Sameer Mahandru v. Directorate of Enforcement

the Applicant is complete but no chargesheet has been filed yet. The Applicant was released on interim bail for a period of one month and after expiry of the same, he surrendered and there is no allegation of misuse of liberty by him while on bail.

60. In view of the above observations, the Applicant is entitled to grant of bail.” b. The Punjab and Haryana High Court in Pranjil Batra v. Directorate of Enforcement, CRM-M-23705-2022 (O&M) vide order dated 4th November 2022, granted bail to the accused having multiple ailments and requirement of monitoring, care, and attention which ordinarily is not available in the jail. The court held that:

12. The learned senior counsel for the petitioner submitted that the petitioner has been granted interim bail on medical grounds by the Trial Court vide orders dated 28th February 2023, and 18th April 2023 after being satisfied of the twin conditions of Section 45(1) PMLA and upon consideration of the petitioner‟s medical condition, putting him under the category of “sick or infirm” as per the provision.

13. It is further submitted that the petitioner has never misused the liberty granted to him by the Trial Court and has complied with all the conditions imposed by the Ld. Trial Court while releasing him on interim bail.

14. Further, it is submitted that the petitioner has clean antecedents and would not flee from justice, and is willing to abide by all the orders and directions passed by this Court.

15. Learned senior counsel for the petitioner finally submitted that petitioner/ applicant is suffering from life-threatening diseases and therefore, he requires immediate and best medical treatment.

16. It is further submitted that a medical board was constituted at AIIMS for medical examination of the petitioner vide order of the Coordinate Bench of this Court dated 29th May 2023. The medical report dated 3rd June 2023 stated that, “Mr. Sameer Mahendru‟s condition is stable and he has made considerable progress from his last assessment at AIIMS.” It is submitted that although the condition of the petitioner has been termed as „stable‟ by the medical board, still it does not mean that the diseases suffered by the petitioner are not life-threatening in nature.

17. It is further submitted that the co-accused in the case, P. Sarathi Chandra Reddy, has been granted regular bail by Coordinate Bench of this Court vide judgment titled P. Sarath Chandra Reddy v. Directorate of Enforcement, Bail Application 1266/2023 dated 8th May 2023 on medical grounds. The Coordinate Bench of this Court, while granting bail to P. Sarathi Chandra Reddy held as under:

18. It is submitted that the said judgment of grant of regular bail to P. Sarathi Chandra Reddy has attained finality and has not been challenged by the respondent.

19. It has been further submitted by the learned senior counsel that the health condition of the petitioner is far more severe and worse off than the co-accused (P. Sarath Chandra Reddy) and his case is clearly severe than that of the co-accused.

20. Hence, in view of the foregoing discussion it is submitted that the petitioner is entitled to interim bail on medical grounds. On behalf of the respondent

21. Per Contra, Mr. Zoheb Hossain, learned counsel for the Enforcement Directorate has submitted that as per the proviso to Section 45(1) PMLA, it is the discretion of the court to grant bail to persons falling under the categories as mentioned therein. The discretion is to be exercised based on the facts and circumstances of each and every case. The learned counsel submitted that the sickness contemplated by the proviso to Section 45 of the PMLA can only be a sickness that involves a risk or danger to the life of the accused person and it is submitted that the facts of the present case do not warrant this discretionary relief.

22. The counsel relies on the medical report dated 3rd June 2023, submitted by the medical board constituted at AIIMS in pursuance of the direction given by this Court vide order dated 29th May 2023, the relevant portion of which is reproduced as under: “At the point of current assessment, Mr. Sameer Mahandru‟s condition is stable. He has made considerable progress from his last assessment at AIIMS (done on 26th May 2023) and his pain has decreased significantly. He has chronic backache for many years, for which he is already under treatment.”

23. It is submitted that as per the report, the condition of the petitioner was found to be stable and that his pain had decreased significantly. It is further submitted that if the disease of the person is life-threatening but his condition is found to be stable, he should not entitled to be enlarged on medical bail.

