2023 (3) TMI 746 - HC - PMLA

Seeking grant of bail - Money laundering - bank fraud - allegations are that Shakti Bhog Foods Limited (SBFL), where the Applicant was one of the directors, promoter and guarantor and had availed of various loan facilities from a consortium of banks led by State Bank of India from 2006 onwards, and in order to acquire more loan funds from Banks, the company resorted to round tripping and money laundering using its various group companies as platforms - role ascribed to the Applicant in the prosecution complaint is that the Applicant was a director, guarantor and promoter of SBFL - bail urged with regards to the proviso to section 45(1) PMLA that the Applicant is sick and infirm.

Whether the Applicant is “sick or infirm” in terms of the proviso under section 45(1) PMLA?

HELD THAT:- A purposive interpretation of the proviso to section 45(1) shows that it has been incorporated as a lenient provision or to afford ‘relaxation’ to a sick or infirm person as noted in the Statement of Objects and Reasons to PMLA - Proviso to Section 45(1) PMLA is analogous to the proviso to section 437 CrPC.

What is that level of sickness or infirmity that brings an Accused within the parameters of “sick or infirm” as envisaged in the proviso to section 45(1) PMLA? - HELD THAT:- When the sickness or infirmity is of such a nature that it is life-threatening and requires medical assistance that cannot be provided in penitentiary hospitals, then the accused should be granted bail under the proviso to section 45(1) PMLA - The Hon’ble Supreme Court in PAWAN @ TAMATAR VERSUS RAM PRAKASH PANDEY & ANR. [2002 (5) TMI 890 - SUPREME COURT] have noted that every sickness does not ipso facto entitle an accused to medical bail.

In the present case, the Applicant is not ‘sick’ to be granted bail under proviso to Section 45(1) PMLA. The ailments that the Applicant is suffering from are not grave or life threatening that entitle him to bail on medical grounds. Reliance placed upon the opinion of the medical board that has opined that the Applicant is ‘stable’ and can be treated in Tihar Jail Hospital - granting bail on every sickness will render the proviso to section 45(1) PMLA otiose. The proviso should only be invoked in cases where the sickness suffered by the Applicant is so serious and life endangering that it cannot be treated in jail, or the specialized treatment as required cannot be provided from jail hospitals.

In the instant case, it is evident from the medical board’s report that the condition of the Applicant is stable, he is not suffering from lifethreatening ailments and can recuperate with the medical facilities available in jail - the Applicant cannot be termed to be ‘sick’ to fall within the proviso to section 45(1) PMLA.

Once the Applicant falls in the exception clause of section 45(1) proviso, as in the present case by virtue being ‘infirm’, the Applicant need not satisfy the twin test of section 45(1) PMLA - In the present case, the Applicant has been in custody for over 18 months. Investigation qua the Applicant is complete but no chargesheet has been filed yet. The Applicant was released on interim bail for a period of one month and after expiry of the same, he surrendered and there is no allegation of misuse of liberty by him while on bail.

The Applicant is entitled to grant of bail, subject to conditions imposed.