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TMI Blog2025 (1) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... cial custody at Central Jail, Raipur. Earlier, the applicant had filed application seeking regular bail before the learned Special Judge (PMLA) ASJ-04, Raipur and vide order dated 07.08.2024 dismissed the application. On 18.07.2023, a search operation under Section 132 of the IT Act was carried out by the officials of the Income Tax Department at various premises including the residential premises of the applicant as well as at the premises of firms owned and controlled by the family members of the applicant. However, no incriminating documents or material or any cash was recovered during the search. Thereafter on 21.08.2023, the Income Tax Department filed complaint case through the Deputy Director of Income Tax (Inv.)-II Raipur inter alia arraying the applicant as accused No.3 for the alleged commission of offences under Section 277 of the IT Act and under Sections 181,191, 193, 196, 200, 383, 384,417,418,420 and 120-B/34 of the IPC. The applicant along with seven other accused persons have been made accused in the said IT complaint. As per the prosecution, following three criminal cases are pending against him : 1. Income Tax prosecution complaint dated 21.08.2023 under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al PMLA Court and was remanded to ED custody till 21.05.2024 which was further extended till 27.05.2024. 5. After completion of investigation, the ED filed its complaint in the subject ECIR before the learned PMLA Court, arraigning the applicant as accused No.2 on 28.06.2024. The applicant filed a written retraction before the PMLA court retracting from the statements and preferred application under Section 439 Cr.P.C. read with Section 45 of the PMLA before the learned trial court seeking grant of regular bail in the subject ECIR. However, the bail application for dismissed on 23.07.2024. Hence constrained by the said order of dismissal, the applicant has come before this Court by filing the instant application under Section 483 of the BNSS read with Section 45 of the PMLA seeking bail. SUBMISSIONS ON BEHALF OF APPLICANT 6. Contention of Shri Gupta, learned counsel for the applicant is that the case pertains to the alleged custom rice milling levy scam. The allegation is that in the year 2022, the Govt. increased the special incentive for custom milling from Rs. 40/- to Rs. 120/- per quintal. It is alleged that the applicant and co-accused conspired with other office bearers of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Central Bureau of Investigation and Another, (2022) 10 SCC 51 this Court referred to Surinder Singh Alias Shingara Singh v. State of Punjab (2005) 7 SCC 387 and Kashmira Singh v. State of Punjab, (1977) 4 SCC 291 to emphasize that the right to speedy trial is a fundamental right within the broad scope of Article 21 of the Constitution. In Vijay Madanlal Choudhary (supra), this Court while highlighting the evil of economic offences like money laundering, and its adverse impact on the society and citizens, observed that arrest infringes the fundamental right to life. 49 In P. Chidambaram v. Central Bureau of Investigation, (2020) 13 SCC 337, the appellant therein was granted bail after being kept in custody for around 62 days. This Court referred to Section 19 of the PML Act, for the in-built safeguards to be adhered to by the authorized officers to ensure fairness, objectivity and accountability. Vijay Madanlal Choudhary (supra), also held that Section 436A of the Code can apply to offences under the PML Act, as it effectuates the right to speedy trial, a facet of the right to life, except for a valid ground such as where the trial is delayed at the instance of the accused h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its first order in paragraph 25, after recapitulating in paragraph 24 as to what was stated in the charge-sheet filed by the CBI against the appellant, observed that, in view of the aforesaid discussion, the Court was not inclined to accept the prayer for grant of bail at that stage. However, certain paragraphs of the said order cannot be read in isolation from the other paragraphs. The order will have to be read in its entirety. In paragraph 28 of the said order, this Court observed that 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 Cr.P.C. and Section 45 of the PMLA. The Court held 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered the observations made by this Court with regard to right to speedy trial and prolonged period of incarceration. The courts below have rejected the claim of the appellant applying the triple test as contemplated under Section 45 of the PMLA. In our view, this is in ignorance of the observations made by this Court in paragraph 28 of the first order wherein this Court specifically observed that right to bail in cases of delay coupled with incarceration for a long period should be read into Section 439 Cr.P.C. and