2024 (6) TMI 586 - Other - Money Laundering

Special Court allows accused to delete bail conditions requiring permission for foreign travel under PML Act

Vyomesh Shah Versus Directorate of Enforcement

The Special Court designated under PML Act, 2002 at Bombay allowed an accused's application to delete bail conditions requiring court permission for ... Deletion of bail condition - seeking permission to travel abroad - review of previous order - HELD THAT:- It is settled law that an accused has fundamental right to travel abroad. Certainly, he is required to take permission of the Court. It has to be noted that many accused persons involved in ED cases and who were never arrested under Sec.19 PML Act, have inevitable part of their life / profession to frequently and extensively travel abroad. Every time they have to apply to the Court for seeking permission of the Court. Certainly the Court cannot pass any order without hearing ED. ED raises typical objections of flight risk etc. for which they never thought to arrest the accused under Sec. 19 PML Act. Another aspect requires consideration is the volume of trial and approximate duration of its conclusion which anyone can anticipate or estimate. The release of applicant (A4) under Sec. 88 Cr.P.C was to safeguard the trial. As per Sec. 44(1)(c) PML Act the trial of PMLA case has to be simultaneously conducted with the trial of the case(s) related to the Scheduled Offence. In the instant case, the case related to the Scheduled Offence was pending in Jammu & Kashmir State and until the Court given direction to the ED, no step had been taken by the ED to commit the same, particularly when one of the accused Nihal Garware (A1) was undertrial prisoner. This applicant is a frequent flyer and for his profession he has to travel all over the world. Sometimes he visits 2-3 countries and thereafter, has to extend his travel to some other countries. The time span between such travels is very short wherein he cannot return India, approach the Court and seek further extension of travel. In such situation, either he has to loose his opportunities simply because of the Order of the Court or if he (A4) continues his travel to new destination which is not a part of his application for permission, his travel would certainly amount breach of the permission granted by this Court and ED would certainly canvass this aspect. Applicant is permitted to travel abroad during and until the conclusion of trial to any destination without any impediment of condition - further conditions imposed - application allowed. Issues Involved:1. Deletion of bail condition at Clause 2(iii) in the Order dated 07.06.2022.2. Objections raised by the Enforcement Directorate (ED) against the application.3. Applicant's contention based on the recent Supreme Court judgment in Tarsem Lal vs. Directorate of Enforcement.4. Court's observations on the ED's failure to arrest the applicant under Section 19 PML Act.5. Consideration of the applicant's fundamental right to travel abroad.6. Balancing the applicant's professional needs with the trial's requirements.7. ED's argument about the retrospective effect of the Supreme Court's judgment.8. Comparison of the applicant's situation with high-profile cases like Nirav Modi and Vijay Mallya.Issue-wise Detailed Analysis:1. Deletion of Bail Condition at Clause 2(iii) in the Order Dated 07.06.2022:The applicant, Vyomesh Shah (A4), sought the deletion of the bail condition that required him to seek court permission for every travel abroad. The court noted that the applicant, being a Managing Director of a company, needed to travel frequently for business purposes. The court acknowledged the inconvenience caused by the current condition, which required the applicant to file an application and wait for the ED's response each time he needed to travel.2. Objections Raised by the Enforcement Directorate (ED) Against the Application:The ED opposed the application on several grounds, including the risk of the applicant fleeing, tampering with evidence, and the potential for the applicant to procure an omnibus order without any restrictions. The ED argued that the applicant was effectively seeking a review of the previous order under the guise of this application.3. Applicant's Contention Based on the Recent Supreme Court Judgment in Tarsem Lal vs. Directorate of Enforcement:The applicant relied on the recent Supreme Court judgment in Tarsem Lal, which supported the view that conditions on travel should not unduly hinder an accused's fundamental rights. The applicant argued that the need to frequently travel for business was essential for his livelihood and that the current bail condition was causing significant hardship.4. Court's Observations on the ED's Failure to Arrest the Applicant Under Section 19 PML Act:The court noted that the ED had not arrested the applicant under Section 19 of the PML Act and had allowed him to appear before the court in response to summons. The court observed that the ED had previously allowed such appearances without arrest and had not challenged the court's order granting bail. The court emphasized that if the ED had serious concerns, they should have arrested the applicant or challenged the bail order.5. Consideration of the Applicant's Fundamental Right to Travel Abroad:The court recognized that the applicant had a fundamental right to travel abroad and that the current bail condition was creating unnecessary hurdles. The court noted that many accused in ED cases, who were not arrested under Section 19, had to frequently travel for professional reasons and faced similar hardships due to the requirement of seeking court permission for each travel.6. Balancing the Applicant's Professional Needs with the Trial's Requirements:The court acknowledged the need to balance the applicant's professional requirements with the trial's needs. The court noted that the trial was voluminous and could take a significant amount of time to conclude. Forcing the applicant to seek permission for each travel could lead to missed business opportunities and unnecessary hardship.7. ED's Argument About the Retrospective Effect of the Supreme Court's Judgment:The ED argued that the Supreme Court's judgment in Tarsem Lal should not have retrospective effect. However, the court found no specific indication from the Supreme Court that the judgment was to be applied only prospectively. The court clarified that the current application was not about taking the applicant into custody but about modifying an existing order to alleviate unnecessary hardship.8. Comparison of the Applicant's Situation with High-Profile Cases Like Nirav Modi and Vijay Mallya:The ED compared the applicant's situation with high-profile cases like Nirav Modi and Vijay Mallya, arguing that allowing the application could lead to similar outcomes. The court rejected this comparison, noting that those individuals fled due to the failure of investigating agencies to arrest them at the appropriate time. The court emphasized that the applicant had appeared before the court in good faith and had complied with the court's conditions.Conclusion:The court allowed the application and modified the bail condition to permit the applicant to travel abroad without seeking court permission each time, subject to certain conditions to ensure the applicant's compliance with the trial process. The court's order aimed to balance the applicant's professional needs with the requirements of the ongoing trial, while addressing the ED's concerns.