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TMI Blog2024 (2) TMI 1415X X X X Extracts X X X X X X X X Extracts X X X X ..... or release him on bail instead of the personal bond with or without sureties - It is thus the discretion of the Court, whether to secure release of a person, awaiting his trial on the ground that he has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified, but necessarily contemplate that the Court may at time continue the detention of an accused, despite having undergone more than one-half of the sentence and this may be justified on the ground of seriousness of an offence, the role played by the accused in such an offence and when his release on bail may prove to be harmful to the society. The applicant (A10) is not entitled to bail/temporary bail on medical ground. However, alternative arrangement for his medical treatment can be directed whenever the same prevails upon. It has to be noted that none of the medical issues i.e. Cataracts, knee replacement due to arthritis and also hip bone issue, is life threatening to consider it a genuine sickness as required under First Proviso to Sec.45(1) of the PML Act - Similarly, the applicant (A10) is not entitled to be released on bail as required under Sec.436A Cr.P.C., even if conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rising out of ECIR/MBZO-1/08/2019 for the offences punishable under Section 3 read with Section 4 of the Prevention of Money-Laundering Act, 2002 (for short, the Act of 2002 ), seek his release on bail, on the ground of his long incarceration, he having been arrested on 22/10/2019. On the prosecution fling the Complaint, he was arraigned as Accused No.10 and on 15/01/2020, cognizance of the complaint was taken. Supplementary Prosecution Complaint No.150 of 2021 came to be fled on 02/02/2021 of which the cognizance was taken on 26/02/2021, though it is a case of the Applicant that he is not named in the subsequent complaint. After making various unsuccessful attempts in securing bail before various Courts, which include two applications being fled before this Court and they being rejected on 16/09/2020 and 18/11/2022 respectively, this is the third application, fled by the Applicant under Section 439 of the Criminal Procedure Code (for short, the Cr.P.C. ), premised on the ground of having undergone three years and nine months of incarceration and, still the trial has not yet commenced. 2. I have heard the learned senior counsel Mr.Aabad Ponda with Ms.Pushpa Ganediwala for the Appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of the learned Judge on the aspect of the long incarceration, coupled with the fact that there is no certainty as to when ED will get the nine cases relating to the Scheduled Offences committed to the Special Court as per Section 44(1)(c) of the Act of 2002 and the trial, as contemplated therein, shall begin only thereafter. The learned counsel want me to peruse the observations in the case of Haroun, which read thus:- 40. The Hon ble Supreme Court has repeatedly expressed deep concern regarding the undertrial prisoners and necessity of their expeditious trials. Recently the Hon ble Supreme Court in Ramchand Karunakaran Vs. Directorate of Enforcement Anr. [Arising out of SLP (Crl.) No.6061/2020, decided on 23.09.2022] dealt with the similar issue. This case also relates to offence of money laundering and pending in this Court itself. The Hon ble Supreme Court held as follows, We are presently concerned with the proceedings arising out of the complaint filed under the provisions of PML Act. In the instant case, the appellant was taken in custody on 19.06.2019 and has remained in custody since then. Thus, the appellant has completed more than three years of actual custody in conn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. This Court is yet to be a trial court in respect of the Scheduled Offences. Admittedly, the present applicant (A8) was never produced for his remand in connection with any Scheduled Offence as enlisted in the table with the Prosecution Complaint. Till date though Sec.44(1)(c) prescribes jurisdiction to this Court for simultaneous trials, yet the Court has not acquired such jurisdiction as no case of any of the Scheduled Offences, has been committed to this Court eversince. ED being Prosecution ought to have been fair with the Court and should have accepted undue incarceration of the applicant (A8) for 3 years and 7 months, but doing something else by pointing out punishment provided for Scheduled Offence. Hence, there is absolutely no substance in the contention of ED which they have harped in their say to oppose this ground. 