Section 45 of the PMLA. 9. In another decision of the Apex Court, Prem Prakash Vs. ED vide order dated 28.08.2024 in SLP (Crl.) No. 5416 of 2024 it has been observed as under: 12. Independently and as has been emphatically reiterated in Manish Sisodia (II) (supra) relying on Ramkripal Meena Vs Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024) and Javed Gulab Nabi Shaikh Vs. State of Maharashtra and Another, 2024 SCC online 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused is violated, 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 applied irrespective of the nature of the crime. He has referred to the decision of the Apex Court in the matter of Javed Gulam Nabi Shaikh Vs. State of Maharashtra, 2024 SCC OnLine SC 1693 wherein it has been observed that : "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." 11. He contended that Section 436-A Cr.P.C. should not be construed as a mandate that an accused should not be granted bail under the PMLA till he has suffered incarceration for the specified period of half of the maximum period of imprisonment. The detention or jail before being pronounced the guilty of an offence should not become punishme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements of this Court, we had observed in the case of Manish Sisodia (supra) that the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. 13. We had also reiterated the well-established principle that "bail is the rule and refusal is an exception". We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions. 13. Further in the case of Krishnan Subramanian Vs. State NCT of Delhi, 20-22 SCC OnLine Del 1384, it has been observed that : 24. A perusal of record shows that charge sheet has already been filed, all materials have been collected by the investigating authorities and the evidence against the applicant is documentary in nature. In the considered opinion of this Court, the applicant is neither a flight risk, nor can there be any propensity on his part to tamper with any evidence or influence any witness inasmuch as the entire domain of evidence is documentary in nature, which exists as it is from the year 2008 onwards, unhindered, and untampered. The applicant is a permanent resident of Delhi and has clean ant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pletion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty 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." 16. He further contended that the existence of a scheduled offence is a sine qua non for an offence under PMLA to be made out. The IT complaint it self is not maintainable and liable to be dismissed inter alia for the reasons that it has been filed by the Deputy Director of Income Tax, who is not the competent statutory authority to file the complaint. He further submits that the entire case against the applicant is based on extortion and the trial court after considering all the allegations and material on record, did not find any offence under Sections 200/383/384/420/120-B/34 IPC were made out and as such did not take cognizance of these offence. The fact that no cognizance of the alleged offence unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order passed by this Court in Writ Petition (Criminal) No. 1242 of 2022. The said writ petition was filed by accused namely Vinod Kumar Dandona' and others including the main accused 'hantanu Prakash' seeking quashing of the order dated 17.08.2018 passed by the MCA under Section 212 (1) (c) of the Companies Act, which led to the start of investigation into the affairs of ESL. 46. The coordinate bench of this court, considering the facts of the case, by its order dated 26.05.2022, had directed SFIO not to take any coercive steps against the petitioners therein, which includes the main accused Shantanu Prakash'. 47. From the perusal of the complaint, it is apparent that even in relation to the charges which are alleged against the present applicant, there are various other accused persons who have been named as co-accused. The role assigned to them at this stage is no different than the Applicant. However, surprisingly the SFIO did not feel any need or ground to arrest those co-accused persons and proceeded to file the complaint praying the learned Special Court to take cognizance of the offences. 96. Similarly in Ramesh Manglani vs. ED, 2023 SCC OnLine Del 3234, this Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rajnandgaon District Association who are the conspirators but no proceedings have been initiated against them. 19. It is contended that from perusal of the statements of the rice millers and other individuals whose statements are being relied upon by the ED shows that these persons have been tutored by the ED to give identical statements. The documents seized during investigation failed to disclose any connection of the applicant with the alleged scheme. There is nothing recorded in the diary to show that the said money, after having been received from rice millers was handed over to the applicant and the unaccounted money recovered by the ED was from the possession of two rice millers-Manoj Agrawal and Sunil Ubhrani. He contended that there was a conspiracy hatched by some of the office bearers of State Rice Millers Associations to make the applicant a scape goat in their plan. He submits that it is a settled law that mere diary entries cannot be read into evidence and the same are inadmissible in law, especially without independent evidence of their trustworthiness. He has referred to the decision of the Apex Court in the matter of Central Bureau of Investigation Vs. V.C. Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have already found to be not admissible in evidence under Section 34) are admissible under Section 9 of the Act to support an inference about the formers' correctness still those entries would not be sufficient to charge Shri Advani and Shri Shukla with the accusations levelled against them for there is not an iota of independent evidence in support thereof. In that view of the matter we need not discuss, delve into or decide upon the contention raised by Mr. Altaf Ahmed in this regard. Suffice it to say that the statements of the for witnesses, who have admitted receipts of the payments as shown against them in MR 71/91, can at best be proof of reliability of the entries so far they are concerned and not others. In other words, the statements of the above witnesses cannot be independent evidence under Section 34 as against the above two respondents. So far as Shri Advani is concerned Section 34 would not come in aid of the prosecution for another reason also. According to the prosecution case itself his name finds place only in one of the loose sheets (sheet No. 8) and not in MR 71/91. Resultantly, in view of our earlier discussion, section 34 cannot at all be pressed into service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 34 of the 1872 Act will not be attracted in view of the presumption in law under Section 22 of PMLA, which provides that where any record or property is found in the possession or control of any person, it shall be presumed that such record or property belongs to such person and the contents are true and in the handwriting of the said person. Rabin Kalai in his statement dated 12.08.2021 acknowledges his handwriting on the ledgers and the vouchers are acknowledged by Sanu Mallick in his statements on 30.09.2021 and 01.10.2021 and there is thus sufficient corroboration of the documents by oral statements." 21. Next contention of the learned counsel for the applicant is that the applicant fulfills the triple test. The entire material is documentary and is in the custody of the Court. The applicant does not have the propensity to evade the process of law and no such allegation has been made against the applicant seeking police/judicial custody. He contended that in catena of judgments including the recent one of P. Chidambaram Vs. CBI 2020 13 SCC 337, that while dealing with the bail application it is not in dispute that 'three factors' or the 'triple test' must be seen /satisfied vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of these facts that he/she would be in a position to plead and prove before the Special Court that there are grounds to believe that he/she is not guilty of such offence, so as to avail the relief of bail. Therefore, communication of the grounds of arrest, as mandated by Article 22(1) of the Constitution and Section 19 of the Act of 2002, is meant to serve this higher purpose and must be given due importance. 23. Contention of the learned counsel for the applicant is that the applicant is a businessman and is engaged in the business of rice milling and he is not a flight risk. There is no likelihood of tampering with evidence or influencing the witnesses. Another paramount consideration for grant of bail is that there is no likelihood of the applicant to tamper with the evidence. He submits that the investigation is concluded and the prosecution complaint has been filed. The allegation that the applicant is intimidating the witnesses in a predicate offence is baseless. Even otherwise, statement of one Ms. Pritika Pooja Kerketta is an extremely weak type of evidence and cannot be treated as substantive evidence against the accused. He has placed his reliance upon the decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it cannot be tested by cross-examination. It is a much weaker type of evidence than the evidence of an approver, which is not subject to any of those infirmities. Section 30, however, provides that the Court may take the confession into consideration and thereby, no doubt, makes it evidence on which the court may act; but the section does not say that the confession is to amount to proof. Clearly there must be other evidence. The confession is only one element in the consideration of all the facts proved in the case, it can be put into the scale and weighed with the other evidence." It would be noticed that as a result of the