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TMI Blog2023 (10) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... igate Fairly 27 Conclusion 30 1. By way of present application filed under Section 439 of the Code of Criminal Procedure, 1973 ('Cr.P.C.') read with Section 45 and 65 of Prevention of Money Laundering Act, 2002 ('PMLA'), the applicant/accused seeks grant of regular bail in case number ECIR/HIU-II/14/2022, registered at Police Station Directorate of Enforcement on 22.08.2022 under Sections 3 and 4 of PMLA, primarily on medical grounds. THE CASE OF APPLICANT 2. The case set out by the accused/applicant is that Central Bureau of Investigation ('CBI') had registered an RC on 17.08.2022 at Police Station CBI, ACB, Delhi under Section 120B read with Section 447A of Indian Penal Code, 1860 and substantive offences thereof read with Section 7 of Prevention of Corruption Act, and CBI had conducted raids on several premises in the Delhi and across the country including residential and business premises of the applicant and had made certain seizures. Thereafter, the Directorate of Enforcement had registered the present ECIR on 27.08.2022 and raids were conducted at the office and residence of the applicant on 06.09.2022. The applicant in the present case was arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xamination. Further, on 29.05.2023, this Court had directed AIIMS, New Delhi to constitute a Medical Board and get the applicant examined. 4. Thereafter, the matter was heard on 07.06.2023 and vide judgment dated 12.06.2023, this Court had granted interim bail to the applicant on account of his medical condition for a period of 06 weeks till 25.07.2023. However, it is stated that on 16.07.2023, while the applicant was recovering from his surgery, he had fallen down in the bathroom at his home, leading to acute pain in his lower back and again had to be hospitalized and was advised strict bed rest for 02 months. It is stated that this Court on 24.07.2023, after hearing arguments from both the sides, had extended the interim medical bail of the applicant by a period of further 06 weeks i.e. till 04.09.2023. Thereafter, during this period, on 16.08.2023, the applicant had stumbled on the stairs at his home and had twisted his left knee and was accordingly advised rest of 5 days by his doctor. It is stated that when the MRI of his left knee was conducted on 22.08.2023, the concerned doctor had advised the applicant to undergo surgery to repair the damaged part of his left knee. It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not have the requisite assistance and care in the jail cell which was required considering his delicate medical condition. It is stated that after the said fall, the applicant had kept calling for help and had been left helpless on the floor for 12 to 13 minutes, after which he was finally attended by the jail officials and this incident had led to aggravating pain in the back and had caused swelling at the operated site of the knee and leg. It is the case of applicant that thereafter, the applicant had been taken to several hospitals, however no proper treatment was given to him by the jail authorities. It is stated that on 13.09.2023, the learned Trial Court had heard arguments on application filed by the applicant seeking directions to jail authorities to take the applicant for an urgent MRI of his left knee and the Court had also directed that CCTV footage of the concerned jail cell be preserved and a copy be given to the parties. It is stated that when the CCTV footage was received by the applicant, it became clear that the applicant had fallen and no attendant or jail official had come to his rescue for a considerable duration of around 12 to 13 minutes. It is also stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Counsels that the applicant has remained on interim bail for a substantial period of time and he has never misused the liberty granted to him. It is further contended that the order dated 12.06.2023 of this Court vide which the applicant was enlarged on interim bail for a period of 06 weeks had considered all the objections of the respondent and had observed that applicant will be entitled to grant of bail even as per Section 45 of PMLA as he would fall under the category of „sick‟ or „infirm‟. Therefore, it is argued that in view of the serious medical condition of the applicant which has constantly deteriorated over the period of a few months, he be released on regular bail. 11. Controverting the arguments addressed on behalf of accused/applicant, learned Special Counsel for the Directorate of Enforcement argues that the medical condition of the accused/applicant is not such which will require him be enlarged on regular bail, and the hospital facilities which are available in the Jail hospital or any other specialized hospital/referral hospitals are adequate to meet the challenges, if so faced by the present applicant. It is argued that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and non-bailable.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless- (i) the Public Prosecutor has been given a opportunity to oppose the application for such release; and (ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable 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, 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..." 14. Section 45 of PMLA prescribes the mandatory twin conditions that are required to be met before bail can be granted to an accused, which are as under: a. there are reasonable grounds for believing that the accused is not guilty of the offence of money laundering, and b. he is not likely to commit any offence while on bail. 15. However, the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires medical help which may not be available in jail hospitals, then the bail shall be granted." *** 24. The next question before me is - 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? 