9911796707
TMI Blog2024 (5) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... ective as to whether the applicant is getting adequate treatment at the hospital. Undoubtedly, the applicant is getting the treatment at the hospital of his choice. The medical opinions/reports do not indicate that the applicant requires further specialised treatment at even more specialised centre/hospital. However, to evaluate the prayer for bail on the said consideration alone, would be taking a very constricted view of the matter. There is a qualitative difference between the treatment which a person gets as an under trial prisoner and as a citizen under no restraint. The upshot of aforesaid consideration is that the peculiar facts of the case: the age of the applicant, the disease he is suffering from, the treatment recommended for the said disease, other ailments the applicant is suffering from and the situation in life brought about by the life threatening disease the wife of the applicant is suffering from, cumulatively justify exercise of discretion vested in the Court under the proviso to section 45 (1) of PMLA. The applicant can be released on bail for a limited period to avail the treatment for the cancer he is suffering from and attend to his wife, who is also sufferin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant has been admitted in Sir H.N. Reliance Hospital as he is critically ill. The applicant is suffering from duodenal cancer, treatment for which is complicated. Anita, wife of the applicant has also been suffering from severe cancer, and despite multiple surgeries, the cancer has recurred. Critical state of health of the applicant s wife is exacerbating the mental condition of the applicant. 5. A reference is made to the orders passed by the learned Special Judge, PMLA, various medical reports and the advice of the medical professionals regarding the progress of the disease which the applicant is suffering from, line of treatment, challenges therein and the constraints which the applicant faces on account of incarceration. The applicant avers that the detention of the applicant, in the situation in which the applicant finds himself on account of his health and that of his wife, would be in gross violation of the right to life guaranteed under Article 21 of the Constitution of India. Therefore, as the applicant does not, otherwise, pose any flight risk, there is no possibility of tampering with evidence, and the applicant has firm roots in the society, the applicant be released o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the hospital. From this perspective, the learned Special Judge was, according to Mr. Venegaonkar, justified in declining to release the applicant on medical bail observing that the need of the applicant was long hospitalization, which the Court has permitted. Since the applicant is receiving the best possible treatment for his health issues, and the alleged infirmities, the applicant does not deserve to be enlarged on bail on the said count. 10. Before adverting to deal with the medical reports, which constitute the substratum of the prayer for release on bail, I deem it appropriate to consider the scope of the proviso to Section 45 (1) which empowers the Court to release a person accused of an offence under the PMLA on bail, if such person is sick or infirm or a woman or under 16 years of age. Relevant part of Section 45 of PMLA reads as under : 45. Offences to be cognizable and non-bailable : - (1) notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless - (i) the Public Prosecutor has been given a opportunity to oppose the application for such rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sick . However, it is not every kind of sickness which would justify the grant of bail lest the object behind prescribing stringent conditions in the matter of grant of bail would be frustrated if a person can be released on bail on the ground of sickness dehors the degree of seriousness of the ailment. It is in this context, the reports of the experts assist the Court in forming an opinion as to whether the person claiming bail is suffering from such sickness as to warrant his release on bail. 14. Ordinarily, the consideration that the sickness is such that it cannot be adequately or effectively treated in the prison hospital /the medical facility attached to the prison or Government hospital, weighs with the Court. The degree of sickness also bears upon the exercise of discretion. If it is a life threatening disease, the Court would be well advised to exercise its discretion. Conversely, it cannot be said that the proviso cannot be resorted to in the case of sickness which is not life threatening. Essentially, the question of sickness, or for that matter infirmity, is rooted in the thickets of facts of the given case. 15. Infirmity, in turn, may arise from a variety of causes. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive in nature. The health concern of a person in custody has to be taken care of by the State and keenly watched by the judiciary. Every person has a right to get himself adequately and effectively medically treated. 15] Article 21 of the Constitution of India not only given a fundamental right to live but the right to live with dignity. Right to live a healthy life is also one of the facets of fundamental rights granted by the Constitution of this Country. The consistent view has been taken that if sufficient 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. 