Jagabandhu Chand vs Directorate Of Enforcement
2023 Latest Caselaw 12277 Ori

         IN THE HIGH COURT OF ORISSA AT CUTTACK

                   BLAPL No.2635 of 2023

  (In the matter of application under Section 439 of the
  Code of Criminal Procedure).

  Jagabandhu Chand                      ....       Petitioner

                           -versus-

  Directorate of Enforcement            ... Opposite Party



  For Petitioner           :   Mr. J.Pal, Advocate


  For Opposite Party       :   Mr. G.Agarwal, Advocate
                               (E.D.)

      CORAM:
                    JUSTICE G. SATAPATHY

               DATE OF JUDGMENT : 10.10.2023


G. Satapathy, J.

1. This is a bail application U/S.439 of Cr.P.C. by

the petitioner for grant of bail in connection with

Complainant Case (PMLA) Case No.10 of 2022 for

commission of offence Under Section 3 of the

Prevention of Money Laundering Act, 2002 (In short

"PMLA") which is punishable Under Section 4 PMLA

pending in the file of learned District and Sessions

Judge, Khurda at Bhubaneswar.

2. An overview of the facts involved in this case

are on 02.10.2022, one FIR was registered against

the Petitioner and others vide Khandagiri PS Case

No. 496 of 2022 for commission of offences

punishable Under Sections 341 / 328 / 324 / 354-C/

370 /386 /387/ 388/389/419/420/465/506/120-B of

Indian Penal Code (in short IPC), 1860 and Under

Section 66-E/67 of the Information Technology Act,

2000(In short the "IT Act"), but before registration

of this case, another case was also registered

against the co-accused person for similar offences.

In the FIR against the Petitioner and others, the

Petitioner and other co-accused person had extorted

crores of Rupees from different rich people by

blackmailing them to get their video footage

containing objectionable and inappropriate

photographs viral. The aforesaid case was

investigated into by the local police, but in the

course of investigation, the Assistant Director of

Enforcement, Bhubaneswar claiming the offences

alleged against the Petitioner and others to be

scheduled offences as defined Under Section 2(1y)

of the PMLA instituted a complaint against the

Petitioner and others before the special Court under

PMLA, Bhubaneswar for commission of offence U/S.

3 of PMLA which is punishable U/S. 4 of PMLA. It is

stated in the complaint that soon after registration

of the aforesaid police case, PMLA Case No.10 of

2022 was recorded against the Petitioner and others

for commission of aforesaid offence under PMLA and

the matter was investigated into by ED. It is also

alleged in the complaint that the Petitioner and

others had generated illegal income of Crores of

Rupees through extortion by way of honey trapping

rich and influential people and making their nude

videos and threatening as well as blackmailing them

for lodging false police cases and getting their nude

videos viral in social media and, thereby, the income

of the Petitioner and others are proceeds of crime as

defined Under Section 2(1)(u) of the PMLA. This is

how the complaint against the Petitioner and others

came to be instituted for commission of offences

Under Sections 3/4 of PMLA.

3. Heard, Mr.J.Pal, learned counsel for the

Petitioner and Mr. G.Agrawal, learned counsel for the

ED extensively. In support of their individual

contentions, learned counsels for both the parties

have filed short written notes of submission by

relying upon the number of decisions, which would

be discussed if found relevant in subsequent

paragraph. While arguing on merit, learned counsel

for the Petitioner has also urged the ground of

sickness of the Petitioner to grant him bail by

extending the benefit of proviso appended to the

mandatory provision of Section 45(1) of the PMLA.