3. Mr.Ponda has then invited my attention to the order dated 03/07/2023, passed in the case of the present Applicant, facing trial as Accused No.10, and according to him, in utter contrast, the aforesaid aspect of the uncertainty about the trial and commitment of the Scheduled Offences to the Special Court has been completely ignored and it is held that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bject matter of PMLA for attachment or any other purpose, is his submission and if during investigation, Enforcement Directorate come across certain offences leading to the alleged proceeds of crime , it can only be the First Informant in respect of that offence and the money so identified, shall form its basis and definitely, the complaint cannot proceed with the said proceeds, without nexus being established with the Scheduled offences. According to Mr.Ponda, the offence created in terms of Section 3 of the Act is inextricably linked to the commission of a Scheduled Offence and, since, Section 2(1)(u) defines proceeds of crime to mean property derived or obtained as a result of criminal activity relating to an offence set forth and embodied in the Schedule and the principles enunciated in Vijay Madanlal Choudhary (supra) would lead to an inevitable conclusion, that an allegation of money laundering is premised on the commission of a criminal offence and absent the commission of criminal offence, the foundation of proceedings that may be initiated under the PMLA would undoubtedly fall. Thus, in short, the submission of Mr.Ponda is that the case of the Applicant shall fall within t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is indicative of his active participation in the process, which was with complete intention, knowledge and understanding of his aid and assistance to Iqbal Mirchi. Apart form this, the deal between Iqbal Memon and Joy Home Creation Pvt. Ltd. was mediated by the Applicant on behalf of Iqbal Mirchi and in the deal, he has accepted huge amount, which was transferred to Iqbal Mirchi through different modes. Considering his role in generating and subsequent laundering of huge amounts of proceeds of crime, according to Mr.Vyas, he has failed to render the co-operation in the investigation and failed to provide full disclosure of the facts during the course of recording his statement. Mr.Vyas has also relied upon the two previous orders passed by me, where on taking an overall view of the material in the complaint and the documents accompanying thereto, the application for release on bail was rejected. 7. At the outset of his argument, the learned senior counsel Mr.Ponda has made it very clear that he is pressing the application on the basis of Section 436-A as on two previous occasions, this Court on merits, had rejected his application. Hence, I have examined his contention only pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eged against them and as a protective measure, the provision was inserted to prove that where an undertrial prisoner other than the one accused of an offence for which death has been prescribed as one of the punishments, has been under detention for a period extending to one-half of the maximum period of imprisonment, provided for the alleged offence, he should be released on his personal bond, with or without sureties. The necessary purport of the provision being in no case, an undertrial prisoner be detained for a period extending to one-half of the maximum period of imprisonment for which he can be convicted for an alleged offence. 10. It is an undisputed position that right to speedy trial has been ingrained in Article 21 of the Constitution of India and undue delay in concluding a trial has always been frowned upon as violation of the right to life and personal liberty, as guaranteed by Article 21, which has to be clubbed with the right guaranteed by Article 14 which also promises justness, fairness and reasonableness in procedural matters. Section 436-A introduced in the Code is, therefore, a wholesome beneficial provisions for effectuating the right of speedy trial guarantee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd akin to Section 167 of the 1973 Code. Notably, learned Solicitor General has fairly accepted during the arguments and also restated in the written notes that the mandate of Section 167 of the 1973 Code would apply with full force even to cases falling under Section 3 of the 2002 Act, regarding money laundering offences. On the same logic, we must hold that Section 436A of the 1973 Code could be invoked by accused arrested for offence punishable under the 2002 Act, being a statutory bail. 11. The learned ASG Mr.Vyas has placed reliance upon the decision in the case of Tarun Kumar Vs. Assistant Director, Directorate of Enforcement (Cri. Appeal No.--- of 2023 @ SLP (Crl) No.9431 of 2023 decided on 20/11/2023), where the aforesaid observation was referred to in the backdrop of the argument that the trial of the case is likely to take long and the Appellant ought not to be incarcerated indefinitely because the investigation is kept open with regard to the other accused. The Apex Court, by referring to the catena of decisions, which have treated the economic offence as a class apart, has specifically observed as under :- 22. Lastly, it may be noted that as held in catena of decisions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial guaranteed by Article 21 of the Constitution. 