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TMI Blog2025 (3) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... g a high risk of a lacunar stroke, repeated dizziness and a history of severe post COVID-19 complications. 3. The petitioner was arrested in the present case on 04.10.2021 and had been released on interim bail since 08.08.2022 on medical grounds vide the order dated 28.07.2022. FACTUAL BACKGROUND 4. Between 2006 to 2022, 62 FIRs were registered by Delhi Police (EOW, Saket, Mandir Marg, Crime Branch Police Stations) and CBI, against Promoters of Unitech Group ("the company") i.e. Ramesh Chandra, Ajay Chandra and Sanjay Chandra and their associates under Sections 34, 201, 406, 409, 120B and 420 of IPC and under Sections 7, 7(A), 8, 9, 10, 12 and 13 of PCA. Most of the said FIRs were recorded based on complaints made by homebuyers who were cheated by the accused persons. The Chandras promised the homebuyers that they would get their dream home and investors would get a handsome return on their investment. Induced by this promise the homebuyers and investors invested huge amounts in the company. These amounts were misutilised and laundered. On the basis of numerous FIRs, an investigation was taken up to trace proceeds of crime ("POC") and to investigate possible money laundering und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 3086 to contend that the proviso to section 45 (1) has been incorporated as a relaxation for persons below sixteen years of age; a woman; or one who is sick or infirm. D. The allegations regarding the petitioner influencing witnesses are also unsubstantiated. The evidence is primarily documentary and the ED previously stated before the Ld. Trial Court that the investigation was completed with the filing of the Supplementary Prosecution Complaint in 2022. A review of the statement of Sunil Kher reveals that he did not attribute any threats to the petitioner; rather, it was the co-accused who allegedly threatened him with dire consequences, as noted in the Written Statement of ED. Furthermore, no call detail records or location charts have been provided to support oral allegations of Sunil Kher. Additionally, the petitioner has no connection to the Trikar Group and these allegations do not relate to the predicate offence. E. The allegations of irregularities in Tihar Jail are vague and ambiguous, as the ED has not specified that any of the messages related to siphoning off of funds, monetary transactions, or handling money. Not a single message allegedly sent by the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sanjay Chandra and Ajay Chandra. I. All companies mentioned by the ED were lawfully established, with the necessary permissions and disclosures made to the relevant statutory authorities. Therefore, no valid allegation of creating and managing shell companies can be directed against the group or the petitioner. J. The ED alleges that the petitioner actively participated in the sale of assets held by Sky Event Management Pvt. Ltd. ("SEMPL"). The sale deeds cited by the ED indicate transactions between SEMPL and Gurugram Land and Flat Developers for property sales. The petitioner highlights that the money received from these transactions was directly paid to the Income Tax Department. K. The petitioner asserts that there is no evidence to indicate that any amounts were transferred by the homebuyers prior to 2012. There is a complete lack of interconnectivity between the money received from homebuyers and the funds invested in Carnoustie Management Private Ltd. ("CMPL"). No statements from any homebuyer have been recorded, nor have any bank account statements or builder-buyer agreements been submitted. Additionally, there is no specified date of investment and no trailing of fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the life of the accused for bail to be granted on medical grounds. If the necessary medical treatment can be provided by prison authorities, then bail on medical grounds should not be granted. Furthermore, if the individual is found to be stable, they should not be released on medical bail. C. He further stated that mere old age does not automatically render a person infirm; therefore, the petitioner cannot claim infirmity solely based on being 86 years old. This claim must be supported by evidence of an incapacity to perform daily routine activities. Since the petitioner is not suffering from life-threatening or serious diseases and can receive treatment in jail, he does not qualify for a claim of infirmity. D. In his statement dated 10.09.2021 under Section 50 of the PMLA, Sunil Kher testified that on 05.03.2021, following the searches by ED on the Trikar Group companies on 04.03.2021, the petitioner called him and instructed him to meet at the Taj Vivanta hotel. Upon arrival, he found Ajay Chandra present as well. They inquired about the search by ED of the Trikar Group companies. When Kher raised the issue of fake bills related to the Trikar Group, the Chandras, particularl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... share applications. An examination of the tally data revealed a complex web of interconnected transactions between Unitech, CMPL, homebuyers and loan funds, amounting to Rs. 380.80 crores, which were illegally diverted to CMPL. K. The ED has relied on the Forensic Audit Report by Grant Thornton to assert that POC amounting to Rs. 5,826 crores were diverted by the company. ANALYSIS AND FINDINGS 8. I have heard learned counsel for the parties and perused the material on record. 9. The relevant portion of Section 45 of PMLA reads as under:- "Section 45. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Criminal Procedure Code, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cheduled offence and money laundering offence. Further, it seeks to amend the proviso in subsection (1) by inserting the words "or is accused either on his own or along with other co-accused of money laundering a sum of less than Rupees one crore", after the words "sick or infirm" to allow the Court to apply lenient bail provisions in case of money laundering offence is not grave in nature." 