4. Undeniably, the provisions as to bail are

founded on the philosophy of protecting the most

precious individual liberty of a person which is

guaranteed under Article 21 of our sacred

Constitution, but grant or refusal of bail to a person

accused of offence is the discretion of the Court,

however, such discretion should not be arbitrary or

whimsical. Article 21 of the Constitution of India

always reminds that the personal liberty is

paramount and sacrosanct and no person shall be

deprived of his personal liberty except according to

the procedure established by law. On the other

hand, the object of bail is primarily to prevent

punishment in the form of imprisonment or

incarceration of a person pending investigation,

inquiry and trial. Deprivation of personal liberty of a

person accused of offence without lawful excuse

amounts to pre trial punishment. In Satender

Kumar Antil Vrs. Central Bureau of

Investigation and another; (2022) SCC Online

SC 825, the apex Court has emphasized the

personal liberty in the following words:-

"Liberty is one of the most essential requirements of the modern man. It is said to be the delicate fruit of a mature civilization. It is the very quintessence of civilized existence and the essential requirements of a modern man."

5. Adverting to the rival submissions, this Court

at the inception engages itself to answer as to

whether the stipulation as contained in Section

45(1) of PMLA can be relaxed to grant regular bail to

the Petitioner. Undeniably, right to health is an

integral part of right to life as guaranteed under

Article 21 of the Indian Constitution, but such right

to health cannot be refused to a person facing a

criminal charge, even such right cannot be denied to

a convict found guilty for graver offence. It is

indisputably an obligation of the State to provide

adequate and effective medical treatment to every

person, even to a under trial or convict. Above view

get supports from the decision from Pt.

Parmanananda Katara Vrs. Union of India and

others; (1989) 4 SCC 286, wherein the Apex

Court has emphasized the preservation of life, both

of an innocent person or a criminal liable to be

punishment in the following words.

"....7. There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of

man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment."....

6. Keeping in view the aforesaid principle, this

Court right now focuses to the proviso to Section

45(1) of the PMLA which was in fact carved out as

an exception to empower and provide discretion to

the Special Court to grant bail on humanitarian and

medical grounds and, thereby, relaxing the strict

compliance of the twin conditions enumerated in

Section 45(1) of the PMLA, but the aforesaid

discretion is required to be exercised in a judicious

manner. The proviso to Section 45(1) of the PMLA

confers discretion on the Court to grant bail to a

person who is under the age of 16 years or is a

woman or is sick or infirm, or is accused either on

his own or along with other co-accused of money

laundering a sum of less than One Crore Rupees

without insisting upon them for strict compliance of

the twin conditions of Section 45(1) of PMLA.

7. It is, therefore, clear that an accused person

who is sick in terms of proviso to Section 45(1) of

PMLA can be granted bail without insisting upon him

the strict compliance of the conditions enumerated

therein, but who can be considered as a sick or what

would be the level of sickness that would bring the

accused within the parameters of "sick" has not

been precisely defined or explained either in the

PMLA or in any other act governing the provisions of

bail. Normally, "sick" means suffering from disease

or illness or unwell or ill and one who needs

medication, but mere sickness, such as suffering

from fever or illness which can be treated in the jail

without any difficulty cannot be considered as "sick"

so as to entitle the accused to bail in view of the

exception to Section 45(1) of the PMLA. In this

regard, this Court considers it apt to refer to the

decision in Pawan Alias Tamator Vrs. Ram

Prakash Pandey and another; (2002) 9 SCC

166, wherein the Apex Court while setting aside the

order of Allahabad High Court granting bail to the

accused inter-alia on the ground of ailment of the

applicant, has held as under:-

"The ailment of the accused was not of such a nature as to require him to be released on bail and the accused can always apply to the jail authorities to see that he gets the required treatment."

8. In Kewal Krishnan Kumar Vrs.

Enforcement Directorate; (2023) SCC Online

Delhi 1547, it has been held by High Court of Delhi

as under:-

"25. xxx when the sickness or infirmity each of such a nature i.e. life threatening and requires medical

assistance that cannot be provided in penitentiary hospitals, then the accused should be granted bail under the proviso to Section 45(1) of the PMLA".

