Bombay High Court
Anil Shivajirao Bhosale vs Directorate Of Enforcement on 24 January, 2025
Author: Madhav J. Jamdar
Bench: Madhav J. Jamdar
2025:BHC-AS:3628 21-BA-4843-2024.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally
CRIMINAL BAIL APPLICATION NO.4843 OF 2024
signed by
SONALI
SONALI MILIND
MILIND PATIL
PATIL Date:
2025.01.24 Anil Shivajirao Bhosale ...Applicant
23:20:24
+0530 Versus
Directorate of Enforcement ...Respondent
Mr. Niranjan Mundargi a/w. Ms. Keral Mehta, Mr. Chandansingh
Shekawat, Advocates, i/b. Parinam Law Associates, for the
Applicant.
Mr. Hiten Venegavkar, P.P. a/w. Ms. Diksha Ramnani, for the
Respondent-ED.
CORAM: MADHAV J. JAMDAR, J.
DATED : 24th JANUARY 2025
JUDGMENT:
1. Heard Mr. Mundargi, learned Counsel along with Ms. Keral
Mehta, learned Counsel appearing for the Applicant and Mr.
Venegavkar, learned P.P. appearing for the Respondent-ED.
2. This regular Bail Application is preferred under Section 439
of the Code of Criminal Procedure, 1973 (“CrPC“) r/w. Section 45
and Section 65 of the Prevention of Money Laundering Act, 2002
(“PMLA”) in ECIR/MBZO-II/20/2020 lodged by Respondent – ED.
The relevant details are as follows:
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1. ECIR No. ECIR/MBZO-II/
20/2020
C.R./F.I.R. Number C. R. No. 0026/2020
(Scheduled Offence)
2. Date of Registration of ECIR 16.03.2021
Date of Registration of C.R./F.I.R. 08.01.2020
(Scheduled Offence)
3. Prosecuting Agency
ECIR Enforcement
Directorate
Scheduled Offences Shivaji Nagar Police
Station, Pune
4. Sections invoked (ECIR) Section 3 r/w. 70 of
the Prevention of
Money Laundering
Act, 2002
Scheduled offences Sections 420 r/w. 34,
406, 408, 409, 465,
468 & 471 of the
Indian Penal Code,
1860
5. Date of arrest of the Applicant in 25.02.2020
Scheduled Offence
Date of arrest in ECIR 05.03.2021
6. Date of filing of Charge-sheet in Charge-sheet bearing
Scheduled Offence No. 32/2020 dated
18th May 2020
ECIR Complaint April 2021
7. Status of Bail Application in Scheduled Offence –
scheduled offence Bail granted on 19th
August 2024 by this
Court in B. A. No.
653 of 2023
8. Main grounds for seeking bail The Applicant has
undergone 3 years 10
months in ECIR i. e.
more than half of the
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punishment. The
maximum
punishment which
can be awarded is 7
years.
The Applicant is in
custody for more
than 4 years and 11
months.
3. Respondent – the Directorate of Enforcement (“ED”) by
filing affidavit-in-reply of Mr. Venkata Naren Garapaty, Assistant
Director, Zonal Office-II, Mumbai, Directorate of Enforcement,
Ministry of Finance, Department of Revenue, Government of India
dated 03.01.2025 opposed the Bail Application. In the said
affidavit, the prosecution case is set out in Paragraph Nos.6, 7 and
11 which read as under:
“6. BRIEF FACTS OF THE CASE
6.1. That, On January 8, 2020, the Shivajinagar Police
Station, Pune registered FIR No. 0026/2020 based on
a complaint filed by Mr. Yogesh Rajgopa Lakde,
Chartered Accountant (Partner ot Mis Torvi Pethe &
Co.) against Mr. Anil Shivaji Rao Bhosale, Mr. Suryaji
Pandurang Jadhav, Mr. Tanaji Dattu Padwal, Mr.
Shailesh Sampatrao Bhosale, Mr. Vishnu Tukaram
Jagtap, Mr. Hanuman Babanrao Sorte, and others,
invoking 420, 34, 406, 408, 409, 468, and 471 of the
IPC, 1860.
6.2. That as the case was further transferred to
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21-BA-4843-2024.DOCEconomic Offence Wing, the Economic Offence Wing.
Pune filed charge-sheet No. 32/2020 on 18.05.2020,
before the Hon’ble Additional Sessions Judge, Special
M.P.I.D Court, Pune against Mr Anil Shivajirao
Bhosale, Mr Suryaji Pandurang Jadhav, Mr Tanaji
Dattu Padwal, Mr Shailesh S. Bhosale and others for
constituting the offences punishable under Sections
34, 406, 408, 409, 420, 468 and 471 of IPC, 1860
read with Section 3, 4 & 5 of MPID Act Further during
course of investigation, Economic Offence Wing filed
Supplementary Chargesheet and the details of the
various charge sheets and the accused individuals are
annexed herewith as “EXHIBIT В”.
6.3. That, based on the FIR no. 0026/2020 and the
chargesheets mentioned in the Table above filed by
the EOW, this Enforcement Directorate recorded an
Enforcement case Information Report (ECIR) bearing
No. ECIR/MBZO-II/03/2020 dated 16.03.2020 against
Shri Anil Shivajirao Bhosale, the Chairman of
Shivajirao Bhosale Sahakari Bank, Shri Suryaji
Pandurang Jadhav, one of the directors of the bank,
Shri Tanaji Dattu Padwal, Shailesh Sampatrao Bhosale
and 12 others in the case of Shivajirao Bhosale
Sahakari Bank to investigate the offence of Money
Laundering under the prevention of Money
Laundering Act, 2002 to the tune of Rs. 494 crores
(approx.)
