Bombay High Court
Amar Sadhuram Mulchandani vs Directorate Of Enforcement And Anr on 9 August, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:31933
2-BA1524-2024.DOC
SANTOSH
SUBHASH
KULKARNI Santosh
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2024.08.09
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
19:57:12 +0530
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 1524 OF 2024
Amar Sadhuram Mulchandani ...Applicant
Versus
Directorate of Enforcement and anr. ...Respondents
WITH
INTERIM APPLICATION NO. 2581 OF 2024
WITH
INTERIM APPLICATION (ST) NO. 14286 OF 2024
Mr. Karan Kadam, a/w S. S. Bedekar and Pankaj Thakur,
i/b Sarfaraj Shaikh, for the Applicant.
Mr. H. S. Venegaonkar, a/w Aayush Kedia, for ED -
Respondent No.1.
Mr. A. A. Naik, APP for the State/Respondent No.2.
Ms. Minal Chandnani, for the Intervener.
CORAM: N. J. JAMADAR, J.
DATED: 9th AUGUST, 2024
ORDER:
-
1. The applicant, who is arraigned in ECIR/MBZO-II/
10/2021 registered with the Directorate of Enforcement,
Mumbai Zonal Office, for an offence punishable under Section 4
of the Prevention of Money-Laundering Act, 2002 ('the PMLA'),
has preferred this application to enlarge him on bail on medical
ground.
2. This bail application is being disposed of by this order in
continuation of the order dated 30th July, 2024.
2-BA1524-2024.DOC
3. The applicant had preferred BA/184/2024 for bail on
medical ground. By an order dated 11 th March, 2024, this Court
was persuaded to reject the prayer for bail by ascribing
elaborate reasons. This Court observed in paragraphs 42 and
46 of the said order as under:
"42. In the backdrop of the aforesaid assessment by the
experts, on both diabetic retinopathy and diabetic
neuropathy, it appears that the applicant essentially requires
day care procedure and physiotherapy. It does not appear
that the applicant requires an immediate surgical or other
critical intervention. Perused the case summary dated 26 th
April, 2024. Copies of case summary be made available to
the learned Counsel for the applicant, the learned APP and
the learned Counsel appearing for respondent No.1.
..........
46. In the totality of the circumstances, it appears that
what the applicant immediately requires is the day care
procedure for both the eyes and physiotherapy. A direction
for admitting the applicant in Sir J. J. Group of Hospitals for
a period of two weeks to facilitate the applicant to have
treatment for diabetic retinopathy as well as diabetic
neuropathy, especially the physiotherapy, would serve the
purpose. It would be open for the Medical Officers at Sir J. J.
Group of Hospitals to appropriately advise the
Superintendent Prison, as to whether further admission of
the applicant as an indoor patient beyond the said period of
two weeks would be necessary from the point of view of the
treatment which the applicant requires."
4. Being aggrieved, the applicant preferred Special Leave to
Appeal (Cri) No.4246 of 2024. By an order dated 22 nd March,
2024, the Supreme Court declined to interfere with the
aforesaid order and dismissed the SLP. Liberty was however
reserved for the applicant to file fresh application for bail in case
the applicant's health condition deteriorated.
2-BA1524-2024.DOC
5. Availing the aforesaid liberty, the applicant has preferred
this application. In the order dated 30 th July, 2024, this Court
had noted the circumstances in which the applicant was
permitted to have treatment at Lilavati Hospital, Mumbai, at his
own expenses, and the medical reports submitted by Lilavati
Hospital, periodically, recording the state of health of the
applicant. This Court, inter alia, noted that inspite of the
treatment of the applicant at Lilavati Hospital for over three
months, the last report submitted by Lilavati Hospital assessed
the condition of health of the applicant, more or less, similar to
that as obtained on 26th April, 2024. The Court, therefore,
considered it appropriate to shift the applicant to Sir. J. J.
Group of Hospitals, so that a team of experts at Sir. J. J. Group
of Hospitals evaluates the applicant's medical condition and
submits a report to the Court. The observations in paragraphs
31 to 34 deserve extraction:
"31. The pivotal question that merits consideration is, with
intensive treatment of more than three months, as a indoor
patient, whether the condition of the applicant has improved.
If the latest report of Dr. Kudva is considered, it appears that
the condition of the applicant is, by and large, similar as of
the date of the evaluation by the team of consultants and the
submission of above referred case summary dated 26 th April,
2024.
