2025 (12) TMI 1614 - HC - Money Laundering

PMLA s.45 bail in alleged mobile data deletion case: twin conditions and triple test met, release granted on conditions

Bail under s.45 PMLA turned on whether the twin conditions and the 'triple test' were satisfied. The HC held that allegations of deletion of mobile data ... Seeking grant of bail - bail sought on the grounds that the contentions raised by the Applicant, have not been considered by the learned Special Judge - twin conditions u/s 45 of PMLA satisfied or not - HELD THAT:- It has been again rightly pointed out on behalf of the Applicant that immediately on his apprehension, his mobile was taken away by the investigating agency and there was no time wherein he could have deleted the data as claimed by the investigating agency. While it is a moot point, but this aspect is a matter of trial - It cannot be overlooked that the investigation now stands completed and the Supplementary Complaint has already been filed in May 2025. There is little likelihood of him either influencing or obstructing the investigation or preventing the collection of relevant data. As has been rightly argued by behalf of the Applicant, he is not a flight risk as he never attended to abscond or evade the process of law. He, with the permission of the Court, had traveled abroad and had returned on time. The Applicant has deep roots in the society. There are no circumstances brought on record to show that he is likely to flee from the country or that he would not face the trial. Regardless, conditions can always be imposed to ensure the presence of the Applicant during the trial. As has been noticed in the case of Manish Sisodia, [2024 (8) TMI 614 - SUPREME COURT] that where the case primarily depends on documentary evidence which is already seized by the Prosecution, there is no possibility of tampering of evidence by the Applicant in case he is granted Bail - The Applicant herein not only has satisfied the twin conditions as envisaged under Section 45 PMLA, but also the triple test i.e. there is no credible apprehension of him being a flight risk, influencing of witnesses, or tampering with evidence. The Applicant is directed to be released forthwith on Bail in connection with the ECIR/03/DLZ0/2016 dated 26.07.2016, registered by the Directorate of Enforcement subject to furnishing a bail bond in the sum of Rs. 5,00,000/- with one surety of the like amount; to the satisfaction of the learned Special Judge/Trial Court. Bail application allowed. ISSUES PRESENTED AND CONSIDERED 1) Whether, on the facts found, the Applicant satisfied the statutory 'twin conditions' for bail under Section 45 PMLA and the general 'triple test' (flight risk, influencing witnesses, tampering with evidence), warranting regular bail. 2) Whether 'necessity of arrest', in the context of long-standing investigation, prior cooperation, and documentary nature of evidence, was relevant and could be examined in bail proceedings to assess entitlement to bail. ISSUE-WISE DETAILED ANALYSIS Issue 1: Satisfaction of Section 45 PMLA 'twin conditions' and the 'triple test' Legal framework: The Court proceeded on the basis that bail under PMLA must satisfy Section 45 'twin conditions' in addition to ordinary bail considerations, and assessed the 'triple test' of (i) flight risk, (ii) possibility of influencing witnesses, and (iii) possibility of tampering with evidence. Interpretation and reasoning: The Court treated as significant that the Applicant was not alleged to have conceived, controlled, or executed the predicate investment scheme, but was implicated primarily due to alleged directorships in overseas entities through which proceeds of crime were said to have been laundered. The Court found it material that large parts of the alleged fund diversions occurred before the Applicant assumed directorial positions, making the allegation of 'active and knowing' laundering based only on office-holding less persuasive at the bail stage. The Court also considered that the Applicant had been on bail in the predicate offence without misuse, had repeatedly travelled abroad with court permission and returned on time, and had 'deep roots in society,' supporting the conclusion that he was not a flight risk. Since the case was 'essentially' documentary and the investigation had been completed with the supplementary complaint already filed, the Court found little likelihood of tampering with evidence or obstructing investigation; conditions could ensure attendance and compliance. Conclusions: The Court held that the Applicant satisfied both the Section 45 PMLA twin conditions and the triple test, and granted regular bail with conditions ensuring appearance, non-interference, and travel restrictions. Issue 2: Relevance and examinability of 'necessity of arrest' in bail proceedings Legal framework: The Court considered 'necessity of arrest' as a relevant factor while deciding bail, particularly where the Applicant had been granted liberty to agitate it in bail proceedings. Interpretation and reasoning: The Court accepted that, given the predicate investigation commenced years earlier and the Applicant had 'throughout joined the investigation,' the contention that there was no necessity to arrest had 'some substance.' The Court rejected the objection that this issue could not be examined because a writ challenging arrest had been withdrawn, holding that liberty had been expressly granted to raise it in bail. The Court also did not accept that conduct attributed to the Applicant's wife or other suspects could be used to deny bail to him. As to the allegation of deletion of WhatsApp data, the Court treated it as a 'moot point' and a matter for trial; in any case, with investigation complete, the likelihood of interference was low. Conclusions: The Court held that 'necessity of arrest' could be considered in the bail determination on these facts; the long prior investigation, consistent cooperation, and documentary nature of evidence supported bail rather than continued custody.