6.4. That, the said accused persons were arrested with
respect to the case under PMLA and released on bail
by the Hon’ble High court on these respective dates:
Name of Accused Date Of Arrest Bail Granted On
Suryaji Pandurang 06.03.2021 19.09.24
Jadhav
Shailesh Bhosale 06.03.2021 06.09.24
Tanaji Dattu Padwal 06.03.2021 14.10.24
7. ROLE OF THE APPLICANT
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7.1. Mr. Anil S Bhosale was the chairman and
promoter of Shivajirao Bhosale Sahakari Bank Limited.
Shivajirao Bhosale Sahakari Bank Limited (SBSBL) is a
family-oriented bank which Mr. Anil S Bhosale
inherited from his father. He had the sole authority to
take decisions and dictate terms to staff and Board of
Directors.
7.2. On the instructions of Mr. Anil S Bhosale, Rs
27,13,70,000/- in cash were withdrawn from 24
Nationalized and Co-operative banks where the
account of Shivajirao Bhosale Sahakari Bank Limited
was maintained. Out of the said Rs 27.13 Crores, Rs
23.89 Crore was withdrawn by Anil Bhosale. The
remaining amount was available with SBSBL
7.3. Further, Mr. Anil S Bhosale withdrawn Rs 168.74
Lakhs in cash from Deccan Gymkhana branch of
SBSBL. However, Rs 98.99 Lacs were paid back by Mr.
Anil S Bhosale. In total, net cash of Rs 69.75 Lacs was
withdrawn from Deccan Gymkhana Branch on the
instructions of Mr. Anil S Bhosale.
7.4. It is observed that RTGS transfers of Rs 2.75 Crore
were made from Head Office of SBSBL on the
instructions of Mr. Anil S Bhosale.
7.5. In total, 67 cheques of Rs 5,82,90,175/- on
various dates during the period from 17.05.2017 to
11.04.2019 are paid on behalf of Anil Bhosale for his
personal expenditure from Deccan Branch.
7.6. The said cheques were issued from the accounts
No. 012001000000001 maintained with Deccan
Gymkhana Branch of the bank to Prerna Cooperative
Bank and Sarswat Cooperative Bank for repayment of
loan dues. Even though there was insufficient balance
in the said account, still the amount was used to be
transferred to the other bank.
7.7. It was observed that, later all said cheques were
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paid by head office from its own funds (i.e. from
depositor’s fund) on behalf of Anil Bhosale. The
Cashier and branch manager of Deccan Gymkhana
Branch made bogus entries in books of accounts of
Deccan Gymkhana branch of the bank. The total
amount in respect of 67 cheques of Rs 5,82,90,175/-
has been added to the FORCED loan account
created/opened in the name of Anil S. Bhosale by the
bank.
7.8. The transactions show manipulation of accounts
by paying money for dishonoured cheques, which can
be seen from the flow of funds from the Prosecution
Complaint as well. The list of transactions showing the
utilization of POC is marked and annexed herewith as
on Page No. 398 of the Prosecution Complaint.
7.9. Mr Anil Shivajirao Bhosale and Mr Suryaji
Pandurang Jadhav devised a well-planned conspiracy
to standardize the NPA accounts in Shivajirao Bhosale
Sahakari Bank Limited for which they got opened
savings accounts in the name of their known person
Mr Amar Shrirang Jadhav and his wife Mrs. Aruna
Amar Jadhav.
7.10. The account was used for making repayments in
97 NPA accounts in the Bank by granting cheque
discounting facility even though the cheques
submitted to bank got returned from the issuer bank
i.e. Bajirao Appa Sahakari Bank Limited, Sangli, due
to insufficient funds. Since amount of Cheque
discounting was transferred to different loan accounts,
position of overdue & NPA accounts were affected on
31.03.17
7.11. The cheque discounting facility was granted in
gross violation of the rules & regulations of RBI and
banking operating system since a cooperative bank is
not authorized to grant cheque discounting facility.
Later, the cheque discounting facility was treated as
loan extended to Mr Amar Jadhav and Mrs. Aruna
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Jadhav, by the bank itself. The amounts transferred to
Interest and Loan accounts on 31st March 2017 were
reversed on 31st March 2019. It is clear that the
intention of SBSBL was to reduce NPA position also to
mislead to the depositors of the bank and to increase
profit as on 31st March 2017
7.12. Commission income of Rs 31.90 Lacs from the
account of Amar Jadhav and Rs 24.81 Lacs from
Aruna Amar Jadhav is taken to income General
Ledger. This has led to manipulation of accounts by
overstating profit of Rs 56.71 Lacs.
7.13. Mr. Anil S Bhosale, in conspiracy with Mr.
Mangaldas Bandal and officials of the bank sanctioned
several fraudulent loans for their personal benefit. It is
revealed during investigation that during sanctioning
loan to various borrowers, the bank had failed to
comply with By-laws of the Cooperative Bank, and
rules, regulations, guidelines issued by the RBI and
rules made under Maharashtra Cooperative Societies
Act, 1960. Consequently, most of the loan accounts
slipped to NPA category. There was total 432 NPA
accounts and outstanding principle amount was Rs
392 Crore.
7.14. Bank used to maintain bifurcated lists of 96 loan
accounts in the name of Mr. Anil S Bhosale and Mr.
