TaxTMI 
TaxTMI 
2024 (12) TMI 611
X X X X Extracts X X X X
X X X X Extracts X X X X
....ct to release the applicant on bail in Enforcement Case Information Report bearing No. ECIR/DLZO-I/35/2021 under Section ¾ of Prevention of Money Laundering Act, 2002 lodged by the Directorate of Enforcement on 26.03.2021. It is further prayed that this Hon'ble Court may graciously be pleased to release the Applicant on Interim Bail in relation to Enforcement Case Information Report bearing No. ECIR/DLZO-I/35/2021 under Section ¾ of Prevention of Money Laundering Act, 2002 lodged by the Directorate of Enforcement on 26.03.2021; during the pendency of the present case before this Hon'ble Court, otherwise the personal liberty of the Applicant shall be at stake which cannot be compensated in any manner and/or to pass such other and further order this Hon'ble Court may deem fit and proper under the facts and circumstance of the case." 3. The facts of the case are that a complaint dated 05.04.2024 was filed by the Assistant Director (PMLA), Directorate of Enforcement, Delhi Zonal Office-I, New Delhi against (i) M/s SVOGL Oil Gas & Energy Limited (through the then Chairman and Managing Director, Sh. Prem Singhee and the then Joint Managing Director) Tower-1, Fif....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt matter. M/s SVOGL Oil Gas & Energy Limited availed credit facilities from Punjab National Bank between 2006 and 2017. Padam Singhee and Prem Singhee key managerial persons of M/s SVOGL and others through associate entities siphoned off the loans availed by indulging in criminal conspiracy and generated Proceeds of Crime within the meaning of Section 2(1) (u) of PMLA. The loss incurred to the Complainant Bank is to the tune of Rs. 252,61,46,476/- which constitutes Proceeds of Crime in the instant case. 5. Learned counsel for the applicant submitted as under:- (1) Loan was taken by the company of which the applicant is the Joint Managing Director. (2) The said loan was not repaid. (3) The account of loan of the company was declared NPA with retrospective effect from 26.12.2013. (4) No offence thus is made out in the above mentioned situation and circumstances. (5) On the basis of a complaint lodged by Punjab National Bank, NOIDA, a First Information Report bearing FIR No. RCBD1/2021/E/0001, dated 10.03.2021 was registered by the Central Bureau of Investigation under Sections 120B r/w 409 & 420 I.P.C. and Section 13(2) r/w 13(1)(d) of....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Court has been held as under: "EFFECT OF THE DELAY IN DISPOSAL OF THE CASES 14. As of now, the appellant has been incarcerated for more than 15 months in connection with the offence punishable under Section 4 of the PMLA. The minimum punishment for an offence punishable under Section 4 is imprisonment for three years, which may extend to seven years. If the scheduled offences are under paragraph 2 of Part A of the Schedule in the PMLA, the sentence may extend to 10 years. In the appellant's case, the maximum sentence can be of 7 years as there is no scheduled offence under paragraph 2 of Part A of Schedule II alleged against the appellant. 15. We have already narrated that there are three scheduled offences. In the main case (CC Nos. 22 and 24 of 2021), there are about 2000 accused and 550 prosecution witnesses cited. Thus, it can be said that there are more than 2000 accused in the three scheduled offences, and the number of witnesses proposed to be examined exceeds 600. 16. This Bench is also dealing with MA no. 1381 of 2024 seeking various reliefs such as a transfer of investigation of scheduled offences, appointment of special public pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or knowingly assisted or knowingly is a party or is actually involved in one or more of the following processes or activities connected with proceeds of crime, namely:- (a) concealment; or (b) possession; or (c) acquisition; or (d) use; or (e) projecting as untainted property; or (f) claiming as untainted property, in any manner whatsoever; (ii) the process or activity connected with proceeds of crime is a continuing activity and continues till such time a person is directly or indirectly enjoying the proceeds of crime by its concealment or possession or acquisition or use or projecting it as untainted property or claiming it as untainted property in any manner whatsoever.] 20. Existence of proceeds of crime is a condition precedent for the offence under Section 3. Proceeds of crime have been defined in Section 2(u) of the PMLA which reads thus: "2 ................................................... (u) "proceeds of crime" means any property derived or obtained, directly or indirectly, by any person as a result of criminal activity relating to a scheduled offence or the value of any such prope....