Full Text
HIGH COURT OF DELHI
SANJAY JAIN (IN JC) ..... Petitioner
Through: Mr. Siddharth Aggarwal, Sr. Adv. with Mr. Madhav Khurana, Ms. Stuti Gujral, Ms. Trisha Mittal, Ms. Shaurya Singh, Mr. Faisal Zia Ahmed and Mr. Harsh Yadav, Advs.
Through: Mr. Zoheb Hossain, Spl. Counsel of ED, Mr. Vivek Gurnani, Mr. Baibhav and Mr. Hasnain Khawja, Advs.
JUDGMENT
1. The present petition has been filed through the wife/ pairokar of the petitioner seeking enlargement of the petitioner on regular bail in connection with ECIR No. DLZO-I/43/2021 dated 20.05.2021 in Ct. C. No. 17/2021 titled as Directorate of Enforcement v. Amarendra Dhari Singh &Ors., pending before the Court of Ld. Special Judge (PC Act CBI-23), Rouse Avenue Courts, New Delhi.
2. During the pendency of the regular bail, the wife of the petitioner has filed an affidavit dated 22.05.2023 praying for grant of interim bail to the petitioner on medical and humanitarian grounds for a period of 3 months alleging precarious health of the petitioner.
3. In the affidavit of the wife of the petitioner, it is stated that the petitioner is aged about 57 years and is suffering from various pre-existing ailments like hypertension, depression and anxiety, obstructive sleep apnea, hyperlipidemia, diabetes, damaged mitral valve prolapse and has a history of soft teeth. It is also stated that the health condition of the petitioner has further worsened in jail and he has not been able to get proper treatment. The relevant part of the affidavit reads as under:-
┌──────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. Diagnosis Medication Submissions │ │ Prescribed │ ├──────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. Hypertension Vyamada 50 Placed the Applicant at risk of │ │ for the last 25 mg twice/day stroke and/or heart attack. │ │ years Nebicard 5 mg │ │ once/day │ │ Stamlo 5 mg │ │ once/day │ │ Minipress XL │ │ 5 mg twice/day │ │ 2. Depression and Paroxetine The Applicant has a history of │ │ anxiety for the 40mg once/day suffering from panic attacks and │ │ last 17 years Etilam 0.25mg suicidal thoughts. │ │ at nightime │ │ Buspin │ │ twice/day S- │ │ Methiwave │ │ twice/day │ │ 3. Obstructive C-PAP Untreated/ unsupervised can │ │ sleep apnea for (Continuous lead to fatal consequences, such │ │ the last 1.5 Positive as coronary artery disease, heart │ │ years Airway attacks, heart failure, strokes, │ │ Pressure) multiple episodes. of arrhythmia │ │ machine and leading to sudden death. │ │ constant │ │ supervision by │ │ medical │ └──────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
4. Hyperlipidemia for the last 27 years Rosuvas 10mg once/day Places the Applicant at risk of stroke and/or heart attack, coronary heart disease.
5. Diabetes for the last 5 years Glyciphage 1000mg once/day Places the Applicant at risk of heart disease, kidney disease, nerve damage and other problems with feet, oral health, vision, hearing and mental health.
6. Damaged mitral valve prolapsed and history of soft teeth -- Requires any dental treatment to be carried out under antibiotics and in sterile conditions to ensure that no infection enters his blood stream/damages his heart. Furthermore, because the Applicant suffers from obstructive sleep apnea, any major surgery involving sedation (such as dental surgeries) can lead to severe breathing problems. a. He has been complaining of uneasiness in the chest, dizziness, shortness of breath, nausea, cold sweats and continuous pain radiating to his left shoulder for the last several weeks. He was taken to Safdarjung Hospital on 21.04.2023 by the jail authorities, where ECG/ECHO tests were performed by him. He was advised to undergo Coronary Angiography however the appointment for the same as scheduled by Safdarjung Hospital is only for November 2023. b. The Applicant experienced dizziness and extreme discomfort on 24.04.2023 for which he has was taken to the Emergency Ward of Deen Dayal Upadhyay Hospital [“DDU”] where an ECG test was performed on him, showing abnormalities/hypertrophy. On 05.05.2023, he was again taken to DDU Hospital and an ECG test was performed, which again revealed abnormalities/hypertrophy. While he has been prescribed certain medication (including blood thinners), there has been no improvement in his physical symptoms and the appointment for Coronary Angiography remains unchanged for November 2023 only. The Applicant has informed me that there isn‟t a resident cardiologist, heart specialist or a central cardiac unit posted in Tihar Jail for treatment of a heart attack in the event of an emergency.
4. In the backdrop of the health condition pleaded in the affidavit, it has been prayed therein as under:
20. I have heard the learned Senior Counsel for the petitioner, as well as, the learned special counsel for the Directorate of Enforcement and have also perused the record.
21. The short question to be decided at this stage is whether the petitioner, who is in custody, is entitled to interim bail on medical grounds.
