TaxTMI 
TaxTMI 
2024 (5) TMI 420
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....with 13(1) (a) of the Prevention of Corruption Act, 1988 at CBI, BS&FB Delhi, has preferred this application for bail on medical ground. 2. The application proceeds on the premise that the applicant and his wife, Anita, suffer from terminal cancer. The applicant is both sick and infirm, and, therefore, covered by the first proviso to Section 45 (1) of the PMLA. As the applicant seeks to be enlarged on bail by invoking the first proviso to Section 45 (1) of PMLA on medical grounds, it may not be necessary to note the background facts, elaborately. 3. It may be suffice to note that the allegations in FIR No. RC0742023E0004 are that the applicant in connivance with the other accused persons deceived Banks by siphoning off the funds with the help of the subsidiaries of M/s. Jet Airways (India) Ltd., by showing bogus expenses and personal expenses, and, thereby caused wrongful loss to the tune of Rs. 538.62 Crores to Canara Bank and Rs. 190.04 Crores to the erstwhile Syndicate Bank. 4. At the outset, it must be noted that though in the application, the applicant has made averments touching upon the merits of the prosecution for the offence punishable under Section 4 of PMLA, yet, dur....
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....has also been diagnosed with duodenal cancer. Referring to the opinion of the medical professionals, Mr. Salve further submitted that the applicant is not only sick, but infirm. Infirmity, in turn, is not only physical, but also of mind. In this situation, according to Mr. Salve, the applicant deserves to be enlarged on bail, at least for few months, to have treatment for cancer and also attend to his wife Anita, who is also suffering from a terminal disease. 8. Mr. Venegaonkar, learned Special PP, submitted that the Respondent No. 1 has not taken an unreasonable stand before the Special Court. Respondent No. 1 does not profess to dispute that the applicant requires treatment. The applicant has been admitted in the hospital of his choice, though the Special Court has recorded that the best treatment for cancer is available at Tata Memorial Centre. Respondent No. 1 has no objection to continue the treatment of the applicant at the hospital of his choice. What the applicant requires, at this stage, is the proper treatment of his sickness and not bail, emphasised Mr. Venegaonkar. 9. As a second limb of the submission, Mr. Venegaonkar would urge that the medical reports indicate that....
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....t the applicant is not guilty of such offence and he is not likely to commit any offence while on bail is recorded. The first proviso, however, empowers the Court to release a person, on bail who is under 16 years of age or is a woman or is sick or infirm. 12. The aforesaid proviso to Section 45 of PMLA appears to have been inserted by the legislature to mollify the rigour of the restrictions envisaged by the main part of sub-section (1) of Section 45 of PMLA. It is pertinent to note that such a provision is not to be found in other statutes which contain identical restrictions like MCOCA, NDPS and UAPA. The intent of the legislature to vest discretion in the Court to grant bail despite the existence of the bar in the main part of sub-section (1) of Section 45 is required to be given effect to. Undoubtedly, the grant of bail by invoking first proviso is in the discretion of the Court. However, as is the case with exercise of discretion in any matter, such discretion is required to be exercised in a judicious manner. The Court must pose unto itself the question as to whether the person seeking bail falls within any of the exceptional categories and, if so, whether in the totality o....
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....rting to the provisions of Section 45 of the PMLA enunciated, inter alia, that a person, though not 'sick', may be 'infirm' and still entitled to seek the benefit of exception in the proviso to Section 45 (1) of PMLA. The observations in paragraphs 46 and 47 read as under : "46] Since 'sick' and 'infirm' are separated by 'or', consequently, a person who, though, not sick but infirm would still be entitled to seek the benefit of the exception in the proviso to section 45 (1) PMLA and vice-versa. 47] Mere old age does not make a person 'infirm' to fall within section 45 (1) proviso. Infirmity is defined as not something that is only relatable to age but must consist of a disability which incapacitates a person to perform ordinary routine activities on a day-to-day basis." 17. It would be contextually relevant to note that in the facts of the said case, the learned single Judge, declined to extend the benefit of the proviso to the applicant therein on the premise that, he was not suffering from life threatening ailments and could be treated with the medical facilities available in jail. 18. In the case of Vijay Agrawal Through Parokar vs. Directorate of Enforcement 2022 SCC On....
