Sick Or Infirm Persons Need Not Satisfy Twin Conditions For Bail Under PMLA: Delhi High Court

The Delhi High Court has said that sick or infirm persons need not satisfy the twin conditions for the grant of bail under Section 45(1) of the Prevention of Money Laundering Act.

The twin conditions are that when an accused applies for bail under PMLA, the public prosecutor has to be given an opportunity to oppose the same and if the court is considering grant of bail, there must be reasonable grounds for it to believe that the person is not guilty and is unlikely to commit any offence while on bail. However, a proviso to the provision states that a person who is sick or infirm may be released on bail.

After perusing the Statement of Objects and Reasons of the PMLA, Justice Jasmeet Singh in an order on a bail application said the inclusion of the proviso for grant of bail shows the legislative intent to incorporate relaxations for persons below 16 years of age; a woman or those who are sick and infirm.

The court also referred to the Supreme Court's decision in Gautam Kundu v. Directorate of Enforcement wherein it has been emphasised that the legislature has carved out the exception for these categories.

"Thus, the proviso to Section 45(1) of PMLA carves out an exception from the rigours of Section 45 for persons who are sick or infirm. Once a person falls within the proviso of Section 45(1), he need not satisfy the twin conditions under section 45(1) as elucidated in the dicta of Gautam Kundu (supra)," said Justice Singh.

The Enforcement Directorate had earlier argued that the test required is whether the applicant in custody suffers from a condition which cannot be addressed from the jail.

Justice Singh made the observations while granting bail to one Devki Nandan Garg in the money laundering case registered by the ED in connection with Shakti Bhog loan fraud case. Garg has been suffering from multiple ailments since 2001, his bail plea said.

In December 2020, CBI had registered an FIR against Shakti Bhog Foods Limited under Section 120B, 420, 467, 468 and 471 of the Indian Penal Code, 1860 along with section 13(2), 13(1)(d) of the Prevention of Corruption Act, 1988 after receiving a complaint from the State Bank of India. Since the offences were scheduled offences under PMLA, a money laundering case was registered in January 2021.

ED's investigation revealed that Garg allegedly fabricated transport bills and used fake PAN account details in the fake invoices provided by him by Shakti Bhog Foods Limited through various shell companies. Garg is alleged to have been actively involved in rotation and layering of bank funds in dummy entities.

According to the ED, Garg acquired 'proceeds of crime' of Rs.15.76 Crores for fake bills worth Rs.1576 Crores as commission. As per the agency, the said funds were proceeds of crime under Section 2 (u) of the PMLA.

Senior Advocate Siddharth Luthra, appearing for Garg, argued that he was entitled for bail as he was covered within the definition of sick and infirm person under proviso to Section 45(1) of the PMLA.

The court was apprised that Garg has one kidney, which is also non-functional, and the other one is impaired; has serious heart condition and had also undergone various surgeries. It was also stated that he was suffering from spondylitis, vertigo, syphilis and also contracted COVID-19 earlier this year while he was in judicial custody.

The ED argued the medical conditions of Garg are "historical" as he has been suffering from them since 2001.

"Even during the period of alleged offences i.e., from the year 2007 to 2012, the applicant was suffering from these ailments," the central agency counsel told the court, adding he was getting proper and satisfactory medical facilities in the jail.

Perusing the medical reports, Justice Singh said there is no doubt that Garg is sick and infirm. The court added that some of the medical conditions are serious and life threatening. Noting that 'sick' and 'infirm' are not defined under PMLA, the court relied upon the dictionary meaning of the words.

"He is functioning on 30% capacity of one kidney and the other kidney is dead. He requires constant monitoring otherwise his fluctuations can cause death. He has undergone multiple surgeries for removal of his large intestine, gall bladder, peptic ulcer, colostomy and even a hernia operation. He has a pacemaker installed due to his heart condition and is also suffering from Spondylitis and Vertigo. During his period in jail, the applicant contracted Syphilis on 27.10.2021 and Covid-19 on 17.01.2022," said the court.

Dealing with ED's argument on whether Garg suffered from a condition which could not be addressed from the jail, the court said there cannot be a squabble with the proposition that the accused is entitled to proper and adequate medical attention and assistance.

While prisons provide medical facilities, the services are not comparable to or equivalent to the level of treatment and care one can avail from private hospitals, said the court.

"The facilities in the jail are of a general nature and character which is inadequate to monitor proper health of the applicant who is suffering from multiple serious ailments. The jail is not equipped to provide special and intensive treatment and care that the applicant is in need of," it added.

The court further said that Garg's condition is such that he requires emergent medical assistance which could not be provided in jail in a prompt and efficient manner vis-à-à-vis hospital atmosphere.

"Syphilis is a bacterial infection which can remain inactive in the body for decades before becoming active again. If untreated, syphilis can severely damage the heart, brain or other organs, and can be life threatening. The risk of kidney failure is high and can be triggered by the slightest of infection. The applicant needs constant daily monitoring to check that the parameters of 30% kidney function do not collapse," the court said.

Rejecting the argument on the ailments being "historical" in nature, the court said ailments aggravate with age.

"I have already discussed that ailments which, coupled with old age brings the applicant within the purview of "Infirm Person". The level of care, attention, minute to minute monitoring, emergent response which the applicant can get from a hospital cannot be provided at the jail," said the court.

Title: DEVKI NANDAN GARG v. DIRECTORATE OF ENFORCEMENT

Citation: 2022 LiveLaw (Del) 952

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