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TMI Blog2022 (9) TMI 1216X X X X Extracts X X X X X X X X Extracts X X X X ..... 120B read with Section 420 of the IPC, section 467, 468 and 471 IPC and section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act. 4. Since the offences in the FIR were scheduled offences under the provisions of the Prevention of Money Laundering Act ("PMLA"), as such ECIR No. DLZO-1/12/2021 was recorded on 31.01.2021 by the Directorate of Enforcement (DoE), Delhi Zonal Office-I, New Delhi. 5. The allegations are that the DoE conducted search at different premises of SBFL and various documents and electronic devices were seized and analyzed and the same show commission of scheduled offences, generation, acquisition, layering and siphoning off the proceeds of crime. 6. It is stated that SBFL had availed of various loan facilities from a consortium of banks led by SBI 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. 7. SBFL had rotated its funds to group companies in the form of share investment, share application money, share premium, inter corporate deposits, compulsory convertible debentures, loans and advances and inter group purchases with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also revealed that the borrowed funds had further been layered and siphoned off by creating a web of complex transactions through the bank accounts of various shell companies under command and control of Devki Nandan Garg. Again, using the platform of his shell entities, he assisted SBFL and its directors etc. transfer the proceeds of crime to its sister/group companies claiming the same as genuine business transactions. Besides, SBFL had transferred the loan funds to the shell entities under him and he concealed the location of the proceeds of crime by creating a cover through complex transactions, thus, leading to commission of the offence of money laundering. Investigation also revealed that Devki Nandan Garg in cohorts with others had fabricated the transport bills and used fake PANs and vehicle numbers in the fake invoices supplied by him to SBFL through the shell entities under his control. It is found that Devki Nandan Garg has been actively involved in the rotation and layering of bank funds in dummy entities. Further, these loan funds were also transferred into sister concerns of SBFL without any genuine business and physical movement of goods. Through dummy entities un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2021 and has been in custody since then till 20.01.2022. As on 19.01.2022 the applicant was granted interim bail on account of his poor medical condition where he contracted corona virus and has since been on bail. 15. Mr. Luthra, learned senior counsel for the petitioner, has stated that the petitioner falls within the definition of sick and infirm person, and hence, is entitled to bail under Proviso to Section 45(1) of the PMLA. He also states that he is suffering from various ailments including old age. 16. He has drawn my attention to a chart showing his medical condition which reads as under:- " MEDICAL AILMENTS OF DEVKI NANDAN GARG a) One Kidney is DEAD and Other Kidney functions in a compromised manner and requires day to day monitoring, otherwise it can be FATAL b) Recently a PACEMAKER was installed in March 2020 Due to uneven Heartbeats and electrical impulse problem in heart. c) Suffering from SPONDILITIS - Lower Back Problem d) Suffering from VERTIGO - acute onset of positional vertigo d) LARGE INTESTINE has been REMOVED - after 1 YEAR of COLOSTOMY in the year 2006. e) Colostomy SURGERY done in the Year 2004-2005. HERNIA OPERATION done in the Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uilding, Dr. R.M.L. Hospital, New Delhi. As per the finding out of the meeting, the medical board is of the opinion that Mr. Devki Nandan be examined physically with all the detailed records including all investigations and CT Scan/ MRI films on 21.03.22 at 12 Noon in Room No. 307, Admin. Block, ADVIMS, Dr. R.M.L. Hospital. You are requested to intimate the concerned authority to produce Devki Nandan Garg before the Medical Board with all treatment records on the date and time mentioned above. (Dr. Prof.) Nandini Duggal Additional Medical Superintendent 20. He has also drawn my attention to the Medical Report dated 21.03.2022 to highlight that he is not only sick, but infirm, and hence, needs to be released on bail in accordance with Proviso to Section 45(1) of the PMLA. The Medical Report reads as under: - GOVERNMENT OF INDIA ATAL BIHARI VAJPAYEE INSTITUTE OF MEDICAL SCIENCES, DR. RAM MANOHAR LOHIA HOSPITAL, NEW DELHI F. No. Addl. MS (MD)/ CMB-14/2022/RML H/ New Delhi, the 21st March, 2022 Medical Report In continuation of the meeting dated 15.03.22, the Medical Board consisting of undersigned members re-evaluated the old available medical records and some new record ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith his active connivance and fraud, SBFL has been able to siphon off crores of public money. He stated the following: i. The applicant being an entry operator was involved in paper sale purchase transactions with SBFL without conducting any actual business transactions. Around 56 shell entities were found under direct or indirect command and control of the applicant through which borrowed funds/ proceeds of crime of about Rs.1576 Crore have been diverted, layered and siphoned off by the applicant. ii. Investigations unearthed that the applicant was instrumental not only in inflating stock of the company and booking false purchase sale of SBFL and its group companies but also in diverting and siphoning off the proceeds of crime by creating a web of complex transactions through shell companies in his control. He not only assisted in generation of proceeds of crime to SBFL but also helped in its distribution to the group companies. iii. He states that the applicant has been actively involved in the rotation and layering of bank funds in dummy entities. He further transferred the loan funds into sister concerns of SBFL without any genuine business and physical movement of goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... custody suffers from a condition which cannot be addressed from the jail. The test is whether the applicant suffers from such a condition that he has to be hospitalized and/ or released on bail as the jail is unable to provide the level of medication, care and treatment. 25. Mr. Hossain has also stated that to enlarge the accused on bail, the High Court has to record a finding that the treatment accorded to the accused by the jail authorities is not 'Satisfactory'. He has placed reliance on the judgment of Jaspal Singh Gill (supra) wherein the Apex Court in para 11 held the following: "11. In the circumstances, I am of the view that the High Court should not have enlarged the respondent on bail in the larger interests of the State. It is urged that the respondent is a person who has undergone a cardiac operation and needs constant medical attention. I am sure that the prison authorities will arrange for proper treatment of the respondent whenever the need for it arises." 