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TMI Blog2023 (6) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement Directorate, [ 2023 (3) TMI 746 - DELHI HIGH COURT] , referring to the relevant clauses of the Finance Bill introduced on 1st February, 2018 for amending Section 45 of the PMLA, observed that a purposive interpretation of the proviso to section 45(1) shows that it has been incorporated as a lenient provision or to afford relaxation to a sick or infirm person as noted in the Statement of Objects and Reasons to PMLA. The power to grant bail on medical grounds under the first proviso to Section 45(1) of the Act is discretionary, therefore, the same has to be exercised in a judicious manner guided by principles of law after recording satisfaction that necessary circumstances exist warranting exercise of such a discretion. In the absence of an opinion of the experts it is difficult for this Court to come to the conclusion as to whether it is a case for grant of interim bail on the medical grounds. The Court cannot assume the role of an expert and make assessment of its own as regard the medical condition of the petitioner on the basis of medical records placed on the Court file - on humanitarian grounds, the medical condition of the petitioner as articulated in the affidavit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssure) machine and constant supervision by medical attendant at night Untreated/ unsupervised can lead to fatal consequences, such as coronary artery disease, heart attacks, heart failure, strokes, multiple episodes. of arrhythmia leading to sudden death. 4. Hyperlipidemia for the last 27 years Rosuvas 10mg once/day Places the Applicant at risk of stroke and/or heart attack, coronary heart disease. 5. Diabetes for the last 5 years Glyciphage 1000mg once/day Places the Applicant at risk of heart disease, kidney disease, nerve damage and other problems with feet, oral health, vision, hearing and mental health. 6. Damaged mitral valve prolapsed and history of soft teeth -- Requires any dental treatment to be carried out under antibiotics and in sterile conditions to ensure that no infection enters his blood stream/damages his heart. Furthermore, because the Applicant suffers from obstructive sleep apnea, any major surgery involving sedation (such as dental surgeries) can lead to severe breathing problems. a. He has been complaining of uneasiness in the chest, dizziness, shortness of breath, nausea, cold sweats and continuous pain radiating to his left shoulder for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and diabetes since 02 years. No fresh injury noted and denied of any history of substance abuse. The inmate patient is allowed to carry medicines as per Court order. On 01/11/2022, 15/11/2022, 18/11/2022, and 25/11/2022, the inmate patient was reviewed by Jail visiting SR Medicine for the follow-up of diabetes and Hypertension wherein he was advised medicine accordingly. On 13/12/2022, the inmate patient was reviewed by Jail Visiting SR Surgery for the complaint of pain and ingrowths of bilateral great toe. He was examined and advised partial nail excision along with medicines and review in DDU Hospital Surgery dept. which he declined and on 30/12/2022, the inmate patient expressed willingness and was referred to DDUH Surgery Dept. for the same complaint and he was advised cleaning & dressing of right Great Toe in MOT along with medication. The inmate patient was reviewed by Jail Visiting Dental consultant for the complaint of pain in teeth for which he was advised medicine and on 30/12/2022, the inmate patient referred to DDU Hospital Dental dept. for the same complaint where he was examined and was advised root canal treatment for right upper teeth and capping for left lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for his compliant of Dyspnoea on & off and back ache, the inmate patient was examined and was advised to continue the prescribed medicines. Further on inmate patient complained of not fully aware of using C-PAP machine and asking for attendant, and the same was recommended by Medicine SR.(ANNEXURE 10) As scheduled, On 15/05/2023, the inmate patient was referred to MAIDS and IOPA was done suggestive of horizontally impacted teeth, further was advised for extraction of left lower teeth, along with prior blood investigation and with clearance from physician. On 19/05/2023, the inmate patient was referred to Neurosurgery department at GB Pant Hospital, for the complaint of low Back pain with Radiculopathy. He was thoroughly examined and was X-Ray LS spine, MRI LS spine, related blood investigations, along with medicine. MRI LS spine is scheduled on 29/07/2024. (ANNEXURE 11). At present, the inmate patient is a follow up case of HTN, DM2, low mood and anxiety, low back pain, dental pain, onychogryphosis and CAD, for which he was advised regular medication, dental extraction and root canal, partial nail avulsion, and was scheduled for MRI L-S Spine and CT-Coronary Angiography (as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner is stated to have forced the petitioner to be on a semi-solid/liquid diet. 10. Further, it is submitted that the X-ray of the petitioner has revealed that he has slipped discs at L-4/L-5 and S1 which has impaired the movement of the petitioner and though the applicant was referred to GP Pant Hospital on 19.05.2023, for an MRI test to rule out lumbar spondylosis but the MRI LS Spine has been scheduled on 29.07.2024. The failure to schedule an MRI at an early date, according to Mr. Aggarwal, points towards the failure of the State to provide urgent and specialized healthcare that the petitioner requires. 11. Another ailment that the petitioner is stated to be suffering from is obstructive sleep apnea which requires the petitioner to use a CPAP machine which has been provided to him in jail but at the same time, an attendant is required to monitor the machine during the night so as to ensure that the machine is not cut off at any point. 12. In view of the aforesaid ailments being suffered by the petitioner, Mr. Siddharth Aggarwal, the learned Senior Counsel for the petitioner, while relying upon the decisions of this Court titled as Devki Nandan Garg v. Enforcemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise their discretion in granting bail to the accused. 