24. The learned counsel for strengthening his arguments has placed reliance on the following judgments: i. Asha Ram v. State of Rajasthan, SLP (Crl) 6202/2016 whereby the Hon‟ble Supreme Court refused to grant bail to the petitioner on the basis of stability of medical condition and observed as under:

concession of bail on medical grounds." ii. A Coordinate Bench of this Court in Surjeet vs. State (Govt. of NCT of Delhi), 2021 SCC OnLine Del 228, observed that when the condition of an accused is stable and can be properly managed by the medication then interim bail on medical grounds need not be granted. The court observed as under:

25. The learned counsel for the respondent submitted that the petitioner has not been cooperative during the investigation and has been evasive in his statements on the grounds of which he was arrested on 28th September

2022. Further, he tried to hide the relevant information from ED which is incriminating in nature. The petitioner has tried to derail the investigation by first giving a statement under Section 50 of PMLA and then filing an application before Special PMLA Court stating that the facts were untrue, substituted and without specific references. Moreover, the petitioner has used/destroyed his mobile phones 4 times in the last 5 months of the Delhi Liquor Scam indicating the destruction of evidence.

26. It has been further submitted that the application by the petitioner for an extension of interim bail on medical grounds was dismissed by the Coordinate Bench of this Court on 27th April 2023.

27. Learned counsel for the respondent contended that Section 45 of the PMLA is a mandatory provision and cannot be dispensed with in the present case. He drew the attention of this Court towards the landmark judgment of Vijay Madanlal Choudhary v. Union of India, 2022 SCC OnLine SC 929 wherein the Hon‟ble Supreme Court upheld the provisions of PMLA stating that the object of the Act is to punish the offender proportionately and to create a deterrent effect. The Court held as under: “Thus, it is well settled by the various decisions of this Court and policy of the State as also the view of international community that the offence of moneylaundering is committed by an individual with a deliberate design with the motive to enhance his gains, disregarding the interests of nation and society as a whole and which by no stretch of imagination can be termed as offence of trivial nature. Thus, it is in the interest of the State that law enforcement agencies should be provided with a proportionate effective mechanism so as to deal with these types of offences as the wealth of the nation is to be safeguarded from these dreaded criminals. As discussed above, the conspiracy of money-laundering, which is a three-staged process, is hatched in secrecy and executed in darkness, thus, it becomes imperative for the State to frame such a stringent law, which not only punishes the offender proportionately, but also helps in preventing the offence and creating a deterrent effect.

130. In the case of the 2002 Act, the Parliament had no reservation to reckon the offence of moneylaundering as a serious threat to the financial systems of our country, including to its sovereignty and integrity. Therefore, the observations and in particular in paragraph 47 of Nikesh Tarachand Shah, are in the nature of doubting the perception of the Parliament in that regard, which is beyond the scope of judicial review. That cannot be the basis to declare the law manifestly arbitrary.”

28. Learned counsel for the respondent finally submitted that the petitioner is involved in a heinous crime and has not satisfied the twin conditions enumerated in Section 45(1) of the PMLA and therefore, in the instant application interim bail may not be granted to him.

29. The learned senior counsel appearing on the behalf of the petitioner in his rejoinder vehemently opposed the arguments of the respondent submitting that the respondent/ ED has not been taking a consistent stand in opposing the bail applications of the other accused persons who have been involved in similar offences under Sections 3 and 4 of the PMLA in the same case. In the case of the co-accused, P. Sarathi Chandra Reddy, he has been granted regular bail by Coordinate Bench of this Court which remains unchallenged by the ED and hence, has also attained finality, However, in the instant case, the ED has placed his strong objections despite the medical condition being severe.

ANALYSIS AND FINDINGS

30. Heard the learned counsel for parties and perused the record.

31. The point before adjudication of this court is whether the petitioner is entitled to interim bail as being “sick or infirm” in terms of the proviso to Section 45(1) of the PMLA.

