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TMI Blog2022 (9) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... condition and is also suffering from Spondylitis and Vertigo. During his period in jail, the applicant contracted Syphilis on 27.10.2021 and Covid-19 on 17.01.2022. Out of the other ailments, only spondylitis and vertigo may be of lesser degree but all other medical conditions are serious and life threatening. Whether the applicant suffers from a condition which cannot be addressed from the jail? - HELD THAT:- Prisons provide medical facilities but the services are not comparable to or equivalent to the level of treatment and care one can avail from private hospitals. The facilities in the jail are of a general nature and character which is inadequate to monitor proper health of the applicant who is suffering from multiple serious ailments. The jail is not equipped to provide special and intensive treatment and care that the applicant is in need of. Though the medical report dated 24 May 2022 from Atal Bihari Vajpayee Institute of Medical Sciences states that the applicant is in a stable condition and no new ailments have been detected, the fact remains that the applicant is functioning on a single kidney which is only 30% functional and he has undergone major surgeries wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 120B read with Section 420 of the IPC, section 467, 468 and 471 IPC and section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. 4. Since the offences in the FIR were scheduled offences under the provisions of the Prevention of Money Laundering Act ( PMLA ), as such ECIR No. DLZO-1/12/2021 was recorded on 31.01.2021 by the Directorate of Enforcement (DoE), Delhi Zonal Office-I, New Delhi. 5. The allegations are that the DoE conducted search at different premises of SBFL and various documents and electronic devices were seized and analyzed and the same show commission of scheduled offences, generation, acquisition, layering and siphoning off the proceeds of crime. 6. It is stated that SBFL had availed of various loan facilities from a consortium of banks led by SBI from 2006 onwards, and in order to acquire more loan funds from Banks, the company resorted to round tripping and money laundering using its various group companies as platforms. 7. SBFL had rotated its funds to group companies in the form of share investment, share application money, share premium, inter corporate deposits, compulsory convertible debentures, loans and advances and inter group purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all financials and fraudulently borrowed loan from the consortium of 10 banks led by the State Bank of India. Investigation conducted so far also revealed that the borrowed funds had further been layered and siphoned off by creating a web of complex transactions through the bank accounts of various shell companies under command and control of Devki Nandan Garg. Again, using the platform of his shell entities, he assisted SBFL and its directors etc. transfer the proceeds of crime to its sister/group companies claiming the same as genuine business transactions. Besides, SBFL had transferred the loan funds to the shell entities under him and he concealed the location of the proceeds of crime by creating a cover through complex transactions, thus, leading to commission of the offence of money laundering. Investigation also revealed that Devki Nandan Garg in cohorts with others had fabricated the transport bills and used fake PANs and vehicle numbers in the fake invoices supplied by him to SBFL through the shell entities under his control. It is found that Devki Nandan Garg has been actively involved in the rotation and layering of bank funds in dummy entities. Further, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regularly summoned by the respondent and has appeared from 05.07.2021 to 20.09.2021 (even on a number of other occasions) as and when called by the respondent. The applicant was arrested on 21.09.2021 and has been in custody since then till 20.01.2022. As on 19.01.2022 the applicant was granted interim bail on account of his poor medical condition where he contracted corona virus and has since been on bail. 15. Mr. Luthra, learned senior counsel for the petitioner, has stated that the petitioner falls within the definition of sick and infirm person, and hence, is entitled to bail under Proviso to Section 45(1) of the PMLA. He also states that he is suffering from various ailments including old age. 16. He has drawn my attention to a chart showing his medical condition which reads as under:- MEDICAL AILMENTS OF DEVKI NANDAN GARG a) One Kidney is DEAD and Other Kidney functions in a compromised manner and requires day to day monitoring, otherwise it can be FATAL b) Recently a PACEMAKER was installed in March 2020 Due to uneven Heartbeats and electrical impulse prob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Superintendent F.No. Addl.M.S.