TMI Blog2023 (6) TMI 1324X X X X Extracts X X X X X X X X Extracts X X X X ..... nforcement Directorate, [ 2023 (3) TMI 746 - DELHI HIGH COURT] , referring to the relevant clauses of the Finance Bill introduced on 1st February, 2018 for amending Section 45 of the PMLA, observed 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. The power to grant bail on medical grounds under the first proviso to Section 45(1) of the Act is discretionary, therefore, the same has to be exercised in a judicious manner guided by principles of law after recording satisfaction that necessary circumstances exist warranting exercise of such a discretion. In the absence of an opinion of the experts it is difficult for this Court to come to the conclusion as to whether it is a case for grant of interim bail on the medical grounds. The Court cannot assume the role of an expert and make assessment of its own as regard the medical condition of the petitioner on the basis of medical records placed on the Court file - on humanitarian grounds, the medical condition of the petitioner as articulated i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g at nightime Buspin twice/day SMethiwave twice/day The Applicant has a history of suffering from panic attacks and suicidal thoughts. 3. Obstructive sleep apnea for the last 1.5 years C-PAP (Continuous Positive Airway Pressure) machine and constant supervision by medical attendant at night Untreated/ unsupervised can lead to fatal consequences, such as coronary artery disease, heart attacks, heart failure, strokes, multiple episodes. of arrhythmia leading to sudden death. 4. Hyperlipidemia for the last 27 years Rosuvas 10mg once/day Places the Applicant at risk of stroke and/or heart attack, coronary heart disease. 5. Diabetes for the last 5 years Glyciphage 1000mg once/day Places the Applicant at risk of heart disease, kidney disease, nerve damage and other problems with feet, oral health, vision, hearing and mental health. 6. Damaged mitral valve prolapsed and history of soft teeth -- Requires any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the medical report reads as under:- OFFICE OF THE SENIOR MEDICAL OFFICER DISPENSARY, CENTRAL JAILNO,07 TIHAR, NEW DELHI-110064 D.NO./SMO/CJ-07/2023/1055 Date:25-05-2023 Sub: Medical Report of inmate Saniav Jain S/o Santosh Kumar. As per available record, the above said inmate Sanjay Jain S/o Santosh Kumar lodged in CJ-07 since 21/10/2022. At the first Medical Examination (Mulahiza) the inmate patient alleged history of Hypertension since 15 years, Anxiety since 15 years, sleep apnoea since 02 years and diabetes since 02 years. No fresh injury noted and denied of any history of substance abuse. The inmate patient is allowed to carry medicines as per Court order. On 01/11/2022, 15/11/2022, 18/11/2022, and 25/11/2022, the inmate patient was reviewed by Jail visiting SR Medicine for the follow-up of diabetes and Hypertension wherein he was advised medicine accordingly. On 13/12/2022, the inmate patient was reviewed by Jail Visiting SR Surgery for the complaint of pain and ingrowths of bilateral great toe. He was examined and advised partial nail excision along with medicines and review in DDU Hospital Surgery dept. which he declined and on 30/12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... V3, V4, V5, V6 and primary treatment Ecospirin and sublingual Nitrates were given and was immediately referred to DDU Hospital Emergency Department for further evaluation and management. The inmate patient was reviewed by SR Medicine wherein he was prescribed medicines for HTN and DM2. (ANNEXURE A8, A9). In view of low mood and anxiety, the inmate patient was examined by specialist Psychiatry multiple times at CJ-07 Dispensary wherein he was advised continue the same medicine. On 12/05/2023, the inmate patient was reviewed by jail visiting Medicine SR for his compliant of Dyspnoea on off and back ache, the inmate patient was examined and was advised to continue the prescribed medicines. Further on inmate patient complained of not fully aware of using C-PAP machine and asking for attendant, and the same was recommended by Medicine SR.(ANNEXURE 10) As scheduled, On 15/05/2023, the inmate patient was referred to MAIDS and IOPA was done suggestive of horizontally impacted teeth, further was advised for extraction of left lower teeth, along with prior blood investigation and with clearance from physician. On 19/05/2023, the inmate patient was referred to Neurosurg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s/hypertrophy despite which the date for the Coronary Angiography remains unchanged. The learned senior counsel for the petitioner further submits that the petitioner is also suffering from panic attacks which render him immobile for several hours. 9. It is also submitted by Mr. Aggarwal, the learned Senior Counsel that the petitioner is having acute pain in his mouth/jaw since December 2022 and upon investigation it has been learnt that the petitioner is suffering from severe tooth attrition requiring multiple tooth extraction surgeries and root canal treatment. The pain suffered by the petitioner is stated to have forced the petitioner to be on a semi-solid/liquid diet. 10. Further, it is submitted that the X-ray of the petitioner has revealed that he has slipped discs at L-4/L-5 and S1 which has impaired the movement of the petitioner and though the applicant was referred to GP Pant Hospital on 19.05.2023, for an MRI test to rule out lumbar spondylosis but the MRI LS Spine has been scheduled on 29.07.2024. The failure to schedule an MRI at an early date, according to Mr. Aggarwal, points towards the failure of the State to provide urgent and specialized healthcare that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal grounds should be exercised in a sparing and cautious manner and every nature of sickness will not entitle the accused to be released on bail unless it is demonstrated that the sickness is of such a nature that if the accused is not released, he cannot get proper treatment. Further placing reliance upon the decision of a Co-ordinate Bench of this Court in Directorate of Enforcement v. Raj Singh Gehlot CRL M.C. 3713/2022 [Date of order: 17.08.2022], the learned Special Counsel urges that in the absence of compelling reasons warranting grant of interim bail on medical grounds, the Courts shall not exercise their discretion in granting bail to the accused. 