32. Though the Court does not propose to doubt the
evaluation in the latest medical report, yet, the fact that the
applicant has been under intensive medical treatment for
over three months, cannot be lost sight of. While the Court is
sensitive to the prisoner's right to life and health, the
hospitalization must be need based.
2-BA1524-2024.DOC
33. It is necessary to note that in the opinion of
Nephrologist and Nureologist submitted on 26th April, 2024,
it was clearly opined that the applicant might need 2-3
months to stabilize. The Ophthalmologist had then opined
that the applicant would need 3-5 more intra vitreal
injections to stabilize vision in left eye. The applicant has
been an indoor patient for over three months. The applicant
must have had the requisite treatment as advised by the
consultants.
34. In the aforesaid view of the matter, to have a better
assurance regarding the prognosis of the disease, the severity
of the diseases the applicant is suffering from, the nature of
the medical and surgical intervention required, the line of
treatment and the likely time required for the treatment and
even the continued hospitalization of the applicant as an
indoor patient, this Court considers it necessary to now
direct that the applicant be shifted to Sir J. J. Group of
Hospitals so that a team of the experts at Sir J. J. Group of
Hospitals evaluates the applicant's medical condition and
submits report to the Court. Such report of the experts at Sir
J. J. Group of Hospitals would better equip the Court to
decide the application."
6. Pursuant to the aforesaid order dated 30th July, 2024, the
applicant came to be admitted at Sir. J. J. Group of Hospitals. A
four member committee of experts headed by Dr. Kamlesh
Jagyasi, Professor and Head of the Neurology Department, was
constituted. The committee of experts has evaluated the health
condition of the applicant and submitted a report.
7. Since the Court would be guided principally by the
assessment of the team of experts at Sir. J. J. Group of
Hospitals, it may be expedient to extract the report of the
committee, in extenso. It reads as under;
"Patient Mr. Amar Saduram Mulchandani, 66 years old male
was admitted in Sir J. J. Hospital ward 4 in Department of
Medicine on 04-08-2024 at 12.30 am.
2-BA1524-2024.DOC
Mr. Amar is a known case of Diabetes Mellitus, Hypertension,
Diabetic Neuropathy, Diabetic Nephropathy, Diabetic
Retinopathy, Ischemic Heard Disease.
The committee members examined him and went through his
available laboratory investigation reports.
Neurology Opinion:
Mr. Amar Saduram Mulchandani has bilateral lower limb
weakness, paresthesias because of diabetic neuropathy
because of which he needs to take Diabetes medicine
regularly, undergo physiotherapy daily. He needs assistance
for his activities of daily living.
He does not need hospitalization for his neuropathy and can
be managed on OPD basis.
Cardiology Opinion:
Mr. Amar Saduram Mulchandani is knows case of Ischemic
Heard Disease. His angioplasty was done in 2012. His
Bypass surgery was done in 2021. At present his evaluation
shows normal vital parameters. His ECG is suggestive of Left
Bundle Branch Block. 2D Echocardiography is suggestive of
normal left ventricular systolic function with ejection fraction
of 60%. At present Mr. Amar Saduram Mulchandani has no
acute cardiac complaint and is kept on medical management
for his ischemic hears disease and he is stable on these
medications. His medications for his cardiac ailments are:
Tab Ecosprin AV 75/10 - 0 -1 -,
Tab Telma 40 mg. - 1 - 0 - 0
He does not need hospitalization for his cardiac ailments and
can be managed on OPD basis.
Nephrology Opinion:
Mr. Amar Saduram Mulchandani has chronic kidney disease
stage III-B, GFR 40ml/minute, mostly secondary to long
standing diabetes mellitus (Diabetic Nephropathy). This is an
irreversible condition which cannot be cured but only be
controlled to delay the progression of chronic kidney disease.
We have added keto-analogues which may help to control it.
He is advised strict glycemic control and follow up in
nephrology OPD-28 at J. J. Hospital on Tuesday or Thursday.
He is advised to continue Tab Cardace 2.5 mg. 0-0-1, Tab
empagliflozin 25 mg. 1-0-0, Tab linagliptin 5 mg. 1-0-0, Tab
Diamicron XR 60 mg. 1-1-1, Tab Volibo 0.3 mg. 1-1-1, Tab
Silodol-D 0-0-1.
