TMI Blog2023 (6) TMI 1325X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner is suffering from life-threatening diseases warranting immediate medical attention and post-operative care. This Court is of the opinion in view of the aforesaid discussion, the petitioner's case satisfies the test of the proviso to Section 45(1) of the PMLA. This Court has also appreciated the other factors as required to be considered while granting bail to an accused. It is evident that there is nothing on record to show that the liberty granted to the petitioner has been misused by him during his previous interim bails and neither has he been found to be an absconder. The petitioner is admitted to interim bail for a period of six weeks on his furnishing a personal bond in the sum of Rs.10,00,000/- with two sureties of the like amount to the satisfaction of the Trial Court concerned, subject to the conditions imposed - application is disposed of. - Hon'ble Judges Chandra Dhari Singh, J. For the Appellant : Vikas Pahwa, Senior Advocate, Dhruv Gupta, Manik Dhingra and Prabhav Palli, Advocates For the Respondents : Zoheb Hossain, Ankit Bhatia, Vivek Gurnani, Kartik Sabharwal, Advocates and Bhanu Priya, Jogender, (IOs) JUDGMENT C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 100 crores that were paid to the public servants in this conspiracy between the political persons, and Government officers/officials causing a total loss of Rs. 2873 cores to the exchequer of GNCTD and the petitioner along with other accused have key roles in the commission of the offence of money laundering as they were involved directly or indirectly, in the process or activities relating to the above proceeds of crime or its concealment, possession, acquisition, use, and projections or claiming it to be untainted property. 6. The petitioner was arrested in the present case on 28th September 2022. The Ld. Trial Court took cognizance of the predicate offences vide its Order dated 15th December 2022 and of the offences alleged under the ECIR vide order dated 20th December 2022. 7. During the pendency of the Trial of matter arising out of the ECIR, the petitioner sought and was granted interim bail on 28th February 2023 on medical grounds for undertaking surgery for removal of gall bladder stones and for the treatment of his back pain and other ailments. Since the petitioner was advised to undergo another surgery for his lower back, he sought an extension of interim medica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... physiotherapy and assisted care to prevent the weakened muscles around the spine, prevent increased risk of re-injury, spinal stability, and formation of scar tissue reducing a range of motion and return of symptoms. j. The non-following of advice can lead to complications like loosening of the implant, infection, poor wound healing, epidural hematoma (collection of blood compressing the spinal cord and nerve roots and can result in irreversible neurological damage, loss of bowel control, paralysis, etc.) 9. It is further submitted that the petitioner is under constant consultation and treatment of specialists and is suffering from debilitating pain and serious medical conditions, most of which, if not attended to and treated properly under regular monitoring, will cause irreversible damage. Further, the petitioner must have continuity in treatment and he needs to be in constant supervision and care of his family members and requires an attendant in case he is sent back to custody, it would not be possible for him to continue with the treatment and providing with the level of care, and supervision he requires. Further, as mandated in the health advisory, the petitioner sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der make the Applicant 'infirm' under the proviso to section 45(1) PMLA. 57. In Devki Nandan Garg (supra), I have held as under: 35. Thus, the proviso to Section 45(1) of the PMLA carves out an exception from the rigours of Section 45 for persons who are sick or infirm. Once a person falls within the proviso of Section 45(1), he need not satisfy the twin conditions under Section 45(1) as elucidated in the dicta of Gautam Kundu case [Gautam Kundu v. Directorate of Enforcement, (2015) 16 SCC 1 : (2016) 3 SCC (Cri) 603]. 58. 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. However, the Applicant needs to satisfy the triple test under Section 437/439 CrPC: i. Flight risk. ii. Influencing any witness. iii. Tampering with evidence. 59. 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 surr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner therein holding that: 46. The Applicant continues to suffers from serious co-morbidities, including but not limited to a serious heart condition and a non- functional kidney, with the other working in a compromised position. Considering that the applicant is aged, sick and infirm, who is suffering from various complicated diseases, the application needs to be allowed. 12. The learned senior counsel for the petitioner submitted that the petitioner has been granted interim bail on medical grounds by the Trial Court vide orders dated 28th February 2023, and 18th April 2023 after being satisfied of the twin conditions of Section 45(1) PMLA and upon consideration of the petitioner's medical condition, putting him under the category of sick or infirm as per the provision. 