provisions contained in s. 30, the confession has no doubt to be regarded as amounting to evidence in a general way, because whatever is considered by the court is evidence; circumstances which are considered by the court as well as probabilities do amount to evidence in that generic sense. Thus, though confession may be regarded as evidence in that generic sense because of the provisions of Section 30, the fact remains that it is not evidence as defined by S.3 of the Act. The result, therefore, is that in dealing with a case against an accused person, the cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as Mal Lodha Vs. Directorate of Enforcement (2017) SCC OnLine Del 8676; Chandra Prakash Khandelwal Vs. Directorate of Enforcement 20223 SCC OnLine Del 1094 and Sanjay Jain Vs. Directorate of Enforcement, 2024 SCC OnLine Del 1656. In Sanjay Jain (supra), it has been held that : "62. Thus, the confessional statement of a co-accused under Section 50 fo the PMLA is not a substantive pice of evidence and can ben used only for the purpose of corroboration in support of other evidence to lend assurance to the Court in arriving a to a conclusion of guilt." 26. Learned counsel for the applicant contended that prima facie the applicant is not guilty of the offence of money laundering and the entire case is circumstantial. He submits that the entire case is based upon the allegations of extortion and illegal collection of money inter alia from the rice millers which is unfounded and baseless. He submtis that while the allegations of paying bribes have been made in the FIR, no proceedings under Section 8 of the Prevention of Corruption Act have been initiated against the persons who have allegedly paid bribe/commission in the instant case. He contended that all those persons who have been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stage of considering the bail application. Reference may advantageously be had to the decision of the Supreme Court in State (By NCB) Bengaluru v. Pallulabid Ahmad Arimutta, the relevant paragraph of which reads as under:- "12. ...The CDR details of some of the accused or the allegations of tampering of evidence on the part of one of the respondents is an aspect that will be examined at the stage trial." 27. In the matter of Azad Vs. State of GNCT of Delhi and Another, 2023 SCC OnLine Del 1769 wherein it has been held that : 44. The other connecting evidence against the accused persons are the recoveries effected from them in pursuant to their disclosure statements. As already noted in para no. 4 of this order, that part of robbed cash amount, both cheque books, two stamps of complainant's firm and one photocopy of Aadhar Card of his wife were recovered from the possession of the accused persons. The accused have failed to explain as to how the stamps, cheque books and photocopy of Aadhar Card of complainant's wife came into their possession which are his (PW-1) personal/private property over which no one else can have access. Not even a suggestion has been put to the witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and accordingly, issued instructions to the office bearers of all the district rice millers associations and rice millers in the State. From the Investigation, it was revealed that the applicant with the assistance of co-accused Manoj Soni used to keep the bills of rice millers who did not pay the amount pending, got inspection conducted by the Food Department at the premises of those rice millers who denied to pay the extortion amounts. The applicant had collected the amount from the office bearers of District Rice Millers association and sometimes from the rice millers directly. In the investigation, it has also been revealed that the applicant along with co-accused Manoj Soni forbade one Ms. Pritika Pooja Kerketta, the then DMO, Korba to join the investigation and asked her to go absconding and she was financially assisted by him. It has been further revealed in the investigation that the list of Rice Millers who paid extortion amount to the applicant and then then two DMOs, ie. Gajendra Rathore and Smt Priyanka Dewangan. A whatsapp chat was also forwarded to them. 31. Shri Pandey, contended that from the investigation, it has been revealed that the applicant had acquired the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of scheduled offence is a prerequisite, but for initiating action of "provisional attachment" under Section 5 there need not be a pre-registered criminal case in connection with scheduled offence. This is because the machinery provisions cannot be construed in a manner which would eventually frustrate the proceedings under the 2002 Act. Such dispensation alone can secure the proceeds of crime including prevent and regulate the commission of offence of money-laundering. The authorized officer would, thus, be expected to and, also in a given case, justified in acting with utmost speed to ensure that the proceeds of crime/property is available for being proceeded with