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IN THE HIGH COURT OF ALLAHABAD
RAJESH SINGH CHAUHAN, J.
Shiv Priya - Applicant
Versus
Enforcement Directorate Thru Asst. Director Lucknow Zone Lucknow - Opposite Party
Criminal Misc. Bail Application No. 12591 of 2022
Decided On : 22-02-2023
PMLA - Bail Application - 3/4 of Prevention of Money Laundering Act, 2002 - Summary of Acts and Sections: The court discussed the provisions of Section 45 of the PMLA and referred to the judgments of the Apex Court in Union of India vs. K.A. Najeeb and Ramchand Karunakaran vs. Directorate of Enforcement & Anr. to consider the length of incarceration and the likelihood of trial completion in reaching its decision to grant bail to the applicant.
Fact of the Case:
The applicant, Shiv Priya, was in judicial custody since 03.12.2019 in a case arising out of the Prevention of Money Laundering Act, 2002. The applicant was a Director in a real estate company and faced multiple cases of financial irregularities and non-delivery of properties to buyers.
Finding of the Court:
The court found that the applicant had been in custody for a significant period, had completed more than half of the potential sentence, and there was no likelihood of the trial being completed with expedition. The court referred to the judgments in Union of India vs. K.A. Najeeb and Ramchand Karunakaran vs. Directorate of Enforcement & Anr. to support its decision to grant bail to the applicant.
Issues: The main issue was whether the applicant should be granted bail considering the length of incarceration and the likelihood of trial completion.
Ratio Decidendi: The court relied on the judgments in Union of India vs. K.A. Najeeb and Ramchand Karunakaran vs. Directorate of Enforcement & Anr. to establish that the applicant had suffered significant incarceration and there was no likelihood of the trial being completed with expedition, leading to the decision to grant bail.
Final Decision: The court granted bail to the applicant, Shiv Priya, in the PMLA case, considering the length of incarceration and the unlikelihood of the trial being completed with expedition.
JUDGMENT :
1. Heard Sri I.B. Singh, learned Senior Advocate assisted by Sri Amit Sinha, Sri Aditya Vaibhav Singh and Sri M.G. Khan, learned counsel for the applicant and Sri Rohit Tripathi, learned counsel for the Enforcement Directorate (E.D.).
2. As per learned counsel for the applicant, the present applicant (Shiv Priya) is languishing in jail since 03.12.2019 in Sessions Case No.1266 of 2020 arising out of Crime/ ECIR No.06/PMLA/LKZO/ U/s 3/4 of Prevention of Money Laundering Act, 2002, Police Station-ED/Lucknow titled as Assistant Director Enforcement Directorate vs. Ajay Kumar & Ors., pending before the learned Special Judge-PMLA, Lucknow (U.P.).
3. As per Sri I.B. Singh, learned Senior Advocate for the applicant, the present applicant happens to be erstwhile Director in Amrapali Group of Companies (here-in-after referred to as "AGC") which was into real estate and allied business in Noida/ Greater Noida, Uttar Pradesh. The role of the present applicant being qualified Civil Engineer by qualification was limited to conceiving Architectural Planning and Engineering thereof and was not involved in financial planning of the Company. The present applicant on account of being Director in Ultra-Home Construction Pvt. Ltd. i.e. flagship company of AGC was drawing salary and was receiving professional fee from other companies on account of rendering professional services related to their project being permissible under law. So many buyers of the said company feeling themselves aggrieved as they have not been provided the flats/ plots despite those buyers deposited their huge amount in the company, as many as 30 F.I.Rs. have been registered against the Directors of the Company including the present applicant under Sections 406, 420, 409 & 120-B I.P.C. in the year 2018 and the Economic Offences Wing, Delhi Police (in short EOW) has arrested the Directors of the Company including the present applicant. The present applicant was taken into custody by Noida Police on 11.10.2018. The aforesaid arrest was made pursuant to the order of Apex Court passed in Writ Petition (Civil) No.940 of 2017; Bikram Chaterjee vs. Union of India & others to assist / complete the Forensic Auditor's relating to the allegations of the F.I.Rs. On 26.02.2019 EOW, Delhi Police has taken custody of the present applicant.
4. On 01.07.2019, the E.D. has filed Enforcement Cases Information Report (here-in-after referred to as the "ECIR") No. ECIR/ 06/PMLA/LKZO/2019. The E.D. has taken custody of the present applicant on 03.12.2019.
5. On 16.03.2020, the Session Case No.1266 of 2020 was filed against the present applicant. On 13.08.2020 a Criminal Complaint / Session Case No.1234 of 2021 was filed against 04 co-accused persons. On 06.04.2022, 03 Criminal Complaint/ Session Case No.1266 of 2020, 1234 of 2021 and 1219 of 2022 were consolidated involving the present applicant. On 26.04.2022, the charges were framed against the present applicant.
6. Sri I.B. Singh, learned Senior Advocate for the applicant has submitted that with effect from 21.05.2022 till date as many as 15 dates have been fixed, and only two prosecution witnesses could be examined and the chief-examination of PW-3 has been completed on 01.02.2023 but he could not be cross-examined till date. Sri Singh has filed certified copy of the order-sheet to show that the examination of the prosecution witness/ witnesses could not be done properly on account of non-cooperation on the part of the prosecution inasmuch as the case is being regularly attended from the side of the present applicant/ defence.
7. Learned Senior Advocate has further submitted that there are 150 Prosecution Witnesses which are to be examined and if the progress of trail is seen with effect from 21.05.2022, wherein the prosecution witnesses are not co-operating, the trial in question cannot be completed in further five or six years. Further, if the total period of judicial custody of the present applicant is considered, it is about four years
The main legal point established in the judgment is that the length of incarceration and the likelihood of trial completion are crucial factors in determining whether an applicant should be granted b....
In PMLA cases, constitutional courts grant bail despite Section 45 twin conditions if prolonged incarceration (over two years), trial delay not attributable to accused, and no reasonable trial conclu....
PMLA Section 45 twin conditions relaxable by constitutional courts for bail if prolonged custody (over 2 years) and unlikely timely trial violate Article 21, absent accused delay, with voluminous doc....
PMLA Section 45 twin conditions relaxable by constitutional courts where voluminous evidence delays trial unreasonably, prolonged custody violates Article 21 speedy trial right, ensuring bail despite....
The court emphasized that in economic offences, especially under the PMLA, bail should not be granted unless the accused demonstrates they are not guilty and unlikely to commit further offences.
The court emphasized the right to a speedy trial and liberty, allowing bail under the Prevention of Money Laundering Act after 15 months of custody, citing no likelihood of trial commencement.
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