(ND)/CMB-14/2022/RMLH/69 Dated, the 16th March, 2022 To, Sh. Prateek Singh, Assistant Director, Delhi Zonal Office-1, Directorate of Enforcement, 1st Floor, Block-C, Pravartan Bhawan, Dr. APJ Abdul Kalam Road, New Delhi-110011 Sub: Constitution of Medical Board to examine medical documents submitted by accused Devki Nandan Garg. (CRL.M.A 2909/2022 (Extension of Interim Bail) Sir, With reference to Hon ble Court order dated 23.2.2022 on the subject cited above, the Medical Board, constituted by the Medical Superintendent to examine documents was scheduled for 15.03.2022 at 12:00 A.M. in Room No. 307, Admin. Block, PGI Building, Dr. R.M.L. Hospital, New Delhi. As per the finding out of the meeting, the medical board is of the opinion that Mr. Devki Nandan be examined physically with all the detailed records including all investigations and CT Scan/ MRI films on 21.03.22 at 12 Noon in Room No. 307, Admin. Block, ADVIMS, Dr. R.M.L. Hospital. You are requested to intimate the concerned authority to produce Devki Nandan Garg before the Medical Board with all treatment records on the date and time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is confirmed that he is suffering from multiple clinical ailments. However, no new disease has been observed after his physical examination and investigation reports. At present, he is clinically stable and needs regular oral medications. He may visit to the Out Patient Department in a fixed time interval for renewal of his prescription/ change in treatment and as and when required. Dr. Anshita Aggarwal (Asst. Prof., Endocrinology) Dr. B.N. Pandit (Prof., Cardiology) Dr. Sandeep Lamoria (Assoc. Prof., Medicine) Prof. (Dr.) Manish Kumar, (Consultant, Medicine) Prof. (Dr.) Himanshu S. Mahapatra, (HoD Nephrology Chairperson) 22. Per contra, Mr. Hossain, learned counsel for the respondent has emphasized the role of the applicant and stated that he is one of the key accused persons, and with his active connivance and fraud, SBFL has been able to siphon off crores of public money. He stated the following: i. The applicant being an entry operator was involved in paper sale purchase transactions with SBFL without conducting any actual business transactions. Around 56 shell entities were found under direct or indirect command and control of the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crime and hence, in this way played a key role in the offence of money laundering. 23. He also states that a bare perusal of the medical history will show that the applicant is suffering from these ailments from 2001 onwards, and even during the period of alleged offences i.e., from the year 2007 to 2012, the applicant was suffering from these ailments. Hence, all the medical conditions of the applicant are historical. He further submits that the jail provided proper and satisfactory medical facilities to the applicant. 24. Mr. Hossain, learned counsel has drawn my attention to three judgments of State v. Jaspal Singh Gill 1984 (3) SCC 555, State of U.P. v. Gayatri Prasad Prajapati 2020 SCC OnLine SC 843 and Directorate of Enforcement v. Ashok Kumar Jain 1998 2 (SCC) 105 to state that the test required is whether the applicant in custody suffers from a condition which cannot be addressed from the jail. The test is whether the applicant suffers from such a condition that he has to be hospitalized and/ or released on bail as the jail is unable to provide the level of medication, care and treatment. 25. Mr. Hossain has also stated that to enlarge the accused on bail, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fluent circumstances, are afflicted by conditions of cardiac instability. So the authorities dealing with such persons must adopt adequate measures to prevent deterioration of their health during the period of custodial internment. Court would interfere when such authorities fail to adopt necessary measures. But we are not in favour of stipulating in advance modalities to be followed by the authorities for that purpose. According to us such anticipatory stipulations are interferences with the efficient exercise of statutory functions when dealing with economic offences. Hence learned single judge ought not have imposed such conditions on the Directorate. 