants bail. The Court also referred to Ramchand Karunakaran vs. Directorate of Enforcement, where bail was granted after three years of custody under PMLA charges. The principles from these judgments were applied, considering the applicant's significant period of incarceration and the unlikelihood of an expedited trial.

6. Recovery of Alleged Amounts:
The E.D. alleged a diversion of Rs.95.54 crores, but forensic auditors, appointed by the Apex Court, reduced this to Rs.26.66 crores. The applicant has already recovered Rs.28.95 crores, suggesting no further recoverable amount. This discrepancy remains a subject for trial proceedings.

7. Role and Responsibility of the Applicant:
The applicant, a former Director of the Amrapali Group of Companies, argued that his role was limited to architectural planning and engineering, not financial planning. Despite this, he has been implicated in the diversion of funds and remains in custody for the same allegations under different agencies.

8. Misuse of Interim Bail:
The E.D. confirmed no adverse information regarding misuse of interim bail by the applicant. This compliance was considered favorably in the bail decision.

9. Statutory Restrictions under PMLA:
The Court acknowledged the statutory restrictions under Section 45 of PMLA but noted that the applicant met the conditions for bail, considering the prolonged custody and the slow trial progress. The Court emphasized the need for a balance between statutory restrictions and constitutional rights to a speedy trial.

Conclusion:
The bail application was allowed, considering the applicant's prolonged custody, compliance with interim bail conditions, and the unlikelihood of an expedited trial. The Court mandated specific conditions for bail, including regular court appearances, non-misuse of bail, and surrender of the passport. The trial court was instructed to expedite the trial process without unnecessary adjournments, ensuring a fair and timely resolution.

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