appropriately under the 2002 Act so as not to frustrate any proceedings envisaged by the 2002 Act. In case the scheduled offence is not already registered by the jurisdictional police or complaint filed before the Magistrate, it is open to the authorized officer to still proceed under Section 5 of the 2002 Act whilst contemporaneously sending information to the jurisdictional police under Section 66 (2) of the 2002 Act for registering FIR in respect of cognizable offence or report regarding non-cognizable offence and if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the 2002 Act. The relief granted in terms of Section 438 of the 1973 Code is one of directing release of the person on "bail" in case of his arrest; and such a relief has been described in judicial pronouncements as anticipatory bail. Section 45 (1) uses generic expression "bail" without reference to any provision of the 1973 Code, such as Sections 437, 438 and 439 of the 1973 Code. Concededly, Section 65 of the 2002 Act states that the provisions of the 1973 Code shall apply to the provisions under the Act insofar as they are not inconsistent with the provisions of the 2002 Act. Further, Section 71 of the Act gives overriding effect to the Act. Section 45 of the Act begins with a non-obstante clause, thus excluding the application of the 1973 Code in matters related to "bail". XXXX XXXXX XXXX 141. As a result, we have no hesitation in observing that in whatever form the relief is couched including the nature of proceedings, be it under Section 438 of the 1973 Code or for that matter, by invoking the jurisdiction of the Constitutional Court, the underlying principles and rigors of Section 45 of the 2002 must come into play and without exception ought to be reckoned to uphold th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lments and is a sick person under the proviso to Section 45 of the PMLA and therefore he is entitled to the benefit of the proviso, contended that regular medical check up of the accused was conducted during his period of custody and medication was also provide to him as prescribed by the doctor. It thus clearly demonstrates that frivolous allegations have been leveled by the applicant against the ED. 38. It is contended that the action of search under PMLA is merely a tool for investigation and is one of many such tools granted to ED by the Act which are employed to collect evidences during investigation. The possibility of parking the proceeds of crime at a secret place through layering cannot be denied. The applications filed by the applicant to retract the statements recorded are nothing but a deceptive tactic being employed by the applicant without any evidence to create some sort of defence for himself. The applicant had filed application under Section 439 Cr.P.C. read with Section 45 of the PMLA before the learned trial court seeking grant of regular bail in the subject ECIR. Learned trial court dismissed the bail application which clearly established the role of the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted this law as per commitment of the country to the United Nations General Assembly. PMLA is a special statute enacted by the Parliament for dealing with money laundering. Section 5 of the Code of Criminal Procedure, 1973 clearly lays down that the provisions of the Code of Criminal Procedure will not affect any special statute or any local law. In other words, the provisions of any special statute will prevail over the general provisions of the Code of Criminal Procedure in case of any conflict. 29. Section 45 of the PMLA starts with a non obstante clause which indicates that the provisions laid down in Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. Section 45 of the PMLA imposes following two conditions for grant of bail to any person accused of an offence punishable for a term of imprisonment of more than three years under Part-A of the Schedule of the PMLA: (i) That the prosecutor must be given an opportunity to oppose the application for bail; and (ii) That the Court must be satisfied that there are reasonable grounds for believing that the accused person is not guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ail as 638 Supra at Footnote No.255 639 Supra at Footnote No.207 640 Supra at Footnote No.258 prescribed under Section 45 of the 2002 Act are in addition to the limitations under the 1973 Code." 42. Further in the matter of Sajjan Kumar Vs. Directorate of Enforcement, MANU/DE/2155/2022, it has been held that "in matter of regular bail, the Court must consider aspects, including but not limited to, the larger interest of the State or public-another factor relevant would be the gravity of alleged offence and /or nature of allegations levelled-Economic offences constitute a class apart and need to be visited with a different approach, given their severity and magnitude." 