Mangaldas Bandal. In the said lists, 44 loan accounts
pertained to Mr Anil Shivajirao Bhosale in List A. Shri
Rajaram Dhondkar, Liquidator of Shivajirao Bhosale
Sahakari Bank vide email dated 01.11.2023, provided
the said List A in respect of loans sanctioned on behalf
of Mr. Anil S Bhosale. On perusal of said list, it is
revealed that total principal amount used and utilized
by Mr. Anil S Bhosale is Rs 113.147 Crore.
7.15. The breakdown of proceeds of crime used and
utilized by Mr. Anil S Bhosale is as under:
Particulars Amount (Rupees in crores)
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21-BA-4843-2024.DOCDeccan Branch pending 5.83
Cheques
Shortage Cash at Shivaji 23.89
Nagar Branch
Shortage Cash at Deccan 0.69
Branch
Fake FDR at Vadgaon 1.00
Sheri Branch
Payment through RTGS 2.74
from Head Office
NPA Loan Amount 113.147
Total 147.307
11. That Mr. Anil S Bhosale had a major role to play in
all the frauds committed by SBSBL viz.
misappropriation of cash, misappropriation of SBSBL
funds through RTGS and pending cheques, sanction of
illegal loans and cheque discounting. Hence, the
applicant is actually involved and also knowingly
facilitated the other co-accused persons in acquiring,
concealing, misappropriating, utilizing and projecting
& claiming to be untainted property, had committed
the offence of money laundering under Section 3 of
the PMLA, 2002 which is punishable under Section 4
of the prevention of the money laundering Act 2002
and therefore, he is not entitled to get bail as stated by
the Applicant in the present bail application.”
4. It is the submission of Mr. Mundargi, learned Counsel along
with Ms. Keral Mehta, learned Counsel appearing for the Applicant
that insofar as the scheduled offence is concerned, the Applicant
has already been granted bail by this Court by Order dated
19.08.2024 passed in Bail Application No. 653 of 2023. He submits
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that the Applicant was arrested in scheduled offence on
25.02.2020 and in the present case, he is in custody since
05.03.2021. He submitted that the Applicant is incarcerated for
more than 4 years and 11 months. He submits that in PMLA Case,
the Applicant has completed 3 years and 10 months. He submitted
that insofar as the present case is concerned, the maximum
punishment which can be awarded is 7 years, out of which the
Applicant has already completed more than half of the total
punishment. He, therefore, submitted that the Applicant is entitled
to be released on bail. He relied on the following Judgments :
(iv) Sheikh Javed Iqbal @ Ashfaq Ansari @ Javed Ansari vs. The
State of Uttar Pradesh4.
5. He submitted that it is well established that speedy trial is a
right guaranteed to the Applicant under Article 21 of the
12024 SCC OnLine SC 1693
22022 SCC OnLine SC 929
32024 SCC OnLine SC 1920
42024 SCC OnLine SC 1755
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Constitution of India. He submitted that the factual position on
record clearly shows that the said fundamental right of the
Applicant is violated. In support of the said contention, he also
relied on Section 436A of the Cr.P.C.. He submitted that he is
seeking bail only on the ground of long incarceration. He also
submitted that the Applicant is senior citizen of 60 years. He,
therefore, submitted that the Applicant is entitled to be enlarged
on bail.
6. On the other hand, Mr. Venegavkar, learned PP for
Respondent – ED strongly opposed the Bail Application. He
submitted that the Applicant was the Chairman of the said Bank
and therefore, he is the prime accused. He submitted that Mr. Anil
S Bhosale had a major role to play in the frauds committed by
SBSBL viz. misappropriation of cash, misappropriation of SBSBL
funds through RTGS and pending cheques, sanction of illegal loans
and cheque discounting. Hence, the applicant is actually involved
and also knowingly facilitated the other co-accused persons in
acquiring, concealing, misappropriating, utilizing and projecting &
claiming to be untainted property, had committed the offence of
money laundering under Section 3 of the PMLA which is
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punishable under Section 4 of the PMLA and therefore, he is not
entitled to get bail. He submitted that the material on record
shows that the Applicant is involved in a very serious crime. He
submitted that therefore, the Applicant is not entitled to be
released on bail in view of Section 45 of the PMLA. Mr. Venegavkar,
learned PP for Respondent- ED has relied on the Judgment of the
Supreme Court in the case of Tarun Kumar vs. Assistant Director,
Directorate of Enforcement 5.
7. A perusal of the record shows that insofar as the scheduled
offence is concerned, C. R. No. 0026/2020 was registered on
08.01.2020 under Sections 420 r/w. 34, 406, 408, 409, 465, 468,
471 of the Indian Penal Code, 1860 (“IPC“). The present case is
ECIR/MBZO-II/20/2020 registered under Section 3 r/w. 70 of the
PMLA. The Applicant has been arrested in scheduled offence on
25.02.2020 and the date of arrest in the present offence is
05.03.2021. Thus, the Applicant has completed 4 years and 10
months from the date of arrest in the scheduled offence, wherein
he has been granted bail by this Court by Order dated 19.08.2024
passed in Bail Application No. 653 of 2023.
5SLP (Cri.) No. 9431 of 2023.
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8. Before considering this Bail Application it is necessary to set
out Paragraph Nos.5 and 6 of the Order dated 19th August 2024
passed by this Court in Bail Application No.653 of 2023 filed by
the present Applicant concerning scheduled offences i.e. C.R.
No.26 of 2020 registered with Shivaji Nagar Police Station, District
– Pune.
