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TMI Blog2024 (3) TMI 1418X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution. Section 436A of the Cr.P.C. is a statutory safeguard designed to prevent excessive and disproportionate pre-trial detention. It provides that an accused, who has undergone detention for a period equivalent to one-half of the maximum sentence prescribed for the offence, shall ordinarily be released on bail unless the court, for reasons recorded in writing, directs otherwise. In the context of offences under PMLA, where the maximum sentence is ordinarily seven years, the one-half threshold would be three and a half years. Although the proviso to Section 436A of Cr.P.C. allows the court to extend the period of detention beyond the one-half threshold based on the facts of the case, yet such extended detention cannot be indefinite and the Courts must assess the necessity of continued incarceration in light of the specific facts, the stage of the trial, and the overall interests of justice. In V. Senthil Balaji v. Enforcement Directorate [2024 (9) TMI 1497 - SUPREME COURT], it was observed that existence of proceeds of crime at the time of the trial of the offence under Section 3 of the PMLA can be proved only if the scheduled offence is established in the prosecution of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ENT SWARANA KANTA SHARMA, J 1. The applicant, Christian James Michel, seeks regular bail by way of the present application, in case arising out of ECIR No. DLZO/15/2014/AD(VM) 7551-7584, dated 03.07.2014, recorded for offence under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 [hereafter 'PMLA']. FACTUAL BACKDROP 2. The brief facts of the case, as discernible from the material on record, are that based on a disclosure made by the then Head of External Relations of M/s Finmeccanica, the holding company of M/s AgustaWestland International Ltd. [hereafter 'AWIL'], Italian authorities had initiated an investigation in 2011 regarding alleged bribe payments through middlemen, including Guido Ralph Haschke and the present applicant i.e. Christian James Michel, in connection with the supply of 12 VVIP helicopters by AWIL to the Government of India. The Public Prosecutors' Office in Naples and Rome had conducted telephonic and technical surveillance on Guido Ralph Haschke and others, including the then CEO of M/s Finmeccanica. The surveillance had revealed that AWIL had disguised bribes as payments for engineering jobs. During a search at the residence of Guido Ralph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n investigation by the Directorate of Enforcement (DoE), a prosecution complaint was filed against five accused persons on 20.11.2014. The applicant was named as an accused in the first supplementary complaint dated 10.06.2016. 6. To secure the presence of the applicant, an open-ended Non-Bailable Warrant was issued on 23.10.2015, followed by a Red Corner Notice published by INTERPOL on 04.01.2016. An extradition request for the applicant was also sent to the authorities of the United Arab Emirates (UAE) on 23.12.2017. He was extradited to India in December 2018 and was arrested by the DoE on 22.12.2018, following which his custodial interrogation was conducted. On 05.01.2019, he was sent to judicial custody by the learned. Special Court, PMLA. Another prosecution complaint against him was filed on 04.04.2019. 7. Insofar as the applicant's role is concerned, it is alleged that money laundering in this case was primarily executed through two channels, with the applicant being the key figure in one. He was allegedly paid Euro 42 million to influence the contract in favor of M/s AgustaWestland under the guise of five contracts (two of which were repeatedly revised) through his firms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed act of lowering the height of the VVIP helicopters from 6000 meters to 4500 meters and there is no material evidence to connect the applicant with the alleged offence. It is contended that the applicant has already undergone six years and two months of incarceration, in addition to 130 days of pre-extradition detention in Dubai. It is contended that the maximum sentence prescribed under Sections 3 and 4 of PMLA is seven years, and the applicant has nearly served this period without any conviction, and thus, the continued detention of the applicant without trial amounts to pre-trial punishment, violating his fundamental right under Article 21 of the Constitution of India to a fair and expeditious trial. 10. It is argued that the investigation in both the predicate offence and the PMLA case remains ongoing, and there is no reasonable likelihood of its conclusion in the near future. Despite the passage of several years, the trial has not even commenced. It is submitted that the prosecution itself has submitted that there are a voluminous number of documents and a large number of witnesses are to be examined, which will inevitably prolong the proceedings for several more years. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued against him on 17.10.2017. The applicant's blatant refusal to submit himself to the jurisdiction of Indian courts compelled the Indian authorities to seek his extradition from UAE, which was granted, leading to his arrest on 22.12.2018. 14. It is further submitted that the applicant made deliberate and systematic efforts to evade the investigating agencies. While he was a frequent visitor to India before the AgustaWestland helicopter deal investigation came to light, he absconded once his involvement became public. Notably, on 12.02.2013, when Giuseppe Orsi, a key figure in the deal, was arrested by Italian authorities, the applicant had arrived at Delhi Airport on the same day but, upon learning of Orsi's arrest, immediately left India. This sequence of events clearly demonstrates his intention to evade the investigation. Furthermore, even after being brought into custody, the applicant attempted to obstruct the investigative process. During interrogation, he was caught trying to pass confidential papers to his counsel at the time of legal access. 