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TMI Blog2024 (9) TMI 1177X X X X Extracts X X X X X X X X Extracts X X X X ..... UPREME COURT ] the Hon ble Supreme Court observed that prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. It was further observed that fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions and reiterated the principle that bail is the rule and refusal is an exception . Insofar as the role of the Applicant in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail. In the present case, the Applicant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing trial. Regardless, conditions can be imposed to ensure the Applicant s attendance to face the trial. The Applicant is directed to be released forthwith on bail subject to fulfilment of conditions imposed - bail application allowed. - HON'BLE MS. JUSTICE NEENA BANSAL KRISHNA For the Petitioner Through: Mr. Vikas Pahwa, Sr. Advocate with Mr. Prabhav Ralli, Ms. Namisha Jain, Mr. Dev Vrat Arya, Mr. Yuvraj Bansal and Mr. Pranay Chitale, Advocates. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 5. Thereafter, the CBI registered an FIR No. RC0032022A0053 (hereinafter referred to as CBI case ) dated 17.08.2022 under Section 120B of the Indian Penal Code, 1860 ( IPC, 1860 hereinafter) read with Sections 7/7A/8 of Prevention of Corruption Act, 1988 at Police Station CBI, ACB, New Delhi against Manish Sisodia and 13 others accused persons in respect of irregularities and illegalities committed in framing and implementation of Excise Policy 2021-22. 6. It is submitted that the Applicant was never arrested or charge-sheeted by the CBI in the predicate offence. 7. The ED registered ECIR No. ECIR/HIU-II/14/2022 on 22.08.2022 wherein the Applicant was arrayed as Accused No. 9. The Applicant was summoned for the first time on 06.09.2022 during the stage of investigation wherein he cooperated to the fullest and continued to cooperate as and when he was summoned. However, on 29.11.2022 the Applicant was arrested by the Respondent. 8. On 06.01.2023 the Respondent filed the Supplementary Prosecution Complaint ( SPC hereinafter) arraying the Applicant as Accused No. 14. Consequently, on 23.01.2023, the Applicant moved an interim bail Application on the grounds of his wife s surgery sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the medical records of the Petitioner were manipulated without any basis or evidence. 12. The Applicant submits that he suffers from severe neurological and orthopaedic complications in his back, spine and knee (ganglion cyst in left knee and Grade II Meniscus Tear) thereby adversely impacting his basic physical movements in view of which he has been advised strict bed rest and advance physiotherapy routing along with constant monitoring. 13. The Applicant submits that an exception to the twin test is carved out under the proviso of Section 45 (1) PMLA, 2002 which is as under: Provided that a person, who is under the age of sixteen years or is a woman or is sick or infirm [or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs: . 14. It is submitted that the Applicant is a sick and infirm individual and consequently entitled to be released on regular bail on medical grounds as validated by various medical documents and prescriptions of doctors from above-mentioned Hospitals. It is submitted that it is well settled question of law that twin conditions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he may be granted bail in the ED Case. 19. The Reply has been filed on behalf of the Respondents, wherein a preliminary objection has been take that the Applicant is not entitled to grant of bail as he has failed to satisfy the twin conditions as laid down under Section 45 PMLA, 2002 and does not fall under the proviso. 20. It is submitted that the Applicant while on interim bail violated the order of Hon ble Special PMLA Court that directed him to get his surgery done in Max Saket Hospital whereas without any information to the Special Court he got admitted to Fortis Hospital, Gurugram wherein he underwent Laparoscopic Bariatric Surgery on 18.08.2023 21. The Respondent submits that it is evident from the summary of stay of accused since his arrest on 29.11.2022 that he has spent around 120 days in Jail and been outside prison on interim bail for the remaining 165 days, from which it is apparent that the Applicant has misused the liberty granted by Hon ble Special Court for private treatment and therefore is not deserving of regular or interim bail. It is submitted that Hon ble Special Court vide its Order dated 11.08.2023 observed that it got an impression from the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the tune of Rs. 1.1 Crore for processing of