Ophthalmology Opinion:
Mr. Amar Saduram Mulchandani has proliferative diabetic
retinopathy in both eyes due to long standing Diabetes
Mellitus because of this his vision in right eye is finger
counting at 1 metre and in left eye is 6/18. This is same over
an year.
2-BA1524-2024.DOC
For right eye there is nil active management and for left eye
he is advised intravitreal anti-VEGF injection after
physician's fitness which is a day care procedure and should
continue eye drops Nepafenac in left eye three times a day
and Betaxolol eye drops in right eye twice a day.
As per the committee the patient does not need
hospitalization at present and can follow up in respective
specialities at regular intervals on OPD basis. He is advised
to take his medicines regularly as advised."
8. In the light of the above report, I have heard Mr. Kadam,
the learned Counsel for the applicant, and Mr. Venegaonkar, the
learned Special PP, for ED/respondent No.1. I have also perused
the material on record including earlier medical reports.
9. Mr. Kadam, the learned Counsel for the applicant,
submitted that the latest report of the Committee of experts at
Sir. J. J. Group of Hospitals, in a sense, fortifies the earlier
medical reports on the aspect of severe infirmity, which the
applicant is suffering from. Mr. Kadam urged that the fact that
the committee has opined that the applicant does not require
hospitalization cannot be the sole determinative factor. The
committee has opined in clear and unequivocal terms that the
applicant needs assistance for his activities of daily living. This
assessment, according to Mr. Kadam, underscores the
seriousness of applicant's infirmity. Mr. Kadam laid particular
emphasis on neurology opinion. The neurologist has opined
that the applicant is required to take diabetes medicine
2-BA1524-2024.DOC
regularly and undergo physiotherapy daily. The applicant needs
assistance for his activities of daily living.
10. Mr. Kadam further urged that when the first application
was rejected by this Court the renal ailments, the applicant has
been suffering from, were not considered. Since the Nephrologist
opined that the applicant is suffering from kidney disease stage
III-B GFR 40ml/minute, which is an irreversible condition,
according to Mr. Kadam, these twin factors pose a grave risk to
the life and health of the applicant, if he is sent back to prison.
There is an imminent risk of aggravating cardiac problem as the
applicant is a known case of Ischemic Heart Disease. Mr.
Kadam placed reliance on the following observations in the
judgment in the case of Kewal Krishan Kumar vs. Enforcement
Directorate1:
"47. Mere old age does not make a person ' infirm' to fall
within section 45(1) proviso. Infirmity is defined as not
something that is only relatable to age but must consist of a
disability which incapacitates a person to perform ordinary
routine activities on a day-to-day basis."
11. Reliance was also placed on an order passed by Delhi High
Court in the case of Amit Chakraborty vs. State of NCT of
Delhi2, wherein the Delhi High Court, noting the fact that the
applicant therein was suffering from 59% permanent physical
1 2023 SCC OnLine Del 1547.
2 2024 SCC OnLine Del 3336.
2-BA1524-2024.DOC
disability due to post-polio residual paralysis of both lower
extremities, directed the release of the applicant therein on bail.
It was submitted that indisputably the applicant is suffering
from diabetic neuropathy with muscle wasting and weakness
causing permanent disability of 60%. Thus, the applicant
deserves to be enlarged on bail, submitted Mr. Kadam.
12. In opposition to this, Mr. Venegaonkar, the learned Special
PP, urged that all these submissions premised on the diabetic
neuropathy with muscle wasting and weakness causing
permanent disability were considered by this Court while
deciding the first bail application and this Court had recorded a
firm opinion that the applicant was not suffering from such
sickness or infirmity as to warrant his release on bail. The
liberty granted by the Supreme Court was only for renewing the
prayer for bail in case the condition of the applicant
deteriorated. Therefore, it has to be seen, whether there is
deterioration in the health condition of the applicant. Mr.
Venegaonkar submitted that the applicant has been effectively
under treatment for past four months. In the face of clear and
categorical opinion of the committee of experts at Sir J. J.
Group of Hospitals that the applicant does not need
hospitalization anymore and can follow up in the respective
2-BA1524-2024.DOC
specialities at regular intervals on OPD basis, the prayer for bail
is wholly unsustainable.