15. It is also argued on behalf of the DoE that the applicant cannot claim parity with other accused persons in the case a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of PMLA have not been satisfied. As per the decision in Vijay Madanlal Chaudhary v. Union of India: 2022 SCC OnLine SC 929, the accused must demonstrate that (i) there are reasonable grounds to believe that he is not guilty of the offence and (ii) he is not likely to commit any offence while on bail. In the present case, given the overwhelming evidence of evasion, obstruction of investigation, and the serious nature of the allegations, it is contended that the applicant fails to meet these requirements. 19. On the above grounds, the learned counsel for the DoE prays that the present bail application be dismissed. 20. This Court has heard arguments addressed by the learned counsel for the applicant, as well as learned Special Counsel for the DoE. The material placed on record by either side has also been perused and examined. ANALYSIS & FINDINGS 21. The case against the applicant arises from the alleged AgustaWestland VVIP helicopter scam, where he is accused of being a middleman who had facilitated bribes to Indian officials to secure a deal for the supply of 12 AW-101 helicopters. The DoE alleges that he had laundered proceeds of crime by routing illicit funds through she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons under Article 21. It was observed as under: "12. .... All that Section 45 of the PMLA mentions is that certain conditions are to be satisfied. The principle that, "bail is the rule and jail is the exception" is 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 the PMLA by imposing twin conditions does not rewrite 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. 13. Independently and as has been emphatically reiterated in Manish Sisodia case4 relying on Ramkripal Meena v. Enforcement Directorate and Javed Gulam Nabi Shaikh v. State of Maharashtra, where the accused has already been in custody for a considerable number of months and there being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 extraordinary powers, as held in K.A. Najeeb v. Union of India, 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 ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 has been examined. Therefore, the trial is not likely to be concluded within few years. Hence, a decision of this Court in the case of V. Senthil Balaji v. Deputy Director, Directorate of Enforcement will apply. *** 5. Our attention is invited to a decision of a coordinate Bench in the case of Union of India through the Assistant Director v. Kanhaiya Prasad. After having perused the judgment, we find that this was a case where the decisions of this Court in the case of Union of India v. K.A. Najeeb and in the case of V. Senthil Balaji were not applicable on facts. Perhaps that is the reason why these decisions were not placed before the coordinate Bench. The respondent-accused therein was arrested on 18th September, 2023 and the High Court granted him bail on 6th May, 2024. He was in custody for less than 7 months before he was granted bail. There was no fining recorded that the trial is not likely to be concluded in a reasonable time. In the facts of the case, this Court cancelled the bail granted by the High Court. Therefore, there was no departure made from the law laid down in the case of Union of India v. K.A. Najeeb and V. Senthil Balaji. 6. The learned Solicitor Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n years, the one-half threshold would be three and a half years. Although the proviso to Section 436A of Cr.P.C. allows the court to extend the period of detention beyond the one-half threshold based on the facts of the case, yet such extended detention cannot be indefinite and the Courts must assess the necessity of continued incarceration in light of the specific facts, the stage of the trial, and the overall interests of justice. For an offence under Section 4 of PMLA, where the maximum punishment is seven years, the threshold for Section 436A of Cr.P.C. would be three and a half years. While the proviso to Section 436A allows courts to extend detention beyond this period in exceptional circumstances, the present case is not one where the applicant's custody is only marginally beyond the halfway mark. Instead, the applicant has been in custody for over six years and two months-which is alarmingly close to the maximum punishment - without even being adjudicated guilty. It was pointed out that more than 100 witnesses are to be examined in the present case and there are more than 1000 documents relied upon by the prosecution. Given that the trial is unlikely to conclude before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial, it will be open for them to approach this Court for recall of this order. The Special Leave Petition and pending applications are disposed of accordingly " 34. Therefore, in this Court's opinion, the prolonged incarceration of the accused, of about six years and two months, and the fact that investigation is not yet complete and trial has not yet begun, and there are more than 100 witness to be examined in this case, would entitle him to grant of regular bail, thereby overriding the statutory bar under Section 45 of PMLA and proviso to Section 436A of Cr.P.C. 35. Insofar as the argument of the DoE, that applicant is a flight risk, is concerned, this Court is of the view that though the Coordinate Bench of this Court, while dismissing the previous bail applications of the applicant had taken note of the conduct of the applicant, and held that he was a flight risk, the said argument would not be of any help to the DoE at this stage, inasmuch as the applicant herein has already been granted regular bail by the Hon'ble Supreme Court vide order dated 18.05.2025, and it has been directed that the CBI would make appropriate request before the learned Trial Court for imposing ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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