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TMI Blog2023 (8) TMI 1464X X X X Extracts X X X X X X X X Extracts X X X X ..... of the requisite mens rea. The Court is not required to record a positive finding that the accused had not committed an offence under the Act. Thus, the court at this stage can grant the bail on the principle of broad probabilities. The court at this stage is required to examine the material in a broad manner and evaluate whether it can reasonably be said that the guilt of the accused can be proved. The court is only required to reach on a prima facie view based on a reasonable and prudent view without meticulous examination of the material collected during the investigation. In the present case, the accused petitioner was a young girl of around 25-26 years of age. It is an admitted case that she was employed by Leena Maria Paul as Salon Sales Manager in Nail Artistry Salon. The possibility of a young girl with an immature mind falling to the tricks of alleged accused Sukesh Chandrashekhar cannot be ruled out at this stage - Persons of such tender age sometimes in the anxiety of getting easy money may deviate. The facts of each case are peculiar in nature. The present case involves act of a young girl who joined private service and finally ended up to allegedly committing serious o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rashekhar induced him to send pictures of his handwritten messages written by him (i.e. Sukesh Chandrashekhar) which were further sent to the petitioner for which he was promised to be paid around Rs. 10,000 to Rs. 15,000 per day. The said messages were sent by Anurag Kumar to the petitioner on her mobile phone. 4. The ED has further alleged that the petitioner was a resident of Chennai and had been working as a Salon Sales Manager in Nail Artistry Salon, Chennai Branch, which is owned by co-accused Leena Maria Paul, wife of main accused Sukesh Chandrashekhar. During the investigation, the search was conducted u/s 17 PMLA at the residence of the petitioner, during which certain documents/bills/invoices, 06 mobile phones of her and associates and some luxurious articles were recovered. It was further, revealed by the Petitioner herein that various luxurious articles were purchased for and on behalf of accused Sukesh Chandrashekhar and co-accused Leena Maria Paul which were delivered inside the premises of Tihar Jail by way of mulakat by the Petitioner. The mobile phones were also purchased and given to jail officials at predetermined locations. Subsequently, summons were issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s handling the proceeds of crime for and on behalf of accused Sukesh Chandrashekhar and was arranging cash which was collected by Manoj Kumar and then passed over to the Petitioner. The ED has alleged that the said amount was being laundered in India by the Petitioner with the assistance of Manoj Kumar, brother of co-accused Arun Muthu (A-7), who coordinated in the collection of cash from Hip Hop @H.Hop through Hawala channels and then depositing the same amount in the bank account of the petitioner and in the accounts of other staff members of the 'Nail Artistry Salon' on the direction of the Petitioner. It was alleged that this amount was ultimately collected by Petitioner through IMPS/UPI in her account for making payments through UPI/Gpay/Paytm to Lawyers/Jail Staff/Relatives of Jail inmates/Sukesh's mother etc. It has further been alleged that the cash that was collected from Hip Hop @ H.Hop amounted to Rs. 94,80,500/-out of which Rs. 16,28,484/-was used for shopping for co-accused Leena Maria Paul and accused Sukesh Chandrashekhar. It was alleged that Rs. 59,58,000/-were used for payments to lawyers of accused Sukesh Chandrashekhar and co-accused Leena Maria Paul. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 50 PMLA given by Anand Moorthy (Chartered Accountant) for Nail Artistry, Salon as well the statement u/s 50 PMLA of co-accused Leena Maria Paul. The ED has further, alleged that admittedly the petitioner had done shopping for accused Sukesh Chandrashekhar and co-accused Leena from various luxurious brands such as Burberry, Louis Vuitton, Da Milano, Canali etc. and had these luxurious articles delivered inside the Tihar Jail whenever she visited them for mulakat. It is further alleged that the petitioner had also made a payment of Rs. 40,000/-for getting a false medical certificate of the accused Sukesh Chandrashekhar. The ED has also alleged that the petitioner also admitted as per the instructions of accused Sukesh Chandrashekhar, that she had arranged phones and various other expensive materials for the jail staff. The ED has relied on the statements of Pooja Pilley (employees of Nail Artistry Salon Chennai), Muthu Kumar, Passang Diki Sherpa (employee of Nail Artistry Salon Chennai), Shrikant Bhagwan Humbe (Jail Staff), Lisha Paulose, sister of co-accused Leena Maria Paul. The ED has also alleged that the petitioner was actively assisting accused Sukesh Chandrashekhar in layeri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... queline Fernandez who have more grievous have been enlarged on bail. It has been submitted that the ED is opposing the bail of the petitioner only on the ground that her release on bail shall hinder in the way to reach the Hip-Hop. 10. Learned Counsel has also submitted that being in the custody and no one in the family the petitioner is unable to defend herself. It has further submitted that since even the charges have not been framed and the trial may take a long time. Learned counsel has submitted that the learned trial court dismissed the bail application merely on the ground that there is a possibility of her fleeing away from the judicial process or influencing the witness without any substantive material on record. It has further been submitted that the bail application has been rejected on the ground that the petitioner was involved in purchasing costly items like belts, and watches, wearing clothes and also in engaging an advocate for the main accused Sukash Chandrashekhar and Ms.Leena Maria Palouse. It has been submitted that all this is a matter of documentary evidence. It has further been submitted that all these acts were being done by the petitioner under the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same, the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the a application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fair trial of the case. Though, this aspect is dealt by the High Court in its impugned order, in our view, the same is not convincing. 