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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 ..... the prosecution has alleged, that through a newspaper article, it was revealed that a contractual nursing staff was caught in Tihar Jail for helping Sukesh Chandrashekhar in communicating/passing on certain information out of Tihar Jail, as per his instructions. On this, a communication was sent to DG Prisons seeking information regarding the said nursing staff. On the said communication, it was intimated that one Anurag Kumar was working as Nursing Orderly-Contractual Staff at Central Jail No. 03 and his mobile phone was provided to the department for further investigation. Thereafter, the Statement of Anurag Kumar u/s 50 PMLA was recorded wherein he revealed that the main accused Sukesh Chandrashekhar 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had received a call from an unknown man who had identified himself as Hip Hop and asked Manoj to inform Sukesh Chandrashekhar that Hip Hop had called and if any help was needed, he could provide the same. This message given by Hip Hop was thereafter conveyed by Manoj Kumar to the petitioner who further conveyed it to the main accused Sukesh Chandrashekhar. 6. It has been further alleged that Petitioner started communicating written letters/notes of Sukesh Chandrashekhar to Hip Hop by sending photos of the said letters/notes to Manoj Kumar through WhatsApp which were then read verbatim by Manoj Kumar to Hip Hop on telegram calls. The investigation conducted by the ED has revealed that Hip Hop was 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Anurag Kumar. The ED has also alleged that the petitioner in her statement u/s 50 PMLA dated 08.07.2022 admitted that the sale proceeds of the Nail Artistry Salon were received by her in her personal account as the account of salon was seized and these were being utilized for personal expenses of Leena and Sukesh. The ED has also further alleged that the petitioner was being repeatedly assured by Sukesh Chandrashekhar of a huge reward for her work. The ED has alleged that the sales proceeds shown by Nail Artistry Salon were not genuine and fake card swipes were arranged by one Arun Muthu without any salon services being provided and in this regard, reliance is also placed on the statement u/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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused having the fictitious name of Hip Hop@ Nawaz @ Sridhar @ Sriram stationed at Dubai and if the petitioner is released on bail, she will put Hip Hop @ H.Hop to notice. The investigation regarding forged medical certificate is also pending. SUBMISSION ON BEHALF OF PETITIONER 9. Learned counsel for the petitioner has submitted that the case against the petitioner is totally false and frivolous and based on the whims and fancies of the ED. It has been submitted that the petitioner is a young girl of around 28 years and is languishing in jail since 07.07.2022 wherein other accused persons namely Pradeep Ramdaani, Avinash Narula, Jitender Narula, Komal Poddar, Pinky Irani, Joel Daniel and Jacqueline 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of getting married. Learned counsel has submitted that even in P.Chidambram v. Directorate Enforcement (2020) 13 SCC 791 it was inter alia held that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. Learned counsel has submitted that it was inter-alia held as under: 23. ... Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal 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 fal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court. whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required 41. This Court in Gurcharan Singh v. State (Delhi Admn.) observed that two paramount considerations, while considering a petition for grant of bail in a non-bailable offence, apart from the seriousness of the offence, are the likelihood of the accused fleeing from justice and his tampering with the prosecution witnesses. Both of them relate to ensure the 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sh Chandrashekhar in passing certain information received from Sukesh Chandrashekhar while he was lodged in Tihar Jail and providing updates on works/instructions allotted or given to her by him and was also making payments to various individuals including his lawyers/jail staff/relatives of jail inmates/Sukesh's mother as per the instructions of accused Sukesh Chandrashekhar besides assisting Sukesh Chandrashekhar to smuggle/deliver various items inside the premises of Tihar Jail in order to help and enable him to acquire undue benefits and continue with his criminal activities within Tihar Jail. It has been submitted that on 8.7.2022 a search was conducted at Nail Artistry Salon, 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 s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hard work has paid off". 19. Mr.Anupam S.Sharrma has further submitted that if the accused is released on bail, she may alert the prime accused who has a fictitious name of Hip Hop@ Nawaz @ Sridhar @ Sriram stationed at Dubai and his identity and whereabouts are yet to be ascertained. It has been submitted that further investigation in respect of false NOC and recovery of Audi RS-6 and a white BMW 730 LD is still underway. It has been submitted that further investigation to trace further proceeds of the crime is also in progress and if the petitioner is released on bail, she may hamper the investigation. 20. Learned Counsel has further submitted that the petitioner was well 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest-as observed in Vaman Narain Ghiya v. State of Rajasthan ("the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal...."). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A17 (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply: "We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly manner in which such special conditions as enacted under Section 37 can be considered within constitutional parameters is where the court is reasonably satisfied on a prima facie look at the material on record (whenever the bail application is made) that the accused is not guilty. Any other interpretation, would result in complete denial of the bail to a person accused of offences such as those enacted under Section 37 of the NDPS Act. 20. The standard to be considered therefore, is one, where the court would look at the material in a broad manner, and reasonably see whether the accused'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 Anti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-was received by the petitioner through Hip Hop @ H.Hop and out of which Rs. 16,28,484/-was used for shopping for co-accused Leena Maria Paul and accused Sukesh Chandrashekhar. Rs. 59,58,000/-were used for payments to lawyers of accused Sukesh Chandrashekhar and co-accused Leena Maria Paul. Further allegations are that Rs. 24,05,512/-were used for payments made to jail staff/contract staff/medical staff/jail inmates and Rs. 11,72,791/-were used for other expenses made on instructions of accused Sukesh Chandrashekhar and all these transactions were facilitated by the 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 Choudhar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. The petitioner shall surrender her passport before the learned Trial Court and shall not leave the country without prior permission of the learned trial court. 2. The petitioner shall ordinarily reside at his place of residence and keep his phone operational at all times. She shall immediately inform in case of change in the address by way of an affidavit, to the investigation officer. 3. The petitioner shall appear and attend before the Court as and when the matter is taken up for hearing; 4. The petitioner shall provide her mobile number to the Investigating Officer (IO)/Court concerned at the time of release. 5. The petitioner shall not directly or indirectly communicate or visit co-accused persons or the witnesses or offer any inducement, threat or intimidate or influence any of the prosecution witnesses or tamper with the evidence of the case. 6. The petitioner shall not indulge in any criminal activity during the bail period. 30. In view of the above, the present bail application along with pending applications stands disposed of. However no expression made herein shall tantamount to be an expression on the merits of the case. 31. Copy of the order be sent to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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