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TMI Blog2025 (3) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... dlemen, including Guido Ralph Haschke and the present applicant i.e. Christian James Michel, in connection with the supply of 12 VVIP helicopters by AWIL to the Government of India. The Public Prosecutors' Office in Naples and Rome had conducted telephonic and technical surveillance on Guido Ralph Haschke and others, including the then CEO of M/s Finmeccanica. The surveillance had revealed that AWIL had disguised bribes as payments for engineering jobs. During a search at the residence of Guido Ralph Haschke's mother, Swiss Police had recovered incriminating documents, including a payment/balance sheet. 3. Subsequently, the Director General (Acquisition), Ministry of Defence, Government of India, had lodged a complaint with the Central Bureau of Investigation (CBI) on 12.02.2013, requesting an inquiry into the allegations. A preliminary inquiry was conducted, leading to the registration of an FIR/RC No. 217-2013-A-0003 on 12.03.2013, for offences under Sections 120B read with Section 420 of the Indian Penal Code, 1860 [hereafter 'IPC'] and Sections 7/8/9/12/13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 [hereafter 'PC Act']. 4. During the investigation, it eme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to judicial custody by the learned. Special Court, PMLA. Another prosecution complaint against him was filed on 04.04.2019. 7. Insofar as the applicant's role is concerned, it is alleged that money laundering in this case was primarily executed through two channels, with the applicant being the key figure in one. He was allegedly paid Euro 42 million to influence the contract in favor of M/s AgustaWestland under the guise of five contracts (two of which were repeatedly revised) through his firms, M/s Global Trade & Commerce Ltd. London and M/s Global Services FZE, Dubai. These payments were allegedly made by M/s Finmeccanica, M/s AgustaWestland, and M/s Westland Helicopters UK to legitimize illicit commissions/kickbacks in the VVIP helicopter procurement by the Ministry of Defence, India. Allegedly, M/s AgustaWestland Holdings Ltd. had executed an agreement dated 01.03.2010 with M/s Global Services FZE, Dubai (a firm owned by the applicant) for rendering assistance in securing the contract dated 08.02.2010 between the Government of India and AWIL. Under this agreement, the applicant's firm was to receive Euro 275,000 per month for 22 months, and an amount of Euro 6.05 million w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d expeditious trial. 10. It is argued that the investigation in both the predicate offence and the PMLA case remains ongoing, and there is no reasonable likelihood of its conclusion in the near future. Despite the passage of several years, the trial has not even commenced. It is submitted that the prosecution itself has submitted that there are a voluminous number of documents and a large number of witnesses are to be examined, which will inevitably prolong the proceedings for several more years. The learned counsel for the applicant further argues that the case against the applicant is based entirely on documentary evidence, which has already been collected and produced before the trial court by the investigating agency. There is no possibility of tampering with evidence, and there are no allegations that the applicant has ever attempted to interfere with witnesses or obstruct the judicial process. 11. Next, it is contended that the learned Special Court erred in mechanically rejecting the bail application on the sole ground that the applicant is a flight risk, without appreciating the prolonged incarceration, the documentary nature of evidence, and the undue delay in the trial. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me day but, upon learning of Orsi's arrest, immediately left India. This sequence of events clearly demonstrates his intention to evade the investigation. Furthermore, even after being brought into custody, the applicant attempted to obstruct the investigative process. During interrogation, he was caught trying to pass confidential papers to his counsel at the time of legal access. 15. It is also argued on behalf of the DoE that the applicant cannot claim parity with other accused persons in the case as they are Indian citizens with established roots in the country, whereas the applicant is a British national with no ties to India. His past conduct shows that, if released on bail, he would likely flee the country once again, thereby frustrating the trial. It is also pointed out that this Court as well as the learned Special Court, while rejecting the applicant's previous bail applications, have categorically held that he poses a flight risk. 16. The learned counsel appearing for DoE further contends that while Section 436A of the Cr.P.C. provides that an undertrial who has served more than half of the maximum sentence may be considered for release, this provision is discretionary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the applicant, as well as learned Special Counsel for the DoE. The material placed on record by either side has also been perused and examined. ANALYSIS & FINDINGS 21. The case against the applicant arises from the alleged AgustaWestland VVIP helicopter scam, where he is accused of being a middleman who had facilitated bribes to Indian officials to secure a deal for the supply of 12 AW-101 helicopters. The DoE alleges that he had laundered proceeds of crime by routing illicit funds through shell companies. He is accused of receiving around Euro 42 million from AgustaWestland and distributing kickbacks to influence the contract. 