25. I am of the opinion 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. 26. The Hon'ble Supreme Court in Pawan alias Tamatar v. Ramprakash Pandey, (2002) 9 SCC 166 and the Bombay High Court in Mahendra Manilal Shah (supra) have noted that every sickness does not ipso facto entitle an accused to medical bail. 27. The Court in Mahendra Manilal Shah (supra) whilst noting the Apex Court's decision in Pawan alias Tamatar (supra) observed as under: "47....(1) Pawan alias Tamatar v. Ramprakash Pandey ((2002) 9 SCC 166 : AIR 2002 SC 2224) (supra). In this case the Hon'ble Supreme Court has set aside the order of the Allahabad High Court granting bail to the accused inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Emphasis supplied) 19. Further, a Co-ordinate Bench of this Court in Sanjay Jain (in JC) v. Enforcement Directorate 2023 SCC OnLine Del 3519, while relying upon the observations in case of Kewal Krishan Kumar (supra), had also observed that power to grant bail on medical grounds under PMLA is discretionary and must be exercised in a judicious manner. (ii) Importance of Right to Medical Treatment of the Prisoners 20. There is no denying that the act of preserving health of a prisoner/undertrial is one of the rights of the prisoners as interpreted by various judgments in India as well as in International Law. The prisoners in jail have acceptable medical infrastructure in consonance with the duty and legal obligation of the State to provide access to medical care for all prisoners and under trials. 21. The jurisprudence of medical care and attention to the prisoners mandates that timely medical care must be available to all undertrials/ prisoners, and in appropriate cases, timely medical care includes regular access to specialized diagnostic care or post surgery care etc. which should be made available without interruption. 22. In this regard, a reference can be made to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lied upon the report dated 22.09.2023 submitted by the Medical Board of AIIMS, New Delhi. 24. Before examining the contents of the report submitted by AIIMS, it is essential to first take note of the circumstances and the orders passed by this Court preceding the same. This Court notes that vide order dated 01.09.2023, this Court had rejected the application filed on behalf of the applicant seeking extension of interim bail and had inter alia directed that a medical board be constituted by Medical Superintendent, AIIMS to examine the applicant and offer a definite opinion about his medical condition and as to whether he requires hospitalization or if he can be treated in jail or the referral hospital. The relevant portion of the order dated 01.09.2023 reads as under: "9. Let the medical documents on record be verified from the AIIMS. Medical Superintendent, AIIMS is requested to constitute a medical board and give a definite opinion about the medical condition of the petitioner and also to suggest whether the present disease and all the medical problems taken together or singly, require hospitalization in a particular hospital or can the petitioner be treated in the jail or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cant herein does not require inpatient admission or hospitalization in any particular hospital. The report further mentions that the patient has to follow the precautions and rehabilitation protocol prescribed in the discharge advice given by his surgical team. As regards the contention raised on behalf of applicant that the report says that regular exercise is to be supplemented by patient at „home‟, this Court is of the considered opinion that the word „home‟ used in the medical report is with regard to hospitalization and discharge from the hospital. In normal course, while discharging a patient, the doctors presume that the patient will be going back to his home and will need post-operative assistance or treatment at his home. At present, the applicant being lodged in jail, he was to go back to jail which at present is his residing abode, and therefore, the contents of report are to be read with reference to the facts and circumstances of the case. This view is fortified by the last paragraph of the report dated 22.09.2023 which states that the applicant herein does not require hospitalization and requires periodic follow-ups and can be treated on an out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions twice a week at Centre for Sports Rehabilitation, VNA Hospital, situated at 1, Navjeevan Vihar, Geetanjali Enclave, Malviya Nagar for gait training on an anti-gravity treadmill and strengthening on isokinetic machine. f) The petitioner be provided appropriate medical treatment as per rules..." 29. The report dated 03.10.2023 prepared by the Senior Medical Officer of Jail also mentions that applicant has been under regular follow-up and physiotherapy at VNA Hospital and had visited the department of physiotherapy at VNA Hospital on 12.09.2023, 13.09.2023, 14.09.2023, 15.09.2023, 19.09.2023, 20.09.2023, 21.09.2023, 22.09.2023, 23.06.2023, 26.09.2023, 27.09.2023, 30.09.2023 and the next scheduled appointment was on 03.10.2023. The report also mentions that the applicant since 04.09.2023 has been kept in MI room of Central Jail No. 04 Dispensary and is under followup from Doctor on duty and Jail visiting Specialists and he is being given pain killer injections as and when required for the persisting knee/back/neck pain. 30. Therefore, this Court is of the opinion that all the basic medical facilities have been provided to the applicant in the jail dispensary itself and as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is wheelchair bound and needs constant support for attending