22. Article 21 of the Constitution provides for protection of life and personal liberty. The said right cannot be curtailed "except according to procedure established by law". The liberty of a person who is accused or convicted of an offence can be curtailed according to procedure established by law. However, right to health is also recognized as an important facet of Article 21 of the Constitution. Merely because a person is an under trial or for that matter even a convict, lodged in jail, this facet of right to life cannot be curtailed. It remains an obligation of the state to provide adequate and effective medical treatment to every person lodged in jail, whether under trial or a convict.
23. The Hon’ble Supreme Court in Pt. Parmanand Katara vs. Union of India and Ors., (1989) 4 SCC 286, has also emphasized on preservation of life both of an innocent person or a criminal liable to 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.”….
24. Again, the Hon’ble Supreme Court in Re-inhuman Conditions In 1382 Prisons, (2017) 10 SCC 658, in no uncertain terms has articulated that medical assistance to all is a human right to which prisoners are also entitled to. The material part of the decision reads as under:- “….34. Adverting to the Nelson Mandela Rules, the learned Attorney General also expressed the view that the State Governments have several development priorities and while they will certainly look after the interests of prisoners, there are other issues that might require greater attention and greater financial commitment. While this may be so, we are clearly of the view that Article 21 of the Constitution cannot be put on the back-burner and as mentioned in the Mandela Rules even prisoners are entitled to live a life of dignity. Therefore, no State Government can shirk its duties and responsibilities for providing better facilities to prisoners. If a State Government is unable to do so, it should be far more circumspect in arresting and detaining persons, particularly undertrial prisoners who constitute the vast majority of those in judicial custody. The State Governments and the prosecution do not have to oppose every bail application nor do they have to ask for the remand of every suspect pending investigation. If the fundamental right to life and liberty postulated by Article 21 of the Constitution is to be given its true meaning, the Central Government and the State Governments must accept reality and not proceed on the basis that prisoners can be treated as chattel. xxxx xxxx xxxx xxxx xxxx
58.8. Providing medical assistance and facilities to inmates in prisons needs no reaffirmation. The right to health is undoubtedly a human right and all State Governments should concentrate on making this a reality for all, including prisoners. The experiences in Karnataka, West Bengal and Delhi to the effect that medical facilities in prisons do not meet minimum standards of care is an indication that the human right to health is not given adequate importance in prisons and that may also be one of the causes of unnatural deaths in prisons. The State Governments are directed to study the availability of medical assistance to prisoners and take remedial steps wherever necessary.”….
25. For deciding the short question at hand, at this stage it will be apt to advert to the provision of Section 45(1) of the Prevention of Money Laundering Act, 2005, the first proviso of which provides for grant of bail on medical grounds. Section 45(1) of the Act reads as under:-
26. A Co-ordinate Bench of this Court in Kewal Krishan Kumar V. Enforcement Directorate, 2023 SCC OnLine Del 1547, referring to the relevant clauses of the Finance Bill introduced on 1st February, 2018 for amending Section 45 of the PMLA, observed that a purposive interpretation of the proviso to section 45(1) shows that it has been incorporated as a lenient provision or to afford „relaxation‟ to a sick or infirm person as noted in the Statement of Objects and Reasons to PMLA.
27. Thus, by way of first proviso to sub-section (1) of Section 45 of PMLA, the legislature has carved out an exception which empowers the special Court to grant bail on humanitarian grounds to a person who is under the age of sixteen years or is a woman or is sick or infirm, without insisting upon strict compliance of twin conditions, namely, (i) there are reasonable grounds for believing that accused is not guilty of offence of moneylaundering and (ii) he is not likely to commit any offence while on bail.
28. The reliance placed by the learned Special Counsel for the Directorate of Enforcement on the decision in Athar Parvez (supra) to contend that the twin conditions under Section 45 of the PMLA will apply even in cases where the accused seeks interim bail on medical grounds, is misplaced. The decision in Athar Parvez (supra) was rendered in the context of the provisions of Section 37 of the NDPS Act and in the said Section there is no proviso pari materia to the first proviso to sub-section (1) of Section 45 of the PMLA carving out an exception to the strict compliance of identical twin conditions incorporated in Section 37.
29. The power to grant bail on medical grounds under the first proviso to Section 45(1) of the Act is discretionary, therefore, the same has to be exercised in a judicious manner guided by principles of law after recording satisfaction that necessary circumstances exist warranting exercise of such a discretion.
30. In Pawan Alias Tamatar (supra), the High Court had granted bail to the accused merely on the pretext on the allegations of ailment were not specifically denied. The Hon’ble Supreme Court while setting aside of the order of the High Court observed that the ailment of the accused was not of such a nature requiring him to be released on bail. It was further observed that the accused can always apply to the Jail authorities to see that he gets the required treatment.
31. Clearly, it is not every ailment that entitles an accused for grant of bail on medical grounds. The expression used in the first proviso to Section 45 of PMLA is that a person can be released on bail if he is “sick” or “infirm”.