wholesale license of M/s KSJM Spirits LLP and for inspection and opening of retail shops of Popular Spirits. Further, the Applicant in conspiracy with other co-accused collected Rs. 2.5 Cr from the Gautam Wines (L1) in exchange of 6% kickback which was to be collected from the wholesalers. Therefore, the applicant is involved in acquisition, possession and transfer of the proceeds of crime of Rs. 2.5 cr. 26. The Respondent submits that the Applicant was a beneficiary of profits generated from KSJM Spirits LLP to the tune of Rs. 3.65 Crore and has also received Rs. 4.54 Crore from Buddy T1-D Retail Pvt. Ltd. from its business operations. It submitted that the accused has carried out transfer, use, concealment of proceeds of Crime worth Rs. 7.11 Crore by showing it as a loan even though it is apparent that the loan is an instrument to conspire and form cartels. 27. It is submitted that the Applicant effectively controlled M/s KSJM Spirits LLP, M/s Buddy Retail (T1) Pvt. Ltd. and M/s Popular Spirits LLP by controlling the majority stake and by appointing dummy directors and proxies to represent his interest and has infused Rs. 7.1 Cr in M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8781/2024; K. Kavitha v. ED SLP (Crl.) No. 3205/2024; Ram Kripal Meena v. ED SLP (Crl) No. 3205/2024 Order dated 30.07.2024; Benoy Baby v. ED 2023 SCC OnLine SC 1881; and Prem Prakash v.Union of India SLP (Crl.) No. 5416/2024. 31. It is lastly, submitted that the Applicant being sick and infirm not only satisfies the proviso under Section 45 (1) of PMLA, 2002 but also satisfies the triple test. 32. Therefore, it is submitted that the Applicant is entitled to bail. 33. Learned Special Counsel on behalf of the respondent has vehemently opposed the present application. The arguments addressed on behalf of the respondent are essentially on the same lines as contained in its Reply. 34. The respondent has re-emphasized that since his arrest the Applicant has only spent 131 days in prison out of the total 636 days and for the remaining 505 days he has been outside prison admitted in the hospital under judicial custody which gives an impression that the Applicant is trying to manipulate his medical condition to bring his case in the category of sick or infirm as per the proviso to Section 45 (1) PMLA 2002, as pointed out by the Hon ble Special Court in Order dated 11.08.2023. 35. It is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the CBI case (predicate offence) was filed without the arrest of the Applicant. 44. Further, the ED case was registered after five days of registration of the CBI case on 22.08.2022 on wherein the Applicant was arrayed as Accused No. 9 on the allegation that he was actively involved in the conspiracy relating to the Delhi Excise Policy 2021-22 and was also actively involved in acquisition, possession and transfer of Proceeds of Crime as a beneficial owner of various entities. 45. It is pertinent to observe that the prosecution complaint has already been filed against the Applicant in which he has been summoned. 46. The Applicant has not retracted any statements till date and was the first accused to complete inspection of unrelied documents suggesting that his conduct has been cooperative in the investigation. 47. The investigations qua the Applicant are complete in the present matter. 48. Pertinently, the Applicant has already undergone Bariatric Surgery on 18.08.2023 following which he remained he has received post-operative care firstly from Fortis Hospital and subsequently at RML Hospital, Delhi. However, he is morbidly obese and as per his medical records it is apparent that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of PMLA, 2002 which has been reiterated by the Apex Court while granting bail under the PMLA 2002 in Vijay Nair (supra). 53. Insofar as the role of the Applicant in the present case is concerned, he stands on a better footing that the other co-accused, who have been recently granted bail. 54. The Apex Court in Manish Sisodia (supra) reiterated observation in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. (1978) 1 SCC 240 that the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure their attendance at trial. 55. In the present case, the Applicant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing trial. Regardless, conditions can be imposed to ensure the Applicant s attendance to face the trial. 56. As noted in Manish Sisodia (supra) there is no possibility of tampering of evidence by the Applicant if the Applicant is granted bail as the case is primarily dependent on documentary evidence which is already seized by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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