“5. On 10th April 2023, Mr. Mundargi, learned Senior Counsel
had produced a Chart before a learned Single Judge, showing the
recovery of the amount against the Applicant – Anil Shivajirao
Bhosale and also the liability attributable towards the Applicant.
The said Chart is reproduced herein below for ready reference:
“RECOVERY CHART – ANIL BHOSALE
1. LIABILITY ATTRIBUTABLE TOWARDS MR. ANIL BHOSALE:
Embezzlement of Short cash- 103 Crores (@pg 181 of B.A)
Amount attributable to Mr. Anil Bhosale 34.16 Crore
(@pg 127 of B.A)
96 NPA Account – 247 Crores (@pg 133 of B.A)
44 NPA Accounts attributed to Mr. Anil 113.14 crore
Bhosale
TOTAL ATTRIBUTABLE 146.63 Crore
2. ACTUAL RECOVERY AGAINST LIABILITY ATTRIBUTABLE:
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1. Amount Recovered from Applicant 53.17 Crore (@pg 21 of
by auctioning land by Shivaji Rao CoD)
Bhosale Sahakari Bank Ltd. u/s
101 of MCS Act.
2. Amount recovered out of 02 NPA 10.88 Lakh (@OTS
Accounts from 44 NPA Accounts. chart)
TOTAL Rs. 53.27 Crore
3. AMOUNT RECEIVABLE
Sr. Receivable Amount Amount Reference
no
1. OTS offer proposed in 13 43.21 Crore @Correspondence
NPA Accounts out of 44 to Registrar of
NPA Accounts. Cooperative
(Sanction pending) Society.
2. Valuation of properties of 14.05 Crore @valuation reports
Mr. Anil Bhosale attached (approx.)
by EOW/ED/Bank as on
2017.
Applicant has no objection
if sale of the attached
properties is made
absolute.
3. Government Valuation (as 41.00 Crore @Bank chart
per IGR) of properties (approx.)
mortgaged and attached in
lieu of loan in balance 31
NPA Accounts out of 44
NPA accounts.
Recovery certificate u/s
101 of MCS Act of 29 NPA
Accounts out of 44 NPA
Accounts received.
TOTAL Rs. 98.26 Crore
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4. SUMMARY:
Sr. no Particulars Amount
(In Crores)
1. Liability attributed 146.63
2. Actual realisation and amount to be 151.60 "
received
6. In view of the above Chart, the learned Single Judge by
Order dated 10th April 2023 directed the Respondent – State of
Maharashtra to file the Additional Affidavit and in view thereof an
Affidavit of Mr. Sanjay G. Chavan, Police Inspector, Economic
Offences Wing, Pune City, Pune has been filed on 10th June 2024.
In the said Affidavit, the role of the present Applicant is explained
with respect to the said Chart submitted by Mr. Mundargi, learned
Senior Counsel. The relevant portion of the said Affidavit dated
10th June 2024 is at Paragraph Nos.6 to 9, which reads as under:
“6. I say that in the aforesaid matter, the compilation was filed
by the Applicant/Accused in support of his claim mentioned in
Point No.1 under the title as Amount Receivable which is as
under:-
Liability attributable towards Mr. Anil Bhosale
Embezzlement of Short Cash – 103 Crores
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21-BA-4843-2024.DOCAmount attributable to Mr. 34.16 Crores
Anil Bhosale
44 NPA Accounts 113.14 Crores
attributable to Mr. Anil
Bhosale
Total attributable 146.63 CroresExplanation –
As per the above mentioned chart, out of the embezzled
Short Cash amount of Rs.103 Cr, Applicant had used a total
amount of Rs.34.16 Cr, which is not disputed.
I state that as per the applicant, the NPA Loan of applicant
shown in above chart is 113.14 Cr. However it is submitted that
Rs.113.14 Cr is the Principal amount and the total amount with
interest is Rs. 156,66,50,901/-.
7. I say that in the aforesaid matter, the compilation was filed
by the Applicant/Accused in support of his claim mentioned in
Point No.2 under the title as amount receivable which is as under:-
Actual Recovery against liability attributable
1 Amount recovered from 53.17 @pg 21 of
applicant by auctioning land by Crore cod
Shivajirao Bhosale Sahakari
Bank Ltd u/s 101 of MCS Act
2 Amount recovered out of 02 10.88 lakh @OTS chart
NPA Accounts from 44 NPA
accounts
Total 53.27
CroreExplanation –
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21-BA-4843-2024.DOCThe above chart as submitted by the applicant is true and
correct to the best of my knowledge based on documents on
record.
8. I say that in the aforesaid matter, the compilation was filed
by the Applicant/Accused in support of his claim mentioned in
Point No.3 under the title as amount receivable which is as under:-
Sr. Receivable Amount Amount Reference
No.
1 OTS offer proposed in 13 NPA 43.21 @
Accounts out of 44 NPA Crore Correspondence
Accounts (Sanction pending) to Registrar of
Co-operative
Society.
2 Valuation of properties of Mr. 14.05 @ Valuation
Anil Bhosale attached by Crores reports
EOW/ED/Bank as on 2017 (Approx.)
Applicant has no objection if
sale of the attached properties
is made absolute.
3 Govt Valuation (as per IGR) 41.00 @bank chart
of properties mortgaged and Crore
attached in lieu of loan in (approx)
balance 31 NPA Accounts out
of 44 NPA accounts received
Recovery certificate u/s 101
of MCS Act of 29 NPA
accounts out of 44 NPA
accounts received
Total 98.26
Crore
Explanation -
8.1 In pursuance of the aforesaid compilation submitted by the
Applicant/Accused, it is submitted that the following are the
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21-BA-4843-2024.DOCAccounts:-
Sr. Particulars OTS Loan 30% Amt.