13. While deciding the first bail application, as noted above,
this Court had elaborately considered the parameters which
govern the exercise of discretion under the proviso to Section
45(1) of the PMLA. After adverting to the provisions and the
precedents, including the decision in the case of Kewal Krishan
Kumar (supra), this Court had observed as under:
"29. The legal position as regards the grant of bail in
matters where the person is accused of an offence
punishable under PMLA is fairly crystalized. Sub section (1)
of Section 45 of PMLA contains an interdict against the
grant of bail to a person accused of an offence punishable
under PMLA, unless the twin test envisaged thereby, namely,
opportunity to oppose the prayer for bail and satisfaction of
the Court that there are reasonable grounds for believing
that the applicant is not guilty of such offence and he is not
likely to commit any offence while on bail is recorded. The
first proviso however empowers the Court to release the
person on bail who is under 16 years or is a woman or is
sick or infirm. The limitations in the matter of granting bail
under section 45(1) are in addition to the restrictions
contained in the Code or any other law.
30. On its plain reading, it is abundantly clear that grant
of bail by invoking the first proviso is in the discretion of the
Court. However, as is the case with exercise of discretion in
any matter, such discretion is required to be exercised in a
judicious manner. The Court must pose unto itself the
question as to whether the person seeking bail falls within
any of the exceptional categories and, if so, whether in the
totality of the circumstances, the exercise of discretion would
be justifiable.
31. Evidently, the Parliament has used the words, 'sick' or
'infirm' disjunctively. A person may be sick and infirm. A
person can be 'infirm' without being 'sick'. However, it is not
the every kind of sickness which would justify the grant of
bail lest the object behind prescribing stringent conditions in
the matter of grant of bail would be frustrated if a person
can be released on bail on the ground of sickness dehors the
degree of seriousness of the ailment. It is in this context, the
2-BA1524-2024.DOC
reports of the experts assist the Court in forming an opinion
as to whether the person claiming bail is suffering from such
sickness as to warrant his release on bail.
32. Ordinarily, the consideration that the sickness is such
that it cannot be adequately or effectively treated in the
prison hospital/the medical facility attached to the prison or
Government hospital, weighs with the Court. The degree of
sickness also bears upon the exercise of the discretion. If it
is a life threatening disease, the Court would be well advised
to exercise its discretion. Conversely, it cannot be said that
the proviso cannot be resorted to in the case of sickness
which is not life threatening. Essentially, the question of
sickness, or for that matter infirmity, is rooted in the
thickets of facts of the given case.
33. Infirmity, in turn, may arise from a variety of causes.
Infirmity may not necessarily be on account of sickness. The
Parliament has therefore advisedly used the words 'sick' or
'infirm' disjunctively. The provision is required to be
construed in such a manner as to advance the guarantee of
right to life under Article 21. A prisoner cannot be left in the
lurch even when he is suffering from a serious ailment for
the only reason that his personal liberty is deprived by
operation of law. A prisoner has right to have treatment to
preserve his health. A prisoner is entitled to the dignity he
deserves. It is the obligation of State to provide requisite
treatment to a prisoner so as to preserve and protect his
health."
14. On the touchstone of the aforesaid principles, the prayer
of the applicant for bail is required to be evaluated, in the light
of the report of committee of experts, extracted above. First and
foremost, it is necessary to note that the committee has opined
in no uncertain terms that the applicant does not need
hospitalization, at present. The applicant can have follow up
treatment for the ailments he is suffering from, in the respective
specialities, at regular intervals, on OPD basis. It is thus clear
that, at this stage, the applicant does not require hospitalization
and/or institutionalized treatment for any of the ailments he is
2-BA1524-2024.DOC
suffering from. Secondly, it would be relevant to note that the
applicant sought permission for treatment at a private hospital
on the ground that he had suffered a mild heart-attack. The
committee, especially the cardiologist, has clearly opined that at
present the cardiac evaluation of the applicant shows normal
vital parameters. 2D Echocardiography is suggestive of normal
left ventricular systolic function with ejection fraction of 60%. At
present the applicant has no acute cardiac complaints. Thirdly,
the Nephrologist has opined that the applicant has chronic
kidney disease stage III-B GFR 40ml/minute and the said
condition is irreversible, yet, from nephrological point of view
what is required is strict glycemic control and medication, as
advised. The applicant could follow up on OPD basis. Fourthly,
from ophthalmologist's perspective also, the condition of the
applicant is not such that it requires immediate intervention.
The applicant was advised to have intravitreal anti-VEGL
injection, which is a day care procedure. That leaves the aspect
of bilateral lower limb weakness, paresthesias on account of
diabetic neuropathy.