to his daily needs. To support this claim, the attention of this Court was repeatedly drawn to a video clip of the incident dated 06-07.09.2023 when the applicant had fallen in his jail cell and it was argued that the video clip clearly shows that the applicant had fallen down and no one had come for his help. In this regard, Directorate of Enforcement has placed on record its reply, wherein it has been stated that the applicant had witnessed only one fall and at the time of the fall, he had a walker placed near his bed which could have been used by him, as he was well aware of his situation or he could have even called an attendant or anyone else if he wanted to go to the washroom. Be that as it may, this Court does not wish to comment on whether the fall was intentional to seek bail as suggested by the respondent or whether it was actual as pleaded by the applicant, since this Court is not solely relying upon only one incident to decide the present bail application. 36. However, the Directorate of Enforcement in its reply has also submitted that considering the history of „self-inflicting falls‟ of the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue that certain rehabilitation protocols cannot be followed by the applicant owing to non-availability of necessary equipment in jail, this Court has already directed vide order dated 04.09.2023 that the applicant be taken to VNA Hospital for rehabilitation sessions twice a week. 42. In these facts and circumstances, this Court deems it appropriate to refer to the observations of the Hon‟ble Apex Court in case of State v. Jaspal Singh Gill (1984) 3 SCC 555, wherein it was held as under: "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 view that the High Court of the respondent whenever the need for it arises..." 43. In State of U.P. v. Gayatri Prasad Prajapati 2020 SCC Online SC 843, the Hon‟ble Apex Court, while setting aside an order granting bail on medical grounds, had made the following important observations: "15. The above report of the S.G.P.G.I.M.S., i.e., th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration." 44. In the present case, the attention of this Court was drawn to the report dated 03.10.2023 prepared by Senior Medical Officer of Tihar Jail in which it was mentioned that as per the directions issued vide order dated 04.09.2023 by this Court, the applicant was being regularly taken to VNA Hospital for follow-up and physiotherapy sessions. It was also informed that the applicant was being kept in the jail dispensary and was under constant follow-up from doctors on duty as well as jail visiting specialists. It is also important to consider that the Medical Board of AIIMS, New Delhi had suggested that the applicant may be taken to any of the Jail Referral Hospital for periodic follow-ups and he need not be admitted in any hospital. (v) Medical Facilities and Policies in Delhi Prisons 45. Further, learned Special counsel for the respondent had also placed reliance upon the Jail Hospital Referral Policy, issued vide orders dated 10.02.2011 and 27.06.2022 by the office of Director General (Prisons), GNCTD. 46. As per the jail referral policy, three categories of referral hospitals have been specified as per the medical condition of the prisoner, where the prisoner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edication, any delay in getting diagnostic tests or medical treatment which is clear by the treatment that he has been receiving since the time he was released on interim bail for the purpose of his health care vide order dated 12.06.2022 which was also extended vide order dated 24.07.2023. The records also reflect that sufficient treatment is being provided to the applicant in jail hospital itself and the jail referral policy as well as the directions issued by this Court previously addressed the medical issues faced by the applicant. 52. To encapsulate briefly, the allegations against the present applicant in the present FIR have been that he was one of the main conspirators and a key player in the formulation of the excise policy and its exploitation later, and was also involved in the formulation of a super cartel between the manufacturers, wholesalers and retailers. The applicant had allegedly earned huge profits of around Rs. 192 crores against meagre investment of Rs. 15 crores, in his firm M/s. Indo Spirits which is the proceeds of crime. As regards the conduct of applicant, it is the case of respondent that the applicant had not cooperated during the investigation and had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts commitment to thoroughly investigate the case, ensuring that the process is conducted fairly and impartially. Simultaneously, the State is entrusted with the responsibility of providing adequate medical care to the accused. The prospect of seeking bail on medical grounds arises when the prison authorities are incapable of providing the required care or treatment essential for the treatment of accused including the referral hospitals according to the circular mentioned above. It is also crucial that the sickness should be of such a nature that if the accused is not released on bail, he cannot be ensured proper treatment for his ailment. 58. In view of the observations made in the preceding paragraphs, this Court is of the opinion that the applicant is not suffering from any life threatening condition or sickness or infirmity which involves danger to his life and for which treatment cannot be provided to the applicant in jail. 59. With regard to the contention of the learned Senior Counsel for the applicant that the applicant needs medical assistance at home, this Court notes that at this stage, the applicant is getting adequate medical attention as required by him, and the Jail ..... 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