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2024 Supreme(SC) 728
SUPREME COURT OF INDIA
HRISHIKESH ROY, S.V.N. BHATTI, JJ.
Vijay Nair – Petitioner
Versus
Directorate of Enforcement – Respondent
SPECIAL LEAVE PETITION (CRIMINAL) Diary No(s). 22137 of 2024 (Arising out of impugned judgment and order dated 03-07-2023 in BA No. 1178/2023 passed by the High Court of Delhi at New Delhi)
Decided On : 02-09-2024
For Petitioner(s): Mr. Abhishek Manu Singhvi, Sr. Adv. Ms. Rebecca M. John, Sr. Adv. Mr. Vikram Chaudhri, Sr. Adv. Mr. Rajat Bhardwaj, AOR Mohd. Irshad, Adv. Ms. Ankita M. Bhardwaj, Adv. Mr. Kaustubh Khanna, Adv. Mr. Rishi Sehgal, Adv. Mr. Pravir Singh, Adv. Mr. Arveen Sekhon, Adv. Ms. Muskaan Khurana, Adv. Mr. Saurav Kakroda, Adv.
For Respondent(s) Mr. Suryaprakash V. Raju, A.S.G. Mr. Zoheb Hussain, Adv. Mr. Annam Venkatesh, Adv. Mr. Arkaj Kumar, Adv. Mr. Vivek Gurnani, Adv. Ms. Abhipriya, Adv. Mr. Hitarth Raja, Adv. Mr. Vivek Gaurav, Adv. Ms. Shweta Desai, Adv. Mr. Arvind Kumar Sharma, AOR
IMPORTANT POINTS
(1) Bail application – Delhi Excise Policy Scam – Right of liberty guaranteed under Article 21 of Constitution is a sacrosanct right which needs to be respected even in cases where stringent provisions are incorporated in special enactments – Fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to statutory bar in Section 45 of Act.
(2) Bail – Cardinal principle of bail being rule and jail being exception will be entirely defeated if petitioner is kept in custody as an undertrial for such a long duration.
Headnote:
Prevention of Money Laundering Act, 2002 – Section 45 – Criminal Procedure Code, 1973 – Section 439 [Bharatiya Nagarik Suraksha Sanhita, 2023 – Section 483] – Bail application – Delhi Excise Policy Scam – It is alleged that petitioner acted as a middleman and was involved in irregularities in framing and implementing Delhi Excise policy – Petitioner has been in custody for over 22 months and his incarceration as an under-trial cannot be mode of punishment in the case – Accused is lodged in jail for a considerable period and there is little possibility of trial reaching finality in near future – Liberty guaranteed under Article 21 of Constitution does not get abrogated even for special statutes where threshold twin bar is provided and such cannot carve out an exception to principle of bail being rule and jail being exception – Cardinal principle of bail being rule and jail being exception will be entirely defeated if petitioner is kept in custody as an undertrial for such a long duration – This is particularly glaring since in the event of conviction, maximum sentence prescribed is only 7 years for offence of money laundering – Fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to statutory bar in Section 45 of Act – Right of liberty guaranteed under Article 21 of Constitution is a sacrosanct right which needs to be respected even in cases where stringent provisions are incorporated in special enactments – Bail granted to petitioner. (Paras 11, 12 and 13)
Facts of the case:
Present SLP challenges order of Delhi High Court rejecting Bail of petitioner who is a co-accused in Delhi Excise policy scam. It is alleged that petitioner acted as a middleman and was involved in irregularities in framing and implementing Delhi Excise policy.
Findings of Court:
This order is to be understood only for the purpose of bail and should have no bearing on merit of trial.
Result : Special Leave Petition disposed of.
ORDER
1. As the petitioner is in jail, delay stands condoned.
2. Heard Mr. Abhishek Manu Singhvi and Ms. Rebecca M. John, learned senior counsel appearing for the petitioner. Also heard Mr. Suryaprakash V. Raju, learned ASG appearing for the Directorate of Enforcement.
3. The present SLP challenges the order of the Delhi High Court rejecting Bail of Vijay Nair who is a co-accused in Delhi Excise policy scam. It is alleged that the petitioner acted as a middleman and was involved in irregularities in framing and implementing the Delhi Excise policy.
4. In support of the bail plea for the petitioner, it is submitted that the petitioner was arrested on 13.11.2022 and has now been in custody for about 22 months. It is then pointed out that since the charge is of money laundering under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002 (for short, the “Act”), the maximum punishment in the event of conviction is 7 years and as such further detention will not be justified. The bail having been granted to the co-accused (Manish Sisodia and Kalvakuntla Kavitha) are also referred on behalf of the petitioner to claim bail on parity.
5. On the other hand, Mr. S.V. Raju, learned ASG would refer to the threshold bar under Section 45 of the Act to oppose bail. Distinguishing the case of Kalvakuntla Kavitha v Directorate of Enforcement, 2024 SCC OnLine SC 2269 who was granted bail, the learned ASG would submit that she being a woman, had the benefit of the proviso to Section 45(1) of the Act.
6. The submissions made by the rival counsel are taken into account. The right of liberty guaranteed under Article 21 of the Constitution is a sacrosanct right which needs to be respected even in cases where stringent provisions are incorporated in the special enactments. In the case at hand, the petitioner has been in custody for over 22 months and his incarceration as an under-trial cannot be the mode of punishment in the case.
7. The materials on record indicate that one Dinesh Arora who was arrayed as an accused in the case and who thereafter turned approver, in his 12th statement had implicated the accused petitioner but in all his previous statement(s) given under Section 50 of the Act, there was no implication for the petitioner. The Directorate of Enforcement has submitted as many as 9 prosecution complaints, one after the other and in the meantime, the petitioner has been in custody for about 22 months. As earlier noted, in the event of conviction, the maximum sentence that can be imposed on the petitioner is 7 years.
8. When the case of the co-accused (Manish Sisodia) was taken up by this Court, an assurance was given by the counsel representing the Directorate of Enforcement on 30.10.2023 that the trial would get concluded within 6-8 months. But as can be seen, the trial is yet to commence. As many as 40 persons have been arrayed as accused in the cases with 9 complaints. The prosecution expects to examine around 350 witnesses. In this context, the learned ASG submits that the delay in commencement of trial cannot be entirely attributed to the prosecution as the petitioner had filed multiple applications before the authorities, which needed to be disposed of. On this aspect, it is to be noted that multiple supplementary complaints have been filed by the Directorate of Enforcement between 06.04.2023 and 28.06.2024. Around 40 persons have been arrayed as accused in the proceedings and documents filed by the Directorate of Enforcement runs into over 25,000 pages. It appears to be a case of continuing investigation for over 2 years.
9. Mr. S.V. Raju would further place reliance on the three-judge bench decision of this Court in Vijay Madanlal Choudhary v. Union of India, (2022) SCC Online SC 929 to argue that stringent conditions of Bail under Section 45 of the Act have to be satisfied before granting Bail. However, this Court in a series of decisions3 [Ramkripal Meena v Directorate of Enforcement 2024 SCC OnLine SC 2276; Javed Gulam Nabi Sha
