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2022 (10) TMI 198

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..... ll from Mr. Kundan Shinde and, thereupon, went to the designated places and delivered the cash. No call was thus attributed to the Applicant before the delivery of the cash amount. This omission, prima facie, cannot be said to be innocuous. In a sense this runs against the claim of Mr. Sachin Waze of direct instructions by the Applicant to Mr. Sachin Waze, immediately before the alleged delivery of cash to Mr. Kundan Shinde. Without delving into the aspect of the alleged inconsistent statements made by Mr Sachin Waze before the other forums including Justice Chandiwal Commission of Enquiry, where Mr. Sachin Waze, allegedly disowned everything, in my view, the aforesaid material, prima facie, renders it unsafe to place reliance on the statement of Mr. Sachin Waze, a co-accused, that cash amount was collected and delivered to Mr. Kundan Shinde at the instructions of the Applicant. The material on record does indicate that the Applicant has been suffering from multiple ailments. He is 73 years of age. Few of the ailments may classified as de-generative. The medical reports/certificates also show that the Applicant is suffering from chronic ailments, as well. In the light of the .....

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..... n Commissioner of Police, Mumbai, came to be transferred from the said post. The Applicant was then holding the office of the Home Minister, Government of Maharashtra. 2.2 Mr. Param Bir Singh, addressed a letter dated 20th March, 2021 to the then Chief Minister of Maharashtra, making certain allegations against the Applicant. As the contents of the said letter came in public domain, a batch of Petitions including Public Interest Litigation No.6 of 2021, were instituted in this Court. The Division Bench of this Court by an order dated 5th April, 2021 directed the Central Bureau of Investigation (CBI) to conduct a preliminary inquiry into the complaint made by Smt. Jayshree Patil, one of the Petitioners, to which a copy of the letter dated 20th March, 2021 was annexed. A challenge to the said order was turned down by the Supreme Court by an order dated 8th April, 2021. 2.3 Thereupon, the CBI conducted a preliminary inquiry and, on 21st April, 2021, registered FIR bearing No.RC No.2232021a0003 at ACB-V, New Delhi, against the Applicant and unknown others, with the assertion that the preliminary inquiry, prima facie, revealed that cognizable offence was made out wherein the Appli .....

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..... e of the offneces. 3. The gravamen of indictment against the Applicant, as borne out by the allegations in the supplementary prosecution complaint, can be summarised as under : 3.1 The Applicant in the capacity of the Home Minister played a crucial role in reinstatement of Mr. Sachin Waze, who was under suspension for 16 years. The Applicant and Mr. Sachin Waze were working as a team to get illegal gratification through extortion and illegal activities. The Applicant instructed Mr. Sachin Waze to collect Rs.3 Lakhs per month from 1750 bar and restaurants across Mumbai. On the instructions of the Applicant, Mr. Sachin Waze collected cash amount of Rs.4.70 Crores from the bar owners during the months of December 2020 to February, 2021. Mr. Kundan Shinde, the then Personal Assistant of the Applicant, and a trusted aide, collected the cash amount of Rs.4.70 Crores from Sachin Waze, on behalf of the Applicant. 3.2 The Applicant abused his position to effect transfers and postings of the police officials with a view to obtain undue advantage. The Applicant passed on unofficial instructions to the members of the Police Establishment Board (PEB) and made them to make recommendatio .....

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..... the allegations of influencing the transfers and postings of the police officials. In fact, the Applicant in the capacity of the then Home Minister was statutorily empowered to pass orders of transfers and postings on the recommendations of PEB. In a majority of cases, orders were passed in conformity with the recommendations of PEB. In any event, there is no allegation that the Applicant made the members of PEB to make recommendations for illegal gratification. The Applicant further contends, neither there is material to show that the Applicant allegedly received a sum of Rs.4.70 Crores either directly or indirectly. Nor there is material to show that the sum of Rs.1.70 Crores which was transferred to the account of Shri Sai Shikshan Sanstha, was part of the alleged proceeds of crime . In fact, the said transfer of funds to the account of Shri Sai Shikshan Sanstha represents legitimate transactions through banking channel. The bald statements of Mr. Surendra and Virendra Jain, co-accused, and Mr. Sudhir Baheti, Chartered Accountant, made under duress, cannot sustain the allegations of money laundering. In substance, there is no material to prima facie demonstrate that the Applica .....