13. It is further submitted that the petitioner has never misused the liberty granted to him by the Trial Court and has complied with all the conditions imposed by the Ld. Trial Court while releasing him on interim bail. 14. Further, it is submitted that the petitioner has clean antecedents and would not flee from justice, and is willing to abide by all the orders and directions passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finality and has not been challenged by the respondent. 19. It has been further submitted by the learned senior counsel that the health condition of the petitioner is far more severe and worse off than the co-accused (P. Sarath Chandra Reddy) and his case is clearly severe than that of the co-accused. 20. Hence, in view of the foregoing discussion it is submitted that the petitioner is entitled to interim bail on medical grounds. On behalf of the respondent 21. Per Contra, Mr. Zoheb Hossain, learned counsel for the Enforcement Directorate has submitted that as per the proviso to Section 45(1) PMLA, it is the discretion of the court to grant bail to persons falling under the categories as mentioned therein. The discretion is to be exercised based on the facts and circumstances of each and every case. The learned counsel submitted that the sickness contemplated by the proviso to Section 45 of the PMLA can only be a sickness that involves a risk or danger to the life of the accused person and it is submitted that the facts of the present case do not warrant this discretionary relief. 22. The counsel relies on the medical report dated 3rd June 2023, submitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otes 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. ......... 8. From the aforesaid record, it transpires that the petitioner underwent by-pass surgery around the year 2007. Thereafter, for a continuous period of 4 years, there is no medical record, which prima facie indicates that during the period from 2007 to 2011, the petitioner did not suffer any medical complication. Coming to the medical record of the petitioner for the year 2011, it would be seen that the record submitted by the petitioner starts from 25th April, 2011. It is pertinent to note that supplementary charge sheet showing the petitioner as one of the accused was also filed in the court on 25th April, 2011. From the medical record of year 2011 subm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Choudhary v. Union of India, 2022 SCC OnLine SC 929 wherein the Hon'ble Supreme Court upheld the provisions of PMLA stating that the object of the Act is to punish the offender proportionately and to create a deterrent effect. The Court held as under: Thus, it is well settled by the various decisions of this Court and policy of the State as also the view of international community that the offence of money- laundering is committed by an individual with a deliberate design with the motive to enhance his gains, disregarding the interests of nation and society as a whole and which by no stretch of imagination can be termed as offence of trivial nature. Thus, it is in the interest of the State that law enforcement agencies should be provided with a proportionate effective mechanism so as to deal with these types of offences as the wealth of the nation is to be safeguarded from these dreaded criminals. As discussed above, the conspiracy of money-laundering, which is a three-staged process, is hatched in secrecy and executed in darkness, thus, it becomes imperative for the State to frame such a stringent law, which not only punishes the offender proportionately, but also help ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, 3[or is accused either on his own or along with other co-accused of money- laundering a sum of less than one crore rupees] may be released on bail, if the Special Court so directs:... 33. To appreciate the legislative intent of the Section 45(1) of the PMLA a reference can be made to Devaki Nandan v. Directorate of Enforcement, (Supra) whereby relaxations were given for a certain class of people in the rigors of PMLA provisions and it was observed that the stringent twin conditions of bail need not be satisfied if the person seeking bail falls in those relaxations or exceptions. The Coordinate Bench of this Court held that: 33. A bare perusal of the Statement of Objects and Reasons of the PMLA goes to show that inclusion of the above conditions for grant of bail as a proviso to Section 45(1) of the PMLA elucidates the legislature's intent to incorporate relaxations for persons below sixteen years of age; a woman; or one who is sick or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 : (2016) 3 SCC (Cri) 603]. 