2025 (1) TMI 1265 - HC - Money Laundering

Money laundering accused gets bail after 3 years 10 months detention as undertrial period exceeds half of maximum sentence

Anil Shivajirao Bhosale Versus Directorate of Enforcement

Bombay HC granted regular bail to applicant in money laundering case under PMLA after prolonged incarceration of 3 years 10 months. Court held that ... Seeking grant of Regular Bail after prolonged incarceration - Money Laundering - twin conditions as contemplated under Section 45 of the PMLA or not - Section 439 of the Code of Criminal Procedure, 1973, read with Sections 45 and 65 of the Prevention of Money Laundering Act, 2002 - HELD THAT:- Supreme Court in the case of Vijay Madanlal Choudhary [2022 (7) TMI 1316 - SUPREME COURT (LB)], considered the applicability of Section 436A of the Cr. P. C. which is concerning the maximum punishment for which an under trial prisoner can be detained, held that Section 436A of the Cr. P .C. has come into effect on 23.06.2006 and the said provision is the subsequent law enacted by the Parliament and the same will prevail and will apply in spite of rigors of Section 45 of the PMLA Act. As per the settled legal position whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail as enacted under Section 45 of the PMLA Act, but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence - Thus, inspite of restrictive statutory provisions like Section 45 of the PMLA Act, the right of the accused undertrial under Article 21 of the Constitution of India cannot be allowed to be infringed. In such a situation, statutory restrictions will not come in the way of the Court to grant bail to protect the fundamental right of the accused under Article 21 of the Constitution of India. It is an admitted position that both the cases will be tried simultaneously and trial has not yet commenced. Thus, this is a case where the trial is unlikely to conclude any time soon and is likely to take a considerably long time. As noted hereinabove, the Applicant has completed more than half of the punishment. The maximum punishment which can be imposed on the Applicant is 7 years and the Applicant has completed about 3 years and 10 months of imprisonment i.e. more than half of the punishment - the Applicant is entitled to the benefit of Section 436A of the CrPC. Conclusion - i) The applicant is granted bail with a personal bond of Rs. 10,00,000/- and sureties. ii) The applicant is restricted from entering District Pune except for trial-related purposes. iii) The applicant must report to the Enforcement Directorate's Mumbai office twice a month. iv) The applicant must not tamper with evidence or influence witnesses. v) The applicant must surrender his passport and attend the trial regularly. The Applicant – Anil Shivajirao Bhosale be released on bail in connection with ECIR No. ECIR/MBZO-II/20/2020 registered with the Enforcement Directorate on his furnishing P. R. Bond of Rs. 10,00,000/- with one or two solvent sureties in the like amount and subject to fulfilment of conditions imposed - bail application allowed. The judgment involves a bail application under Section 439 of the Code of Criminal Procedure, 1973, read with Sections 45 and 65 of the Prevention of Money Laundering Act, 2002 (PMLA). The application is filed by an individual accused in a money laundering case, seeking bail after prolonged incarceration.1. Issues Presented and Considered:The core legal issues considered in this judgment include:Whether the applicant is entitled to bail under Section 439 of the CrPC, considering the provisions of Section 45 of the PMLA.Whether the applicant's prolonged incarceration entitles him to bail under Section 436A of the CrPC, which limits the detention period for undertrial prisoners.The applicability of the right to a speedy trial under Article 21 of the Constitution of India in the context of PMLA offenses.2. Issue-wise Detailed Analysis:Relevant Legal Framework and Precedents:The legal framework primarily involves the PMLA and the CrPC. Section 45 of the PMLA imposes stringent conditions for granting bail, requiring the court to be satisfied that the accused is not guilty and is unlikely to commit any offense while on bail. Section 436A of the CrPC provides for the release of undertrial prisoners who have been detained for more than half the maximum period of imprisonment for the offense charged. The right to a speedy trial under Article 21 of the Constitution is also considered.Court's Interpretation and Reasoning:The court acknowledges the stringent conditions under Section 45 of the PMLA but notes the exception provided by Section 436A of the CrPC, which allows for bail if the accused has served more than half of the maximum sentence. The court also considers the constitutional right to a speedy trial, emphasizing that prolonged incarceration without trial violates Article 21.Key Evidence and Findings:The applicant has been in custody for over 4 years and 11 months, exceeding half of the maximum 7-year sentence for the offense. The court finds that the trial is unlikely to conclude soon, with 256 witnesses in the scheduled offenses and 150 in the ECIR case, and the investigation is ongoing.Application of Law to Facts:The court applies Section 436A of the CrPC, noting that the applicant has served more than half of the maximum sentence, and the trial is unlikely to conclude soon. The court also considers the recovery and securing of substantial amounts involved in the alleged crime.Treatment of Competing Arguments:The prosecution opposes bail, citing the applicant's major role in the alleged fraud and money laundering. However, the court balances this against the applicant's prolonged detention and the constitutional right to a speedy trial, ultimately favoring the applicant's release on bail.Conclusions:The court concludes that the applicant is entitled to bail under Section 436A of the CrPC, despite not fulfilling the twin conditions of Section 45 of the PMLA, due to prolonged incarceration and the unlikely conclusion of the trial in a reasonable time.3. Significant Holdings:Core Principles Established:The judgment reinforces the principle that the right to a speedy trial is a fundamental right under Article 21 of the Constitution, which can override statutory restrictions on bail. The court also highlights the applicability of Section 436A of the CrPC in cases involving prolonged detention.Final Determinations on Each Issue:The court determines that the applicant should be released on bail, subject to stringent conditions, due to the prolonged detention exceeding half the maximum sentence and the unlikely conclusion of the trial soon.Order:The applicant is granted bail with a personal bond of Rs. 10,00,000/- and sureties.The applicant is restricted from entering District Pune except for trial-related purposes.The applicant must report to the Enforcement Directorate's Mumbai office twice a month.The applicant must not tamper with evidence or influence witnesses.The applicant must surrender his passport and attend the trial regularly.The judgment underscores the balance between statutory provisions and constitutional rights, emphasizing the importance of the right to a speedy trial and the application of Section 436A of the CrPC in cases of prolonged detention. The court grants bail to the applicant, subject to conditions, recognizing the need to uphold constitutional rights while ensuring compliance with legal procedures.