9911796707
TMI Blog2023 (6) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... , the company of the petitioner i.e., Indospirit Distribution Limited (wherein the petitioner had 38.27% shareholding) got 35% in the said firm, Arun Ramachandran Pillai got 32.5% and Prem Rahul Manduri got 32.5%. On 29th October 2021, the 'Indo Spirits' applied for the Wholesale L-l License, and was granted the same on 8th November 2021, by Delhi Excise Department. The firm then commenced its business operations from 17th November 2021 in terms of Excise Policy 2021-22. During this period, several manufacturers appointed the Firm, Indo Spirits, as their Wholesale Distributor in Delhi under the new Excise Policy. The New Excise Policy, 2021-22 came to be challenged on various grounds. 3. Subsequently, on 17th August 2022, CBI registered FIR No. RC0032022A0053 under Sections 120B and 477A of the Indian Penal Code, 1860 (hereinafter referred to as "IPC") and Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as "PCA") on the complaint of the Lt. Governor, Government of National Capital Territory of Delhi (GNCTD) against the petitioner and other accused persons regarding irregularities committed in the framing and implementation of the excise policy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e has been hospitalized 5 times in the last 8 months due to health issues including a 15-day hospitalization in Tihar jail. b. The petitioner is suffering from Prolapsed Inter Vertebral Disc (PIVD) of the lower back since 2020, including the under: i. Multiple level disc prolapse- L3/L4, L4/L5, L5/LSI ii. Severe pain in the lower back iii. Bilateral Lower Limb Radiculopathy- pain radiating down both legs iv. Significant nerve root impingement and a partial recovery are expected post-surgery. v. Listhesis at L4-L5 level i.e., vertebra has slipped forward causing pain. c. He is also suffering from cervical spondylitis i. Prolapsed intervertebral disc at C5-C6 level ii. Bilateral weakness in arms d. There are recurrent urinary tract infections e. Occasional urinary incontinence f. Cholecystectomy on 9th March 2023 i.e., gallbladder removal surgery due to stone formation. g. The petitioner has Grade 1 fatty liver h. Cardian arrhythmia, sinus bradycardia, ECG changes- T- wave inversion i. Discectomy with spinal instrumentation and stabilization surgery took place on 8th May 2023 and in the surgery, 4 titanium pedicle screws held together by 2 titanium rods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar basis for timely medicines. He has suffered multiple episodes of seizures. The Medical Board has stated that the Applicant is stable with the medication. 53. The logical inference drawn from the above is that the Applicant is not in a position to take his regular dosage of medicines which is a condition precedent for his survival from the ailments. The attendant is required as the applicant has had multiple episodes of seizures and in event of a seizure, timely medication is of primary importance. 54. In the present case, it is observed that the medical report of the Applicant dated 28.01.2023 has stated as under: "The inmate patient submitted photocopies of document related to Seizure disorder from Deep Chand Bandhu govt. Hospital/Bhagwan Mahavir Govt. Hospital/Chawla Nursing Home and Dr. Praveen Bhatia (Ganga Ram Hospital) and Medical document shows that he has suffered Episodes of convulsion outside the jail (period of interim bail). MRI suggestive of defused age related cerebral atrophy with white matter ischemic demyelination. (Copy enclosed-3)" (emphasis supplied) 55. In view of the aforesaid, a perusal of the medical records of the Applicant shows that his seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or for that matter, a civil hospital may not be fully equipped to handle a patient having multiple ailments who apart from medical treatment may require a certain level of monitoring, care and attention which ordinarily is not available in jail. Considering the co-morbidities of the petitioner, it can safely be said that he falls in the exception of being "sick" as carved out in Section 45 of the Act, so as to be entitled to be released on bail. The petitioner, otherwise has been behind bars since the last about 8 months. Supplementary complaint already stands presented against him. There is no occasion for his custodial KAMAL KUMAR 2022.11.07 13:25 I attest to the accuracy and authenticity of this document 13 CRM-M- 23705-2022 (O&M) interrogation now at this stage. The co-accused Radhe Shyam and Bansi Lal were released on bail immediately upon their appearance in Court pursuance to issuance of summons for their appearance. 