Bail can be granted in PMLA cases on the ground of serious medical condition. On filing SLP by the department, SUPREME COURT OF INDIA on dated date 20.10.2022 Imposed cost of Rs. 1 lac holding as it is unnecessary SLP. Section 45(1)(ii)
The Department ought not to have filed such a Special Leave Petition wasting the stationery, the legal fees and Court’s time. The Special Leave Petition stands dismissed with exemplary cost, to be borne by the concerned officer, who granted the permission to file the Special Leave Petition, quantified at Rs.1,00,000/-, to be recovered from the salary of such an officer. The cost to be deposited by the Department with the Registry of this Court within a period of four weeks from today.
Provision of Section 45 of PMLA, 2002, which reads thus :-
“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 of a sum of less than one crores rupees”, may be released on bail if the special Court so directs”.
Learned counsel for the applicant submits that the applicant though is aged about 36 years but he is suffering from number of serious and deadly ailments. He is suffering from Diabetes Mellitus x 7 years & Fistula X 3 months with oral cancer Operation in January 2019.
On this factual parameters, learned counsel for the applicant has cited certain judgments to buttress his contention in the case of D.K. Shivkumar Vs. Directorate of Enforcement decided on 23.10.2019. In the said judgment, it has been held that that the twin conditions mentioned in Section 45 of PML Act continue to struck down as being unconstitutional in view of judgment of Hon’ble Apex Court in the case of Nikesh Tara Chand Shah Vs Union of India, reported in (2018) 11 SCC 1 and same is neither revived nor restructured by the amending Act, therefore, as of today, there is no longer rigor of said two conditions under the Original Section 45(1)(ii) of the PML Act for releasing the petitioner on bail. The provisions of Section 439 Cr.P.C. and the conditions therein will only apply in the case of applicant for grant of bail.
It is undisputed that in the present case, the applicant is suffering from Cancer and had undergone a surgery in January, 2019 at P.D. Hinduja Hospital, Mahim, Mumbai and thereafter the attending doctor has advised him to have a periodical check up of the affected area. The applicant is a known case of CA buccal mucosa squamous cell Cancer now presented with Nasopharygeal wounds. He has already faced incarceration for almost two years (one year in the State case arising out of case crime no.295 of 2017 and now one year in the present case), when the maximum punishment is seven years. Thus, as per the mandate of law provided under section 45 (proviso) of PML Act, the applicant deserves to be bailed out.
Per contra, Sri Bal Mukund, learned counsel for the E.D. vehemently opposed the bail by making a mention that the applicant is hail and hearty and his good care is being taken by the jail authorities and assures the Court that as and when his treatment for specialised agency is warranted, it will take due care of. Besides this, it was also urged by counsel for the Department that out of astronomical figure of 22.39 crores, only 6 crores have been recovered so far and the Department is trying hard to recover the same. Sri Bal Mukund also raised apprehension that he is the main culprit of this big scam who have syphoned the amount of the institution and if released on bail, it is every likelihood that he would flee away from the country and the institution as well as the bank would be at utter loss and it would become impossible to conduct the trial in a smooth way.
After hearing the rival submissions and perusing the documents, it is clear that initially the FIR was registered in which the co-ordinate bench of this Court on 13.08.2018 bailed out the applicant and during his arrest, the E.D. on 11.09.2017 moved the present complaint bearing no ECIR/01/ALSZO/2017 and re-affected his arrest on 10.11.2020 and since then he is in jail. During this period, the Department is progressing its investigation with snail’s speed but seems to have filed the charge sheet. The ailing applicant is behind the bars under trial for last more than year. So far as apprehension of fleeing away is concerned, seems to be unfounded and without any basis.
The Enforcement Directorate is at the fullest liberty to make seizure the applicant’s GREY accounts after grilling him as per the law. But, he cannot be put behind the bars for unlimited period.
In view of the above, I am of the considered opinion that the applicant is entitled for bail keeping in view that he is suffering from deadly ailments of Cancer and accordingly, the applicant-Kamal Ahsan be released on bail in the aforesaid case
ITEM NO.4 COURT NO.5 SECTION II
S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (Crl.) No(s). 6755/2022
(Arising out of impugned final judgment and order dated 12-11-2021 in CRMFBA No. 20276/2021 passed by the High Court Of Judicature at Allahabad)
ASSISTANT DIRECTOR DIRECTORATE OF ENFORCEMENT Petitioner(s)
VERSUS
KAMAL AHSAN & ANR. Respondent(s)
(IA No.100810/2022-EXEMPTION FROM FILING C/C OF THE IMPUGNED JUDGMENT )
Date : 20-10-2022 This petition was called on for hearing today.
CORAM :
HON’BLE MR. JUSTICE M.R. SHAH HON’BLE MR. JUSTICE M.M. SUNDRESH
For Petitioner(s) Mr. K.M. Nataraj, Ld. ASG
Mr. Zoheb Hossain, Adv. Mr. Kanu Agarwal, Adv. Mr. Vivek Gupta, Adv.
Mr. Mukesh Kumar Maroria, AOR Mr. Nakul Chengappa K.K., Adv.