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..... h, 2021, underscoring the necessity of a fair and impartial investigation, were in the context of the stage of the proceedings. At this juncture, we have traversed the stage of investigation qua the Applicant to a substantial extent, though in the supplementary prosecution complaint, the Respondent ED, seeks to keep the door ajar for further investigation. At this stage, therefore, the Court is called upon to consider the entitlement of the Applicant for bail in the light of the material which is collected during the course of investigation. Of course, the prelude which led to the registration of ECIR needs to be kept in view. 10. Mr. Chaudhari, learned Senior Advocate appearing for the Applicant, strenuously submitted that the prosecution of the Applicant, at the instance of the Respondent ED, exemplifies the flagrant abuse of the statutory powers to brazenly trample upon the constitutional and statutory rights of the Applicant. A stark feature of this prosecution is the deep rooted subjectivity , at the cost of objective assessment resulting in a highly opinionated case against the Applicant peperred with expressions appears , seems and the like. In the process, the tr .....

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..... e of vehemence, that the allegation that the Applicant had, over a period of time, amassed ill gotten wealth, approximately Rs.13.25 Crores, and transferred the same to the account of Shri Sai Shikshan Sanstha, by no stretch of imagination, can render the said amount proceeds of crime , even if assumed to be unaccounted, since there is no predicate offence in relation thereto. Even the sum of Rs.1.71 Crores allegedly transferred to the account of Shri Sai Shikshan Sanstha during February/March, 2021, cannot be termed as proceeds of crime in the absence of any link evidence to show placing, layering and integration of the said amount. 15. Lastly, Mr. Chaudhari would urge that the twin conditions under Section 45 of the PMLA can be said to have been adequately satisfied by the inherently contradictory and improbable nature of the accusation and the quality of material pressed in support thereof. In any event, the advanced age and precarious health condition of the Applicant, borne out by the medical record maintained at the prison and the government hospitals, warrants exercise of discretion in favour of the Applicant by resorting to the 1st proviso to Section 45 of PMLA. 16. .....

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..... any event, the credibility and reliability of the witnesses is not to be judged at this stage, and that is a matter for trial. Therefore, the Court would not be justified in embarking upon the exercise of evaluating the credibility of the witnesses at this stage. 19. To bolster up the aforesaid submission, Mr. Singh, in addition to the observations in the case of Vijay Choudhari (supra), placed reliance on the judgments of the Supreme Court in the case of Satish Jaggi V/s. State of Chhatisgarh (2007) 11 SCC 195 and Ors. and National Investigating Agency V/s. Zahoor Ahmad Shah Watali 2019 (5) SCC 1. 20. I have given anxious consideration to the aforesaid submissions. To begin with, it may be expedient to note the considerations which normally weigh with Court in granting or refusal to grant bail in a non-bailable offence. Ordinarily, the nature and seriousness of the offences, the circumstances in which the offences were allegedly committed, the circumstances peculiar to the accused, in a given case, the nature and character of the evidence/material pressed into service against the accused, possibility or otherwise of the presence of the accused not being secured at the tr .....

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..... rol of Organized Crime Act, 1999 arose for consideration. The interdict against the grant of bail under Section 21(4) of the MCOC Act, 1999 is pari materia the bar contained in Section 45(1) of the PMLA. In Ranjitsingh Sharma (supra) the Supreme Court illuminatingly postulated the approach to be adopted in arriving at the satisfaction as to whether the accused is not guilty of such offence and that the accused is not likely to commit any offence while on bail . They read as under : 35. Presumption of innocence is a human right. [See Narendra Singh and Another Vs. State of M.P., (2004) 10 SCC 699, para 31 ] Article 21 in view of its expansive meaning not only protects life and liberty but also envisages a fair procedure. Liberty of a person should not ordinarily be interfered with unless there exist cogent grounds therefor. Sub-Section (4) of Section 21 must be interpreted keeping in view the aforementioned salutary principles. Giving an opportunity to the public prosecutor to oppose an application for release of an accused appears to be reasonable restriction but Clause (b) of Sub-section (4) of Section 21 must be given a proper meaning. 36. Does this statute require .....

