2024 (10) TMI 460 - HC - Money Laundering

Police officer gets regular bail in cattle smuggling case despite money laundering charges after two years custody

Delhi HC granted regular bail to a police officer accused in cattle smuggling case involving illegal transportation from India to Bangladesh through BSF ... Article 21 right to personal liberty - bail is the rule and jail is the exception - twin conditions under Section 45 PMLA - special nature of the offence of money laundering - prolonged pre-trial incarceration as punishment without trial - economic offences constitute a class apartTwin conditions under Section 45 PMLA - Article 21 right to personal liberty - bail is the rule and jail is the exception - Grant of regular bail to the applicant under Section 45 PMLA read with Section 439 Cr.P.C. - HELD THAT: - The Court applied the special statutory test in Section 45 PMLA, requiring satisfaction on the twin conditions that the public prosecutor be heard and that there are reasonable grounds for believing the accused is not guilty of the offence and is not likely to commit an offence while on bail. While acknowledging the special nature of money laundering and precedents treating economic offences as a distinct class, the Court balanced those considerations with the constitutional guarantee of personal liberty under Article 21 and the principle that prolonged pre trial incarceration must not become punishment without trial. The Court noted that investigations qua the petitioner were complete and the trial had not progressed for about two years, the evidence was largely documentary (not susceptible to tampering), and the applicant was neither a flight risk nor likely to influence witnesses. Reference was made to relevant Supreme Court authorities recognizing that long incarceration and voluminous records (including material requiring translation) are factors favouring bail. Applying these factors, the Court was satisfied that the twin conditions under Section 45 PMLA were met and that the applicant was entitled to bail subject to stringent conditions tailored to prevent interference with the investigation and ensure attendance at trial. [Paras 46, 47, 48, 49, 50]Bail granted on furnishing personal bond and surety and on conditions restricting travel, contact with witnesses, and ensuring availability to the investigating agency and trial court.Final Conclusion: The bail application under Section 45 PMLA and Section 439 Cr.P.C. is allowed; the applicant is admitted to bail on conditions specified by the Court, and the matter is remitted to the Trial Court for compliance with those conditions. Issues Involved:1. Grant of bail under Section 439 of Cr.P.C. and Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA).2. Allegations of involvement in cattle smuggling and money laundering.3. Prolonged incarceration and its impact on personal liberty.4. Compliance with the twin conditions under Section 45 of PMLA for bail.5. Alleged disproportionate assets and financial transactions.6. Influence and risk of tampering with evidence or witnesses.Issue-wise Detailed Analysis:1. Grant of Bail under Section 439 of Cr.P.C. and Section 45 of PMLA:The applicant sought bail under Section 439 of the Cr.P.C. read with Section 45 of the PMLA. The court evaluated whether the applicant met the twin conditions under Section 45 of PMLA, which require the court to be satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail. The court acknowledged the applicant's prolonged incarceration and considered the principle that 'bail is the rule and jail is exception,' emphasizing the presumption of innocence until proven guilty.2. Allegations of Involvement in Cattle Smuggling and Money Laundering:The applicant was accused of facilitating illegal cattle smuggling by providing authoritative support due to his position as a police constable and his connections with a political leader. The Enforcement Directorate (ED) alleged that the applicant was involved in collecting illegal gratification and laundering proceeds of crime (PoC). The court noted that while the allegations were serious, the evidence was primarily documentary, reducing the risk of tampering.3. Prolonged Incarceration and Impact on Personal Liberty:The applicant had been in custody since June 2022, with the trial not yet commenced. The court highlighted the fundamental right to personal liberty under Article 21 of the Constitution and the need to balance this right against the interests of society. The court referred to several Supreme Court judgments emphasizing that prolonged pre-trial detention should not become a punishment without trial.4. Compliance with Twin Conditions under Section 45 of PMLA for Bail:The court examined whether the applicant could satisfy the twin conditions under Section 45 of PMLA. The court found that the applicant was not a flight risk, had deep roots in society, and the evidence was primarily documentary. The court also considered the applicant's cooperation with the investigation and the lack of substantial risk of influencing witnesses.5. Alleged Disproportionate Assets and Financial Transactions:The applicant was accused of amassing disproportionate assets through illegal activities. The court noted that the CBI chargesheet disclosed a significant gap between the applicant's known sources of income and his assets. However, the court considered the applicant's explanation and the ongoing appeal regarding the attached properties.6. Influence and Risk of Tampering with Evidence or Witnesses:The respondent argued that the applicant's non-cooperation and attempts to mislead the investigation posed a risk of tampering with evidence and influencing witnesses. The court, however, found that the risk was mitigated by the documentary nature of the evidence and the conditions imposed on the applicant as part of the bail order.Conclusion:The court granted bail to the applicant, considering the prolonged incarceration, the documentary nature of the evidence, and the applicant's lack of flight risk. The bail was granted with stringent conditions to ensure the applicant's compliance with the legal process and to mitigate any potential risks. The court directed the applicant to furnish a personal bond, appear before the court as required, and refrain from contacting witnesses or engaging in criminal activities. The order was communicated to the trial court and the concerned jail superintendent.