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TMI Blog2024 (12) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and reminded by the Apex Court and other Courts - The applicant is in jail since 07.02.2024 - There are no chances of his absconding - Looking to the facts and circumstances of the case, it is a fit case for grant of bail. Let the applicant Padam Singhee, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the fulfilment of conditions which are being imposed in the interest of justice - bail application allowed. - Hon'ble Samit Gopal, J. For the Applicant : Ram M. Kaushik For the Opposite Party : Jitendra Prasad Mishra, Pawan Kumar Srivastava ORDER HON'BLE SAMIT GOPAL, J. 1. Heard Sri Kapil Sibal, learned Senior Advocate through Video Conferencing assisted by Sri Tanveer Ahmad Mir, Sri Ram M. Kaushik, learned counsels for the applicant, who are present in Court and Sri Gyan Prakash, learned Senior Advocate / Additional Solicitor General, Government of India assisted by Sri J.P. Mishra and Sri Kuldeep Srivastava, learned counsels for the Enforcement of Directorate/opposite party. 2. This Criminal Misc. Bail Application under Section 439 Code of Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbly prayed that; a. This Hon ble Court may be pleased to take cognizance of the offence of money laundering as defined u/s 3, punishable u/s 4 of Prevention of Money Laundering Act, 2002, and proceed in accordance with law, issue summons against accused persons, try and punish according to law. b. To pass appropriate order for confiscation of properties, to the extent of proceeds of crime of this case, frozen during search action dated 15.12.2024 and 06.01.2024 being proceeds of crime in terms of section 8 (5) of Prevention of Money Laundering Act, 2002. c. Confiscate the properties attached vide Provisional Attachment Order No. 04/2024 dated 25.01.2024 in terms of section 8(5) of PMLA, 2002. d. Confiscate the properties attached vide Provisional Attachment Order No.06/2024 dated 22.03.2024 in terms of section 8(5) of PMLA, 2002. e. The Complaint craves leave of the Hon ble Court to file Supplementary prosecution Complaint, if required. f. To grant any other relief, which this Hon ble Court deem fit and proper, in the facts and circumstances of the case. The court took cognizance upon the same and summoned the accused persons vide an order of the same date. The applicant is in jai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en submitted in the predicate offence and as such the trial cannot proceed. (9) No fraud has been committed since the claim of the Bank for declaring the Company as Wilful Defaulter or its account as Fraud has been struck down by Hon ble Delhi High Court. (10) After release of the applicant on bail in the predicate offence the said order is not under challenge and has attained finality till date. (11) Reliance has been placed on orders / judgments of the Apex Court to submit that subsequent to grant of bail to the accused in the predicate offence, he is entitled to bail, delay in trial violates the right of the accused under Article 21 of the Constitution of India, the period of detention of the accused also has to be considered, the twin conditions under Section 45 of PMLA imposing restraint of grant of bail to an accused is not absolute, the grant of bail is a rule whereas jail is an exception and that the principle of law of bail is not to be withheld as a punishment. The following judgments / orders of the Apex Court have been placed for the same before the Court: A. In the case of V. Senthil Balaji v. Deputy Director, Directorate of Enforcement : 2024 SCC OnLine SC 2626 the Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d out. 18. In the offence under the PMLA, the charge has not been framed. In view of Clause (d) of sub-section (1) of Section 44 of PMLA, the procedure for sessions trial will have to be followed for the prosecution of an offence punishable under Section 4 of the PMLA. In view of clause (c) of sub-section (1) of Section 44, it is possible to transfer the trial of the scheduled offences to the Special Court under the PMLA. 19. The offence of money laundering has been defined under Section 3 of the PMLA which reads thus: 3. Offence of money-laundering . Whosoever directly or indirectly attempts to indulge or knowingly assists or knowingly is a party or is actually involved in any process or activity connected with the [proceeds of crime including its concealment, possession, acquisition or use and projecting or claiming] it as untainted property shall be guilty of offence of money-laundering. [Explanation. For the removal of doubts, it is hereby clarified that, (i) a person shall be guilty of offence of money-laundering if such person is found to have directly or indirectly attempted to indulge or knowingly assisted or knowingly is a party or is actually involved in one or more of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial. (emphasis added) 23. In the case of Manish Sisodia v. Directorate of Enforcement, 2024 SCC OnLine SC 1920 in paragraphs 49 to 57, this Court held thus: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment . From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that bail is rule and jail is exception . 54. In the present case, in the ED matter as well as the CBI matter, 493 witnesses have been named. The case involves thousands of pages of documents and over a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sposal of cases must be read into these statutes. Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. It is a well-settled principle of our criminal jurisprudence that bail is the rule, and jail is the exception. These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time. 26. There are a series of decisions of this Court starting from the decision in the case of K.A. Najeeb 2, which hold that such stringent provisions for the grant of bail do not take away the power of Constitutional Courts to grant bail on the grounds of violation of Part III of the Constitution of India. We have already referred to paragraph 17 of the said decision, which lays down that the rigours of such provisions will melt down where there is no likelihood of trial being completed in a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. One of the reasons is that if, because of such provisions, incarceration of an undertrial accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tution 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 to issue prerogative writs. An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary. 28. Some day, the courts, especially the Constitutional Courts, will have to take a call on a peculiar situation that arises in our justice delivery system. There are cases where clean acquittal is granted by the criminal courts to the accused after very long incarceration as an undertrial. When we say clean acquittal, we are excluding the cases where the witnesses have turned hostile or there is a bona fide defective investigation. In such cases of clean acquittal, crucial years in the life of the accused are lost. In a given case, it may amount to violation of rights of the accused under Article 21 of the Constitution which may give ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u, learned advocates. We have also heard Mr. S.V. Raju, Learned Additional Solicitor General, ably assisted by Mr. Zoheb Hussain and Mr. Kanu Agarwal for the respondents. Learned Senior Counsels on both sides have placed their respective contentions and also filed detailed written submissions. SECTION 45 PMLA-CONTOURS 11. Considering that the present is a bail application for the offence under Section 45 of PMLA, the twin conditions mentioned thereof become relevant. Section 45(1) of PMLA reads as under: 45. Offences to be cognizable and non-bailable . (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm or is accused eit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure . Section 45 of PMLA by imposing twin conditions does not re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied . 12. Independently and as has been emphatically reiterated in Manish Sisodia (II) (supra) relying on Ramkripal Meena v. Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024) and Javed Gulam Nabi Shaikh v. State of Maharashtra , 2024 SCC OnLine SC 1693, where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial within a short span, the rigours of Section 45 of PMLA can be suitably relaxed to afford conditional li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20. Punishment for being member of terrorist gang or organisation . Any person who is a member of a terrorist gang or a terrorist organisation, which is involved in terrorist act, shall be punishable with imprisonment for a term which may extend to imprisonment for life, and shall also be liable to fine. Terrorist gang has been defined in Section 2(L), which reads thus: 2 Definitions. . (L) terrorist gang means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act; . There is not even an allegation in the charge sheet that the appellant was a member of any terrorist gang. As regards the second part of being a member of a terrorist organisation, as per Section 2(m), a terrorist organisation means an organisation listed in the first schedule or an organisation operating under the same name as the organisation was listed. The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member. We find that the PFI is not a terrorist organisation, as is evident from the first schedule. 19. Therefore, on plain reading of the charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra 6 wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh 7, Shri Gurbaksh Singh Sibbia v. State of Punjab 8, Hussainara Khatoon (I) v. Home Secretary, State of Bihar 9, Union of India v. K.A. Najeeb 10 and Satender Kumar Antil v. Central Bureau of Investigation 11. The Court observed thus: 19. If the 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 . 52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus: 10. In the afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC OnLine SC 2276 the Apex Court has held as under: 7. Adverting to the prayer for grant of bail in the instant case, it is pointed out by learned counsel for ED that the complaint case is at the stage of framing of charges and 24 witnesses are proposed to be examined. The conclusion of proceedings, thus, will take some reasonable time. The petitioner has already been in custody for more than a year. Taking into consideration the period spent in custody and there being no likelihood of conclusion of trial within a short span, coupled with the fact that the petitioner is already on bail in the predicate offence, and keeping in view the peculiar facts and circumstances of this case, it seems to us that the rigours of Section 45 of the Act can be suitably relaxed to afford conditional liberty to the petitioner . Ordered accordingly. 8. In view of the above and without expressing any views on the merits of the case, we are inclined to release the petitioner on bail. The petitioner is, accordingly, directed to be enlarged on bail subject to such terms and conditions as may be imposed by the learned Special Judge. In addition, the petitioner shall abide by the following conditions: (i) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 3 SCC 713] being rendered by a three-Judge Bench is binding on a Bench of two Judges like us. G. In the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another : 2024 SCC OnLine SC 1693 the Apex Court has held as under: 8. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India . 9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fundamental right under Article 21. 13. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya v. State of Bihar , (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak , (1992) 1 SCC 225. In the latter the court reemphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option: The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial. 14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) , 2023 INSC 311, this Court observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008. 16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb , (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17) 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 . G. In the case of Shoma Kanti Sen v. State of Maharashtra : (2024) 6 SCC 591, the Apex Court has held as under: 46. Pre-conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused. Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post charge-sheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the ground of being reasonable, following a just and fair procedure and such deprival must be proportionate in the facts of a given case . These would be the overarching principles which the law courts wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies and then siphoned off. (3) No joint trial is required as per Sections 44(1) (c) of Prevention of Money Laundering Act. (4) There is no requirement of charge sheet in the predicate offence. (5) The complaint particularly Table Nos. 6 to 13 clearly shows involvement of the applicant and the modus operandi. (6) Prevention of Money Laundering Act lays down its twin conditions for grant of bail under Section 45 which is applicable and due to the same, bail is not liable to be granted to the applicant. (7) The prayer for bail thus be rejected. 7. In rejoinder, learned counsel for the applicant submitted and reiterated as under:- (1) No charge sheet has been submitted in the predicate offence. (2) The statements of said two persons is of someone else which cannot be relied on. (3) No investigation is needed in the present matter and as such custody is not needed. (4) There are no chances of tempering with the evidence. (5) Rigours of twin conditions under Section 45 of PML Act do not apply. (6) It is a fit case for grant of bail. 8. After having heard learned counsels for the parties and perusing the records, it is evident that- (1) The applicant is in custody in connection wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against him, in accordance with law, under section 174-A I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The applicant shall deposit his passport before the trial court forthwith and shall also not leave the country without prior permission of the Court. (vii) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant. 10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison. 11. The bail application is allowed. ISSUE REGARDING E-MAILS BEING SENT BY THE COU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s submitted that sending such emails by counsel(s) of accused to the Investigating Officer cannot be permitted as a lawyer cannot interact directly with the Investigating Agency and the said act is objectionable and is beyond the professional work of a lawyer since the said officer gets harassed by the same. 16. Learned counsel for the Enforcement Directorate further placed para-2 of the said supplementary affidavit dated 16.10.2024 before the Court which reads as under:- 2. That I state that the below mentioned submissions are critical for proper and effective adjudication of the instant bail application. a) The above captioned case was listed before this Hon ble Court for first time on 02.09.2024, whereby this Hon ble Court had granted three weeks time to the Directorate of Enforcement for filing a counter affidavit to the bail application of the Applicant. It is pertinent to state herein that the said time of three weeks to file a counter affidavit was specifically granted on the request of the counsels representing the Directorate of Enforcement (ED) and further this Hon ble Court had granted a further time of two weeks to the Applicant to file a rejoinder to the counter affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Advocate except through that Advocate. 19. The action of learned counsel(s) for the applicant of sending emails directly to the Investigating Officer was not proper and cannot be appreciated. The investigating agency was duly represented by its Counsel/Standing Counsel right from the first day and were expected to comply with any direction(s) given by the Court. If the rival party needed to demonstrate that the same has not been complied with, the proper forum was to apprise the Court when the matter was next placed. A counsel cannot identify himself with his client. He cannot interact directly with agencies like Investigating Officer, etc. unless and until ordered so by a court particularly with regards to sub judice proceedings. Interacting directly with agencies, Investigating Officers, etc., is not the duty of a counsel appointed by an accused. He is to represent him in Court only. His work is to assist the Court. An order passed by a Court is expected to be followed and complied with by parties and if any party has any grievance against the other, the proper procedure is to apprise the Court about it. 20. Thus this Court does not appreciate the said act/conduct of the coun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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