19. In the case of Devki Nandan Garg vs. Directorate of Enforcement 2022 SCC OnLine Del 3086., another learned single Judge of the Delhi High Court was persuaded to grant bail to the applicant therein observing, inter alia, that once a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. 23. In the case at hand, there are two facets to the prayer of the applicant for release on bail. First, the sickness of the applicant himself. Second, the terminal illness which the applicant s wife is allegedly suffering from. Infirmity of mind and not only body is allegedly brought about by the combination of both. 24. To start with, it may be appropriate to note the medical condition of Anita, wife of the applicant. The certificate issued by Shree H.N. Reliance Hospital indicates that Anita has been diagnosed with endometrial adenocarcinoma of clear cell type. She has undergone a follow-up PET/CT scan on 1 April 2023 and recurrent disease progression has been noted in the scan which is life threatening for her clinical condition. Dr. Sewanti Limaye who treats Anita has opined that Anita will need support of her husband as a primary caretaker. 25. As regards the health condition of the applicant, though a number of reports are annexed to the application, a reference can be made to three reports which give a fair indication of medical condition of the applicant. In the report dated 18 March 2024, Dr. Lakdawala opined as under : His (the applicant Naresh Goyal s) CRP was high ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neurologist Dr. Arun Shah, Orhopaedic surgeon Dr. Vaibhav Bagaria for his myalgia and unstable gait. He has had MRI Scans for his bran and spine. He has also had a full evaluation done for his mental status with Dr. Narendra Kinger (Clinical psychologist and psychotherapist). Dr. Kinger s report is attached herewith which shows that he has severe depression. He is under the care of Dr. Avinash D Souza, psychiatrist for the same. As for his Neuroendocrine tumour. We have discussed all options of management with Mr. Goyal and his family. Non-surgical medical line of treatment includes the use of Inj. Sandostatin which does not give him cure from the disease or long term benefits. Given the fact that his tumour has spread to the 1 s t 2 nd and 3 rd part of the duodenum we have commended a Whipple s procedure. A Whipple s procedure is technically a very challenging surgical procedure with immense risks given Mr. Goyal s age. We have explained all the risks including a leak which can result in infection, sepsis and subsequent threat to life. He has also been informed about the possibility of a stricture at the anastomotic site as well as the possibility of a pancreatic fistula. Given t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life of the applicant, including his age and other ailments that he is suffering from, as well as the critical condition of the applicant s wife Anita, the applicant has not opted for the preferred treatment, which is also fraught with risk. The applicant claims to be 72 years of age. Advanced age brings in its trail associated ailments and infirmities. The physical ailments, in the instant case, seem to have been compounded by the critical condition of the applicant s wife. 30. In these circumstances, in my considered view, the matter cannot be looked at from the perspective as to whether the applicant is getting adequate treatment at the hospital. Undoubtedly, the applicant is getting the treatment at the hospital of his choice. The medical opinions/reports do not indicate that the applicant requires further specialised treatment at even more specialised centre/hospital. However, to evaluate the prayer for bail on the said consideration alone, would be taking a very constricted view of the matter. There is a qualitative difference between the treatment which a person gets as an under trial prisoner and as a citizen under no restraint. 31. The broad submission that since the appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Applicant shall not try to establish communication with the co-accused or any other person involved directly or indirectly in similar activities, through any mode of communication. (ix) In the event the Applicant violates any of the aforesaid conditions, the relief of bail granted by this Court shall be liable to be cancelled. (x) After release of the Applicant on bail, he shall file an undertaking within one week before the PMLA Court stating therein that he will strictly abide by the aforesaid conditions. (xi) By way of abundant caution, it is clarified that the observations made in the order are limited to the consideration of the question of grant of bail on medical grounds and they shall not be construed as an expression of opinion which bears on the merits of the matter in this case as well as the prosecution for the predicate offences. Application disposed. (N.J. JAMADAR, J.) 35. At this stage, Mr. Ponda, learned Senior Advocate for the Applicant, submits that the applicant may require a couple of days time to furnish sureties, and, in the meanwhile, the applicant may be permitted to be retained as an indoor patient in Sir H.N.Reliance Hospital. As the Court has observed ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