9. In the backdrop of aforesaid discussions and

keeping in view the principle governing the field on

this issue, this Court is of the considered view that

the sickness which are not only life threatening, but

also serious and requires special medical attention

and which the jail authority cannot provide in the jail

would normally be considered as a ground for grant

of bail to an accused by relaxing the strict

compliance of Section 45(1) of the PMLA by giving

benefit of the proviso appended thereto. Granting

bail on mere sickness by extending the proviso

appended to Section 45(1) of the PMLA will render

the aforesaid proviso otiose. However, the aforesaid

proviso may be invoked in genuine cases, where the

sickness of the Applicant cannot be treated in jail

and such sickness would endanger the life of the

applicant.

10. Reverting back to the sickness ground of the

Petitioner in this case, it appears that on being

agreed by learned counsel for both the parties, this

Court by an order requested the AIIMS,

Bhubaneswar to constitute a medical board to

examine the petitioner as to the necessity of

"Tracheostomy" for him and in response to such

request of this Court, the AIIMS, Bhubaneswar by

showing good gesture for cause of justice had

constituted a medical board of seven Doctors under

the leadership of Professor Manash Ranjan Sahoo

which board after examining the Petitioner and on

going through the records co-relating the

examination test findings of unanimous conclusion

that the "Tracheostomy tube" of the Petitioner can

be removed after admission at AIIMS, Bhubaneswar

Hospital. It, therefore, very clear that the

"Tracheostomy tube" cannot be removed in the jail

by taking the help of medical expert. Needless to

mention here that "Tracheostomy" is a surgically

created hole in the windpipe (Trachea) of a person

that provides an alternative airway for breathing.

Since Tracheostomy is related to alternative airway

for breathing, it is definitely a serious ailment and

the medical board report clarifying it being not

removable without admission in Hospital, the

aforesaid sickness of the Petitioner is considered to

be the nature of sickness within the meaning of

"sick" as provided in first proviso to Section 45(1) of

the PMLA. It is, thus, answered that the Petitioner

can be released on bail without insisting upon him

the strict compliance of the twin conditions of

Section 45(1) of the PMLA Act by way of relaxation

in terms of the proviso to Section 45(1) of the PMLA

Act.

11. Mr. Agrawal, learned counsel for the ED,

however, has relied upon the decision in Vijay

Agrawal Through Parokar Vrs. Directorate of

Enforcement; (2022) SCC Online Delhi 4130

and the judgment of High Court of Kerala in BLAPL

No. 2166 of 2023 (M. Sivasankar Vrs. Union of

India and another) to contend that the Petitioner's

sickness may not be considered in terms of the

aforesaid proviso, but such submission appears to

have no direct bearing in the present case inasmuch

as the ailment of the accused in Vijay Agrawal

(Supra) was not in the nature of the ailment of the

Petitioner nor was it life threatening nor was the

treatment of the applicant not possible in the jail.

Further in M. Sivasankar (Supra), the High Court

of Kerala did not give the benefit of proviso to

Section 45(1) of the PMLA to the applicant-

Sivasankar by holding that Sivasankar did not have

any serious illness and in the earlier time also, he

was granted bail by relaxing the rigor of Sec. 45(1)

of the PMLA on medical ground, but when he was

released on bail, he joined duty and also continued

in service till his retirement without undergoing any

further treatment.

12. According to the complaint of ED, the details

of movable property owned and acquired by

Jagabandhu(Petitioner) as alleged was for a value of

Rs. 17,49,389/-, besides allegation of assisting his

wife in layering and placing the proceeds of crime

generated by her as a result of criminal activity

relating to schedule offence in his account and the

Petitioner and his wife were alleged to have an

immovable property i.e. residential building with an

investment of Rs. 3.39 Crores whose present market

value is assessed at 3.64 Crores and this is the main

substratum of allegation against the Petitioner and

his wife. The complaint under PMLA also refers to

another FIR in Nayapalli P.S. FIR No. 646 of 2022,

but the said FIR was registered only against co-

accused, but not against the present petitioner and

charge sheet was only submitted against co-accused

Archana Nag. Besides, it is informed by learned

counsel for the ED that the complaint in PMLA now

stands posted for execution of warrant issued

against co-accused, but the petitioner in the

meanwhile has been detained in custody since

13.12.2022 being remanded and the case record

against the petitioner has not been separated.