12. The provision in form of Section 436-A, which is sought to be pressed into service for securing the release of the Applicant, by way of proviso, contemplate that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties. It is thus the discretion of the Court, whether to secure release of a person, awaiting his trial on the ground that he has undergone detention for a period extending up to one-half of the maximum period of imprisonment specified, but necessarily contemplate that the Court may at time continue the detention of an accused, despite having undergone more than one-half of the sentence and this may be justified on the ground of seriousness of an offence, the role played by the accused in such an offence and when his release on bail may prove to be harmful to the society. The continued detention of the person, however, shall be supported by reasons to be recorded in writing and when the impugned order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence they would submit the same and also take the step. Therefore, ED can be directed accordingly. 15. In view of the detailed discussion, I am of the opinion that the applicant (A10) is not entitled to bail/temporary bail on medical ground. However, alternative arrangement for his medical treatment can be directed whenever the same prevails upon. It has to be noted that none of the medical issues i.e. Cataracts, knee replacement due to arthritis and also hip bone issue, is life threatening to consider it a genuine sickness as required under First Proviso to Sec.45(1) of the PML Act. Also as observed by the Hon ble High Court age of the applicant would not influence this application. Similarly, the applicant (A10) is not entitled to be released on bail as required under Sec.436A Cr.P.C., even if contention of ED that, punishment provided for Scheduled Offence is for 10 years, is not legal when the application is preferred for an offence under the PML Act wherein the maximum punishment is to the extend of 7 years and the applicant (A10) is not in judicial custody in respect of any of the Predicate Offences/cases. He (A10) has claimed benefit of Sec.436A Cr.P.C. in respect of the off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er illegal acts, Iqbal Mirchi has accumulated huge wealth and the proceeds so generated from the aforesaid criminal activity were layered and laundered by way of investment in many properties in various locations in State of Maharashtra, by projecting them as untainted. The assets were owned by him in his own name, in the name of his relatives and through companies controlled by him and his family members. The investigation lead to purchase of three properties belonging to Sir Mohammad Yusuf Trust in September 1986 through one of his companies and the properties were Sea View , Marium Lodge and Rabia Mansion in Worli area of Mumbai and the allegation is, these properties are procured from funds generated out of the criminal activities relating to the Scheduled Offences and, therefore, were proceeds of crime in terms of Section 2(1)(u) of the Act of 2002. A detailed investigation was conducted involving the said properties and the role of the Applicant has surfaced consistently. The possession of the buildings was taken in a phased manner from 1986 to 2005 and there were various tenants in the building, when the properties were purchased from the Trust and subsequent to the purchase ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... genesis of this money lies in the three offences registered at the instance of Anti Narcotic Cell in the year 1992, 1993 and 1994 respectively, and, hence, in my considered opinion, no case is made out for invocation of Section 436-A, as the punishment imposed in the subject complaint would be the one falling in Part II of Section 4 i.e. maximum punishment may extend up to ten years of rigorous imprisonment. The argument that not a single Scheduled Offence under the NDPS Act is alleged to have been committed between 1986 to 1989, is ultimately a matter to be appreciated, when the merits of the matter is considered, as it is the specific case of the Directorate of Enforcement that the money has been layered by Iqbal Mirchi into various transactions and purchase of properties and this will ultimately a matter to be determined at the end of the trial. I, therefore, find myself in concurrence with the Special Judge in not extending parity with Accused No.8. 14. In the aforesaid circumstances, I must record that no case is made out by the Applicant for exercise of power under Section 436-A on the ground that he has undergone one-half of the maximum punishment, which would be imposed upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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