34. Proviso to Section 45(1) is analogous to Section 437 of the Cr.P.C. and the intent of Section 437 of the Cr.P.C. as a welfare legislation can be imputed to Section 45(1) of the PMLA. The Hon'ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51 stated the relevance and purpose of the proviso containing bail provision and relaxation for certain classes. The Hon'ble Court held that: Section 437 of the Code empowers the Magistrate to deal with all the offenses while considering an application for bail with the exception of an offense punishable either with life imprisonment or death triable exclusively by the Court of Sessions. The first proviso facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm, as discussed earlier. This being a welfare legislation, though introduced by way of a proviso, has to be applied while considering release on bail either by the Court of Sessions or the High Court, as the case may be. The power under Section 439 of the Code is exercised against an order rejecting an application for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an accused to obtain bail under the proviso to Section 437(1) Cr. P.C. In fact as observed earlier the said proviso cannot be resorted to in all cases of sickness. The Court must assess the nature of sickness and whether the sickness can be treated whilst in the custody or in government hospitals. The Court should also be satisfied that a case is made out by the Respondent Accused by himself or through the doctors attending to him that the treatment required to be administered to the Respondent Accused, considering the nature of his ailment cannot be adequately or efficiently be administrated in the hospital in which he is at present and that he needs a better equipped or a speciality hospital 37. A cumulative consideration of the legislative intent of the PMLA, and the precedents indicates that the proviso to Section 45(1) is a relaxation to the sick or infirm persons provided that the sickness or infirmity is so grave that it is life-threatening and cannot be treated by jail hospitals. 38. Vijay Agrawal Through Parokar v. Directorate of Enforcement, (Supra) requires attention in this scenario as the Coordinate Bench of this Court, in this case, linked the bail to sick o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court has held that: 45. However, the legislature has carved out another category i.e., 'infirm' in the proviso to section 45(1) PMLA. 46. Since 'sick' and 'infirm' are separated by 'or', consequently, a person who, though, not sick but infirm would still be entitled to seek the benefit of the exception in the proviso to section 45(1) PMLA and vice-versa. 47. Mere old age does not make a person 'infirm' to fall within section 45(1) proviso. Infirmity is defined as not something that is only relatable to age but must consist of a disability which incapacitates a person to perform ordinary routine activities on a day-to-day basis. 48. The lexicon meaning of 'infirm' in Stroud's Judicial Dictionary of Words and Phrases, Eight Edition connotes infirmity as some permanent disease, accident, or something of that kind (per Kekewich J., Re Buck, 65 L.J. Ch. 884). 41. Though the medical report indicates that the condition of the petitioner is stable at the date of assessment and he is making progress, he is still eligible to be categorized under the term sick enumerated under proviso to Section 45(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he submissions of learned counsel for the parties to show that the liberty granted to the petitioner has been misused by him or the opportunity has been exploited by him nor there are any allegations of influence exerted on any witness or tampering of evidence by the petitioner during his previous interim bails on medical grounds. Further, there is nothing brought on the record to show that the petitioner is a flight risk as well. 46. It is pertinent to note that the co-accused in the present case, Mr. P. Sarathi Chandra Reddy has been granted regular bail on 8th May 2023 in P. Sarathi Chandra Reddy v. Directorate of Enforcement, Bail Application 1266/2023 in view of his medical condition. The learned senior counsel for the petitioner has submitted that the respondent has been taking inconsistent stand in the bail applications of the co-accused in the same case. However, this Court shall not deal with such allegations while adjudicating the instant application and shall limit itself to the submissions made, documents placed and the judicial precedents relied upon and then proceed to decide the case on merits. 47. This Court is cognizant that as per the precedents of Neeru Yad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the other factors as required to be considered while granting bail to an accused. It is evident that there is nothing on record to show that the liberty granted to the petitioner has been misused by him during his previous interim bails and neither has he been found to be an absconder. ORDER 53. In view of the entirety of the matter, the petitioner is admitted to interim bail for a period of six weeks on his furnishing a personal bond in the sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) with two sureties of the like amount to the satisfaction of the Trial Court concerned, subject to the following conditions: (i) That the petitioner shall not leave the limits of the hospital and his house, and under no circumstances, he shall leave the country; (ii) That he shall keep his mobile phone and its live location on at all the times and he will share the mobile number, including updated, if any, and the live location with the IO; (iii) That he shall not destroy or tamper with the evidence of this case and shall not influence any witness of the case, and shall not make any attempts to contact any co-accused; (iv) That he shall not indulge in any criminal activities ..... X X X X Extracts X X X X X X X X Extracts X X X X
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