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TMI Blog2024 (10) TMI 1550X X X X Extracts X X X X X X X X Extracts X X X X ..... to give way to the constitutional mandate of Article 21. What is a reasonable period for completion of trial would have to be seen in light of the minimum and maximum sentences provided for the offence, whether there are any stringent conditions which have been provided, etc. It would also have to be seen whether the delay in trial is attributable to the accused. The issue of long incarceration and right of speedy trial also cropped up in MANISH SISODIA VERSUS CENTRAL BUREAU OF INVESTIGATION [ 2023 (11) TMI 63 - SUPREME COURT] wherein it has been held by the Supreme Court that the right to bail in cases of delay in trial, coupled with long period of incarceration would have to be read into the Section 439 CrPC as well as Section 45 of PMLA while interpreting the said provisions. PREM PRAKASH VERSUS UNION OF INDIA THROUGH THE DIRECTORATE OF ENFORCEMENT [ 2024 (8) TMI 1412 - SUPREME COURT] is another recent decision where it has been reiterated that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of the Act and the constitutional mandate being the higher law, the right to speedy trial must be ensured and if the tria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ular bail subject to them furnishing respective personal bonds in the sum of Rs. 1,00,000/- with one surety of the like amount each to the satisfaction of the concerned Jail Superintendent/concerned Court/Duty J.M./link J.M. and subject to the further fulfilment of conditions imposed - bail application allowed. - HON'BLE MR. JUSTICE MANOJ KUMAR OHRI For the Petitioner Through: Mr. Siddarth Aggarwal, Sr. Advocate with Mr. Malak Bhatt, Ms. Neeha Nagpal, Mr. Shreyansh Chopra and Mr. Vishwajeet Singh Bhati, Advs. Ms. Rebecca M. John Sr. Advocate with Dr. Sushil Kumar Gupta, Mrs. Sunita Gupta, Mr. Sushil Kumar Satrawala, Mr. Sakshit Bhardwaj, Mr. Parvir Singh and Ms. Anushka Baruah, Advocates. For the Respondent Through: Mr. Zoheb Hossain, Special Counsel for ED with Mr. Vivek Gurnani, Panel Counsel, Mr. Pranjal Tripahti Mr. Kunal Kochar, Advocate. JUDGMENT 1. By way of present bail applications, the petitioners/applicants seek regular bail in the Complaint Case No. 23 of 2022 arising out of ECIR No. ECIR/HQ/14/2017 dated 30.08.2017. 2. Since the applicants are similarly situated and the submissions urged in their respective bail applications are also similar, the applications are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein while dismissing the bail application of the main accused, ED s submission is recorded to the effect that further investigation in the present ECIR is still ongoing. 7. While seeking parity and claiming change in circumstance after the dismissal of applicants bail application by Supreme Court on 18.03.2024, it is urged that now the main accused has been enlarged on regular bail by the Trial Court vide order dated 18.10.2024. It is also submitted that as the trial is not likely to conclude in a reasonable period, the constitutional mandate of Article 21 would supersede the conditions stipulated under Section 45 of the PMLA. Reliance is placed upon the decision of the Supreme Court in Abhishek Boinpally v. Directorate of Enforcement Abhishek Boinpally v. Directorate of Enforcement, decided in Crl.A. No. 4188/2024 dated 14.10.2024 and Manish Sisodia v Directorate of Enforcement Manish Sisodia v Directorate of Enforcement, reported as 2024 SCC OnLine SC 1920 . 8. Mr Zoheb Hossain, learned Special Counsel for the respondent agency, while opposing the applicants prayer, submitted that the delay in trial is attributable to all the accused persons who sought repeated adjournments. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of allegations, the conditions under Section 45 of the PMLA would have to give way to the constitutional mandate of Article 21. What is a reasonable period for completion of trial would have to be seen in light of the minimum and maximum sentences provided for the offence, whether there are any stringent conditions which have been provided, etc. It would also have to be seen whether the delay in trial is attributable to the accused. [V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement reported as 2024 INSC 739] 12. In Senthil (Supra), the Supreme Court while reiterating the ratio enunciated in Union of India v. K.A. Najeeb (Three Judge bench) (2021) 3 SCC 713, also held that if the Constitutional Court comes to the conclusion that the trial would not be able to be completed in a reasonable time, the power of granting bail could be exercised on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. It was held that:- 21. Hence, the existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. A property derived or obtained, directly or indirectly, by a person as a result ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45 (1) (ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional Courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution of India will be defeated. In a given case, if an undue delay in the disposal of the trial of scheduled offences or disposal of trial under the PMLA can be substantially attributed to the accused, the Constitutional Courts can always decline to exercise jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long period and depending on the nature of the allegations, the right to bail will have to be read into Section 45 of PMLA. xxx 49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. 