22. In view of the discussion made above, particularly the precarious medical condition of the petitioner, the petition merits acceptance and is hereby accepted. The petitioner is ordered to be released on regular bail on his furnishing bail bonds/surety bon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reddy, has been granted regular bail by Coordinate Bench of this Court vide judgment titled P. Sarath Chandra Reddy v. Directorate of Enforcement, Bail Application 1266/2023 dated 8th May 2023 on medical grounds. The Coordinate Bench of this Court, while granting bail to P. Sarathi Chandra Reddy held as under: "14. It is pertinent to mention that the respondent department has also not brought on record any material on record to show that the petitioner is a flight risk. It is also a settled proposition that right to life is facet of Fundamental Right enshrined by the Constitution. Right to live with dignity includes right to live a healthy life. The person who is sick or infirm has a right to have adequate and effective treatment. Though jails and designated hospitals provide good basic treatment, but we cannot expect them to provide specialised treatment and monitoring as required in the present case. Last medical report of the petitioner dated 03.05.2023 shows that petitioner is in bad state and can be put into the category of sick/infirm. 15. In view of the medical record being furnished by the petitioner and the submissions made by learned ASG, the petitioner is admitted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sha Ram v. State of Rajasthan, SLP (Crl) 6202/2016 whereby the Hon'ble Supreme Court refused to grant bail to the petitioner on the basis of stability of medical condition and observed as under: "9. The issue that boils down in respect of the medical condition of the petitioner is that he has difficulty in urination, emerging out of a condition described as prostatomegaly. We are of the view, that the present condition, is not such a serious condition, as would entail the transfer of the petitioner from one jail to another, or to require him to be subjected to any kind of specialized treatment, at some different station. The medical condition of the petitioner has been described as stable, and as such, there is no question of extending him the concession of bail on medical grounds." ii. A Coordinate Bench of this Court in Surjeet vs. State (Govt. of NCT of Delhi), 2021 SCC OnLine Del 228,, observed that when the condition of an accused is stable and can be properly managed by the medication then interim bail on medical grounds need not be granted. The court observed as under: "5. It is not in dispute that petitioner is on interim bail since 12.06.2020 on medical grounds a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the applicant is under close observation of prison Medical Officers in consultation with J.J. Hospital Doctors. He was regularly referred to J.J. Hospital for follow up and his overall health is moderately stable at present. Hence, no ground is made to grant relief in this application." 25. The learned counsel for the respondent submitted that the petitioner has not been cooperative during the investigation and has been evasive in his statements on the grounds of which he was arrested on 28th September 2022. Further, he tried to hide the relevant information from ED which is incriminating in nature. The petitioner has tried to derail the investigation by first giving a statement under Section 50 of PMLA and then filing an application before Special PMLA Court stating that the facts were untrue, substituted and without specific references. Moreover, the petitioner has used/destroyed his mobile phones 4 times in the last 5 months of the Delhi Liquor Scam indicating the destruction of evidence. 26. It has been further submitted that the application by the petitioner for an extension of interim bail on medical grounds was dismissed by the Coordinate Bench of this Court on 27th Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent submitting that the respondent/ED has not been taking a consistent stand in opposing the bail applications of the other accused persons who have been involved in similar offences under Sections 3 and 4 of the PMLA in the same case. In the case of the co-accused, P. Sarathi Chandra Reddy, he has been granted regular bail by Coordinate Bench of this Court which remains unchallenged by the ED and hence, has also attained finality, However, in the instant case, the ED has placed his strong objections despite the medical condition being severe. ANALYSIS AND FINDINGS 30. Heard the learned counsel for parties and perused the record. 31. The point before adjudication of this court is whether the petitioner is entitled to interim bail as being "sick or infirm" in terms of the proviso to Section 45(1) of the PMLA. 32. For proper adjudication of the matter, it is appropriate to reproduce Section 45(1) of PMLA which reads as under "Section 45. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is still pending for hearing before the High Court. We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is sick or infirm. Therefore, there is no doubt that the conditions laid down under Section 45-A of the PMLA, would bind the High Court as the provisions of special law having overriding effect on the provisions of Section 439 of the Code of Criminal Procedure for grant of bail to any person accused of committing offence punishable under Section 4 of the PMLA, even when the application for bail is considered under Section 439 of the Code of Criminal Procedure." 