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TMI Blog2024 (6) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ) under Sec. 88 Cr.P.C was to safeguard the trial. As per Sec. 44(1)(c) PML Act the trial of PMLA case has to be simultaneously conducted with the trial of the case(s) related to the Scheduled Offence. In the instant case, the case related to the Scheduled Offence was pending in Jammu Kashmir State and until the Court given direction to the ED, no step had been taken by the ED to commit the same, particularly when one of the accused Nihal Garware (A1) was undertrial prisoner. This applicant is a frequent flyer and for his profession he has to travel all over the world. Sometimes he visits 2-3 countries and thereafter, has to extend his travel to some other countries. The time span between such travels is very short wherein he cannot return India, approach the Court and seek further extension of travel. In such situation, either he has to loose his opportunities simply because of the Order of the Court or if he (A4) continues his travel to new destination which is not a part of his application for permission, his travel would certainly amount breach of the permission granted by this Court and ED would certainly canvass this aspect. Applicant is permitted to travel abroad during and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... various potential investors to discuss investment opportunities in order to conduct his business properly and earn his livelihood. 4. It is further contended that, seeking permission every time to travel abroad, he has to file an application before the Court and wait for the say or reply of the ED and then for the pronouncement of the Order, which deprives him of business opportunities that can be availed in this very competitive market. Some times he has to extend his travel from different countries to different countries, which are not mentioned in the application for seeking permission to travel abroad. All this is causing great inconvenience to him. Therefore, he placed reliance on the recent authority of the Hon ble Supreme Court in Tarsem Lal (supra). 5. I thoughtfully considered the contention and prayers made by the applicant (A4) and also the objections raised by ED. 6. Before discussing the merit of this application, I am constrained to note some past instances while dealing with accused persons who appeared before the Court responding the summons. It has happened that ED sometimes prefers not to arrest any accused under Sec. 19 PML Act, but the name of such accused is me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vations this Court has granted release of persons almost in all PMLA Special Cases under Sec. 88 Cr.P.C., who were never arrested by ED until filing of the Prosecution Complaint and even thereafter. Such consistent view taken by this Court since long has now got support from the law laid down by the Hon ble Supreme Court in Tarsem Lal (supra). 8. This applicant Vyomesh Shah (A4) was admittedly never arrested by ED under Sec. 19 PML Act. He appeared before the Court responding the summons bonafide and applied for his release vide application Exh.12, which was heavily opposed by the ED on various grounds mentioned in paragraph 4 of the said Order dt .07.06.2022 below Exh. 12. In paragraph 5 of the said Order this Court took resort to the guidelines laid down in the Satender Kumar Antil Vs. Central Bureau of Investigation and Anr, (Misc. Application No. 1849 of 2021 in S.L.P. (Crl.) No. 5191 of 2021) and justified his appearance. 9. In paragraph 6 of the said Order dt .07.06.2022 below Exh. 12 this Court noted the conduct of the applicant (A4) and also failure of ED to justify their contention while opposing the said application. In paragraph 7 of the said Order the Court has clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder to maintain balance and not to create such unusual situation wherein the person like the applicant (A4) cannot continue his travel to the next new destination simply for want of Court permission even if he was permitted for travelling to particular country(ies). This was not the true purport of granting application under Sec .88 Cr.P.C. and recent dictum of the Hon ble Supreme Court clearly indicates that the Court cannot pass such Orders which create hurdles in the liberty of accused persons who were not arrested under Sec. 19 PML Act. 13. Another aspect requires consideration is the volume of trial and approximate duration of its conclusion which anyone can anticipate or estimate. The release of applicant (A4) under Sec. 88 Cr.P.C was to safeguard the trial. As per Sec. 44(1)(c) PML Act the trial of PMLA case has to be simultaneously conducted with the trial of the case(s) related to the Scheduled Offence. In the instant case, the case related to the Scheduled Offence was pending in Jammu Kashmir State and until the Court given direction to the ED, no step had been taken by the ED to commit the same, particularly when one of the accused Nihal Garware (A1) was undertrial pris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he was not arrested under Sec.19 PML Act and bonafide responded the summons of the Court by appearing in the Court. So, it is clear that the Court cannot create a situation by its Order which would ultimately paralyze or become a clog in the way of fundamental right of the accused. Much argument is made on behalf of ED that if such application is allowed the accused will flee from justice etc. which are already referred above. To that, I am of the opinion that when ED itself has not found it essential to arrest the applicant (A4) under Sec.19 PML Act, but left him scotfree until his appearance under Sec. 88 Cr.P.C., where such apprehension had gone? Hence, I am of the opinion that the Order passed by this Court if creates hurdles in the liberty and fundamental right of the applicant, the Court can modify the same, particularly when imposing such conditions are not necessary in view of the law laid down by the Hon ble Supreme Court in the case of Tarsem Lal (supra). If the application is rejected, the Court has to consider the situation put forth by the applicant (A4). 16. Ld. SPP Mr. Sunil Gonsalves vehemently argued that if such application is allowed, it will give rise to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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