No. Amount received
against OTS by
Applicant
1 WCTL-406 Kakade 2,37,53,354/- 93,35,426/-
Palace Mangal
Karyalaya
2 WCTL-408 Jons 8,83,70,649/- 2,58,11,103/-
Holding Pvt. Ltd.
3 WCTL-409 Kakade 8,87,53,205/- 2,56,80,954/-
Green Estate Pvt. Ltd.
4 WCTL-01 Pushpak Ply 7,49,36,336/- 2,22,68,104/-
5 WCTL-107 V.Y. Infra 8,14,96,800/- 2,47,38,380/-
Structure Pvt. Ltd.
Total 35,73,10,344/- 10,78,33,967/-
I state that, in pursuance of above chart, OTS offer was
proposed in 13 NPA Accounts out of 44 NPA Accounts out of which
in above mentioned 5 loan accounts, One Time Settlement was
done by Shivajirao Bhosale Co Op Bank, Pune, in which Applicant
has paid 10.78 cr as on date 14/05/2024 and amount of 24.94 Cr
is pending payment with monthly 11 installments fixed. Out of 13
NPA loan account 08 loan accounts is pending for sanction at the
office of Commissioner of Co-operative, Pune for OTS. If the
proposed OTS is approved by the concerned authority and the
petitioner / accused undertakes to clear the OTS installments as
approved it takes care of the 13 NPA accounts out of the 44 NPA
accounts.
8.2. In respect of the valuation of properties attached by
ED/EOW/Bank, mentioned as Rs.14.05 Cr, it is submitted that as
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21-BA-4843-2024.DOCRs.11.43 Crores (Approx.) as on 2020. Fresh valuation is being
obtained from the concerned department.
8.3 I say that, applicant has shown receivable amount of 41 Cr
against 31 NPA loan accounts mortgaged properties. The
mortgaged properties of 31 NPA loan accounts are owned by the
respective loan holders. One loan account holder has closed his
loan account. The valuation of mortgaged properties of remaining
30 NPA loan accounts are 27.14 Cr. as per IGR report. As per the
statement received from the Loan A/C holders the 30 NPA Loan
Account Holders are not willing to go in for OTS as on date and
since the property is in the name of loan account holders, it will
not be proper to expect this is a receivable amount in favour of the
petitioner.
9. I say that in the aforesaid matter, the compilation was filed
by the Applicant/Accused in support of his claim mentioned in
point No.4 under the title as Amount Receivable which is as
under:-
Summary
Sr.NO Particulars Amount (in Crores)
1 Liability attributed 146.63
2 Actual realisation and amount 151.60
to be receivedExplanation –
I say that, applicant has showed total liability of Rs. 146.63
Cr., which is not a matter of fact. As per details of investigation,
total liability would be Rs.190,82,50,901/-.(Rs.34.16 Cr + 113.14
Cr + 43.51 Cr (Interest Amount)) As regards the actual realisation,
details have been submitted in preceding paragraphs. This is
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subject to the condition that the petitioner clears the outstanding
on 5 OTS NPA accounts and also clears the OTS once sanctioned in
case of the other NPA accounts. A chart of the present status is
enclosed herewith for the sake of clarity.
A) Amount recovered from applicant by Shivajirao
Bhosale Co Op Bank Ltd, Pune
Sr.NO Particulars Amount (in
Crores)
1 Amount recovered from applicant by 53.17 Crore
auctioning land by Shivajirao
Bhosale Sahakari Bank ltd u/s 101
2 Amount recovered out of 01 NPA 10.78 lakhs
Accounts from 44 NPA accounts
3 5 loan accounts, One Time 10.78 Cr
Settlement was done by Shivajirao
Bhosale Co Op Bank, Pune,
(30% amount)
Total 64.05 Cr
B) Amount will be recover from applicant in future
Sr.NO Particulars Amount (in
Crores)
1 Valuation of properties of 11.43 Cr
Applicant attached by
ED/EOW/Bank,
2 5 loan accounts, One Time 24.94 Cr
Settlement was done by
Shivajirao Bhosale Co Op Bank,
Pune and pending payment with
monthly 11 installments fixed.
(70% amount)
3 Out of 13 NPA loan account 08 17.40 Cr
loan accounts is pending for (Approx.)
sanction at the office of
Commissioner of Co-operative,
Pune for OTS.
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C) Valuation of mortgaged properties 30 NPA loan
accounts
Sr.NO Particulars Amount (in
Crores)
1 Valuation of mortgaged properties 27.14 Cr” ”
of remaining 30 NPA loan
accountsThus, it is clear that substantial amount which is subject matter of
the crime is either recovered or secured. This is very relevant factor
as the money involved in the crime is public money.
9. Insofar as the present offence is concerned, the Applicant is
incarcerated since 05.03.2021. Thus, the Applicant has completed
3 years and 10 months. Admittedly, insofar as the present offence
is concerned, the maximum punishment is 7 years. As the
Applicant has completed more than 3 years and 10 months, more
than half of the punishment is completed.
10. In the light of the above factual aspects, it is necessary to
consider whether the Applicant is entitled to be released on bail.