26. Respondents have also laid emphasis on the judgment of Ashok Kumar Jain (supra) to show that the court shall not interfere till the time the jail authorities are competent and capable to provide adequate me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he court while rejecting bail noted the following : "5. It is not in dispute that petitioner is on interim bail since 12.06.2020 on medical grounds and another extension of interim bail is sought on medical grounds only. As per status report dated 28.01.2021, necessary verification was done from the Head of the Department of Deen Dayal Hospital, New Delhi. Discharge summary sheet dated 25.01.2021 placed on record notes that petitioner was admitted on 13.01.2021 for anti coagulation therapy and optimization and after treatment was discharged on 25.01.2021 in stable condition. In the aforesaid discharge summary sheet, Dr. P.S. Sarang, Specialist and HOD (Surgery) has specifically stated that this treatment is also available in Tihar Jail. In view of aforesaid, I am of the view that petitioner can continue his treatment within jail premises, if so required and extension of his interim bail on medical grounds is unwarranted." 28. He also relies on the judgment of Karim Morani v Central Bureau of Investigation 2011 SCC OnLine Del 2967 where court refused bail whilst making the following observations : "8. From the aforesaid record, it transpires that the petitioner underwent by-pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n medical grounds, particularly when the release of the petitioner for a period of 4-6 weeks would not change his medical history or situation." 29. Mr. Luthra, learned senior counsel, on the other hand, has stated that the Proviso to Section 45(1) of the PMLA is akin to Section 437 Proviso to the Cr.PC, where the identical phraseology has been used. 30. He further refers and relies on a plethora of judgments to substantiate grant of bail on medical grounds. He contends that this court in Amarendradhari Singh vs Directorate Of Enforcement 2021 SCC OnLine Del 3901 while granting bail observed the following: "42. Now as far as the medical condition of the petitioner is concerned, he is suffering from cancer since 2002 which is not denied by the department. The petitioner is under the treatment of one doctor namely Morton Coleman of U.S. and he visits the doctor for his follow up from time to time. It is on record that the petitioner was granted special permission to travel to America by the American Embassy aided by the Ministry of External Affairs and his sister was also allowed to travel with him due to his medical condition. Looking into the medical condition of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence punishable under Section 4 of the PMLA. The contention raised on behalf of the appellant that no offence under Section 24 of the SEBI Act is made out against the appellant, which is a scheduled offence under the PMLA, needs to be considered from the materials collected during the investigation by the respondents. There is no order as yet passed by a competent court of law, holding that no offence is made out against the appellant under Section 24 of the SEBI Act and it would be noteworthy that a criminal revision praying for quashing the proceedings initiated against the appellant under Section 24 of SEBI Act is still pending for hearing before the High Court. We have noted that Section 45 of the PMLA will have overriding effect on the general provisions of the Code of Criminal Procedure in case of conflict between them. As mentioned earlier, Section 45 of the PMLA imposes two conditions for grant of bail, specified under the said Act. We have not missed the proviso to Section 45 of the said Act which indicates that the legislature has carved out an exception for grant of bail by a Special Court when any person is under the age of 16 years or is a woman or is sick or infirm. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. 39. The next question which has been raised by Mr. Hossain and needs to be addressed by me is whether the applicant suffers from a condition which cannot be addressed from the jail. The observation in Ashok Kumar Jain (supra) is whether the applicant has to be hospitalized for ailments which the jail dispensary is unable to provide with prompt and utmost effectiveness? There cannot be a squabble with the proposition that the accused is entitled to proper and adequate medical attention and assistance. 40. Prisons provide medical facilities but the services are not comparable to or equivalent to the level of treatment and care one can avail from private hospitals. The facilities in the jail are of a general nature and character which is inadequate to monitor proper health of the applicant who is suffering from multiple serious ailments. The jail is not equipped to provide special and intensive treatment and care that the applicant is in need of. 41. The respondent's reliance on the judgment of Surjeet (supra) and Karim Morani (supra) is misconceived. In the case of Surjeet (supra), the court notes that "treatment is available in Tihar jail". In Karim Morani (supra), a bare pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to fight ailments and recuperate efficaciously, decreases. I have already discussed that ailments which, coupled with old age brings the applicant within the purview of "Infirm Person". The level of care, attention, minute to minute monitoring, emergent response which the applicant can get from a hospital cannot be provided at the jail. 45. Given the present case relates to Section 45 of PMLA, it is noted that courts have considered the medical condition of the accused for grant of bail even for offences committed under the aforesaid act. This court in D.K. Shivakumar vs Directorate Of Enforcement 2019 SCC OnLine Del 10691 granted bail under Section 45 of PMLA whilst observing the following: "18. In addition to above all discussed, undisputedly, the Petitioner has been hospitalized 4 times in the past 3 weeks and has been diagnosed with hypertension, diabetes, hypothyroidism, electrolyte imbalance. The Petitioner was kept in Cardiac Care Unit (CCU) and as the Petitioner complained of chest pain, Angiography was also performed on the Petitioner on18.09.2019. 19. Moreover, the proviso to Section 45 of the PML Act, provides that in case of sick person, bail should be granted to t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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