50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor. 14. Prem Prakash v. Union of India through the Directorate of Enforcement reported as 2024 SCC OnLine SC 2270, is another recent decision where it has been reiterated that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of the Act and the constitutional mandate being the higher law, the right to speedy trial must be ensured and if the trial is being delayed for reasons not attributable to the accused, his incarceration should not be prolonged on that account. The relevant extract of the said judgement is enacted below for convenience:- 11 .All that Section 45 of PMLA menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years. It is in this background that Section 45 of PMLA needs to be understood and applied. Article 21 being a higher constitutional right, statutory provisions should align themselves to the said higher constitutional edict. (emphasis added) 15. The view taken in the Manish Sisodi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntion) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 ( the NDPS Act ) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156] , Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians. 15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] being rendered by a three-Judge Bench is binding on a Bench of two Judges like us. (Emphasis added) To the similar extent are the decisions in Mohd. Muslim alias Hussain v State (NCT of Delhi 2023 SCC OnLine SC 352, Jitendra Jain v. Narcotics Control Bureau 2022 SCC OnLine SC 2021, Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109 and Man Mandal and Anr. v. State of West Bengal 2023 SCC OnLine SC 1868, wherein while taking into account the prolonged custody and unlikelihood of completion of trial in immediate future, the accused was granted bail. 18. The predicate offence was investigated by the Central Bureau of Investigation (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een in custody since more than 24 months. Moreover, the trial is yet to commence and is likely take some time to conclude. It is also pertinent to note that the main accused Satyendra Jain has already been granted bail by the Sessions Judge vide order dated 18.10.2024. Parity as a ground is applicable even in PMLA cases, as held in Abhishek Boinpally (Supra). No evidence has been led to show that the present applicants are a flight risk. In fact, records would show that both the applicants have joined investigation on multiple occasions. Both the applicants have been released once on interim bail and during that period no incident has been alleged by the respondent to have occurred wherein the applicants have tried to tamper with evidence or influence witnesses. In addition, it is also noted that since further investigation by the CBI is still pending, there is no possibility of the trial commencing, let alone concluding in the predicate offence in the foreseeable future and consequently, the present case under the PMLA also cannot be finally determined and would inevitably be delayed due to the lack of progress of the trial in the predicate offence. In this regard, the Court deems ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the PML Act till he has suffered incarceration for the specified period. This Court, in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427, held that while ensuring proper enforcement of criminal law on one hand, the court must be conscious that liberty across human eras is as tenacious as tenacious can be (emphasis added) 21. Considering the totality of the facts and circumstances, the fact that the main accused is out on bail, the period of custody undergone, likelihood of supplementary challan being filed and that the trial is yet to commence, keeping in mind the import of the Catena of decisions of Supreme Court discussed hereinabove, it is directed that both the applicants be released on regular bail subject to them furnishing respective personal bonds in the sum of Rs. 1,00,000/- with one surety of the like amount each to the satisfaction of the concerned Jail Superintendent/concerned Court/Duty J.M./link J.M. and subject to the following further conditions: - i) The applicants shall not leave Delhi/NCR without prior permission of the concerned Court and surrender his passport, if any. ii) The applicants shall provide his mobile number to the Investigating Off ..... X X X X Extracts X X X X X X X X Extracts X X X X
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