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TMI Blog2024 (11) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, 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. The issue of long incarceration and right of speedy trial also cropped up in Manish Sisodia v Directorate of Enforcement [ 2024 (8) TMI 614 - 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 v. 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 ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Anant Nigam, Advocates. For the Respondent Through: Mr. Manish Jain, Special Counsel with Mr. Sougata Ganguly, Ms. Gulnaz Khan, Ms. Snehal Sharda and Mr. Deepanshu Kumar, Advocates. JUDGMENT 1. By way of present bail application, the petitioner/applicant seeks regular bail in the proceedings emanating out of ECIR/35/DLZO/I/2022 dated 16.09.2022 which was registered on the basis of the FIR bearing No. 9A dated 23.11.2016 registered by the Central Bureau of Investigation (hereafter, the CBI), AC-III, New Delhi under Sections 120-B of IPC 13 (1) (d) r/w 13 (2) of PC Act, 1988. 2. The allegations made in the aforesaid FIR, in nutshell, are that Mr. Amanatullah Khan, i.e. the main accused, in his tenure as chairman of the Delhi Waqf Board (hereafter, the DWB ), misused his position from March 2016 - October 2016 to appoint and engage relatives and other known persons to various posts in the DWB, from which they derived pecuniary benefits. It was further alleged that the tenancies of DWF properties were allotted without inviting bids and leased out only on reserve price. There were also allegations of misuse of DWB funds. The predicate offence was investigated by the CBI which culmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the purchasers. 5. As far as the sale transaction of the property is concerned, it is contended that the applicant is an Indian passport holder who has been working and residing in Dubai with his wife and three children since 2007. He made investments in India by purchasing properties in accordance with law. The properties in question, being property bearing No. 275 and 276, Zaidi Villa, TTI Road, Jamia Nagar, Okhla, New Delhi-110025 were purchased by the applicant in the name of his wife on 12.04.2019 from one Syed Ahmed Raza Zaidi and Samina Zaidi, Heba Zaidi Khosla and Aashti Zaidi for around 10.76 Crore rupees. The funding for the said purchase was arranged by the applicant by selling his two other properties vide sale deeds dated 09.12.2017 and 20.02.2018 for 2.29 Crore and 3.70 Crore rupees respectively. It is submitted that on account of some dispute with their neighbour Naseer Mohsin, who had filed a suit for enforcement of easement rights being CS SCJ 698/20, the wife of the applicant, in order to avoid unnecessary litigation agreed to sell the said properties to the builders M/s. Sky Powers (partnership company through its authorized partner Mr. Zeeshan Haider) and M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ank accounts of the applicant and his wife. The same is alleged to be the proceeds of sale of different properties. The role of the applicant figures in the sale transaction relating to said property which was in the name of applicant s wife Smt. Ayesha Quamar and was transferred to Zeeshan and Daud, who are close associates of the main accused, with Kauser, who is a cousin of the applicant and also the fund manager of the main accused, acting as a middleman. Reference is made to a bounded diary seized from the possession of co-accused Kausar Imam Siddiqui@ Laddan, in which entries have been made from page Nos 92-103 under the heading 2021 Sale Plot-12 Gj 17.09.2021 Sale for Zeeshan relating to the sale of the abovementioned property. This diary is stated to be countersigned by Zeeshan. Out of the 36 crore rupees, around 9 crore rupees have been given in form of cheques and the remaining amount of Rs. 27 crore is nothing but the proceeds of crime which have been given in cash to the applicant. A copy of an agreement to sell was found in the phone seized from co-accused Zeeshan showing consideration amount to be Rs. 36 Crores. The said agreement is stated to be witnessed by Kauser, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties and have gone through the record. 13. Pertinently, as noted above, CBI registered an FIR-RC 09(A)/2016/AC-III on 23.11.2016 against Amanatullah Khan and other accused persons, not including the present applicant. Chargesheet was filed without arrest under Sections 120B IPC, and Section 13 (2) r/w 13 (1) (d) of PC Act, 1988 against the main accused and 10 other persons. As noted above, predicate offence had the allegations that Amantullah Khan, as chairman of Delhi Waqf Board, misused his position during his tenure from March 2016 - October 2016 to appoint and engage relatives and other known persons to various posts in the DWB, from which they derived pecuniary benefits. It is pertinent to note that on conclusion of investigation, CBI found the allegations to be administrative irregularities and nowhere it is stated in the chargesheet that Amanatullah Khan derived any pecuniary benefits on account of this irregularity. Another FIR No. 05/2020 under Section 7 of the Prevention of Corruption Act, 1988 was registered at PS ACB based on similar allegations as stated in the CBI case on 28.01.2020. It was during the investigation of this FIR that a raid was conducted at the premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail application. 