32. For proper adjudication of the matter, it is appropriate to reproduce Section 45(1) of PMLA which reads as under: “Section 45. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release; and

(ii) where the Public Prosecutor opposes the application, the court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail: Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm, 3[or is accused either on his own or along with other co-accused of moneylaundering a sum of less than one crore rupees] may be released on bail, if the Special Court so directs:...”

33. To appreciate the legislative intent of the Section 45(1) of the PMLA a reference can be made to Devaki Nandan v. Directorate of Enforcement, (Supra) whereby relaxations were given for a certain class of people in the rigors of PMLA provisions and it was observed that the stringent twin conditions of bail need not be satisfied if the person seeking bail falls in those relaxations or exceptions. The Coordinate Bench of this Court held that:

35. Thus, the proviso to Section 45(1) of the 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 case [Gautam Kundu v. Directorate of Enforcement(2015) 16 SCC 1: (2016) 3 SCC (Cri) 603].”

34. Proviso to Section 45(1) is analogous to Section 437 of the Cr.P.C. and the intent of Section 437 of the Cr.P.C. as a welfare legislation can be imputed to Section 45(1) of the PMLA. The Hon‟ble Supreme Court in Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51 stated the relevance and purpose of the proviso containing bail provision and relaxation for certain classes. The Hon‟ble Court held that: “Section 437 of the Code empowers the Magistrate to deal with all the offenses while considering an application for bail with the exception of an offense punishable either with life imprisonment or death triable exclusively by the Court of Sessions. The first proviso facilitates a court to conditionally release on bail an accused if he is under the age of 16 years or is a woman or is sick or infirm, as discussed earlier. This being a welfare legislation, though introduced by way of a proviso, has to be applied while considering release on bail either by the Court of Sessions or the High Court, as the case may be. The power under Section 439 of the Code is exercised against an order rejecting an application for bail and against an offence exclusively decided by the Court of Sessions. There cannot be a divided application of proviso to Section 437, while exercising the power under Section

439. While dealing with a welfare legislation, a purposive interpretation giving the benefit to the needy person being the intendment is the role required to be played by the court. We do not wish to state that this proviso has to be considered favourably in all cases as the application depends upon the facts and circumstances contained therein. What is required is the consideration per se by the court of this proviso among other factors.”

35. This Court in Kewal Krishna Kumar v. Enforcement Directorate, Neutral Citation No-2023:DHC:1925 interpreted the term “sickness” or “infirmity” for the grant of interim bail on medical grounds. The Coordinate Bench of this Court observed that: “25. I am of the opinion that when the sickness or infirmity is of such a nature that it is 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) PMLA.”

36. The Bombay High Court in Mahendra Manilal Shah v. Rashmikant Mansukhlal Shah, 2009 SCC OnLine Bom 2095 held that the nature of the sickness needs to be seen as to whether the accused can be treated in the government hospitals and custody. The relevant portion of the judgment is reproduced hereunder: “47....(1) Pawan alias Tamatar v. Ramprakash Pandey ((2002) 9 SCC 166: AIR 2002 SC 2224) (supra). In this case the Hon'ble Supreme Court has set aside the order of the Allahabad High Court granting bail to the accused inter alia on the ground that the allegation of ailment of the applicant is not specifically denied. The Hon'ble Supreme Court was of the view that the ailment of the accused was not of such a nature as to require him to be released on bail. It was observed that the accused can always apply to the jail authorities to see that he gets the required treatment. It was observed that in the application, the applicant had not stated that he still needs medical treatment or that he has not received proper medical treatment from the jail authorities.......