22. However, at the outset, this Court notes that the learned counsel for the applicant primarily argued the present bail application on the ground of delay in concluding investigation and consequently the trial, and placed reliance on the order of the Hon'ble Supreme Court whereby the applicant herein has been granted bail in the predicate offence - on the ground of delay in trial itself. 23. In this context, this Court has given consideration to the material placed on record as well as the stage of the investigation and the fact that in the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied. 13. Independently and as has been emphatically reiterated in Manish Sisodia case4 relying on Ramkripal Meena v. Enforcement Directorate3 and Javed Gulam Nabi Shaikh v. State of Maharashtra6, where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial within a short span, the rigours of Section 45 of the PMLA can be suitably relaxed to afford conditional liberty. Further, Manish Sisodia case4 reiterated the holding in Javed Gulam Nabi Shaikh case6, that keeping persons behind the bars for unlimited periods of time in the hope of speedy completion of trial would deprive the fundamental right of persons under Article 21 of the Constitution of India and that prolonged incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial." 27. Notably, the Hon'ble Supreme Court in V. Senthil Balaji v. Enforcement Directorate: 2024 SCC OnLine SC 2626, while emp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided 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 K.A. Najeeb v. Union of India, 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 jurisdiction under Article 32 or Article 226, as the case may be. The Constitutional Courts have to bear in mind while dealing with the cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The Constitutional Courts cannot allow provisions like Section 45(1)(ii) to become instruments in the hands of the ED to continue incarceration for a long time when there is no possibility of a trial of the scheduled offence and the PMLA offence concluding within a reasonable time. If the Constitutional C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was arrested on 18th September, 2023 and the High Court granted him bail on 6th May, 2024. He was in custody for less than 7 months before he was granted bail. There was no fining recorded that the trial is not likely to be concluded in a reasonable time. In the facts of the case, this Court cancelled the bail granted by the High Court. Therefore, there was no departure made from the law laid down in the case of Union of India v. K.A. Najeeb and V. Senthil Balaji. 6. The learned Solicitor General of India very fairly stated that in the facts of the case, the decision in the case of V. Senthil Balaji may be followed. Hence, the appellant deserves to be enlarged on bail, pending trial." 29. Having taken note of the aforesaid judicial precedents, this Court is of the view that while Section 45 of PMLA imposes stringent conditions for the grant of bail, constitutional courts, including the Hon'ble Supreme Court, have also emphasized time and again that this provision cannot be interpreted in a manner, to confine the accused in judicial custody for an indefinite period of time. As noted above, the Hon'ble Supreme Court, in multiple decisions, has held that the right to bail must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the present case is not one where the applicant's custody is only marginally beyond the halfway mark. Instead, the applicant has been in custody for over six years and two months - which is alarmingly close to the maximum punishment - without even being adjudicated guilty. It was pointed out that more than 100 witnesses are to be examined in the present case and there are more than 1000 documents relied upon by the prosecution. Given that the trial is unlikely to conclude before the applicant completes even seven years in jail, further incarceration would render the entire purpose of a trial meaningless. 33. In V. Senthil Balaji v. Enforcement Directorate (supra), it was observed that existence of proceeds of crime at the time of the trial of the offence under Section 3 of the PMLA can be proved only if the scheduled offence is established in the prosecution of the scheduled offence. Thus, even if the trial of the case under PMLA proceeds, it cannot be finally decided unless the trial of scheduled offences concludes. Applying the said principle to the present case, this Court observes that the trial has not begun either in the case pertaining to scheduled offence or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at though the Coordinate Bench of this Court, while dismissing the previous bail applications of the applicant had taken note of the conduct of the applicant, and held that he was a flight risk, the said argument would not be of any help to the DoE at this stage, inasmuch as the applicant herein has already been granted regular bail by the Hon'ble Supreme Court vide order dated 18.05.2025, and it has been directed that the CBI would make appropriate request before the learned Trial Court for imposing necessary conditions before releasing the petitioner on bail. 36. In view of the above discussion, considering the period of incarceration of about six years and two months undergone by the applicant, and in view of the fact that he has also been granted bail in the case pertaining to predicate offence by the Hon'ble Supreme Court on the ground that the investigation has not been completed and the trial has not even begun, and considering that there seems to be no possibility of trial in this case concluding too within the remaining duration of the maximum prescribed sentence under Section 4 of PMLA, inasmuch as the same has not even begun as of now, this Court is inclined to grant re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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