19. The 2018 Finance Bill gives an insight into the bail provisions stating that the inclusion of "sixteen years; woman; sick or infirm" along with the addition of "or is accused either on his own or along with other co-accused of money laundering a sum of less than Rupees one crore" is a lenient bail provision encapsulated in PMLA." 14. Considering the above, a purposive interpretation of the proviso to section 45 (1) of PMLA indicates that it was included as a lenient measure to provide 'relaxation' for a sick or infirm individual, as mentioned in the Statement of Objects and Reasons for the PMLA. 15. The next question for consideration is what is the level of sickness that qualifies an accused as 'sick' under the proviso to section 45 (1) of PMLA. 16. It was further observed in Kewal Kr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier 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. ... " 18. While there is no strict formula to determine the level of illness required for bail under this proviso, the general guideline is that when the sickness is serious enough to pose a threat to life and requires medical assistance and treatment which is specialized and unavailable in jail facilities, the accused should be granted bail under the proviso to section 45 (1) of PMLA. However, this is not an exhaustive criterion and each case should be evaluated based on its unique facts and circumstances. 19. In the present case, the medical board of AIIMS, Delhi constituted vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ish Language - the condition of being infirm, often as associated with old age; weakness or frailty; the infirmity brought on by the disease. 23. In the present case, a perusal of the medical records of the petitioner show that on 07.01.2024, the petitioner was rushed to the emergency wing of the AIIMS Medicine Department. The doctor observed that he fell unconscious for a period of 5-6 minutes. The report stated that the ECG was abnormal, there was left anterior fascicular block (LAFB), which is considered a failure or delay of conduction in the left anterior fascicle and anterior infarction. 24. On 21.01.2024, the petitioner had further visited the Lifestyle Clinic for treatment of major cognitive impairment and dementia. The doctor observed that he was suffering from forgetfulness and lack of intent that were due to cognitive impairment and dementia. 25. On 10.02.2024, the petitioner had also visited the MAX Super Specialty Hospital Saket with a complaint of short-term memory loss. He was treated and advised on several medicines. 26. On 19.08.2024, the petitioner was rushed to the emergency department of MAX Healthcare Saket on a complaint of chest pain coupled with giddines ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e present case, will have to satisfy the triple test for grant of bail namely:- A. Flight risk B. Influencing any witness C. Tampering with evidence 33. Learned counsel for the respondent has argued that the petitioner fails to meet the triple test. It is stated that the petitioner has influenced witnesses in the past. It is also stated that the petitioner has tampered with the evidence. Thus, if granted bail, the petitioner will influence prosecution witnesses and tamper with evidence again. 34. To support the submissions, it is stated that the petitioner, along with Sanjay Chandra and Ajay Chandra, was running a covert office related to their illegal activities from Tihar Jail. Their associates namely, Lakhbir Sharma and Ravinder, were carrying out these illegal actions and bribing Tihar Jail staff to secure illegal favours. 35. Additionally, the statement of one Sunil Kher made on 10.09.2021 under section 50 of PMLA is relied upon, wherein it has been stated that Sunil Kher was threatened with severe consequences by the petitioner and Ajay Chandra, if he disclosed anything to the ED officials regarding fake bills related to Trikar Group. 36. In the present case, the Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not expected to end anytime in the near future. Importantly, the delay being not attributable to accused, keeping the accused in custody by using Section 45 of the PMLA as a tool for incarceration is not permissible. Flow of liberty cannot be dammed by Section 45 without taking all other germane considerations into account. It is the duty of Constitutional Courts to champion the constitutional cause of liberty and uphold the majesty of Article 21." 45. The Hon'ble Supreme Court in the case of Manish Sisodia (supra) upheld the right of an accused for expeditious trial even in PMLA cases and held as under:- "37. ... In paragraph 28 of the said order, this Court observed that the right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 Cr.P.C. and Section 45 of the PMLA. The Court held that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted that he be ensured and given a speedy trial. It further observed that when the trial is not proceeding for reasons not attributable to the accused, the court, unless there ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) does not confer power on the State to detain an accused for an unreasonably long time, especially when there is no possibility of trial concluding within a reasonable time. What a reasonable time is will depend on the provisions under which the accused is being tried and other factors. One of the most relevant factor is the duration of the minimum and maximum sentence for the offence. Another important consideration is the higher threshold or stringent conditions which a statute provides for the grant of bail. Even an outer limit provided by the relevant law for the completion of the trial, if any, is also a factor to be considered. The extraordinary powers, as held in the case of K.A. Najeeb, can only be exercised by the Constitutional Courts. The Judges of the Constitutional Courts have vast experience. Based on the facts on record, if the Judges conclude that there is no possibility of a trial concluding in a reasonable time, the power of granting bail can always be exercised by the Constitutional Courts on the grounds of violation of Part III of the Constitution of India notwithstanding the statutory provisions. The Constitutional Courts can always exercise its jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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