Further, the petitioner was subjected to custodial

interrogation by the ED. What is more significant is

that the other reason that might delay the trial in

this case is the fact that co-accused is yet to be

arrested. In such situation, it is quite uncertain as to

when the trial will commence and how much time it

would require for completion. In the aforesaid

premises and on a cumulative assessment materials

placed on record, this Court has no hesitation to

consider that the petitioner has successfully

demonstrated his case for relaxation of compliance

of Section 45(1) of PMLA by way of the benefit of

proviso appended to it.

13. Furthermore, while dealing bail application,

three factors are mainly required and the accused is

required to satisfy the tripod test:- (i) flight risk, (ii)

tampering of evidence and (iii) influencing of

witnesses. In the circumstance of the case, the

petitioner does not appear to be a flight risk and

such apprehension can be arrested by directing the

petitioner to surrender his Passport if any. Since the

complaint has been filed, there appears little

apprehension of tampering evidence by the

petitioner and the third one i.e. influencing

witnesses can be curbed by imposing appropriate

conditions. Further, the petitioner has already

remained in custody for near about ten months.

14. A cumulative discussions of facts and

allegation as noticed above and taking into

consideration the pre trial detention of the Petitioner

for near about ten months with uncertainty

prevailing about execution of NBWA against co-

accused affecting the commencement of the trial

and, thereby, conclusion of trial being not possible in

near future and regard being had to the nature of

"sickness" of the Petitioner which allows him to

obviate the rigor of compliance of the provision of

Section 45(1) of the PMLA by way of relaxation, this

Court considers that the Petitioner has made out a

case for grant of bail.

15. The bail application of the petitioner stands

allowed and the petitioner may be released on bail

on furnishing bail bonds in the sum of Rs.2,00,000/-

(Rupees Two lakhs) with two local solvent sureties

each for the like amount to the satisfaction of the

learned Court in seisin of the case on such terms

and conditions as deem fit and proper by it with

following additional conditions:-

(i) The petitioner shall not commit any offence while on bail and he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any Officer of ED or tamper with the evidence,

(ii) The petitioner shall appear before the Court in seisin of the case on each and every date of posting without fail unless his attendance is dispensed with and in case the Petitioner fails without sufficient cause to appear in the Court in accordance with the terms of the bail, the learned trial Court may proceed against the Petitioner for offence U/S.229-A of IPC in accordance with law,

(iii) The petitioner shall deposit his Passport, if any, in the Court in seisin of the case till conclusion of trial, unless he is permitted to take back such Passport to use for specific purpose during the pendency of case.

(iv) The Petitioner shall inform the Court as well as the ED as to his place of residence during the trial by providing his mobile number(s), residential address, e-mail, if any, and other documents in support of proof of residence.

(v) In case the petitioner misuses the liberty of bail and in order to secure his presence, proclamation U/S.82 of Cr.P.C. is issued and the petitioner fails to appear before the Court on the date fixed in such proclamation, then, the learned trial Court is at liberty to initiate proceeding against him for offence U/S.174-A of the IPC in accordance with law.

(vi) The Petitioner shall appear before the ED as and when required and shall cooperate with the ED in the present case.

It is clarified that the Court in seisin of the case

will be at liberty to cancel the bail of the Petitioner

without further reference to this Court, if any of the

above conditions are violated or a case for

cancellation of bail is otherwise made out.

It is, however, made clear that nothing stated

in the order shall be construed as a final expression

or opinion on the merits of the case and the trial

would proceed independently of the observation

made above and such observation has been made

purely for the purpose of adjudication of the present

bail application.

Accordingly, the BLAPL stands disposed of.

(G. Satapathy) Judge

Signature Not Orissa VerifiedHigh Court, th Cuttack, Digitally Signed Dated the 10 of October, 2023/Priyajit Signed by: PRIYAJIT SAHOO Designation: Jr. Stenographer Reason: Authentication Location: HIGH COURT OF ORISSA Date: 11-Oct-2023 13:24:08