11. Section 45 of the PMLA Act concerning grant of baiul in the
PMLA offences is as follows:
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21-BA-4843-2024.DOC“45. Offences to be cognizable and non-bailable.–
(1)[Notwithstanding anything contained in the
Code of Criminal Procedure, 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
113[or is accused either on his own or along with
other co-accused of money-laundering a sum of less
than one crore rupees], may be released on bail, if
the Special Court so directs:
Provided further that the Special Court shall not
take cognizance of any offence punishable under
Section 4 except upon a complaint in writing made
by–
(i) the Director; or
(ii) any officer of the Central Government or
a State Government authorised in writing in
this behalf by the Central Government by a
general or special order made in this behalf
by that Government.
[(1-A) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2
of 1974), or any other provision of this Act,
no police officer shall investigate into an
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offence under this Act unless specifically
authorised, by the Central Government by a
general or special order, and, subject to such
conditions as may be prescribed.]
(2) The limitation on granting of bail specified in [*
* *] subsection (1) is in addition to the limitations
under the Code of Criminal Procedure, 1973 (2 of
1974) or any other law for the time being in force
on granting of bail.
[Explanation.–For the removal of doubts, it is
clarified that the expression “Offences to be
cognizable and non-bailable” shall mean and shall
be deemed to have always meant that all offences
under this Act shall be cognizable offences and non-
bailable offences notwithstanding anything to the
contrary contained in the Code of Criminal
Procedure, 1973 (2 of 1974), and accordingly the
officers authorised under this Act are empowered to
arrest an accused without warrant, subject to the
fulfilment of conditions under Section 19 and
subject to the conditions enshrined under this
section.]”
(Emphasis added)
12. Thus, as per Section 45 of the PMLA Act, the following
requirements are mandatory to be complied with before releasing
the accused on bail:
(i) The Public Prosecutor is to be given an
opportunity to oppose the Application seeking bail;
(ii) Where the Public Prosecutor opposes the
Application :
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satisfaction that there are reasonable grounds
for believing that the Applicant is not guilty of
such offence;
(b) The Court is required to record
satisfaction that the Applicant is not likely to
commit any offence while on bail.
13. In this Bail Application, the Respondent – ED filed affidavit
opposing the Bail Application and Mr. Venegavkar, learned PP for
Respondent has opposed the Bail Application. Thus, requirement
as set out in Clause (i) hereinabove is satisfied. Thus, now what is
required to be seen is whether twin conditions as contained in
Clause (ii) noted hereinabove are fulfilled and effect of the said
twin conditions on the entitlement of the Applicant in getting bail.
14. The material on record clearly show that the Applicant at the
relevant time was the Chairman of the SBSL and by misusing his
position committed fraud, misappropriation of cash,
misappropriation of SBSBL funds through RTGS and pending
cheques, sanction of illegal loans and cheque discounting, had
committed the offence of money laundering under Section 3 of the
PMLA, 2002 which is punishable under Section 4 of the PMLA. The
Applicant by said method has used and utilised principal amount
of about Rs.147.307 Crores. The material on record shows that the
Applicant is involved in commission of very serious offence under
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Section 3 of the PMLA. The manner in which the offence is
committed clearly show that the Applicant is not able to fulfill the
twin condtiions as contemplated under Section 45 of the MPLA.
Thus, the Applicant is not entitled to be released on bail on merits.
15. In the above background, it is necessary to consider whether
the Applicant is entitled to be released on bail inspite of failing to
fulfill the twin conditions as contemplated under Section 45 of the
MPLA.
16. In this background of the matter, it is required to be noted
that the Supreme Court in the case of Vijay Madanlal Choudhary
(supra) in Paragraph Nos. 412 to 421, considered the applicability
of Section 436A of the Cr. P. C. which is concerning the maximum
punishment for which an under trial prisoner can be detained, held
that Section 436A of the Cr. P .C. has come into effect on
23.06.2006 and the said provision is the subsequent law enacted
by the Parliament and the same will prevail and will apply in spite
of rigors of Section 45 of the PMLA Act. The relevant part of the
said paragraphs 412 to 421 read as under :
“412. As a result, we have no hesitation in
observing that in whatever form the relief is
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21-BA-4843-2024.DOCunder Section 438 of the 1973 Code or for that
matter, by invoking the jurisdiction of the
Constitutional Court, the underlying principles and
rigors of Section 45 of the 2002 must come into
play and without exception ought to be reckoned to
uphold the objectives of the 2002 Act, which is a
special legislation providing for stringent regulatory
measures for combating the menace of money-
laundering.
413. There is, however, an exception carved out to
the strict compliance of the twin conditions in the
form of Section 436A of the 1973 Code, which has
come into being on 23.6.2006 vide Act 25 of 2005.
This, being the subsequent law enacted by the
Parliament, must prevail. Section 436A of the 1973
Code reads as under:
“[436A. Maximum period for which an undertrial
prisoner can be detained.– Where a person has,
during the period of investigation, inquiry or trial
under this Code of an offence under any law (not
being an offence for which the punishment of death
has been specified as one of the punishments under
that law) undergone detention for a period
extending up to one-half of the maximum period of
imprisonment specified for that offence under that
law, he shall be released by the Court on his
personal bond with or without sureties:
Provided that the Court may, after hearing the
Public Prosecutor and for reasons to be recorded by
it in writing, order the continued detention of such
person for a period longer than one-half of the said
period or release him on bail instead of the personal
bond with or without sureties:
Provided further that no such person shall in any
case be detained during the period of investigation,
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Explanation.-In computing the period of detention
under this section for granting bail, the period of
detention passed due to delay in proceeding caused
by the accused shall be excluded.]