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..... idering an application for grant of bail, although detailed reasons are not necessary to be assigned, the order granting bail must demonstrate application of mind at least in serious cases as to why the applicant has been granted or denied the privilege of bail. 46. The duty of the court at this stage is not to weigh the evidence meticulously but to arrive at a finding on the basis of broad probabilities. However, while dealing with a special statute like MCOCA having regard to the provisions contained in sub-section (4) of Section 21 of the Act, the Court may have to probe into the matter deeper so as to enable it to arrive at a finding that the materials collected against the accused during the investigation may not justify a judgment of conviction. The findings recorded by the court while granting or refusing bail undoubtedly would be tentative in nature, which may not have any bearing on the merit of the case and the trial court would, thus, be free to decide the case on the basis of evidence adduced at the trial, without in any manner being prejudiced thereby. (emphasis supplied) 25. The aforesaid pronouncement was followed with approval by the Supreme Court in .....

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..... lity, the accused may not be ultimately convicted, an order granting bail may be passed. Conversely, it is not peremptory that the Court must arrive at a positive finding that the Applicant has not committed an offence under the Act. Likewise, a satisfaction that the accused is not likely to commit an offence while on bail is qua the offence of the kind with which the accused is charged and not any other offence. 27. On the aforesaid touchstone, reverting to the facts of the case, it has to be seen whether the aforesaid twin tests can be said to have been satisfied. To this end, the nature of evidence/material pressed into service against the Applicant is required to be appraised to arrive at a tentative finding of existence or otherwise of reasonable grounds for believing that the Applicant is not guilty of the offence, nor he is likely to commit an offence, if released on bail. 28. On the basis of the material on record, the prosecution case can be conveniently considered in three parts, (1) the Applicant instructed Mr. Sachin Waze to collect money from bar owners/establishments, and, accordingly, the money was collected and handed over to Mr. Kundan Shinde, the co-accused, .....

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..... ph 8.9 of the Supplementary Prosecution Complaint). 31. Mr. Chaudhari strenuously submitted that the aforesaid allegation of money laundering in respect of the alleged transfer of Rs.1.12 Crores during the period the Applicant was holding the Office of Home Minister (second component) and a sum of Rs.10.42 Crores during the period 2011-19 (third component), cannot be termed as proceeds of crime . The charge is, thus, totally misconceived. Those amounts, in the absence of any predicate offence in relation thereto, can never be termed as proceeds of crime . 32. To bolster up this submission, Mr. Chaudhari placed a heavy reliance on the exposition of the term proceeds of crime by the Supreme Court in the case of Vijay Choudhary (supra). It was urged that to be proceeds of crime, the property must be derived or obtained directly or indirectly as a result of criminal activity relating to scheduled offence. The mere fact that the investigating agency could locate certain transactions in the account of the Shri Sai Shikshan Sanstha, is not sufficient to draw an assumption that the said property forms part of the proceeds of crime . 33. Particular emphasis was laid on the obs .....

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..... eeds to be construed strictly. In that, all properties recovered or attached by the investigating agency in connection with the criminal activity relating to a scheduled offence under the general law cannot be regarded as proceeds of crime. There may be cases where the property involved in the commission of scheduled offence attached by the investigating agency dealing with that offence, cannot be wholly or partly regarded as proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act - so long as the whole or some portion of the property has been derived or obtained by any person as a result of criminal activity relating to the stated scheduled offence. To be proceeds of crime, therefore, the property must be derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence. To put it differently, the vehicle used in commission of scheduled offence may be attached as property in the concerned case (crime), it may still not be proceeds of crime within the meaning of Section 2(1)(u) of the 2002 Act. Similarly, possession of unaccounted property acquired by legal means may be actionable for tax violation and yet, will not be .....