43. Similarly, in the matter of Abdul Gafoor @ Kunhumon Vs. Assistant Director, Directorate of Enforcement in bail application No. 2840 of 2022 decided by the High Court of Kerala on 27.05.2022, has ordered as follows: "I have no hesitation to hold that the twin conditions as amended in Section 45 (1) in 2018 have now become referable and reliable to the offences punishable under PMLA and an accused charged with an offence under the Act still has to satisfy the rigours of those conditions notwithstanding the judgm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - "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 4[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." "24. Burden of Proof. - In any proceeding relating to proceeds of crime under this Act, (a) in the case of a person charged with the offence of money-laundering under Section 3, the Authority or Court shall, unless the contrary is proved, presume that such proceeds of crim e are involved in money-laundering; and (b) in the case of any other person the Authority or Court, may presume that such proceeds of crime are involved in money-laundering." 46. Shri Pandey, learned counsel for the respondent submits that the legality of sharing of information by ED to the predicate agencies under Section 66 of the PMLA and taking up investigation by predicate agencies by registering FIR on the basis of information received from ED. The applicant is one of the key conspirator and main beneficiary of the POC extorte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50 (4) of the PML Act, the statements recorded under Section 50 of the PMLA has evidentiary value as the proceedings under Section 50 (2) and (3) are deemed to be a judicial proceeding within the meaning of Section 193 and 228 of the IPC, 1860. 52. The applicant is closely connected with POC as he had deputed some persons at certain place and the cash was not physically taken by him but it was initially demanded by the applicant and payment, he conveyed it to the rice millers over phone. It has come in the statements of some of the rice millers who have personally handed over the extortion amount as demanded by the applicant. In Y.S. Jagan Mohan Reddy Vs. Central Bureau of Investigation (2013) 7 SCC 439, it has been observed that the economic offences having deep rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of country. In Union of India Vs. Hassan Ali Khan (2011) 10 SCC 235, this Court has laid down that what will be the burden of proof when attempt is made to project the proceeds of crime as untainte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicant as alleged by ED however only properties worth Rs. 19.39 crores has been recovered from the applicant in the form of proceeds of crime as well as under clause 'value thereof' as per Section 2(1)(u) of the PMLA. 55. Under PMLA, there is a presumption of guilt on the accused which they have to disprove to get bail. In an older version of the PMLA, the first condition stated that it would be presumed that the accused was guilty of the 'scheduled offence', and the reversed burden of proof on the accused was to disprove their involvement in the scheduled offence. In Nikesh Tarachand Shah Vs. Union of India, Criminal Appeal No. 2014 of 2017, (arising out of SLP (CRL) No.7789 of 2017), a division bench of the court ruled that the first condition was unconstitutional. Right after this in 2018, this condition was amended, and the new version stated that the reversed burden of proof on the accused was now to disprove their involvement in the 'money laundering' offence, and not the 'scheduled offence'. 56. It appears that prima facie the prosecution has adopted has acted in a pick and choose manner in the investigation and has specifically chosen not to proceed against several perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidences that reflected the involvement of the applicant and he is the key conspirator and beneficiary from the said scam. Thus, the guilt of the accused in the offence of money laundering has been gathered and since, the allegations against the applicant were extremely serious and taking into account, the nature and gravity of the offence and from perusal of the record and in view of the fact that looking to the special and stringent provision under Section 45 (1) of the PMLA for grant of bail, in the considered opinion of this Court, prima facie the money trail has been established by the prosecution and therefore, it is not proper to order release of present applicant on regular bail for the reasons mentioned hereinabove. 59. It was further held that with regard to the health issue of the applicant is concerned, as such there is no serious ailment. It is further held that if the authorities are adopting adequate measures to prevent deterioration of the health of the accused during the period of custodial internment, then the Court may not interfere. Referring to the judgment of Surjeet v. State (NCT of Delhi)2021 SCC OnLine Del 228, it has been held that if a good treatment ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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