415. In Hussainara Khatoon v. Home Secretary,
State of Bihar, Patna, this Court stated that the right
to speedy trial is one of the facets of Article 21 and
recognized the right to speedy trial as a fundamental
right. This dictum has been consistently followed by
this Court in several cases. The Parliament in its
wisdom inserted Section 436A under the 1973 Code
recognizing the deteriorating state of undertrial
prisoners so as to provide them with a remedy in
case of unjustified detention. In Supreme Court Legal
Aid Committee Representing Undertrial Prisoners v.
Union of India, the Court, relying on Hussainara
Khatoon, directed the release of prisoners charged
under the Narcotic Drugs and Psychotropic Act after
completion of one-half of the maximum term
prescribed under the Act. The Court issued such
direction after taking into account the non obstante
provision of Section 37 of the NDPS Act, which
imposed the rigors of twin conditions for release on
bail. It was observed:
“15. …We are conscious of the statutory provision
finding place in Section 37 of the Act prescribing
the conditions which have to be satisfied before a
person accused of an offence under the Act can be
released. Indeed we have adverted to this section in
the earlier part of the judgment. We have also kept
in mind the interpretation placed on a similar
provision in Section 20 of the TADA Act by the
Constitution Bench in Kartar Singh V. State of
Punjab. Despite this provision, we have directed as
above mainly at the call of Article 21 as the right to
speedy trial may even require in some cases
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21-BA-4843-2024.DOCheld by a Constitution Bench of this Court in A.R.
Antulay v. R.S. Nayak, release on bail, which can be
taken to be embedded in the right of speedy trial,
may, in some cases be the demand of Article 21. As
we have not felt inclined to accept the extreme
submission of quashing the proceedings and setting
free the accused whose trials have been delayed
beyond reasonable time for reasons already alluded
to, we have felt that deprivation of the personal
liberty without ensuring speedy trial would also not
be in consonance with the right guaranteed by
Article21. Of course, some amount of deprivation of
personal liberty cannot be avoided in such cases;
but if the period of deprivation pending trial
becomes unduly long, the fairness assured by Article
21 would receive a jolt. It is because of this that we
have felt that after the accused persons have
suffered imprisonment which is half of the
maximum punishment provided for the offence, any
further deprivation of personal liberty would be
violative of the fundamental right visualised by
Article 21, which has to be telescoped with the right
guaranteed by Article 14 which also promises
justness, fairness and reasonableness in procedural
matters. …”
416. The Union of India also recognized the right
to speedy trial and access to justice as fundamental
right in their written submissions and, thus,
submitted that in a limited situation right of bail can
be granted in case of violation of Article 21 of the
Constitution. Further, it is to be noted that the
Section 436A of the 1973 Code was inserted after
the enactment of the 2002 Act. Thus, it would not be
appropriate to deny the relief of Section 436A of the
1973 Code which is a wholesome provision
beneficial to a person accused under the 2002 Act.
However, Section 436A of the 1973 Code, does not
provide for an absolute right of bail as in the case of
default bail under Section 167 of the 1973 Code. For,
in the fact situation of a case, the Court may still
deny the relief owing to ground, such as where the
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trial was delayed at the instance of accused himself.
417. Be that as it may, in our opinion, this
provision is comparable with the statutory bail
provision or, so to say, the default bail, to be granted
in terms of section 167 of the 1973 Code
consequent to failure period of the investigating
agency to file the chargesheet within the statutory
and, in the context of the 2002 Act, complaint
within the specified period after arrest of the person
concerned. In the case of Section 167 of the 1973
Code, an indefeasible right is triggered in favour of
the accused the moment the investigating agency
commits default in filing the chargesheet/complaint
within the statutory period. The provision in the
form of Section 436A of the 1973 Code, as has now
come into being is in recognition of the
constitutional right of the accused regarding speedy
trial under Article 21 of the Constitution. For, it is a
sanguine hope of every accused, who is in custody
in particular, that he/she should be tried
expeditiously – so as to uphold the tenets of speedy
justice. If the trial cannot proceed even after the
accused has undergone one-half of the maximum
period of imprisonment provided by law, there is no
reason to deny him this lesser relief of considering
his prayer for release on bail or bond, as the case
may be, with appropriate conditions, including to
secure his/her presence during the trial.
418. Learned Solicitor General was at pains to
persuade us that this view would impact the
objectives of the 2002 Act and is in the nature of
super imposition of Section 436A of the 1973 Code
over Section 45 of the 2002 Act. He has also
expressed concern that the same logic may be
invoked in respect of other serious offences,
including terrorist offences which would be
counterproductive. So be it. We are not impressed by
this submission. For, it is the constitutional obligation
of the State to ensure that trials are concluded
expeditiously and at least within a reasonable time
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where strict bail provisions apply. If a person is
detained for a period extending up to one-half of the
maximum period of imprisonment specified by law
and is still facing trial, it is nothing short of failure of
the State in upholding the constitutional rights of the
citizens, including person accused of an offence.
419. Section 436A of the 1973 Code, is a
wholesome beneficial provision, which is for
effectuating the right of speedy trial guaranteed by
Article 21 of the Constitution and which merely
specifies the outer limits within which the trial is
expected to be concluded, failing which, the accused
ought not to be detained further. Indeed, Section
436A of the 1973 Code also contemplates that the
relief under this provision cannot be granted
mechanically. It is still within the discretion of the
Court, unlike the default bail under Section 167 of
the 1973 Code. Under Section 436A of the 1973
Code, however, the Court is required to consider the
relief on case-to-case basis. As the proviso therein
itself recognises that, in a given case, the detention
can be continued by the Court even longer than one-
half of the period, for which, reasons are to be
recorded by it in writing and also by imposing such
terms and conditions so as to ensure that after
release, the accused makes himself/herself available
for expeditious completion of the trial.