15. The thrust of the submission of Mr. Kadam was that the
committee of experts has also opined that the applicant needs
assistance for his daily routine activities. If the applicant
2-BA1524-2024.DOC
requires assistance for his routine activities, it can hardly be
denied that the applicant is infirm, submitted Mr. Kadam.
16. The aforesaid submission deserves appreciation in the
totality of the circumstances. It is necessary to note, while
rejecting the first application, this Court had directed that the
applicant be admitted as an indoor patient in Sir J. J. Group of
Hospitals for the period of two weeks and the applicant be
provided extensive physiotherapy, as advised, during the said
period. The instant application came to be filed while the
applicant was admitted as an indoor patient at Sir J. J. Group
of Hospitals pursuant to the aforesaid order. Subsequently,
pursuant to order dated 8th April, 2024, the applicant came to
be admitted at Lilavati Hospital, Mumbai. In the report dated
26th April, 2024 the team of experts at Lilavati Hospital had
opined that the applicant would require supervised therapy for
two to three months, at least. The applicant remained as an
indoor patient at Lilavati Hospital for over three months. The
applicant must have had the requisite sessions of physiotherapy
at the Lilavati Hospital, during the said period.
17. The assessment that the applicant requires regular
physiotherapy cannot be questioned. However, the prayer for
bail on the count that the applicant requires assistance for his
2-BA1524-2024.DOC
daily routine activities cannot be considered, discounting the
extensive period for which the applicant has been provided
treatment, as an indoor patient, at the Lilavati Hospital and Sir
J. J. Group of Hospitals. In the light of the condition of health
of the applicant on other parameters, namely, cardiac,
nephrology and ophthalmology, the applicant seems to be
relatively stable. What the applicant now requires is diabetes
management and physiotherapy.
18. Thus, the assessment that the applicant requires
assistance for his daily activities cannot be appreciated in
isolation. An appropriate direction to the Superintendent,
Central Prison, Mumbai, to provide the requisite assistance,
whenever necessary, would meet the exigency of the situation.
The concern expressed on behalf of the applicant that on
account of logistical issues it may not be practicable to take the
applicant to Sir J. J. Group of Hospitals for treatment regularly
can also be addressed by issuing appropriate directions.
19. The requirement of assistance either in the form of
physical aids like wheelchair or walker, or human support,
cannot be construed to be such an infirmity as to warrant the
release on bail by invoking the proviso to Section 45(1) of the
PMLA. To put in another words, there is not much qualitative
2-BA1524-2024.DOC
difference in the condition of health of the applicant today and
as it obtained when the first application was rejected. On the
contrary, an inference may be justifiable that the health
condition of the applicant has improved with treatment as an
indoor patient for almost four months.
20. I am, therefore, not inclined to release the applicant on
bail on medical ground. However, I deem it appropriate to issue
certain directions to ensure proper assistance and treatment to
the applicant.
21. Hence, the following order.
:ORDER:
(i) Application stands rejected.
(ii) The applicant be re-lodged in the Central Prison, Mumbai.
(iii) The Superintendent, Central Prison, Mumbai, is directed
to lodge the applicant at a suitable place in the prison and
arrange for a wheelchair and/or a walking aid to the applicant.
(iv) The Superintendent, Central Prison, Mumbai, shall also
provide an attendant to assist the applicant to carry out his
daily pursuits, whenever required.
(v) The Superintendent, Central Prison, Mumbai, shall take
the applicant to Sir J. J. Group of Hospitals, Mumbai, for
2-BA1524-2024.DOC
physiotherapy and other treatment on Monday, 12th August,
2024 and thereafter as may be advised by the Doctors at Sir J.
J. Group of Hospitals.
(vi) Respondent No.1 - ED shall make necessary arrangement
for the necessary escort to take the applicant to Sir J. J. Group
of Hospitals, Mumbai, as and when advised by the Doctors at
Sir J. J. Group of Hospitals.
(vii) The Medical Officer at Central Prison, Mumbai, shall also
provide the requisite medical treatment and assistance to the
applicant and may advise that the applicant be shifted to the Sir
J. J. Group of Hospitals, Mumbai, if the situation so warrants.
(viii) By way of abundant caution, it is clarified that the
observations made hereinabove are confined for the purpose of
determination of the entitlement for bail under the proviso to
Section 45(1) of the PMLA.
(ix) Bail Application No.1524/2024 stands disposed.
(x) In view of disposal of bail application, interim
application(s), if any, also stand(s) disposed.
[N. J. JAMADAR, J.]