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..... property for the purpose of taking action under the 2002 Act which is being used in the commission of offence of money-laundering. Such purposive interpretation would be necessary to uphold the purposes and objects for enactment of 2002 Act. 253. Tersely put, it is only such property which is derived or obtained, directly or indirectly, as a result of criminal activity relating to a scheduled offence can be regarded as proceeds of crime. The authorities under the 2002 Act cannot resort to action against any person for money-laundering on an assumption that the property recovered by them must be proceeds of crime and that a scheduled offence has been committed, unless the same is registered with the jurisdictional police or pending inquiry by way of complaint before the competent forum. For, the expression derived or obtained is indicative of criminal activity relating to a scheduled offence already accomplished. Similarly, in the event the person named in the criminal activity relating to a scheduled offence is finally absolved by a Court of competent jurisdiction owing to an order of discharge, acquittal or because of quashing of the criminal case (scheduled offence) agains .....

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..... s of the commission of predicate offence is of no significance. 36. It is true that the Supreme Court has observed in paragraph 270 of the judgment in the case of Vijay Choudhary (supra), that the offence of money laundering is not dependent on or linked to the date on which the scheduled offence is committed and the date which assumes significance is the date on which the person indulges in the process or activity connected with such proceeds of crime. However, further observations in paragraph 281 to 283 make the position abundantly clear that the existence of the proceeds of crime within the meaning of Section 2(1) (u) is quintessential. They read as under : 281. The next question is: whether the offence under Section 3 is a standalone offence? Indeed, it is dependent on the wrongful and illegal gain of property as a result of criminal activity relating to a scheduled offence. Nevertheless, it is concerning the process or activity connected with such property, which constitutes offence of money-laundering. The property must qualify the definition of proceeds of crime under Section 2(1)(u) of the 2002 Act. As observed earlier, all or whole of the crime property linked t .....

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..... enabling him to take further action under the Act in that regard. 283. Even though, the 2002 Act is a complete Code in itself, it is only in respect of matters connected with offence of money- laundering, and for that, existence of proceeds of crime within the meaning of Section 2(1)(u) of the Act is quintessential. Absent existence of proceeds of crime, as aforesaid, the authorities under the 2002 Act cannot step in or initiate any prosecution. 37. In the case at hand, as regards the aforesaid second and third components of transfer to the account of Shri Sai Shikshan Sanstha, it appears that in respect of the transfer of the amount during the period 2011-19 (third component), there is no allegation that the said property had been derived or obtained as a result of criminal activity relating to scheduled offence. Even in respect of the amount of Rs.1.12 Crores, allegedly transferred during the period September 2020 to November, 2020 (second component), there does not seems to be any allegation that the said property was derived or obtained as a result of any criminal activity relating to the scheduled offence. On the contrary, what is alleged is that the Applicant had l .....

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..... l list containing suggestions in respect of certain police officers/certain posts with regard to transfers and postings. He used to orally convey those recommendations /suggestions to the other members of PEB. The said suggestions were discussed and evaluated and whoever found suitable, as per merits, was considered and included unanimously by the PEB in the recommended list. He further added that most of the suggestions/recommendations given by the Applicant, in the form of unofficial list, used to be included in the final order. At times, on the directions of the Applicant, Mr. Palande, then PS, used to handover such list to him. 43. Mr. Param Bir Singh, who was also a member of the PEB, stated that the list of names of the police officials to be transferred and posted, was prepared in the office of the Applicant and given to Mr. Sitaram Kunte, the then Additional Chief Secretary, and the proceedings of the committee were a mere formality where members in spite of their reservations and protests had to agree and sign the recommendations of the meeting of the Board. 44. On the strength of the aforesaid statements, Mr. Anil Singh, would submit that the fact that the Applicant .....