15. Lastly, so far as the statement of co-accused Kauser recorded under Section 50 of the PMLA is concerned, the veracity of the same would be tested at the stage of trial. Indeed in terms of sub section (4) of Section 50, the statements are recorded in proceedings that are deemed to be judicial proceedings, and are also held to be admissible in evidence. At the same time, this Court makes a positive reference to the observations of the Co-ordinate bench which while being seized with the same issue observed as under [ Sanjay Jain v. Enforcement Directorate 2024 SCC OnLine Del 16] : 56. The principle that emerges from Vijay Madanlal Choudhary (supra), as well as the above decisions as regards the statement recorded under Section 50 of the Act is that such statements are recorded in a proceeding which is deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Penal Code, 1860 and is admissible in evidence. The said statements are to be meticulously appreciated only by the Trial Court during the course of the trial and there cannot be a mini-trial at the stage of bail. However, when the statements recorded under Section 50 of PMLA a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The deprivation of liberty must only by procedure established by law, which should be fair and reasonable. Right of the accused to speedy trial is an important aspect which the Court must keep in contemplation when deciding a bail application as the same are higher sacrosanct constitutional rights, which ought to take precedence. Section 45 of the PMLA while imposing additional conditions to be met for granting bail, does not create an absolute prohibition on the grant of bail. When there is no possibility of trial being concluded in a reasonable time and the accused is incarcerated for a long time, depending on the 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]. 19. In Senthil (Supra), the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in 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) (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basic right of the person charged of an offence and not convicted that he be ensured and given a speedy trial. It further observed that when the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, would be guided to exercise the power to grant bail. The Court specifically observed that this would be true where the trial would take years. It could thus clearly be seen that this Court, in the first round of litigation between the parties, has specifically observed that in case of delay coupled with incarceration for a 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. 21. Prem Prakash v. Union of India through the Directorate of Enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In fact, Manish Sisodia (II) (Supra) reiterated the holding in Manish Sisodia (I) v. Directorate of Enforcement (judgment dated 30.10.2023 in Criminal Appeal No. 3352 of 2023) where it was held as under: 28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for 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 mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime. (Emphasis added) On similar lines is the case of Union of India v. K.A. Najeeb (Supra), wherein the Supreme Court held as under:- 12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. (Emphasis added) Taking note of above decision, in the case of Sk. Javed Iqbal v. State of U.P. (2024) 8 SCC 293, the Supreme Court held that:- 42. This Court has, time and again, emphasised that right to life and personal liberty enshrined under Article 21 of the Constitution of India is overarching and sacrosanct. A constitutional court cannot be restrained from granting bail to an accused on account of restrictive statutory provisions in a penal statute if it finds that the right of the accused-undertrial under Article 21of the Constitution of India has been infringed. In that event, such statutory restrictions would not come in the way. Even 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enged by the respondent before this Court vide CRL.MC. 5091/2024 on account of which the trial could not proceed. Ironically, the respondent agency withdrew the petition on 15.10.2024. In these circumstances, it is evident that the trial would take some time to conclude. 28. Considering the totality of the facts and circumstances, the fact that the main accused is out on bail, the period of custody undergone, the likelihood of supplementary challan being filed qua the main accused and that the trial has been stuck at the stage of supply of documents under Section 207 Cr.P.C., keeping in mind the import of the catena of decisions of Supreme Court discussed hereinabove, it is directed that the applicant be released on regular bail subject to him furnishing respective personal bond in the sum of Rs. 1,00,000/- with one surety of the like amount 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 applicant shall not leave Delhi/NCR without prior permission of the concerned Court. ii) The applicant shall deposit his passport, if any, with the trial court. iii) The applicant shall provide h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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