32. In Kewal Krishan Kumar(supra) this Court laid down following guiding principle as to the level of sickness that will entitle a person to bail under proviso to section 45(1):- “Though no straight jacket formula can be laid down as to what is the level of sickness that a person is to suffer to entitle him to bail under section 45(1) proviso, the thumb rule is that the sickness should be so serious that it is life threatening and the treatment is so specialized that it cannot be provided in the jail hospital. However, this is not an exhaustive parameter and each case will depend on its own peculiar facts and circumstances.”
33. It was further observed in Kewal Krishan Kumar(supra) that for granting bail on the ground of infirmity, it must consist of a disability which incapacitates a person to perform ordinary routine activities on a day-to-day basis. The material part of the decision reads as under:- “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.”
34. In Vijay Aggarwal through Parokar (supra) a Co-ordinate Bench of this Court while granting interim bail on medical grounds in a case under PMLA, observed that the discretion for granting interim bail on medical ground may not be exercised only at a stage when the person is breathing last or is on the position that he may not survive.
35. Plainly, the health of the petitioner has to be given primacy and it is his fundamental right to be given adequate and effective treatment whilst in jail. However, in case specialized or sustained treatment and care is necessary, having regard to the petitioner’s medical condition which is not possible whilst in jail, then the petitioner will be entitled to the benefit of interim bail in terms of the first proviso to Section 45(1) of the PMLA.
36. A perusal of the medical report submitted by the jail authorities, as well as the medical record placed on record, shows that the petitioner is suffering from various medical conditions for which he has been taken to different Government Hospitals for treatment multiple times. Diagnostic procedures like CT Coronary Angiography for cardiac ailments and MRI LS spine have also been prescribed by Safdarjung Hospital and G.B. Pant Hospital, respectively, but the appointment scheduled for CT Coronary Angiography at Safdarjung Hospital is 11.11.2023. Similarly, the MRI LS Spine of the petitioner is scheduled on 29.07.2024 at GB Pant Hospital. The appointments for the diagnostic procedures are scheduled almost after five months to one year, which itself shows that the Government Hospitals are overburdened and not in a position to address the medical issues being faced by the petitioner whilst in jail, particularly on priority they deserve.
37. However, there is no expert opinion on record suggesting as to how urgent is the need for the petitioner to undergo the CT Coronary angiography for his cardiac ailment and MRI LS spine and whether on account of delay in the said diagnostic procedures and consequent delay in treatment, the life of the petitioner could be at risk.
38. In view of the legal position discussed above, an opinion of experts is also required as to whether any ailment of the petitioner or all the ailments taken together, warrant specialized or more sustained treatment and care, which is not possible in jail.
39. In the absence of an opinion of the experts it is difficult for this Court to come to the conclusion as to whether it is a case for grant of interim bail on the medical grounds. The Court cannot assume the role of an expert and make assessment of its own as regard the medical condition of the petitioner on the basis of medical records placed on the Court file.
40. At the same time, on humanitarian grounds, the medical condition of the petitioner as articulated in the affidavit of petitioner’s wife cannot be simply brushed aside given the fact that there is material on record suggesting that the petitioner is heart patient, as well as having spine related issues, besides other ailments.
41. In the circumstances, this Court deems it appropriate, to constitute a medical board to evaluate the medical condition of the petitioner. It is accordingly, directed as under:
(i) The Director, All India Institute of Medical Sciences (AIIMS) is directed to immediately constitute a Medical Board of Doctors from minimum three different specialties having regard to the nature of ailments the petitioner is stated to be suffering from, for evaluating the medical condition of the petitioner.
(ii) The Jail Superintendent is directed to furnish all medical records of the petitioner to the Medical Board of Doctors so constituted on or before 07.06.2023. The wife/pairokar of the petitioner is also at liberty to furnish the relevant medical records of the petitioner, as may be available with her, to the Board, with a copy thereof to the learned Special Counsel for the Directorate of Enforcement.
(iii) The Jail Superintendent shall also ensure that the petitioner is presented before the Medical Board on 07.06.2023 at the time and place indicated by the Board.
(iv) Upon evaluation of medical records and examination of the petitioner, the Medical Board shall furnish its report to this Court, on or before 10.06.2023.
(v) The report must, inter alia, indicate specifically – (a) as to how urgent is the need for the petitioner to undergo the CT Coronary Angiography for cardiac problem and MRI LS spine for spine related issues or any other diagnostic tests/procedures for the medical conditions he is suffering from.; (b) whether on account of delay in the said diagnostic procedures and consequent delay in treatment, the life of the petitioner could be said to be at any kind of risk; (c) whether any single ailment of the petitioner or all the ailments taken together, warrant specialized or more sustained treatment and personal care, which cannot be provided in jail.
42. A copy of this order be forwarded through the pairokar of the petitioner to the Director, AIIMS, who shall ensure compliance of this order. A copy of this order be also sent to the Jail Superintendent for necessary compliance.
43. Order dasti under the signatures of the Court Master
44. List on 12.06.2023.
45. Order be uploaded on the website of this court.
VIKAS MAHAJAN, J JUNE 05, 2023 N.S. ASWAL