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....o to Section 45 (1) PMLA to the category of persons mentioned therein. The extent of involvement of the persons falling in such category in the alleged offences, the nature of evidence collected by the investigating agency would be material considerations. 21. In the case of State of U.P. vs. Gayatri Prasad Prajapati 2020 SCC OnLine SC 843., in the facts of the said case, the Supreme Court held that when the respondent therein was being given treatment in the super-speciality hospital, i.e., S.G.P.G.I.M.S. as recommended by K.G.M.U., the Court failed to see as to what were the shortcomings in the medical treatment offered to respondent, which could have been the basis for grant of interim bail on medical ground. The Supreme Court observed that, no satisfaction was recorded by the High Court that treatment offered to respondent was not adequate and he required any further treatment by any particular medical institute for which it was necessary to release the respondent on interim bail on medical grounds. 22. In the case of Pawan @ Tamatar vs. Ram Prakash Pandey and Another (2002) 9 Supreme Court Cases 166 the Supreme Court had adverted to two circumstances which bear upon the exer....
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.... referred him to Dr. Amit Maydeo, Head of Gastroenterology. Dr. Amit Maydeo and his team had seen him and said that endoscopic resection of the neuroendocrine tumour in the duodenum will not be possible. Dr. Sewanti Limaye is to review the case and further seek two opinions internationally to determine further medical management of his neuroendocrine tumor. A CT abdomen with contrast was done which revealed few nodular arterial enhancing mucosal - submucosal lesions in gastric fundus, D1, D2 and D3 segments of duodenum in a K/c/o multifocal neuroendocrine neoplasms. In view of his CT scan report, a ference was raised to Dr. Amit Maydeo to consider repeat gastroscopy and EMR Excision of the stomach lesion if possible. The option of further management to be decided after his repeat Gastroscopy. Mr. Goyal has been briefed on the options of chemotherapy, which will not treat him of his malignancy but may help controlling or delaying its spread. It carries with it the risk of drop in WBC counts, diarrhoea which make him susceptible to repeated infections and subsequent hospital admissions. Alternatively, a Whipple's surgery because tumors have already spread to the third part o....
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.... to under to the high risk Whipple's surgery for the moment. They have instead opted for medical chemotherapy. The first injection of chemotherapy shall be given shortly after which he will be closely monitored in the hospital to look for any after effects of the chemotherapy. Given the fact that Mr. Goyal also has Barrett's oesophagitis in the oesophagus because of severe acid reflux due to a large hiatus hernia, it has been decided that the side effects of the chemotherapy settle over the next couple of weeks, he will be undergoing a laparoscopic fundoplication to threat his hiatus hernia and prevent acid reflux as soon as he is deemed fit." 28. A cumulative reading of the aforesaid reports would indicate that the applicant has been suffering from duodenal neuroendocrine tumour. As the tumors have spread to the 1st, 2nd and 3rd part of duodena, the doctors have recommended 'Whipple's' procedure. Preferred line of treatment is Whipple's surgery as tumors have already spread to the 3rd part of the duodenum. It is a supramajor surgery which has its own risk. The applicant has taken a call not to undergo high risk Whipple's surgery. The applicant has opted for medical chemotherapy.....
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.... applicant can be released on bail for a limited period to avail the treatment for the cancer he is suffering from and attend to his wife, who is also suffering from cancer of an advanced grade. 33. Prima facie, the applicant has roots in society. The possibility of fleeing away from justice and tampering with evidence seems remote. In any event, the apprehension on the part of the prosecution regarding tampering with evidence and fleeing away from justice, can be taken care of by imposing stringent conditions. 34. Hence, the following order : ORDER (i) The Application stands partly allowed. (ii) The Applicant - Naresh Goyal be released on bail, for a period of two months, on furnishing a P.R. bond in the sum of Rs.1 Lakh and one or two sureties in the like amount to the satisfaction of the learned Judge, PMLA, Court Mumbai. (iii) The Applicant shall remain within the jurisdiction of the PMLA Court i.e. Greater Mumbai, and shall not leave the area without prior permission of the PMLA Court. (iv) The Applicant shall surrender his passport before the PMLA Court, if not already surrendered. (v) The applicant shall furnish his contact details, and mobile number to the ....