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..... of crime out of the alleged predicate offence of exercise of influence over the transfers and postings of the police officials. These statements ex-facie lack the element of certainty as to the source, time and place. They prima facie appears to be hear-say. 49. It is pertinent to note that there is no categorical allegation in the supplementary prosecution complaint that a particular property has been derived or obtained as a result of criminal activity relating to the scheduled offence of exercise of undue influence over transfers and postings. Instead what is alleged is that the Applicant laundered unaccounted cash during the period he was holding the office of the Home Minister. 50. This takes me to the crux of the allegations against the Applicant of instructing Mr. Sachin Waze to collect money from the orchestra bar owners/establishments. The statements of Mr. Sachin Waze, Mr. Sanjay Patil, the then Assistant Commissioner of Police, Social Service Branch, Mr. Mahesh Shetty, Mr. Rameshwwar Ramgopal Yadav and other bar owners and Mr. Param Bir Singh are pressed into service to buttress this allegation. 51. Primary reliance appears to be on the statement of Mr. Sachin W .....

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..... ice. Upon insistence of the Applicant, Mr. Waze claimed to have had a meeting with the representatives of the bar owners in mid December, 2020 and asked them to collect money and hand it over to him to be paid to No.1 , a code word for the Applicant. Initially a good luck amount of Rs.40 Lakhs was paid by the bar owners namely Mahesh Shetty and Jaya Poojari. Only after the collections in the months of January and February, 2021, he had given the cash, so collected, to the Applicant through Mr. Shinde, the co-accused. The first installment was in the last week of January 2021, of about 1.70 Crores. Mr. Shinde had called him near Sahyadri Guest House and the bags containing cash were transferred from the car of Mr. Waze to that of Mr. Shinde. The second was of Rs.3 Crores which were again handed over, after Mr. Shinde called him near Raj Bhavan signal square. 55. Mr. Ramesh Kumar Yadav and Mr. Mahesh Shetty and other bar owners whose statements have been recorded under Section 50 of the PMLA, have stated that meetings were held with Mr. Sachin Waze, in his office, in the premises of Commissioner of Police Office. The amounts to be paid as per category of the bar were decided and, .....

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..... orchestra bar owners. Mr. Waze replied that he was doing it for No.1 . When he asked as to who was No.1 , Mr. Waze informed him that it was Commissioner of Police. In another statement recorded by the learned Metropolitan Magistrate under Section 164 of the Code in C.R.No.71 of 2021 registered with Goregaon Police Station, Mr. Sanjay Patil reiterated that after the meeting with the orchestra bar owners, he had enquired with Mr. Sachin Waze as to why he was collecting the amount, the latter replied that it was for No.1. Upon being further questioned as to who was No.1, Mr. Waze told that it was Commissioner of Police. 60. Banking upon the aforesaid statements of Mr. Sanjay Patil, and Mr. Mahesh Shetty, Uday Kumar Shetty and Jaya Poojari, owners of the bar recorded under Section 164 of the Code, wherein they asserted that in common parlance, Commissioner of Police was considered to be No.1 in the police hierarchy, it was submitted that the person for whom Mr. Waze was allegedly collecting money from the orchestra bar owners, was not the Applicant, but the then Commissioner of Police. These statements which were recorded before the learned Magistrate stand on a higher footing tha .....

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..... ass the required amount in cash through Jain brothers to Havala operators. 65. As enunciated in the case of Vijay Choudhary (supra), in the context of the allegation of money laundering, in the case at hand, it has to be seen whether there is material to show that the aforesaid amounts, especially a sum of Rs.1.71 Crores transferred to the account of Shri Sai Shikshan Sanstha, partakes the character of proceeds of crime . To put it in other words, whether the said amount was derived or obtained directly or indirectly as a result of criminal activity relating to the scheduled offences for which the Applicant and others are arraigned. In Supplementary Prosecution Complaint, the prosecution has approached with a positive case that the said amount of Rs.1.71 Crores transferred during the months of February and March, 2021 (first component) forms part of the amount of Rs.4.70 Crores allegedly extorted by Mr. Sachin Waze from the bars owners and handed over to Mr. Kundan Shinde. This part of the allegation, as indicated above, primarily rests on the claim of Mr. Sachin Waze. 66. Mr. Chaudhary, learned Counsel for the Applicant, urged that the statement of Mr. Sanjay Patil that Mr. .....

