An accused in a money laundering case cannot be incarcerated forever by using the stringent conditions for bail under Section 45 of the Prevention of Money Laundering Act (PMLA) as a shackle against him, the Delhi High Court stressed on Tuesday
Justice Manoj Kumar Ohri made the comment in relation to money laundering cases involving protracted trial.
"In a situation such as the present case, where there are multiple accused persons, thousands of pages of evidence to assess, scores of witnesses to be examined and the trial is not expected to end anytime in the near future and the delay is not attributable to the accused, keeping the accused in custody by using Section 45 PMLA a tool for incarceration or as a shackle is not permissible," the Bench said.
The Court also said that liberty of an accused cannot be curtailed by Section 45 without taking all other considerations into account.
Except in a few exceptional cases, the maximum sentence under the PMLA can be of seven years, it noted.
"The accused in a money laundering case cannot be equated with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, etc," the Court further said.
The observations were made by the Court while granting bail to two accused - Ankush Jain and Vaibhav Jain - in a money laundering case involving former Delhi minister Satyendar Jain.
The Aam Aadmi Party leader himself had been granted bail by a trial court recently. Following this, the co-accused had also sought parity, besides arguing that their fundamental rights had been severely affected due to the slow pace of trial.
While granting relief to the accused, Justice Ohri said Section 45 PMLA while imposing additional conditions for granting bail, does not create an absolute prohibition on it.
"When there is no possibility of trial being concluded in a reasonable time and the accused is incarcerated for a long time, depending on the nature of allegations, the conditions under Section 45 of the PMLA would have to give way to the constitutional mandate of Article 21," the Court emphasized.
The Court also relied upon the view taken by the Supreme Court in cases of Manish Sisodia, Prem Prakash and Vijay Nair, where the provision for bail in PMLA cases was interpreted liberally.
"As held in the Catena of judgements discussed hereinabove, Constitutional Courts have the power to grant bails on the grounds of violation of Part III of the Constitution and Section 45 does not act as an hindrance to the same. The sacrosanct right to liberty and fair trial is to be protected even in cases of stringent provisions present in special legislations," it said.
In this backdrop, the Court noted that the two accused have been in jail for more than 24 months and the trial is yet to commence. It also opined that the delay is not attributable to the accused.
"In addition, it is also noted that since further investigation by the CBI is still pending, there is no possibility of the trial commencing, let alone concluding in the predicate offence in the foreseeable future and consequently, the present case under the PMLA also cannot be finally determined and would inevitably be delayed due to the lack of progress of the trial in the predicate offence," the Court further said.
The Court also took in account the fact that AAP leader, who is the main accused, has already been granted bail by the Sessions Judge.
In view of the above, the Court found it fit to grant bail to the two accused.
Senior Advocate Siddarth Aggarwal, with advocates Malak Bhatt, Neeha Nagpal, Shreyansh Chopra and Vishwajeet Singh Bhati for Vaibhav Jain.
Senior Advocate Rebecca M. John with advocates Dr. Sushil Kumar Gupta, Sunita Gupta, Sushil Kumar Satrawala, Sakshit Bhardwaj, Parvir Singh and Anushka Baruah for Ankush Jain.
Special Counsel Zoheb Hossain, Panel Counsel Vivek Gurnani, with advocates Pranjal Tripathi and Kunal Kochar for ED.
[Read order]