| Headnote |
Issue for consideration: The two appeals are filed by the appellant-former Deputy Chief Minister of Delhi seeking bail in the prosecutions arising from a case registered by the CBI under the Prevention of Corruption Act, 1988 and the Penal Code, 1860; and enforcement case filed by the Directorate of Enforcement, under the Prevention of Money Laundering Act, 2002. Prevention of Money Laundering Act, 2002 – s.45 – Requirement for grant of bail under: Held: Referring to s.45 of the PML Act, in Vijay Madanlal Choudhary it was held that provision does not require that to grant bail, the court must arrive at a positive finding that the applicant has not committed an offence under the PML Act – Section 45 must be construed reasonably as the intent of the legislature cannot be read as requiring the court to examine the issue threadbare and in detail to pronounce whether an accused is guilty or is entitled to acquittal – Further, an order on an application for bail is passed much before the end of trial and sometimes even before commencement of trial – Lastly, it is trite, that for the purpose of considering an application for bail, although detailed reasons are not necessary to be assigned, and, therefore, the evidence need not be weighed meticulously, a tentative finding should be recorded on the basis of broad probabilities – The order granting bail must demonstrate application of mind at least in serious cases where the applicant has been granted or denied bail – The findings recorded by the Court for grant or refusing bail being tentative, will not have any bearing on the merits of the case, and the trial court would proceed and decide the case on the basis of evidence produced during trial without in any manner being prejudiced thereby. [Para 8]Prevention of Money Laundering Act, 2002 – s.3 – Contours of: Held: On dissection of the main part of s.3, it is held that it postulates three ‘p’s, namely, the person, the process or activity, and the product – The process or activity consists of six parts- concealment, possession, acquisition, use, projecting or claiming the proceeds of crime as untainted property – The product, that is, the proceeds of the crime, has been defined in Section 2(u) of the PML Act, as a property derived or obtained directly or indirectly by a person as a result of criminal activity relating to a scheduled offence or the value of such property – As far as ‘person’ is concerned, it means those who directly or indirectly attempt to indulge; those who knowingly assist, or those who are knowingly a party, or those who are actually involved – On the above interpretation, this court held in Y. Balaji v. Karthik Desari and Another that the offence u/s. 3 of the PML Act includes both the persons who commit the predicate or schedule offence and third party launderers. [Para 16] Prevention of Money Laundering Act, 2002 – Prevention of Corruption Act, 1988 – Bail sought by the appellant: Held: There is one clear ground or charge in the complaint filed under the PML Act, which is free from perceptible legal challenge and the facts as alleged are tentatively supported by material and evidence – The facts as alleged, which it is stated establish an offence u/s. 3 of the PML Act and the PoC Act., These are: (1) In a period of about ten months, during which the new excise policy was in operation, the wholesale distributors had earned Rs. 581,00,00,000 (rupees five hundred eighty one crores only) as the fixed fee; (2) The one time licence fee collected from 14 wholesale distributors was about Rs.70,00,00,000 (rupees seventy crores only); (3) Under the old policy 5% commission was payable to the wholesale distributors/licensees; (4) Under the old policy 5% commission was payable to the wholesale distributors/licensees; (5) The difference between the 12%; minus 5% of the wholesale profit margin plus Rs.70,00,00,000/-; it was submitted, would constitute proceeds of crime, an offence punishable under the PML Act – The proceeds of crime were acquired, used and were in possession of the wholesale distributors who have unlawfully benefitted from illegal gain at the expense of the government exchequer and the consumers/buyers – Charge-sheet filed by the CBI also alleged, inter-alia, that existing policy was changed to facilitate and get kickbacks and bribes from the wholesale distributors – The policy was framed to the desire and satisfaction of the liquor group – The commission/fee earlier fixed at minimum 5% was enhanced to fixed fee at 12% payable to wholesale distributor – The appellant was aware that three liquor manufacturer have 85% share in the liquor market – Policy favoured and promoted cartelisation – The excess amount of 7% commission/fee earned by the wholesale distributors of Rs.338,00,00,000/- (rupees three hundred thirty eight crores only) constitute an offence as defined u/s. 7 of the PoC Act, relating to a public servant being bribed. (As per the DoE, these are proceeds of crime) – This amount was earned by the wholesale distributors in a span of ten months – This figure cannot be disputed or challenged – Therefore, the Court not inclined to give bail at this stage. [Paras 21, 24 and 25]Constitution of India – Art.21 – Detention or jail before being pronounced guilty of an offence should not become punishment without trial:Held: If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious – While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom mass violence, etc. – Neither is this a case where 100/1000s of depositors have been defrauded – The allegations have to be established and proven – The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into s.439 of the Code and s.45 of the PML Act – The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial – When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail – This would be truer where trial would take years. [Para 28]Trial – Speedy trial – Assurance given by the Bar:Held: In view of the assurance given at the Bar on behalf of the prosecution that they shall conclude the trial by taking appropriate steps within next six to eight months – Liberty granted to the appellant to move a fresh application for bail in case of change in circumstances, or in case the trial is protracted and proceeds at a snail’s pace in next three months. [Para 29] |