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..... t, even at this stage, the statements of co-accused can be used against another, may warrant consideration. Even if it is assumed that the confession of a co-accused can be used against another co-accused, in the event of a joint trial, under Section 30 of the Evidence Act, 1872, or for that matter in the event of grant of pardon, the co-accused Mr. Sachin Waze deposes as an approver in favour of the prosecution, the question of reliability may arise in the light of the well recognized principles of law. Undoubtedly, that would be a matter for trial. But the character in which the statements are made by Mr. Sachin Waze and credibility of accusation therein qua the Applicant, in the light of the material on record, does bear upon the exercise of discretion while considering the prayer for bail. 71. I propose to consider the credibility of the statements of Mr. Sachin Waze from two perspectives. One, in the light of the multiple statements made by him Two, whether any support or sustenance can be drawn to the statements of Mr Sachin Waze from other quarters. 72. As the starting point of the alleged demand to collect money from the bars and restaurants was allegedly in the meeti .....

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..... ndicates that, in the said meeting, Mr. Sanjeev Palande inquired with Mr. Sanjay Patil as to whether such amount was being collected from the bars/restaurants. 74. Without delving into the aspect of the alleged inconsistent statements made by Mr Sachin Waze before the other forums including Justice Chandiwal Commission of Enquiry, where Mr. Sachin Waze, allegedly disowned everything, in my view, the aforesaid material, prima facie, renders it unsafe to place reliance on the statement of Mr. Sachin Waze, a co-accused, that cash amount was collected and delivered to Mr. Kundan Shinde at the instructions of the Applicant. 75. Mr. Chaudhary s criticisam of the credentials of Mr. Sachin Waze, in the light of the situation in which Mr. Sachin Waze finds himself, borne out by the material on record, may carry some substance. In the least, the tenure of Mr. Sachin Waze as a police officer has been controversial. He was under suspension for almost 16 years. He came to be arrested by NIA in C.R.No.35 of 2021 for the alleged murder of a person in connection with the occurrence of a gelatin laden SUV. His statements were recorded by ED whilst he remained in the custody of jurisdictional .....

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..... construed in such a manner that effect can be given to main part of Section 45(1) as well as the discretion which the proviso vests in the Court. 81. As a general rule, the proper function of a proviso is that it qualifies the generality of enacting part by providing an exception and takes out, from the main enactment, a portion which, but for the proviso, would fall within the ambit of the enacting part. Normally a proviso is not construed in such fashion as to completely nullify the main enactment. If it is held that the proviso can be resorted to only after the accused fully satisfies the twin conditions, then the proviso would be rendered otiose. Conversely, if it is held that if the personal attributes of an accused satisfy the requirement of proviso, the accused can be released on bail, de hors the nature of the accusation and material in support thereof, e.g. in case of a woman accused, the main part of Section 45(1) would be rendered nugatory and the very object of insertion of twin conditions would be defeated. Steering clear of these two extremes, exercise of judicious discretion, depending of the facts of the given case, appears to be the correct approach. 82. In .....

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..... the Applicant for bail on merits as well, and found a prima facie case for exercise of discretion is made out. As the proviso empowers the Court to exercise the discretion in favour of an accused who is otherwise sick or infirm, the Court has considered the material on record and finds, in the totality of the circumstances, a case for exercise of the discretion under the proviso as well. 88. The Applicant appears to have roots in society. The possibility of fleeing away from justice seems remote. The apprehension on the part of the prosecution of tampering with evidence and threatening the witnesses can be taken care of by imposing appropriate conditions. 89. The Application, therefore, deserves to be allowed. Hence, the following order : ORDER (i) The Application stands allowed. (ii) The Applicant Anil V. Deshmukh be released on bail on furnishing a P.R. bond in the sum of Rs.1 Lakh and one or two sureties in the like amount to the satisfaction of the learned Judge, PMLA, Mumbai. (iii) The Applicant shall report the Office of the Enforcement Directorate on every Monday in between 10.00 a.m. to 12.00 noon for a period of two months from the date of his rele .....

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