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TMI Blog2022 (11) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... REME COURT] and the Supreme Court, after holding that the prescribed twin conditions for release on bail were violative of Articles 14 and 21 of the Constitution of India, declared Section 45(1) of the PMLA, to that extent, to be unconstitutional - Thus it is apparent that despite the Supreme Court having declared that the twin conditions for release on bail as prescribed by un-amended provisions of Section 45(1) of the PMLA,were violative of Articles 14 and 21 of the Constitution of India and thus unconstitutional. Obesity, as in the case of the petitioner, who weighs 153 kilograms is not just a symptom but is itself a disease which becomes root-cause of several other diseases. With such co-morbodities, the response, the resistance, the resilience and the capacity of the body to fight ailments and recuperate efficaciously, decreases substantially. The jail doctor or for that matter, a civil hospital may not be fully equiped to handle a patient having multiple aiments who apart from medical treatmet may require a certain level of monitoring, care and attention which ordinarily is not available in jail - Considering the co-morbodities of the petitioner, it can safely be said tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apuram, Cyberbad, Telangana, FIR No. 541/2018 dated 4.9.2018 at Police Station Chandanagar, Telangana and FIR No. 768/2018 dated 14.9.2018, Police Station Mailardedpally, Telangana. The Directorate of Enforcement, Hyderabad, on the basis of FIR dated 30.08.2018, registered ECIR No.10/HYZO dated 20.03.2019 against Radhey Shyam, Bansi Lal, M/s FMLC M/s Global Marketing Pvt. Ltd. Subsequently, the Directorate of Enforcement, Hyderabad, on account of FIRs registered by Haryana Police and on the basis of the residential address and office address of the companies, transferred the investigation to the Chandigarh Zonal Office. The ECIR was renumbered as ECIR/03/CDZO-II/2019 dated 09.10.2019. Later, the Chandigarh Zonal Office, Directorate of Enforcement took cognizance of scheduled offences and initiated investigation by recording ECIR/CDZO-II/02/2021, dated 11.01.2021 at Chandigarh. 22.1.2021 : The Enforcement Directorate filed complaint dated 22.1.2021 (Annexure P-1) before Special Court, Panchkula against Radhey Shyam, Bansi Lal and others wherein the petitioner was was cited as a witness at Sr. No. 23 in the list of witnesses. It may here be mentioned that even in FIR No. 358 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Opposing the petition, the learned counsel representing the Enforcement Directorate has submitted that the petitioner has played a pivotal role in the commission of offences inasmuch as he had been managing and handling the software which helped the accused to siphon off an amount of about Rs.3000 crores which had been invested by innocent investors and since even the petitioner had benefited to the tune of Rs. 53 crores, his complicity is clearly evident. The learned State counsel has further submitted that the State is fully responsible for providing necessary medical treatment, as may be required, by any under-trial/prisoner and that infact the same is being provided to the petitioner and he is being taken to hospital, as and when required and as such, the medical condition of the petitioner cannot be made a ground for his release on bail, given the fact that Section 45 of PMLA imposes stringent conditions for grant of bail. 7. This Court has considered rival submissions addressed before this Court. 8. In the instant case, as per the evidence collected during investigation, the coaccused Radhe Shyam and Bansi Lal floated a Ponzi multi-level marketing scheme through their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Suman (wife of Rahul Sondhi) Rudal Prasad (employee of Pranjil Batra). During investigation, the petitioner was found to be maintaining six accounts wherein an amount of Rs.4,71,68,931/- was found. The petitioner who was looking after the computer software of the company can not feign ignorance about the illegal and fraudulent activities of the company which had collected about Rs.3000 crores out of which the petitioner also benefited of a substantial amount. The details of these transactions were found in laptop of petitioner. 11. Though the learned counsel for the petitioner tried to justify his receipts of approximately Rs.53 crores as professional fee but upon query made by this Court as regards the income-tax returns for previous years indicating such huge receipts, no satisfactory information could be furnished. The petitioner apparently had been trying to hoodwink the investigation into believing that he was merely a paid employee of the company being run by Radhey Shyam and Bansi Lal. 12. Section 45 of the PMLA 2002 imposes stringent conditions in the matter of grant of bail. Section 45 (post amendment in 2018) reads as under: 45. Offences to be cognizable and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section. 13. Section 45(1) of PMLA 2002, as noticed above, imposes twin conditions before bail could be granted to a person accused of having committed an offence punishable under the PMLA. As per section 45(1) PMLA, the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea, the Court could grant bail only after recording satisfaction that there were reasonable grounds to believe that the person to be released was not guilty of the offence he was accused of and that while on bail he was not likely to commit any offence. 14. It may here be mentioned that the constitutional validity of provisions of section 45 PMLA 2002, imposing the twin conditions for grant of bail, which were also there before amendment of section 45 PMLA in 2018, was questioned before Hon'ble the Supreme Court in Nikesh Tarachand Shah vs. Union of India (2018)11 SCC 1 and the Supreme Court, after holding that the prescribed twin conditions for release on bail were violative of Articles 14 and 21 of the Constitution of India, declared Section 45(1) of the PMLA, to that extent, to be unconstitutional. 15. Subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 and 21 of the Constitution of India and thus unconstitutional in Nikesh Tarachand Shah's case (supra), the validity of amended provisions of section 45(1) of PMLA was upheld by Hon'ble Supreme Court in a subsequent case i.e. Vijay Madanlal Choudhry's case(supra). In other words the twin conditions prescribed in Section 45(1) stood revived with amendment in 2018. 17. Measuring the facts of the present case in context of section 45 of the Act, the evidence collected by the investigating agency particularly the information found stored in laptop of petitioner and also the bank accounts of the petitioner and of other members of his family wherein crores of rupees has been credited which remains unexplained, leaves no doubt about complicity of the petitioner. Further, having regard to the stakes and the amount involved, there is likelihood that the petitioner, in case released on bail will flee from justice. It may here be mentioned that much before the arrest of the petitioner, a Look-Out Notice had been issued on 6.12.2021 as it was apprehended that he may flee from country. Thus, it can be safely be said that the twin conditions prescribed by section 45 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting considerably. 7. That keeping in view his deteriorating physical health condition with complaints of bleeding from his per rectum, the said prisoner patient was referred to Trauma Centre, Civil Hospital Ambala City on 20.08.2022 in emergency, where he was got admitted by the Specialist Doctor of the aforesaid Medical Institute. 8. That the said prisoner patient was discharged from the same Medical Institute on 27.08.2022. 9 All the aforesaid information is based on availability of Medical Treatment Record of aforesaid prisoner patient. Sd/- Medical Officer Central Jail, Ambala. 20. A perusal of above reproduced medical report shows that the petitioner is an obese person weighing 153 kilograms having erratic hypertension and diabetes issues. Additionally he is found to be having Coronary Artery Disease(CAD). Though, it appears that he was taken to Civil Hospital, Ambala and was provided treatment, where he he also remained admitted but the Doctor, in the aforesaid certificate, has in unambiguous terms opined that the physical health condition of said patient is deteriorating considerably. 21. Obesity, as in the case of the petitioner, who ..... X X X X Extracts X X X X X X X X Extracts X X X X
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