50. As observed in the various judgments cited above, mere admission of an accused to a hospital for medical treatment does not entitle an accused to obtain bail under the proviso to Section 437(1) Cr. P.C. In fact as observed earlier the said proviso cannot be resorted to in all cases of sickness. The Court must assess the nature of sickness and whether the sickness can be treated whilst in the custody or in government hospitals. The Court should also be satisfied that a case is made out by the Respondent Accused by himself or through the doctors attending to him that the treatment required to be administered to the Respondent Accused, considering the nature of his ailment cannot be adequately or efficiently be administrated in the hospital in which he is at present and that he needs a better equipped or a speciality hospital....”

37. A cumulative consideration of the legislative intent of the PMLA, and the precedents indicates that the proviso to Section 45(1) is a relaxation to the sick or infirm persons provided that the sickness or infirmity is so grave that it is life-threatening and cannot be treated by jail hospitals.

38. Vijay Agrawal Through Parokar v. Directorate of Enforcement, (Supra) requires attention in this scenario as the Coordinate Bench of this Court, in this case, linked the bail to “sick or infirm” with the fundamental right to live with dignity under Article 21 of the Constitution of India and held that the discretionary power of the court in granting bail in the offences of PMLA should not only be exercised at the last breathing stage but also when adequate treatment is warranted for the accused person with ailments. The Court held that:

39. In the present case, the medical report dated 3rd June 2023 stated as under: “At the point of current assessment, Mr. Sameer Mahandru‟s condition is stable. He has made considerable progress from his last assessment at AIIMS (done on 26th May 2023) and his pain has decreased significantly. He has chronic backache for many years, for which he is already under treatment.”

40. In order to analyze the findings of the medical report, it is important to refer back to Kewal Krishna Kumar (Supra) where the Coordinate Bench of this Court has held that:

41. Though the medical report indicates that the condition of the petitioner is stable at the date of assessment and he is making progress, he is still eligible to be categorized under the term “sick” enumerated under proviso to Section 45(1) of PMLA due to the life-threatening nature of the diseases with likelihood of causing irreversible injury to the petitioner.

42. It is pertinent to note that the petitioner also falls under the term “infirm” as according to the interpretation of the Coordinate Bench of this Court in Kewal Krishna Kumar (supra) observing that infirmity takes place if the person is incapacitated in performing ordinary routine activities on a day-to-day basis. The medical note submitted on behalf of the petitioner, to this effect, explicitly states that: “Discectomy with spinal instrumentation and stabilization surgery took place on 8th May 2023 and in the surgery 4 titanium pedicle screws held together by 2 titanium rods have been inserted in his spinal vertebrae for which he has been advised:

1. Bed rest for 2 months.

2. Post operative rehabilitation protocol including physiotherapy under expert in house physiotherapy team and muscle rehabilitation program.

3. Limited ambulation

4. Avoid forward bending, prolonged sitting, twisting, lifting of any weight.

5. Petitioner may require extended period of physiotherapy and assisted care to prevent the weakened muscles around spine, prevent increased risk of re-injury, spinal stability and formation of scar tissue reducing range of motion and return of symptoms.”

43. Hence, the fact that the petitioner is unable to sit, bend forward, and not even able to lift any weight suggests the infirmity on the part of the petitioner to carry out day-to-day routine activities and non-following the advice and the specialized treatment may lead to neurological damage to the petitioner.

44. The conduct of the petitioner also warrants attention in the present scenario as the Coordinate Bench of this Court in Kewal Krishna Kumar (supra) held that: “58. Once the Applicant falls in the exception clause of section 45(1) proviso, as in the present case by virtue being „infirm‟, the Applicant need not satisfy the twin test of section 45(1) PMLA. However, the Applicant needs to satisfy the triple test under Section 437/439 CrPC: i. Flight risk. ii. Influencing any witness. iii. Tampering with evidence.”

45. The petitioner has been granted interim bail on medical grounds by the Ld. Trial Court on two occasions, 28th February 2023, and 18th April 2023 and there is nothing on record or in the submissions of learned counsel for the parties to show that the liberty granted to the petitioner has been misused by him or the opportunity has been exploited by him nor there are any allegations of influence exerted on any witness or tampering of evidence by the petitioner during his previous interim bails on medical grounds. Further, there is nothing brought on the record to show that the petitioner is a flight risk as well.