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e case of Manish Sisodia v. Directorate of Enforcement, 2024 SCC OnLine SC 1920 in paragraphs 49 to 57, this Court held thus: "49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial. 50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor. 51. Recently, this Court had an occasion to consider an application for bail in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra 2024 SCC OnLine SC 1693 wherein the accused was prosecuted under the provisions of the Unlawful Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh (1978) 1 SCC 240 : 1977 INSC 232, Shri Gurbaksh Singh Sibbia v. State of Punjab (1980) 2 SCC 565 : 1980 INSC 68, Hussainara Khatoon (I) v. Home Secretary, State of Bihar (1980) 1 SCC ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....a lakh pages of digitized documents. It is thus clear that there is not even the remotest possibility of the trial being concluded in the near future. In our view, keeping the appellant behind the bars for an unlimited period of time in the hope of speedy completion of trial would deprive his fundamental right to liberty under Article 21 of the Constitution. As observed time and again, the prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial. 55. As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial. 56. In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State. 57. Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urts to grant bail on the grounds of violation of Part III of the Constitution of India. We have already referred to paragraph 17 of the said decision, which lays down that the rigours of such provisions will melt down where there is no likelihood of trial being completed in a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. One of the reasons is that if, because of such provisions, incarceration of an undertrial accused is continued for an unreasonably long time, the provisions may be exposed to the vice of being violative of Article 21 of the Constitution of India. 27. Under the Statutes like PMLA, the minimum sentence is three years, and the maximum is seven years. The minimum sentence is higher when the scheduled offence is under the NDPS Act. When the trial of the complaint under PMLA is likely to prolong beyond reasonable limits, the Constitutional Courts will have to consider exercising their powers to grant bail. The reason is that Section 45(1)(ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial conclu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ur justice delivery system. There are cases where clean acquittal is granted by the criminal courts to the accused after very long incarceration as an undertrial. When we say clean acquittal, we are excluding the cases where the witnesses have turned hostile or there is a bona fide defective investigation. In such cases of clean acquittal, crucial years in the life of the accused are lost. In a given case, it may amount to violation of rights of the accused under Article 21 of the Constitution which may give rise to a claim for compensation. 29. As stated earlier, the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial." B. In the case of Arvind Kejriwal v. Central Bureau of Investigation : 2024 SCC OnLine SC 2550 the Apex Court has held as under: "38. The evolution of bail jurisprude....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence [under this Act] shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs: Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by- (i) the Director; or (ii) any officer of the Central Government or a State Government authorised in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government." ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied. 12. Independently and as has been emphatically reiterated in Manish Sisodia (II) (supra) relying on Ramkripal Meena v. Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024) and Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 SCC OnLine SC 1693, where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial within a short span, the rigours of Section 45 of PMLA can be suitably relaxed to afford conditional liberty. Further, Manish Sisodia (II) (supra) reiterated the holding in Javed Gulam Nabi Sheikh (Supra), that keeping persons behind the bars for unlimited periods of time in the hope of speedy completion of trial would deprive the fundamental right of persons under Article 21 of the Constitution of India and that prolonged incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial. In fact, Manish Sisodia (II) (Supra) reiterated....