16. Furthermore, Mr. Hossain submits that the jail authorities are fully equipped to tackle all major ailments including the ailments suffered by the petitioner. He invites the attention of the Court to the guidelines issued by the office of the Director General (Prisons) to contend that as when the situation demands, a prisoner can be referred to a specialized hospital for treatment including All India Institute of Medical Sciences (AIIMS). The relevant portion of the office order bearing no. PA/DIGP/CJ/2011/78 dated 10.02.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NDPS Act would apply only to cases of bail or would also apply when the accused seeks interim bail, which read as under: 20. Having considered the case law on the subject, we are inclined to answer the reference in the following manner: [1] The trial or the appellate Courts after conviction are entitled to grant interim bail to the accused/convict when exceptional and extra-ordinary circumstances would justify this indulgence. The power is to be sparingly used, when intolerable grief and suffering in the given facts may justify temporary release. [2] While rejecting or accepting an application for grant of interim bail, the trial/appellate Courts will keep in mind the strict provisions of Section 37/32A of the NDPS Act and only when there are compelling reasons which would justify and require the grant of interim bail, should the application be allowed. The Court must take into account whether or not the accused/convict is likely to commit or indulge in similar violations. [3] While examining the question of grant of interim bail, the Court would consider whether sending accused/convict in police custody would be suffice and meets the ends of justice, ke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risoners are also entitled to. The material part of the decision reads as under:- ....34. Adverting to the Nelson Mandela Rules, the learned Attorney General also expressed the view that the State Governments have several development priorities and while they will certainly look after the interests of prisoners, there are other issues that might require greater attention and greater financial commitment. While this may be so, we are clearly of the view that Article 21 of the Constitution cannot be put on the back-burner and as mentioned in the Mandela Rules even prisoners are entitled to live a life of dignity. Therefore, no State Government can shirk its duties and responsibilities for providing better facilities to prisoners. If a State Government is unable to do so, it should be far more circumspect in arresting and detaining persons, particularly undertrial prisoners who constitute the vast majority of those in judicial custody. The State Governments and the prosecution do not have to oppose every bail application nor do they have to ask for the remand of every suspect pending investigation. If the fundamental right to life and liberty postulated by Article 21 of the Const ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 27. Thus, by way of first proviso to sub-section (1) of Section 45 of PMLA, the legislature has carved out an exception which empowers the special Court to grant bail on humanitarian grounds to a person who is under the age of sixteen years or is a woman or is sick or infirm, without insisting upon strict compliance of twin conditions, namely, (i) there are reasonable grounds for believing that accused is not guilty of offence of money-laundering and (ii) he is not likely to commit any offence while on bail. 28. The reliance placed by the learned Special Counsel for the Directorate of Enforcement on the decision in Athar Parvez (supra) to contend that the twin conditions under Section 45 of the PMLA will apply even in cases where the accused seeks interim bail on medical grounds, is misplaced. The decision in Athar Parvez (supra) was rendered in the context of the provisions of Section 37 of the NDPS Act and in the said Section there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... routine activities on a day-to-day basis. 34. In Vijay Aggarwal through Parokar (supra) a Co-ordinate Bench of this Court while granting interim bail on medical grounds in a case under PMLA, observed that the discretion for granting interim bail on medical ground may not be exercised only at a stage when the person is breathing last or is on the position that he may not survive. 35. Plainly, the health of the petitioner has to be given primacy and it is his fundamental right to be given adequate and effective treatment whilst in jail. However, in case specialized or sustained treatment and care is necessary, having regard to the petitioner's medical condition which is not possible whilst in jail, then the petitioner will be entitled to the benefit of interim bail in terms of the first proviso to Section 45(1) of the PMLA. 36. A perusal of the medical report submitted by the jail authorities, as well as the medical record placed on record, shows that the petitioner is suffering from various medical conditions for which he has been taken to different Government Hospitals for treatment multiple times. Diagnostic procedures like CT Coronary Angiography for cardiac ailme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner. (ii) The Jail Superintendent is directed to furnish all medical records of the petitioner to the Medical Board of Doctors so constituted on or before 07.06.2023. The wife/pairokar of the petitioner is also at liberty to furnish the relevant medical records of the petitioner, as may be available with her, to the Board, with a copy thereof to the learned Special Counsel for the Directorate of Enforcement. (iii) The Jail Superintendent shall also ensure that the petitioner is presented before the Medical Board on 07.06.2023 at the time and place indicated by the Board. (iv) Upon evaluation of medical records and examination of the petitioner, the Medical Board shall furnish its report to this Court, on or before 10.06.2023. (v) The report must, inter alia, indicate specifically-(a) as to how urgent is the need for the petitioner to undergo the CT Coronary Angiography for cardiac problem and MRI LS spine for spine related issues or any other diagnostic tests/procedures for the medical conditions he is suffering from.; (b) whether on account of delay in the said diagnostic procedures and consequent delay in treatment, the life of the petitioner could be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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