2024 (9) TMI 321 - SCH - Money Laundering

Money Laundering - Rejection of Bail of Vijay Nair who is a co-accused in Delhi Excise policy scam - allegation is that the petitioner acted as a middleman and was involved in irregularities in framing and implementing the Delhi Excise policy - fundamental rights guaranteed under Article 21 - HELD THAT - In a recent judgment of this Court, in Prem Prakash v. Union of India through the Directorate of Enforcement 2024 (8) TMI 1412 - SUPREME COURT , the Court reiterated that fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of the Act. Here the accused is lodged in jail for a considerable period and there is little possibility of trial reaching finality in the near future. The liberty guaranteed under Article 21 of the Constitution does not get abrogated even for special statutes where the threshold twin bar is provided and such statutes, cannot carve out an exception to the principle of bail being the rule and jail being the exception. The cardinal principle of bail being the rule and jail being the exception will be entirely defeated if the petitioner is kept in custody as an under-trial for such a long duration. This is particularly glaring since in the event of conviction, the maximum sentence prescribed is only 7 years for the offence of money laundering. The petitioner is directed to be released forthwith on bail in connection with the ECIR No. HIU-II/14/2022 dated 22.08.2022 registered by the Directorate of Enforcement on furnishing bail bonds in the sum of Rs. 10,00,000/- in each of the cases - the petitioner shall not make any attempt to tamper with the evidence or influence the witnesses - petition allowed.

Summary

Issues:
Bail application of a co-accused in Delhi Excise policy scam challenging the rejection of bail by the Delhi High Court.

Analysis:
The Supreme Court heard the bail plea of the petitioner, a co-accused in the Delhi Excise policy scam. The petitioner was arrested and had been in custody for about 22 months, facing charges of money laundering under the Prevention of Money Laundering Act, 2002. The petitioner sought bail citing the maximum punishment of 7 years upon conviction and referred to the bail granted to other co-accused for parity. The ASG opposed bail, citing the threshold bar under Section 45 of the Act and distinguishing a case where bail was granted to a female co-accused based on a proviso to Section 45(1) of the Act.

The Court considered the right to liberty guaranteed under Article 21 of the Constitution as sacrosanct, emphasizing that prolonged incarceration of an under-trial cannot be a mode of punishment. The Court noted discrepancies in the statements of an approver implicating the accused and the delay in trial commencement. The prosecution had filed multiple complaints and supplementary complaints, involving a large number of accused and extensive documentation, indicating a continuing investigation for over 2 years.

The ASG relied on a previous court decision to argue for stringent bail conditions under Section 45 of the Act. However, the Court referred to its past judgments relaxing the rigours of Section 45 in cases of prolonged custody without trial conclusion. The Court reiterated the right to an expeditious trial, emphasizing that bail should not be withheld as a form of punishment, as bail is the rule and its refusal is the exception. The Court highlighted that fundamental rights under Article 21 cannot be arbitrarily subjugated to statutory bars.

Considering the petitioner's prolonged incarceration and the unlikelihood of trial conclusion in the near future, the Court granted bail to the petitioner on specified terms, including furnishing bail bonds, non-tampering with evidence, depositing the passport, and cooperating with the trial process. The Court clarified that the bail order should not impact the trial's merits. The Special Leave Petition was disposed of, and pending applications were closed.