X X X X Extracts X X X X
X X X X Extracts X X X X
................... (L) "terrorist gang" means any association, other than terrorist organisation, whether systematic or otherwise, which is concerned with, or involved in, terrorist act; ..................................................................." There is not even an allegation in the charge sheet that the appellant was a member of any terrorist gang. As regards the second part of being a member of a terrorist organisation, as per Section 2(m), a terrorist organisation means an organisation listed in the first schedule or an organisation operating under the same name as the organisation was listed. The charge sheet does not mention the name of the terrorist organisation within the meaning of Section 2(m) of which the appellant was a member. We find that the PFI is not a terrorist organisation, as is evident from the first schedule. 19. Therefore, on plain reading of the charge sheet, it is not possible to record a conclusion that there are reasonable grounds for believing that the accusation against the appellant of commission of offences punishable under the UAPA is prima facie true. We have taken the charge sheet and the statement of witn....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Activities (Prevention) Act, 1967. This Court surveyed the entire law right from the judgment of this Court in the cases of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh7, Shri Gurbaksh Singh Sibbia v. State of Punjab8, Hussainara Khatoon (I) v. Home Secretary, State of Bihar9, Union of India v. K.A. Najeeb10 and Satender Kumar Antil v. Central Bureau of Investigation11. The Court observed thus: "19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime." 52. The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus: "10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 S....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... is pointed out by learned counsel for ED that the complaint case is at the stage of framing of charges and 24 witnesses are proposed to be examined. The conclusion of proceedings, thus, will take some reasonable time. The petitioner has already been in custody for more than a year. Taking into consideration the period spent in custody and there being no likelihood of conclusion of trial within a short span, coupled with the fact that the petitioner is already on bail in the predicate offence, and keeping in view the peculiar facts and circumstances of this case, it seems to us that the rigours of Section 45 of the Act can be suitably relaxed to afford conditional liberty to the petitioner. Ordered accordingly. 8. In view of the above and without expressing any views on the merits of the case, we are inclined to release the petitioner on bail. The petitioner is, accordingly, directed to be enlarged on bail subject to such terms and conditions as may be imposed by the learned Special Judge. In addition, the petitioner shall abide by the following conditions: (i) If the passport of the petitioner is still with him, the same shall be deposited with the Special Court.....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in the way. Even in the case of interpretation of a penal statute, howsoever stringent it may be, a constitutional court has to lean in favour of constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] being rendered by a three-Judge Bench is binding on a Bench of two Judges like us." G. In the case of Javed Gulam Nabi Shaikh v. State of Maharashtra and Another : 2024 SCC OnLine SC 1693 the Apex Court has held as under: "8. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India. 9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a pun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lt of a long delayed trial in violation of his fundamental right under Article 21." 13. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya v. State of Bihar, (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak, (1992) 1 SCC 225. In the latter the court reemphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option: "The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to speedy trial on the ground that he did not ask for or insist upon a speedy trial." 14. In Mohd Mu....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008. 16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb, (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17) "17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings, the courts are expected to appreciate the legislative policy against grant of bail 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime." G. In the case of Shoma Kanti Sen v. State of Maharashtra : (2024) 6 SCC 591, the Apex Court has held as under: "46. Pre-conviction detention is necessary to collect evidence (at the investigation stage), to maintain purity in the course of trial and also to prevent an accused from being fugitive from justice. Such detention is also necessary to prevent further commission of offence by the same accused. Depending on gravity and seriousness of the offence alleged to have been committed by an accused, detention before conclusion of trial at the investigation and post charge-sheet stage has the sanction of law broadly on these reasonings. But any form of deprival of liberty results in breach of Article 21 of the Constitution of India and must be justified on the groun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t is in jail since 07.02.2024 and therefore, he be released on bail. 6. Learned counsel for the Enforcement Directorate submitted as under:- (1) The complaint under PMLA has been filed with regards to the proceeds of crime. (2) After taking money from the bank the same was transferred to shell companies and then siphoned off. (3) No joint trial is required as per Sections 44(1) (c) of Prevention of Money Laundering Act. (4) There is no requirement of charge sheet in the predicate offence. (5) The complaint particularly Table Nos. 6 to 13 clearly shows involvement of the applicant and the modus operandi. (6) Prevention of Money Laundering Act lays down its twin conditions for grant of bail under Section 45 which is applicable and due to the same, bail is not liable to be granted to the applicant. (7) The prayer for bail thus be rejected. 7. In rejoinder, learned counsel for the applicant submitted and reiterated as under:- (1) No charge sheet has been submitted in the predicate offence. (2) The statements of said two persons is of someone else which cannot be relied on. (3) No investigati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C. (v) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law and the trial court may proceed against him under Section 229-A IPC. (vi) The applicant shall deposit his passp....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Vide the present communication I intend to apprise you that neither my office nor the office of my counsel on record has received any reply from your office. Therefore, in order to avoid any further delay in the above captioned matter, I request you to file the reply to the aforementioned bail matter as expeditiously as possible so that the bail application can be adjudicated finally on the next date of hearing. Sincerely." 15. It is submitted that an identical supplementary affidavit dated 16.10.2024 has again been filed on behalf of the applicant with the same contents and annexures and both the affidavits have been sworn by the wife of the applicant. It is submitted that sending such emails by counsel(s) of accused to the Investigating Officer cannot be permitted as a lawyer cannot interact directly with the Investigating Agency and the said act is objectionable and is beyond the professional work of a lawyer since the said officer gets harassed by the same. 16. Learned counsel for the Enforcement Directorate further placed para-2 of the said supplementary affidavit dated 16.10.2024 before the Court which reads as under:- "2. That I state that....