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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 ..... Case Information Report bearing No. ECIR/DLZO-I/35/2021 under Section ¾ of Prevention of Money Laundering Act, 2002 lodged by the Directorate of Enforcement on 26.03.2021. It is further prayed that this Hon'ble Court may graciously be pleased to release the Applicant on Interim Bail in relation to Enforcement Case Information Report bearing No. ECIR/DLZO-I/35/2021 under Section ¾ of Prevention of Money Laundering Act, 2002 lodged by the Directorate of Enforcement on 26.03.2021; during the pendency of the present case before this Hon'ble Court, otherwise the personal liberty of the Applicant shall be at stake which cannot be compensated in any manner and/or to pass such other and further order this Hon'ble Court may deem fit and proper under the facts and circumstance of the case." 3. The facts of the case are that a complaint dated 05.04.2024 was filed by the Assistant Director (PMLA), Directorate of Enforcement, Delhi Zonal Office-I, New Delhi against (i) M/s SVOGL Oil Gas & Energy Limited (through the then Chairman and Managing Director, Sh. Prem Singhee and the then Joint Managing Director) Tower-1, Fifth Floor, NBCC Plaza, Sector V, Push Vihar, New Delhi-110017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 2017. Padam Singhee and Prem Singhee key managerial persons of M/s SVOGL and others through associate entities siphoned off the loans availed by indulging in criminal conspiracy and generated Proceeds of Crime within the meaning of Section 2(1) (u) of PMLA. The loss incurred to the Complainant Bank is to the tune of Rs. 252,61,46,476/- which constitutes Proceeds of Crime in the instant case. 5. Learned counsel for the applicant submitted as under:- (1) Loan was taken by the company of which the applicant is the Joint Managing Director. (2) The said loan was not repaid. (3) The account of loan of the company was declared NPA with retrospective effect from 26.12.2013. (4) No offence thus is made out in the above mentioned situation and circumstances. (5) On the basis of a complaint lodged by Punjab National Bank, NOIDA, a First Information Report bearing FIR No. RCBD1/2021/E/0001, dated 10.03.2021 was registered by the Central Bureau of Investigation under Sections 120B r/w 409 & 420 I.P.C. and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against the applicant and others being the predicate offence in which the applicant has been granted bail vide ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 4 of the PMLA. The minimum punishment for an offence punishable under Section 4 is imprisonment for three years, which may extend to seven years. If the scheduled offences are under paragraph 2 of Part A of the Schedule in the PMLA, the sentence may extend to 10 years. In the appellant's case, the maximum sentence can be of 7 years as there is no scheduled offence under paragraph 2 of Part A of Schedule II alleged against the appellant. 15. We have already narrated that there are three scheduled offences. In the main case (CC Nos. 22 and 24 of 2021), there are about 2000 accused and 550 prosecution witnesses cited. Thus, it can be said that there are more than 2000 accused in the three scheduled offences, and the number of witnesses proposed to be examined exceeds 600. 16. This Bench is also dealing with MA no. 1381 of 2024 seeking various reliefs such as a transfer of investigation of scheduled offences, appointment of special public prosecutor etc. The orders passed in the said application would reveal that the sanction to prosecute all public servants, including the appellant, has now been granted. Charges have not been framed in the scheduled offences. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.] 20. Existence of proceeds of crime is a condition precedent for the offence under Section 3. Proceeds of crime have been defined in Section 2(u) of the PMLA which reads thus: "2 ................................................... (u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such property or where such property is taken or held outside the country, then the property equivalent in value held within the country [or abroad]; Explanation.-For the removal of doubts, it is hereby clarified that "proceeds of crime" include property not only derived or obtained from the scheduled offence but also any property which may dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peedy 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. 51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra 2024 SCC OnLine SC 1693 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 (1978) 1 SCC 240 : 1977 INSC 232, Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : 1980 INSC 68, Hussainara Khatoon (I) v. Home Secretary, State of Bihar (1980) 1 SCC 81 : 1979 INSC 34, Union of India v. K.A. Najeeb (2021) 3 SCC 713 : 2021 INSC 50, and Satender Kumar Antil v. Central Bureau of Investigation (2022) 10 SCC 51 : 2022 INSC 690. 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 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of an offence should not be permitted to become punishment without trial. 55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial. 56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State. 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant. .............................................." (emphasis added) 24. There are a few penal statutes that make a departure from the provisions of Sections 437, 438, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used is continued for an unreasonably long time, the provisions may be exposed to the vice of being violative of Article 21 of the Constitution of India. 27. Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act. When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve rise to a claim for compensation. 29. As stated earlier, the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial." B. In the case of Arvind Kejriwal v. Central Bureau of Investigation : 2024 SCC OnLine SC 2550 the Apex Court has held as under: "38. The evolution of bail jurisprudence in India underscores that the 'issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process'.4 The principle has further been expanded to establish that the prolonged incarceration of an accused person, pending trial, amounts to an unjust deprivation of personal liberty. This Court in Union of India v. K.A. Najeeb has expanded this principle even in a case under the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government." In Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929, this Court categorically held that while Section 45 of PMLA restricts the right of the accused to grant of bail, it could not be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. Para 131 is extracted hereinbelow:- "131. It is important to note that the twin conditions provided under Section 45 of the 2002 Act, though restrict the right of the accused to grant of bail, but it cannot be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail. The discretio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 of PMLA can be suitably relaxed to afford conditional liberty. Further, Manish Sisodia (II) (supra) reiterated the holding in Javed Gulam Nabi Sheikh (Supra), that keeping persons behind the bars for unlimited periods of time in the hope of speedy completion of trial would deprive the fundamental right of persons under Article 21 of the Constitution of India and that prolonged incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial. 