For Respondent(s)
UPON hearing the counsel the Court made the following
O R D E R
In the peculiar facts and circumstance of the case and taking into consideration the fact that the respondent is suffering from Malignancy and Cancer and thereafter when he has been released on bail, the same is not required to be interfered by this court. The Special Leave Petition stands dismissed.
Signature Not Verified
Digitally signed by NIRMALA NEGI Date: 2022.10.22
14:47:36 IST
Reason:
The Department ought not to have filed such a Special Leave Petition wasting the stationery, the legal fees and Court’s time. The Special Leave Petition stands dismissed with
contd.
– 2 –
exemplary cost, to be borne by the concerned officer, who granted the permission to file the Special Leave Petition, quantified at Rs.1,00,000/-, to be recovered from the salary of such an officer. The cost to be deposited by the Department with the Registry of this Court within a period of four weeks from today.
On such deposit, Rs.50,000/- be transferred to National Legal Services Authority, New Delhi and Rs.50,000/- to Mediation and Conciliation Project Committee, Supreme Court of India.
Pending applications shall stand disposed of.
(NEETU SACHDEVA) (RENU BALA GAMBHIR)
ASTT. REGISTRAR-cum-PS CO URT MASTER (NSH)
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. – 67
Case :- CRIMINAL MISC. BAIL APPLICATION No. – 20276 of 2021
Applicant :- Kamal Ahsan
Opposite Party :- Assistant Director Of Directorate Of E.D. And Another
Counsel for Applicant :- Mohd.Aslam Azhar Khan,Anoop Trivedi (Senior Adv.)
Counsel for Opposite Party :- A.S.G.I.,Bal Mukund,Sanjay Kumar Yadav,Shishir Prakash
Hon’ble Rahul Chaturvedi,J.
Heard Sri Anoop Trivedi, learned Senior Counsel assisted by Sri M.A. Khan, learned counsel for the applicant, Sri Bal Mukund, learned counsel appearing on behalf of E.D. and Sri Sanjay Kumar Yadav, learned counsel appearing on behalf of C.B.I. at length.
Pleadings have been exchanged between the parties and the matter is ripe for final submissions on merit.
Pursuant to my earlier order dated 08.11.2021, relying upon the submission advanced by learned Senior Cousnel that the applicant is suffering from Malignancy.
This Court, on the earlier occasion, requested the doctor concerned of Kamla Nehru Hospital, Prayagraj to hold a scanning of the applicant and give a report regarding the health condition and the stage of cancer fixing today.
The report from the office of Senior Superintendent of Jail, Central Jail, Naini Prayagraj dated 11.11.2021 annexing the report from Kamla Nehru Memorial Hospital is taken on record.
This is the bail application on behalf of Kamal Ahsan(applicant) who is facing the prosecution by means of ECIR No. ECIR/01/ALSZO/2017, under section 3/4 of Money Laundering Act, 2002 during the trial.
Contention raised by learned counsel for the applicant is that for the incident of 01.03.2013, case crime no.295 of 2017 was registered on a complaint made by one Yogesh Bajpayee, Assistant Vice President, Axis Bank, Allahabad with the allegation that the applicant is working as a Relationship Manager in Axis Bank, Civil Lines Branch. After receipt of the complaint, an internal committee of the Bank was constituted to inquire about the allegations made against the applicant. The Committee found that the applicant was handling the accounts of Sam Higginbottom University of Agriculture, Technology and Sciences(SHUATS). The applicant, in connivance with one Rajesh Kumar, Accountant, SHUATS, have opened a new account in the name of his family members and relatives and syphoned the amounts to the tune of Rs.22.39 crores from the accounts of SHUATS fraudulently. As per the Axis Bank Investigating Report dated 07.04.2017, 385 fraudulent transactions were debited to the SHUATS account from 05.03.2013 to 07.11.2016. On these allegations, initially the aforesaid FIR was got registered under section 409, 418, 420, 421, 463, 467, 471, 477, 201, and 120-B IPC. The applicant was arrested on 28.07.2017. Contention raised by learned counsel is that the co-ordinate Bench of this Court, while considering the Criminal Misc. Bail Application No.16989 of 2018 have allowed the bail application of the applicant, annexure no.6 to the application and eventually enlarged on bail on 13.08.2018.
After his release, the present enforcement case information report was lodged on 11.09.2017 by one Sri Ram Chandra, Assistant Director, PMLA mentioning therein that Section 120B, 418, 420, 421, 467, 471 IPC invoked in FIR are scheduled offences under the prevention of Money Laundering Act, 2002 and on the basis of aforesaid information and documents, prima facie, case of money laundering act under section 3 of the Act, 2002 punishable under section 4 of the Act, seems to be made out.
Learned counsel for the applicant has drawn the attention of the Court to Annexure-10, the ground of arrest vide order dated 09.11.2020 recording his satisfaction for the arrest and the primary satisfaction was that on 07.02.2019, 24.04.2019 and 05.07.2019, the applicant was summoned for consultation of document and evidences, but he has never cooperated and unnecessarily sought adjournments on the three occasions, on this, the PMLA authorities came to the conclusions that the applicant is avoiding the investigation and applying the delaying tactics to hamper the investigation and thus on 10.11.2020, he was again arrested under the PMLA, 2002 and after investigation, Enforcement Directorate has filed the charge sheet on 10.12.2020 against Kamal Ahsan(applicant), Syad Yawar Hussain, Jamal Ashraf and Rajesh Kumar.
