The Delhi High Court has said that the stringent provisions of the Prevention of Money Laundering Act (PMLA) cannot be allowed to detain accused persons for an unreasonably long period.
It said that when "the trial is not likely to conclude in a reasonable time, Section 45 (of PMLA) cannot be allowed to become a shackle which leads to unreasonably long detention of the accused persons."
Under Section 45 of the PMLA, twin tests have to be satisfied before an accused is granted bail. First, the court has to be satisfied that there are reasonable grounds for believing that the accused is not guilty of such an offence. Second, the court has to be satisfied that the accused seeking bail is unlikely to commit any offence while out on bail.
It added that the delay in commencement of the trial not being attributable to the accused, keeping him in custody using Section 45 of the PMLA as an incarceration tool is not permissible.
A Bench of Justice Manoj Kumar Ohri is dealing with an examination over a plea moved by the Vice President (Finance) of Bhushan Steel, arrested in January this year for allegedly creating fake documents to avail Letter of Credit facility from banks.
The applicant argued that main accused, including Bhushan Singhal, Neeraj Singhal, Nitin Johari and Ajay Mittal, already received bail, and the trail will take time to close.
It has noticed in its own ranks that the trial in the predicate as well as the present complaint is yet to start and will take time to get over.
"The right of liberty and speedy trial guaranteed under Article 21 is a sacrosanct right which needs to be protected and duly enforced even in cases where stringent provisions have been made applicable by way of special legislation.".
"The stringent provisions would have to be interpreted with due regard to Article 21 and in case of a conflict, the stringent provisions, such as Section 45 of the PMLA in the instant case, would have to give way," it said.
Considering the facts and circumstances as a whole, where the period of custody that the accused persons have to undergo and wherein the matter is at trial stage is concerned, it ordered them to be granted regular bail. It stipulated for furnishing a personal bond by them for an amount of Rs. 1,00,000, with one surety of similar amount.
Recently, the Supreme Court has allowed the bail plea of DMK leader V. Senthil Balaji in a money laundering case and again emphasized that when PMLA lays down a higher threshold for the grant of bail, an expeditious disposal of the trial is also warranted.
It was submitted, "Inordinate delay in the conclusion of the trial and the higher threshold for the grant of bail cannot go together. These stringent provisions regarding the grant of bail, such as Section 45(1)(iii) of the PMLA, cannot become a tool which can be used to incarcerate the accused without trial for an unreasonably long time.
"The Constitutional Courts cannot permit 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," added the top court.
The judgment in the case of Vijay Madanlal Choudhary for the year 2022 upheld the stringent provisions of PMLA against the definition of proceeds of crime, power of arrest, search and seizure, and attachment of properties and twin bail conditions.
Apart from these, a batch of petitions is seeking review of the 2022 judgment in the case of Vijay Madanlal Choudhary and is still pending before the Supreme Court.
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