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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 ..... tary 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 Applicant and the learned ASG Mr.Devang Vyas along with Mr.Shreeram Shirsat for the Directorate of Enforcement. Mr.Ponda, the learned senior counsel, in support of the bail application, has laid his emphasis on Section 436-A of the Cr.P.C. and he would stressfully rely upon the decision of the Apex Court in the case of Vijay Madanlal Choudhary & Ors. Vs. Union of India & Ors. 2022 SCC OnLine SC 929, where while expounding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 connection with the offence in respect of PML Act. 7. It has been brought to our notice that accused Nos.2, 3, 4 and 7 have not yet been arrested and though the cognizance in the matter has been taken, charges are yet to be framed. 8. Considering the entirety of the matter and the fact that the appellant is a senior citizen, in our view, the appellant is entitled to the relief of bail." In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 the Applicant is not entitled to claim parity with Haroun Aleem Yusuf (Accused No.8) and as regards the non-compliance of the mandate under Section 44(1)(c) of the Act of 2002, the Special Judge has held that ED has already submitted that, once they get all information of cases relating to the Scheduled Offences, they would submit the same and also take the necessary steps ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 the First Part of Section 4, where the punishment prescribed may extend to seven years and hence, on having more than half of the punishment, which may fall on him, on conviction, the Applicant deserve his release on bail. 5. I have heard the learned ASG Mr.Vyas, who has assertively submitted that the Applicant is erroneously seeking invocation of Section 436-A an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sferred 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 premised on Section 436-A and not on the merits of the matter, as on previous two occasions, I had exhaustively dealt with the case of the Applicant on merits and have formed an opinion of his active involvement in the offence of money-laundering. Taking into consideration the specific role attributed to him and the material in the complaint, prima facie, est ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 guaranteed by Article 21 of the Constitution and which merely specifies the outer limits within which the trial is expected to be concluded, failing which, the accused ought not to be detained further. Mr.Ponda has relied upon the relevant observations of the Apex Court revolving around the said provision in the case of Vijay Madanlal Choudhary (s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, the economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing, 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 passed by the Special Court is perused, I find sufficient justification therein to continue his detention, by rejecting the ground of parity with co-accused Haroun Aleem Yusuf i.e. Accused No.8. The relevant observations are as under :- "14. Careful examination of the Prosecution Complaint it appears that ED ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 offence under the PML Act and his judicial custody is being extended therein and not in respect of any Scheduled Offence when he was not accused therein. However, from the point of the period he (A10) has undergone in judicial custody his application is qualified under Sec.436A Cr.P.C. but he is not eligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, Iqbal Mirchi started obtaining or creating tenancy rights in his name or in the name of his relatives in lieu of consideration and the process continued till 2005, when the original tenants of the property were entirely replaced by Iqbal Mirchi through the present Applicant in connivance with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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