Learned counsel for the applicant has drawn the attention of the Court that the maximum punishment is of three-seven years and also liable for fine. It was contended by learned counsel that the applicant was in jail in connection with case crime no.295 of 2017 and was arrested on 28.07.2017 and eventually bailed out on 13.08.2018, say about facing the incarceration for one year and one month and thereafter, he is again in jail since 10.11.2020.
While drawing the attention of the Court, learned counsel for the applicant strenuously argued that as per the provision of Section 45 of PMLA, 2002, which reads thus :-
“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 of a sum of less than one crores rupees”, may be released on bail if the special Court so directs”.
Learned counsel for the applicant submits that the applicant though is aged about 36 years but he is suffering from number of serious and deadly ailments. He is suffering from Diabetes Mellitus x 7 years & Fistula X 3 months with oral cancer Operation in January 2019.
On this factual parameters, learned counsel for the applicant has cited certain judgments to buttress his contention in the case of D.K. Shivkumar Vs. Directorate of Enforcement decided on 23.10.2019. In this case, the applicant was charged that on account of scrutiny of transactions recorded and incriminating documents revealed that illicit and unaccounted cash of at least 143 crores were generated by the petitioners in a criminal conspiracy with his associates. On the said generated amount, a small part of Rs.8,59,69,100/- was found and seized during search. In the said judgment, it has been held that that the twin conditions mentioned in Section 45 of PML Act continue to struck down as being unconstitutional in view of judgment of Hon’ble Apex Court in the case of Nikesh Tara Chand Shah Vs Union of India, reported in (2018) 11 SCC 1 and same is neither revived nor restructured by the amending Act, therefore, as of today, there is no longer rigor of said two conditions under the Original Section 45(1)(ii) of the PML Act for releasing the petitioner on bail. The provisions of Section 439 Cr.P.C. and the conditions therein will only apply in the case of applicant for grant of bail.
It is undisputed that in the present case, the applicant is suffering from Cancer and had undergone a surgery in January, 2019 at P.D. Hinduja Hospital, Mahim, Mumbai and thereafter the attending doctor has advised him to have a periodical check up of the affected area. The applicant is a known case of CA buccal mucosa squamous cell Cancer now presented with Nasopharygeal wounds. He has already faced incarceration for almost two years (one year in the State case arising out of case crime no.295 of 2017 and now one year in the present case), when the maximum punishment is seven years. Thus, as per the mandate of law provided under section 45 (proviso) of PML Act, the applicant deserves to be bailed out.
Per contra, Sri Bal Mukund, learned counsel for the E.D. vehemently opposed the bail by making a mention that the applicant is hail and hearty and his good care is being taken by the jail authorities and assures the Court that as and when his treatment for specialised agency is warranted, it will take due care of. Besides this, it was also urged by counsel for the Department that out of astronomical figure of 22.39 crores, only 6 crores have been recovered so far and the Department is trying hard to recover the same. Sri Bal Mukund also raised apprehension that he is the main culprit of this big scam who have syphoned the amount of the institution and if released on bail, it is every likelihood that he would flee away from the country and the institution as well as the bank would be at utter loss and it would become impossible to conduct the trial in a smooth way.
After hearing the rival submissions and perusing the documents, it is clear that initially the FIR was registered in which the co-ordinate bench of this Court on 13.08.2018 bailed out the applicant and during his arrest, the E.D. on 11.09.2017 moved the present complaint bearing no ECIR/01/ALSZO/2017 and re-affected his arrest on 10.11.2020 and since then he is in jail. During this period, the Department is progressing its investigation with snail’s speed but seems to have filed the charge sheet. The ailing applicant is behind the bars under trial for last more than year. So far as apprehension of fleeing away is concerned, seems to be unfounded and without any basis.
The Enforcement Directorate is at the fullest liberty to make seizure the applicant’s GREY accounts after grilling him as per the law. But, he cannot be put behind the bars for unlimited period.
In view of the above, I am of the considered opinion that the applicant is entitled for bail keeping in view that he is suffering from deadly ailments of Cancer and accordingly, the applicant-Kamal Ahsan be released on bail in the aforesaid case on furnishing a personal bond of Rs.25 lacs and two sureties to the like amount to the satisfaction of the trial court with the following conditions :-
(i) He shall not leave the country without permission of the court and get his passport deposited in the court within a week after his release.
(ii) He also make himself available as and when the Investigating Officer requires his personal presence with the desired documents by the prosecuting agency.
(iii) He shall not influence the prosecution witnesses directly or indirectly.
(iv) During trial, he shall not make any adjournment whatsoever on any ground and shall cooperate in the early conclusion of trial. The trial court too is expected to conclude the trial on the top most priority and conclude the same within a reasonable time.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 12.11.2021
Sumit S