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 N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true. We have taken the charge sheet and the statement of witness Z as they are without conducting a minitrial. Looking at what we have held earlier, it is impossible to record a prima facie finding that there were reasonable grounds for believing that the accusation against the appellant of commission of offences under the UAPA was prima facie true. No antecedents of the appellant have been brought on record. 20. The upshot of the above discussion is that there was no reason to reject the bail application filed by the appellant. 21. Before we part with the Judgment, we must mention here that the Special Court and the High Court did not consider the material in the charge sheet objectively. Perhaps the focus was more on the activities of PFI, and therefore, the appellant's case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote: "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]: "I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."" 53. The Court further observed that, 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 withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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) If the passport of the petitioner is still with him, the same shall be deposited with the Special Court. (ii) The petitioner shall not make any direct or indirect attempt to contact the witnesses, who are likely to depose against him. (iii) The petitioner shall not indulge in tampering of the evidence and any such attempt by him shall be taken as a misuse of concession of this bail order. (iv) The petitioner shall furnish a fresh list of immovable assets owned by him and his family and the ED shall be at liberty to attach all such assets. The bank account of the petitioner shall also remain seized. (v) The petitioner shall appear before the Trial Court regularly and in the event he is found absent, the ED shall be at liberty to seek cancellation of bail granted to him today by this Court." F. In the case of Sk. Javed Iqbal v. State of U.P. : (2024) 8 SCC 293 the Apex Court has held as under: "41. In Gurwinder Singh [Gurwinder Singh v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er 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 withheld as a punishment. 10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote: "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]: "I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial." 11. The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab, (1980) 2 SCC 565 that the object of bail is to secure the attendance of the accused at the trial, that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 observed as under: "21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail, may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31st December 2021, over 5,54,034 prisoners were lodged in jails against total capacity of 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. 22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the Kerala High Court in A Convict Prisoner v. State, 1993 Cri LJ 3242, as "a radical transformation" whereby the prisoner: "loses his identity. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 17. In the recent decision, Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973 would apply: "We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm 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 would have to apply while testing prosecution's plea of pre-trial detention, both at investigation and post charge-sheet stage." H. In the case of Sanjay Agarwal v. Directorate of Enforcement : 2022 SCC OnLine SC 1748 the Apex Court has held as under: "5. It appears that the appellant was admitted to regular bail in connection with the aforesaid offences punishable under the provisions of Customs Act vide order dated 28.08.2018. Upon registration of the proceedings by the Enforcement Directorate on 03.02.2021, the appellant came to be arrested in said PMLA case on 28.11.2021 and has since then been in custody. 6. At this stage, we need not go into the submissions raised on behalf of either side. The fact of the matter is that for an offence where the maximum sentence could be punishable with imprisonment for seven years, the appellant has undergone custody for abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter 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 with an offence under Prevention of Money Laundering Act. (2) In the predicate offence he has been granted bail. The said order stands final till date. (3) No charge sheet has been submitted in the predicate offence with regards to the present issue being committed relating to Punjab National Bank till date. (4) The law with regards to trial is clear and well settled. (5) The case under PMLA and the predicate offence has to be tried together by the same court which is not possible in the present case as of now since predicate offence is yet to see its charge sheet, if any. (6) The challenge to declaring M/s SVOGL Oil Gas & Energy Limited as "Wilful Defaulter" and its account as "Fraud" was successful and the same was struck down by Hon'ble Delhi High Court. The said order also attains finality. (7) Custodial i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our 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 COUNSEL(S) FOR THE APPLICANT TO THE INVESTIGATING OFFICER 12. Before closing the present matter an important issue which was raised by learned counsel for the Enforcement Directorate with regards to the competency of an Advocate representing the parties to interact directly with the investigating agency with regards to the matter pending in the court in which the said agency is duly represented by its counsel needs to be considered and decided. 13. Learned counsel for the Enforcement Directorate submitted that Supplementary Affidavit dated 29.10.2024 filed on behalf of the applicant encloses with it an e-mail dated 23.09.2024 at 18:36 hours by Mr. Ashul Agarwal from e-mail id- "[email protected]" to email id- "[email protected]" with the following contents:- "Sir, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 affidavit filed by the Respondent ED and had posted the matter for 21.10.2024. Copy of the order dated 02.09.2024 passed by this Hon'ble Court in Criminal Misc. Bail Application No. 32326 of 2024 is marked as ANNEXURE-SA "1" to the present supplementary affidavit. b) The Applicant herein has been compelled to prefer the present miscellaneous application as the Respondent ED has not yet filed any counter affidavit despite the lapse of three weeks period granted to it from 02.09.2024 which came to an end on 23.09.2024. It is further stated that the counsels for the Applicant even tendered 2 emlails to the concerned investigating officer thereby requesting him to expedite the filing of the Counter affidavit so that the present bail application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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