46. It is pertinent to note that the co-accused in the present case, Mr.

47. This Court is cognizant that as per the precedents of Neeru Yadav v. State of U.P., (2014) 16 SCC 508 and Sunder Lal v. State, 1983 Crl. J 736, that parity between the accused persons cannot become the sole criteria to grant bail and if the bail is granted to similarly placed coaccused persons without assigning any reasons then based on such bail orders merely on the ground of parity, the bail application should not be allowed. Parity can only be persuasive and cannot be binding but the medical condition of the petitioner, coupled with the unblemished conduct and the grant of regular bail to the co-accused are reasons that are sufficient enough for this Court to grant interim bail to the petitioner for receiving specialized treatment.

48. A status report has also been filed by ED verifying the medical documents filed along with the petition to be genuine and correct. The same was brought on record before the court on 24th April 2023 and again considered on 5th May 2023.

49. The main ground for the opposition for grant of interim bail was the report of the medical board holding the condition of the petitioner to be „stable‟ but this Court is of the view that mere stability in the present condition is not reflective of the life-threatening disease that the petitioner is suffering from which warrants immediate and best medical treatment.

CONCLUSION

50. Health condition of a human being deserves utmost importance and right to health is one of the most significant dimensions of Article 21 of the Constitution of India. Every person has a right to get himself adequately and effectively treated. The exercise of discretion of the grant of bail is not to be exercised only as a last resort rather freedom is a cherished fundamental right.

51. Hence, in view of the health conditions of the petitioner, the medical records being furnished on behalf of the petitioner and the same being verified by the ED as authentic, the non-denial of the condition of the petitioner which is worse than the co-accused who has been granted regular bail, and on the perusal of all other precedents this Court finds that the petitioner is suffering from life-threatening diseases warranting immediate medical attention and post-operative care. This Court is of the opinion in view of the aforesaid discussion, the petitioner‟s case satisfies the test of the proviso to Section 45(1) of the PMLA.

52. This Court has also appreciated the other factors as required to be considered while granting bail to an accused. It is evident that there is nothing on record to show that the liberty granted to the petitioner has been misused by him during his previous interim bails and neither has he been found to be an absconder.

53. In view of the entirety of the matter, the petitioner is admitted to interim bail for a period of six weeks on his furnishing a personal bond in the sum of Rs.10,00,000/- (Rupees Ten Lakhs Only) with two sureties of the like amount to the satisfaction of the Trial Court concerned, subject to the following conditions:

(i) That the petitioner shall not leave the limits of the hospital and his house, and under no circumstances, he shall leave the country;

(ii) That he shall keep his mobile phone and its live location on at all the times and he will share the mobile number, including updated, if any, and the live location with the IO;

(iii) That he shall not destroy or tamper with the evidence of this case and shall not influence any witness of the case, and shall not make any attempts to contact any co-accused;

(iv) That he shall not indulge in any criminal activities or commission of any offence of whatsoever nature and he shall not abuse the interim bail granted to him for any purposes;

(v) That he shall mark his presence at the local police station every

(vi) That he shall surrender before the Trial Court by 5 pm on 25th July 2023.

54. The petitioner shall be released from jail forthwith and after the expiry of the interim bail period, he shall surrender before the Trial Court concerned before or at 5 pm on 25th July 2023.

55. Copy of this order be sent to the Jail Superintendent/Trial Court for compliance.

56. It is also made clear that this Court has not gone into the merits of the case and no expression made herein shall tantamount to be an expression on the merits of the case.

57. In the terms as aforesaid, the application is disposed of.

58. The order be uploaded on the website forthwith. BAIL APPLN. 1343/2023 List on 17th July, 2023 i.e., date already fixed.

CHANDRA DHARI SINGH (VACATION JUDGE) JUNE 12, 2023 SV/MS/@K