42. When the undertrial prisoners are detained in jail custody for an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case. SUBMISSION ON BEHALF OF ED 15. Mr.Anupam S.Sharrma, learned special counsel for ED has submitted that initially a case FIR no.208/2021 dated 07.08.2021 was registered by PS Special Cell under Sections 170/384/386/388/419/420 IPC r/w 120-B IPC on the complaint of Aditi Shivinder Singh. Since the offence alleged in the aforementioned FIR were a scheduled offence under PMLA as an ECIR was recorded on 08.08.2021. Learned counsel submitted that upon completion of the investigation by ED, a complaint under Section 44/45 PMLA was filed before the concerned Learned Special Judge for the offence under Section 3 of PMLA against Sukesh Chandrashekhar, Leena Maria Paul, Deepak Ramadani, Pradeep Ramdanee, Avtar Singh Kochar, B.Mohan Raj, Arun Muthu and D. Kamlesh Kothari on 04.12.2021. Subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Chennai where the Petitioner worked as Sales Manager and is involved in the offence of money laundering. 17. Mr.Anupam S.Sharrma has submitted that the petitioner was actively involved in the offence of money laundering as revealed during the investigation. Mr.Anupam S.Sharrma has further submitted that the entire transactions and payments to be made to various individuals were facilitated by the petitioner who received the proceeds of crime collected in cash in her own bank account so that the same may be claimed to be untainted property. Mr.Anupam S.Sharrma has submitted that the laundered money was infused into her own bank account and also the bank accounts of staff members of the Salon. Learned counsel submitted that the investigation revealed that the sales proceeds shown of Nail Artistry Salon were not genuine and the petitioner had played an active role in generating fake invoices to inflate the sale proceeds of the Salon and even submitted a fake customer list and documents in her statement. 18. Mr.Anupam S.Sharrma has further submitted that the petitioner had purchased luxurious items using proceeds of crime and delivered them inside the Tihar Jail. It has been subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aware of the criminal antecedents of the accused Sukash Chandrashekhar and had been in touch with him and his entire family regularly. Learned counsel also submitted that the petitioner cannot take benefit of the fact that other accused persons have been released on bail as her case stands on a different footing. It has been further submitted that the petitioner cannot take benefit of the proviso under Section 45 (1) of PMLA. Learned counsel submitted that even if the court uses its discretion to release the accused on bail without satisfying the twin condition of section 45 PMLA, the court is required to give the reasons for exercising such power. 21. Learned special counsel has placed reliance upon Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana Makwana (Koli) and Anr. Crl. Appeal No. 422/2021 wherein it has inter alia been held that parity while granting bail must focus upon the role of the accused. In deciding the aspect of parity, the role attached to the accused, and their position in relation to the incident and to the victims is of utmost importance. Mr.Anupam S.Sharrma has submitted that the petitioner may not be released on bail merely on the ground that her name d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ingh v. State of Punjab made observations to this effect. In Shaheen Welfare Association v. Union of India again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on: "a conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an undertrial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods." 14. In a recent decision, while considering bail under the Unlawful Activities Act (Prevention) Act, 1967, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code." 24. In Mohd. Muslim @ Hussain (supra), it has further inter alia been held as under: 18. The conditions which courts have to be cognizant of are that there are reasonable grounds for believing that the accused is "not guilty of such offence" and that he is not likely to commit any offence while on bail. What is meant by "not guilty" when all the evidence is not before the court? It can only be a prima facie determination. That places the court's discretion within a very narrow margin. Given the manda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s guilt may be proved. The judgments of this court have, therefore, emphasized that the satisfaction which courts are expected to record, i.e., that the accused may not be guilty, is only prima facie, based on a reasonable reading, which does not call for meticulous examination of the materials collected during investigation (as held in Union of India v. Rattan Malik19). Grant of bail on ground of undue delay in trial, cannot be said to be fettered by Section 37 of the Act, given the imperative of Section 436A which is applicable to offences under the NDPS Act too (ref. Satender Kumar Antil supra). Having regard to these factors the court is of the opinion that in the facts of this case, the appellant deserves to be enlarged on bail. 22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State as "a radical transformation" whereby the prisoner: 23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal"22 (also see Donald Clemmer's ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner who was receiving proceeds of crime. The allegation of the ED is also that it is a clear-cut case of money laundering as the money was transferred in the account of the petitioner. 26. It is a settled proposition that at the stage of bail, the court is only required to see the prima facie case and is not allowed to meticulously examine or appreciate the evidence or test the probative value of the witnesses. The court is required to maintain a delicate balance between the judgment of acquittal and conviction and an order granting bail before the commencement of the crime. 27. Even in Vijay Madanlal Choudhary and Others (supra) it has been inter alia that the court at the stage of considering the application for grant of bail, is expected to consider the question from the angle as to whether the accused was possessed of the requisite mens rea. The Court is not required to record a positive finding that the accused had not committed an offence under the Act. Thus, the court at this stage can grant the bail on the principle of broad probabilities. The court at this stage is required to examine the material in a broad manner and evaluate whether it can reasonably be said th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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