35. Thus, the proviso to Section 45(1) of the PMLA carves out an exception from the rigours of Section 45 for persons who are sick or infirm. Once a person falls within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce that cannot be provided in penitentiary hospitals, then the accused should be granted bail under the proviso to section 45(1) PMLA." 36. The Bombay High Court in Mahendra Manilal Shah v. Rashmikant Mansukhlal Shah, 2009 SCC OnLine Bom 2095 held that the nature of the sickness needs to be seen as to whether the accused can be treated in the government hospitals and custody. The relevant portion of the judgment is reproduced hereunder: "47....(1) Pawan alias Tamatar v. Ramprakash Pandey ((2002) 9 SCC 166 : AIR 2002 SC 2224) (supra). In this case the Hon'ble Supreme Court has set aside the order of the Allahabad High Court granting bail to the accused inter alia on the ground that the allegation of ailment of the applicant is not specifically denied. The Hon'ble Supreme Court was of the view that the ailment of the accused was not of such a nature as to require him to be released on bail. It was observed that the accused can always apply to the jail authorities to see that he gets the required treatment. It was observed that in the application, the applicant had not stated that he still needs medical treatment or that he has not received proper medical treatment from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treatment is available in the jail then preferably the same should be provided to the prisoners. This Court firmly believes that a person in custody suffering from serious ailment should be given an opportunity to have the adequate and effective medical treatment. The discretion for granting the interim bail on medical ground may not be exercised only at a stage when the person is breathing last or is on the position that he may not survive. 16. The kind of ailments which have been informed that the petitioner suffering from are really very painful and needs immediate redressal. Therefore this Court, without going into the merits of the case and only on a limited point that let the petitioner get his suitable neurology examination conducted, is inclined to grant the interim bail on medical grounds." 39. In the present case, the medical report dated 3rd June 2023 stated as under: "At the point of current assessment, Mr. Sameer Mahandru's condition is stable. He has made considerable progress from his last assessment at AIIMS (done on 26th May 2023) and his pain has decreased significantly. He has chronic backache for many years, for which he is already under treatment." 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner may require extended period of physiotherapy and assisted care to prevent the weakened muscles around spine, prevent increased risk of re-injury, spinal stability and formation of scar tissue reducing range of motion and return of symptoms." 43. Hence, the fact that the petitioner is unable to sit, bend forward, and not even able to lift any weight suggests the infirmity on the part of the petitioner to carry out day-to-day routine activities and non-following the advice and the specialized treatment may lead to neurological damage to the petitioner. 44. The conduct of the petitioner also warrants attention in the present scenario as the Coordinate Bench of this Court in Kewal Krishna Kumar (supra) held that: "58. Once the Applicant falls in the exception clause of section 45(1) proviso, as in the present case by virtue being 'infirm', the Applicant need not satisfy the twin test of section 45(1) PMLA. However, the Applicant needs to satisfy the triple test under Section 437/439 CrPC: i. Flight risk. ii. Influencing any witness. iii. Tampering with evidence." 45. The petitioner has been granted interim bail on medical grounds by the Ld. Trial Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view that mere stability in the present condition is not reflective of the life-threatening disease that the petitioner is suffering from which warrants immediate and best medical treatment. CONCLUSION 50. Health condition of a human being deserves utmost importance and right to health is one of the most significant dimensions of Article 21 of the Constitution of India. Every person has a right to get himself adequately and effectively treated. The exercise of discretion of the grant of bail is not to be exercised only as a last resort rather freedom is a cherished fundamental right. 51. Hence, in view of the health conditions of the petitioner, the medical records being furnished on behalf of the petitioner and the same being verified by the ED as authentic, the non-denial of the condition of the petitioner which is worse than the co-accused who has been granted regular bail, and on the perusal of all other precedents this Court finds that the petitioner is suffering from life-threatening diseases warranting immediate medical attention and post-operative care. This Court is of the opinion in view of the aforesaid discussion, the petitioner's case satisfies the test of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