27. He has drawn my attention to a number of judgments to show refusal of bail on medical grounds. He has placed reliance on Surjeet v. State (Govt. of NCT of Delhi) 2021 SCC OnLine Del 228 where the court while rejecting bail noted the following : 5. It is not in dispute that petitioner is on interim bail since 12.06.2020 on medical grounds and another extension of interim bail is sought on medical grounds only. As per status report dated 28.01.2021, necessary verification was done from the Head of the Department o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al lumbar spondylosis etc. and as per his Discharge Summary, his stay in the hospital was uneventful. He was advised medication and physiotherapy. Besides that, the petitioner has also placed on record a certificate dated 20th June, 2011, purported to have been issued by Dr. Jolly Bansal which is based upon the medical record provided to him and not on the basis of physical examination of the patient. This certificate does not even indicate as to what medical record was shown to him. Therefore, much reliance cannot be placed upon it. 13. On careful consideration of the previous medical reports of the petitioner and the medical reports received from the Board of Doctors of G.B. Pant Hospital, it is apparent that since his detention in jail, the condition of the petitioner is stable and it is being properly managed by medication. Thus, I do not find it a fit case for grant of interim bail on medical grounds, particularly when the release of the petitioner for a period of 4-6 weeks would not change his medical history or situation. 29. Mr. Luthra, learned senior counsel, on the other hand, has stated that the Proviso to Section 45(1) of the PMLA is akin to Section 43 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02 with respect to sick and infirm which reads as under: In addition to above recommendations of the standing committee the Central Government proposes to (a) relax the conditions prescribed for grant of bail so that the Court may grant bail to a person who is below sixteen years of age, or woman, or sick or infirm 33. A bare perusal of the Statement of Objects and Reasons of PMLA goes to show that inclusion of the above conditions for grant of bail as a proviso to section 45(1) of PMLA elucidates the legislature s intent to incorporate relaxations for persons below sixteen years of age; a woman; or one who is sick or infirm. 34. The above position was noted by the Supreme Court in Gautam Kundu v. Directorate of Enforcement (PMLA) 2015 SCC OnLine SC 1333, particularly para 34 which reads as under: 34. We note that admittedly the complaint is filed against the appellant on the allegations of committing the offence punishable under Section 4 of the PMLA. The contention raised on behalf of the appellant that no offence under Section 24 of the SEBI Act is made out against the appellant, which is a scheduled offence under the PMLA, needs to be considered from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nefit of the proviso to section 45(1) PMLA? 38. I have already quoted extracts from the medical report reproduced before me from Atal Bihari Vajpayee Institute of Medical Sciences in preceding paragraphs. In view of the said medical report, it leaves no room for doubt that the applicant is both, sick and infirm. He is functioning on 30% capacity of one kidney and the other kidney is dead. He requires constant monitoring otherwise his fluctuations can cause death. He has undergone multiple surgeries for removal of his large intestine, gall bladder, peptic ulcer, colostomy and even a hernia operation. He has a pacemaker installed due to his heart condition and is also suffering from Spondylitis and Vertigo. During his period in jail, the applicant contracted Syphilis on 27.10.2021 and Covid-19 on 17.01.2022. Out of the other ailments, only spondylitis and vertigo may be of lesser degree but all other medical conditions are serious and life threatening. 39. The next question which has been raised by Mr. Hossain and needs to be addressed by me is whether the applicant suffers from a condition which cannot be addressed from the jail. The observation in Ashok Kumar Jain (supra) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and can be life threatening. The risk of kidney failure is high and can be triggered by the slightest of infection. The applicant needs constant daily monitoring to check that the parameters of 30% kidney function do not collapse. His condition is such that he requires emergent medical assistance which cannot be provided in jail in a prompt and efficient manner vis- -vis hospital atmosphere. Thus, considering the serious medical condition of the applicant, I am of the view that the aforementioned cases are not applicable in the present case. 44. The fact that the applicant is suffering from these ailments from the year 2001 is also not of much help to the respondents as it is a given fact that ailments aggravate with age. In 2001, which is 21 years ago, the applicant would have been younger, healthier and in a better position to meet the requirements of his frail health. With age, the response, the resistance, the resilience and the capacity of the body to fight ailments and recuperate efficaciously, decreases. I have already discussed that ailments which, coupled with old age brings the applicant within the purview of Infirm Person . The level of care, attention, minute to mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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