2024 (9) TMI 1177 - HC - Money Laundering

Applicant granted regular bail under Section 120B IPC and Prevention of Corruption Act after prolonged detention since November 2022

Delhi HC granted regular bail to applicant charged under Section 120B IPC and Sections 7/7A/8 of Prevention of Corruption Act, 1988. Court noted ... Bail under Section 439 Cr.P.C. read with Section 45 PMLA - proviso to Section 45(1) PMLA - sick or infirm exception - medical bail and Article 21 right to health and dignity - triple test for grant of bail in economic offences (non-framing of threats to prosecution, attendance at trial, and no likelihood of tampering/evasion) - risk of tampering with evidence and flight risk as grounds for denial of bail - prosecutorial reliance on documentary evidenceProviso to Section 45(1) PMLA - sick or infirm exception - medical bail and Article 21 right to health and dignity - Entitlement to bail on medical grounds under the proviso to Section 45(1) PMLA and Article 21 where the accused is 'sick' or 'infirm'. - HELD THAT: - The Court noted that the applicant had cooperated with investigation, had undergone bariatric surgery and suffered from multiple serious illnesses as reflected in medical records, and that interim medical relief had earlier been granted. While recognising that sickness as an exception under the proviso is to be exercised cautiously, the Court observed that Article 21 protects the right to life and health and that medical treatment which cannot be effectively provided in custody is a relevant consideration. Having considered the applicant's medical condition, prior interim orders, and the medical care he received, the Court granted bail on medical grounds subject to conditions. Any observations were expressly made without prejudice to the trial. [Paras 46, 48, 51]Applicant entitled to bail on medical grounds and Article 21 considerations; admitted to bail subject to conditions.Bail under Section 439 Cr.P.C. read with Section 45 PMLA - triple test for grant of bail in economic offences (non-framing of threats to prosecution, attendance at trial, and no likelihood of tampering/evasion) - risk of tampering with evidence and flight risk as grounds for denial of bail - prosecutorial reliance on documentary evidence - Whether the triple test for grant of bail in a PMLA prosecution is satisfied despite the gravity of allegations and prosecution's contentions regarding proceeds of crime, tampering and flight risk. - HELD THAT: - The Court assessed the prosecution's case and material: the ED had filed prosecution complaints, extensive documents and witness list exist, and allegations of involvement in handling proceeds of crime were placed against the applicant. Noting precedents emphasising that prolonged incarceration should not become punishment and that bail is ordinarily the rule, the Court found that (i) the applicant had deep societal roots and businesses in India reducing flight risk, (ii) investigations qua the applicant were complete and much of the case depended on documentary evidence already seized, diminishing the risk of tampering, and (iii) conditions could be imposed to secure attendance and prevent interference. The Court therefore concluded that the triple test was satisfied and bail could be granted subject to stringent conditions to allay prosecutorial concerns. [Paras 51, 54, 55, 56, 57]Triple test satisfied; bail granted subject to conditions to allay risk of tampering, ensure attendance and prevent flight.Final Conclusion: Bail under Section 439 Cr.P.C. read with Section 45 PMLA granted to the applicant: the Court balanced medical/Article 21 considerations and the triple test, found cooperation, completed investigation qua the applicant and documentary dependence of the case, and therefore admitted the applicant to bail on specified conditions to secure attendance and prevent tampering or flight. Issues Involved:1. Bail Application under Section 439 Cr.P.C. and Section 45 PMLA, 20022. Applicant's Medical Condition3. Allegations of Misuse of Interim Bail4. Involvement in Money Laundering5. Applicant's Conduct and Flight Risk6. Prolonged Incarceration and Right to LibertyDetailed Analysis:1. Bail Application under Section 439 Cr.P.C. and Section 45 PMLA, 2002The Applicant filed a Bail Application under Section 439 of the Cr.P.C., 1973 read with Section 45 of the PMLA, 2002, seeking regular bail in ECIR No. ECIR/HIU-II/14/2022. The Applicant argued that he is a well-established businessman and law-abiding citizen with deep roots in society. The Applicant was arrested by the Directorate of Enforcement (ED) on 29.11.2022 and has been cooperating with the investigation.2. Applicant's Medical ConditionThe Applicant submitted that he suffers from several life-threatening diseases such as Morbid Obesity, Complicated Diabetes, Metabolic Syndrome, Diabetic Peripheral Neuropathy, Fatty Liver Grade III, PIVD, and Coronary Heart Disease. He argued that these conditions cannot be effectively treated in custody and cited various medical experts who recommended 'Bariatric Surgery'. The Applicant underwent the surgery on 18.08.2023 and sought bail on medical grounds, claiming that he is a 'sick' and 'infirm' individual under the proviso of Section 45 (1) PMLA, 2002.3. Allegations of Misuse of Interim BailThe Respondent argued that the Applicant violated the order of the Special PMLA Court by undergoing surgery at Fortis Hospital, Gurugram, instead of Max Saket Hospital. The Respondent submitted that the Applicant has spent around 165 days outside prison on interim bail and has misused the liberty granted for private treatment. The Respondent contended that the Applicant manipulated his medical condition to seek bail.4. Involvement in Money LaunderingThe Respondent alleged that the Applicant is directly involved in generating proceeds of crime and bribing government officials in connection with the Delhi Excise Policy 2021-22. The Applicant was accused of collecting Rs. 2.5 crore as kickbacks and being a beneficiary of profits from various entities. The Respondent argued that the Applicant controlled these entities through proxies and was involved in the transfer and concealment of proceeds of crime worth Rs. 7.11 crore.5. Applicant's Conduct and Flight RiskThe Respondent submitted that the Applicant destroyed or changed his mobile phones multiple times and did not provide the phone used during the scam. There was a reasonable apprehension of evidence being destroyed if the Applicant was granted bail. The Respondent also argued that the Applicant is a flight risk and could evade the process of law.6. Prolonged Incarceration and Right to LibertyThe Applicant argued that the investigation against him is complete, and he has been cooperative throughout. The Applicant cited various judgments, including Manish Sisodia v. Directorate of Enforcement, where the Supreme Court observed that prolonged incarceration before being pronounced guilty should not become punishment without trial. The Applicant emphasized that the fundamental right of liberty under Article 21 of the Constitution is superior to statutory restrictions.Conclusion:The Court admitted the Applicant to bail, considering his medical condition, cooperative conduct, and the principle that 'bail is the rule and refusal is an exception.' The Court imposed several conditions, including surrendering the passport, reporting to the Investigating Officer, and not tampering with evidence or contacting witnesses. The petition was disposed of, and the order was communicated to the concerned Jail Superintendent and Trial Court.