The main legal point established in the judgment is that illegal custody can entitle a petitioner to bail, and the Court may not delve into the merits of the case if illegal custody is found.

1. FIR No. 205/2016 under Sections 420/406/409/467/468/471/188/ 120B IPC was registered by the Crime Branch of Delhi Police on 25th December, 2016 followed by ESIR No. 18/DZO-II/2016 on 26th December, 2016 by the Enforcement Directorate for offence punishable under Section 4 of the Prevention of Money Laundering Act, 2002 (in short ‘PMLA’). In the investigation carried out by the Enforcement Directorate, the respondent herein, the first complaint was filed before the learned Special Court on 23rd February, 2016.

2. On 30th May, 2017 searches were conducted at the business and residential premises of the petitioner by the officers of the respondent and he was arrested on 5th June, 2017. The petitioner was produced before the learned Special Court on 6th June, 2017 and remanded to custody of the respondent till 9th June, 2017. Further custody remand of the petitioner was granted till 13th June, 2017 vide order dated 9th June, 2017 when the petitioner was sent to judicial custody. Thereafter the petitioner was remanded to judicial custody from time to time. Since for offence punishable under Section 4 PMLA sentence that could be awarded was imprisonment upto seven years, the charge sheet was required to be filed within 60 days of the arrest of the petitioner and cognizance taken thereon. The stipulated period of 60 days was expiring on 4th August, 2017, thus the second/supplementary prosecution complaint was filed before the learned Special Court on 2nd August, 2017. Before filing of the supplementary prosecution complaint, the petitioner preferred the present bail application on merits before this Court to which a counter affidavit and additional affidavit were filed by the respondent.

3. It is the case of the petitioner that on 2nd August, 2017, the learned Trial Court did not take cognizance on the supplementary prosecution complaint but directed the same to be tagged with the main complaint, thus, no cognizance having been taken till 4th August, 2017 when 60 days period expired, he is entitled to bail under Section 167 (2) of Cr.P.C. Further on 8th August, 2017 the petitioner was remanded to judicial custody till 11th August, 2017 whereafter no order of further remand was passed as on 11th August, 2017 the Special Court was on leave and the reader adjourned the case to 31st August, 2017 without any order of remand by the Court. Thus claiming illegal custody the petitioner filed two further applications being Crl. M.A. Nos. 13800/2017 and 20623/2017 seeking permission to take additional grounds which were allowed vide orders dated 10th August, 2017 and 25th August, 2017 respectively. No affidavits to the two applications taking additional grounds were filed by the respondent.

4. This Court heard the bail application on merits and dismissed the same vide order dated 14th September, 2017. Challenging the order dated 14th September, 2017 passed by this Court, the petitioner preferred a special leave petition being SLP (Crl.) which on grant of leave was registered as Crl. Appeal No. 2102/2017. The petitioner also preferred a writ petition before the Hon’ble Supreme Court challenging the constitutional validity of Section 45 of the PMLA imposing two additional conditions for grant of bail for offence punishable for a term of imprisonment for more than three years under Part-A of Schedule of the PMLA being W.P. (Crl.) No. 1144/2017. The criminal appeal and the writ petition were decided along with the batch of other matters by the Hon’ble Supreme Court.

5. The Hon’ble Supreme Court vide order dated 23rd November, 2017 declared Section 45 (1) of PMLA in so far as it imposes two further conditions for release on bail to be unconstitutional being violative of Articles 14 and 21 of the Constitution of India and remanded the matter back to the respective Courts for the bail applications to be heard on merits without application of the twin conditions contained in Section 45 of PMLA Act.

6. Since in the order passed by this Court dis