16. Furthermore, Mr. Hossain submits that the jail authorities are fully equipped to tackle all major ailments including the ailments suffered by the petitioner. He invites the attention of the Court to the guidelines issued by the office of the Director General (Prisons) to contend that as when the situation demands, a prisoner can be referred to a specialized hospital for treatment including All India Institute of Medical Sciences (AIIMS). The relevant portion of the office order bearing no. PA/DIGP/CJ/2011/78 dated 10.02.2011 reads as under: "To streamline the outside OPD and referrals, the following guidelines are issued for strict compliance by all concerned:- A. All the inmate-patients, whether lodged in Tihar or in DJR firstly must be treated at the dispensaries of respective jails and then at Central Jail Hospital before sending to any outside hospital. B. If the Senior Medical Officer of dispensary of respective jail finds it must, only in that case the first referral Baba Saheb Ambedkar Hospital will be first referral hospital for District Jail Rohini, invariably, C. Only after the written recommenda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r grant of "interim" bail, the trial/appellate Courts will keep in mind the strict provisions of Section 37/32A of the NDPS Act and only when there are compelling reasons which would justify and require the grant of "interim" bail, should the application be allowed. The Court must take into account whether or not the accused/convict is likely to commit or indulge in similar violations. [3] While examining the question of grant of "interim" bail, the Court would consider whether sending accused/convict in police custody would be suffice and meets the ends of justice, keeping in view the nature of the offence with which the accused is charged or/and the past conduct of the accused. [4] Where "interim" bail should be given, it would be granted for minimal time deservedly necessary and can be subject to certain conditions. Interim bail is interim or for a short duration." 20. I have heard the learned Senior Counsel for the petitioner, as well as, the learned special counsel for the Directorate of Enforcement and have also perused the record. 21. The short question to be decided at this stage is whether the petitioner, who is in custody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n prisoners are entitled to live a life of dignity. Therefore, no State Government can shirk its duties and responsibilities for providing better facilities to prisoners. If a State Government is unable to do so, it should be far more circumspect in arresting and detaining persons, particularly undertrial prisoners who constitute the vast majority of those in judicial custody. The State Governments and the prosecution do not have to oppose every bail application nor do they have to ask for the remand of every suspect pending investigation. If the fundamental right to life and liberty postulated by Article 21 of the Constitution is to be given its true meaning, the Central Government and the State Governments must accept reality and not proceed on the basis that prisoners can be treated as chattel. xxxx xxxx xxxx xxxx xxxx 58.8. Providing medical assistance and facilities to inmates in prisons needs no reaffirmation. The right to health is undoubtedly a human right and all State Governments should concentrate on making this a reality for all, including prisoners. The experiences in Karnataka, West Bengal and Delhi to the effect that medical facilities in prisons do not meet mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely, (i) there are reasonable grounds for believing that accused is not guilty of offence of money-laundering and (ii) he is not likely to commit any offence while on bail. 28. The reliance placed by the learned Special Counsel for the Directorate of Enforcement on the decision in Athar Parvez (supra) to contend that the twin conditions under Section 45 of the PMLA will apply even in cases where the accused seeks interim bail on medical grounds, is misplaced. The decision in Athar Parvez (supra) was rendered in the context of the provisions of Section 37 of the NDPS Act and in the said Section there is no proviso pari materia to the first proviso to sub-section (1) of Section 45 of the PMLA carving out an exception to the strict compliance of identical twin conditions incorporated in Section 37. 29. The power to grant bail on medical grounds under the first proviso to Section 45(1) of the Act is discretionary, therefore, the same has to be exercised in a judicious manner guided by principles of law after recording satisfaction that necessary circumstances exist warranting exercise of such a discretion. 30. In Pawan Alias Tamatar (supra), the High Court had granted bail to the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecialized or sustained treatment and care is necessary, having regard to the petitioner's medical condition which is not possible whilst in jail, then the petitioner will be entitled to the benefit of interim bail in terms of the first proviso to Section 45(1) of the PMLA. 36. A perusal of the medical report submitted by the jail authorities, as well as the medical record placed on record, shows that the petitioner is suffering from various medical conditions for which he has been taken to different Government Hospitals for treatment multiple times. Diagnostic procedures like CT Coronary Angiography for cardiac ailments and MRI LS spine have also been prescribed by Safdarjung Hospital and G.B. Pant Hospital, respectively, but the appointment scheduled for CT Coronary Angiography at Safdarjung Hospital is 11.11.2023. Similarly, the MRI LS Spine of the petitioner is scheduled on 29.07.2024 at GB Pant Hospital. The appointments for the diagnostic procedures are scheduled almost after five months to one year, which itself shows that the Government Hospitals are overburdened and not in a position to address the medical issues being faced by the petitioner whilst in jail, particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard.
(iv) Upon evaluation of medical records and examination of the petitioner, the Medical Board shall furnish its report to this Court, on or before 10.06.2023.
(v) The report must, inter alia, indicate specifically-(a) as to how urgent is the need for the petitioner to undergo the CT Coronary Angiography for cardiac problem and MRI LS spine for spine related issues or any other diagnostic tests/procedures for the medical conditions he is suffering from.; (b) whether on account of delay in the said diagnostic procedures and consequent delay in treatment, the life of the petitioner could be said to be at any kind of risk; (c) whether any single ailment of the petitioner or all the ailments taken together, warrant specialized or more sustained treatment and personal care, which cannot be provided in jail.
42. A copy of this order be forwarded through the pairokar of the petitioner to the Director, AIIMS, who shall ensure compliance of this order. A copy of this order be also sent to the Jail Superintendent for necessary compliance.
43. Order dasti under the signatures of the Court Master
44. List on 12.06.2023.
45. Order be uploaded on the website of this court. X X X X Extracts X X X X X X X X Extracts X X X X
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