420. However, that does not mean that the
principle enunciated by this Court in Supreme Court
Legal Aid Committee Representing Under trial
Prisoners, to ameliorate the agony and pain of
persons kept in jail for unreasonably long time, even
without trial, can be whittled down on such specious
plea of the State. If the Parliament/Legislature
provides for stringent provision of no bail, unless the
stringent conditions are fulfilled, it is the bounden
duty of the State to ensure that such trials get
precedence and are concluded within a reasonable
time, at least before the accused undergoes detention
for a period extending up to one-half of the
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maximum period of imprisonment specified for the
concerned offence by law. [Be it noted, this provision
(Section 436A of the 1973 Code) is not available to
accused who is facing trial for offences punishable
with death sentence]
421. In our opinion, therefore, Section 436A needs
to be construed as a statutory bail provision and akin
to Section 167 of the 1973 Code. Notably, learned
Solicitor General has fairly accepted during the
arguments and also restated in the written notes that
the mandate of Section 167 of the 1973 Code would
apply with full force even to cases falling under
Section 3 of the 2002 Act, regarding money-
laundering offences. On the same logic, we must
hold that Section 436A of the 1973 Code could be
invoked by accused arrested for offence punishable
under the 2002 Act, being a statutory bail.”
(Emphasis added)
17. The Supreme Court in the case of Sheikh Javed Iqbal @
Ashfaq Ansari @ Javed Ansari (supra) held in paragraph 32 as
under :
“32. This Court has, time and again, emphasized that
right to life and personal liberty enshrined under Article
21 of the Constitution of India is overarching and
sacrosanct. A constitutional court cannot be restrained
from granting bail to an accused on account of
restrictive statutory provisions in a penal statute if it
finds that the right of the accused-undertrial under
Article 21 of the Constitution of India has been
infringed. In that event, such statutory restrictions
would not come in the way. Even in the case of
interpretation of a penal statute, howsoever stringent it
may be, a constitutional court has to lean in favour of
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21-BA-4843-2024.DOCan intrinsic part. In the given facts of a particular case, a
constitutional court may decline to grant bail. But it
would be very strong to say that under a particular
statute, bail cannot be granted. It would run counter to
the very gain of our constitutional jurisprudence. In any
view of the matter, K. A. Najeeb (supra) being rendered
by a three Judge Bench is binding on a Bench of two
Judges like us.”
(Emphasis added)
18. The Supreme Court in the case of Union of India vs. K. A.
Najeeb6 held in Paragraph No. 17 as under :
“17. It is thus clear to us that the presence of
statutory restrictions like Section 43-D(5) of the
UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds of
violation of Part III of the Constitution. Indeed, both
the restrictions under a statute as well as the powers
exercisable under constitutional jurisdiction can be
well harmonised. Whereas at commencement of
proceedings, the courts are expected to appreciate
the legislative policy against grant of bail but the
rigours of such provisions will melt down where
there is no likelihood of trial being completed within
a reasonable time and the period of incarceration
already undergone has exceeded a substantial part of
the prescribed sentence. Such an approach would
safeguard against the possibility of provisions like
Section 43-D(5) of the UAPA being used as the sole
metric for denial of bail or for wholesale breach of
constitutional right to speedy trial.”
(Emphasis added)
19. The Supreme Court in the case of Manish Sisodia (supra)
62021(3) SCC 713
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held as follows :
“51. Recently, this Court had an occasion to consider
an application for bail in the case of Javed Gulam
Nabi Shaikh v. State of Maharashtra wherein the
accused was prosecuted under the provisions of the
Unlawful Activities (Prevention) Act, 1967. This
Court surveyed the entire law right from the
judgment of this Court in the cases of Gudikanti
Narasimhulu v. Public Prosecutor, High Court of
Andhra Pradesh, Shri Gurbaksh Singh Sibbia v. State
of Punjab, Hussainara Khatoon (1) v. Home
Secretary, State of Bihar, Union of India v. K.A.
Najeeb®and Satender Kumar Antil v. Central Bureau
of Investigation. The Court observed thus:
“19. If the State or any prosecuting agency including
the court concerned has no wherewithal to provide
or protect the fundamental right of an accused to
have a speedy trial as enshrined under Article 21 of
the Constitution then the State or any other
prosecuting agency should not oppose the plea for
bail on the ground that the crime committed is
serious. Article 21 of the Constitution applies
irrespective of the nature of the crime.”
52. The Court also reproduced the observations
made in Gudikanti Narasimhulu (supra), which read
thus:
“10. In the aforesaid context, we may remind the
trial courts and the High Courts of what came to be
observed by this Court in Gudikanti Narasimhulu v.
Public Prosecutor, High Court reported in ( 1978) 1
SCC 240. We quote:
“What is often forgotten, and therefore warrants
reminder, is the object to keep a person in judicial
custody pending trial or disposal of an appeal. Lord
Russel, C.J., said [R v. Rose (1898)18 Cox]:
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21-BA-4843-2024.DOC“I observe that in this case bail was refused for the
prisoner. It cannot be too strongly impressed on
the, magistracy of the country that bail is not to be
withheld as punishment, but that the requirements
as to bail are merely to secure the attendance of the
prisoner at trial.””
53. The Court further observed that, over a period
of time, the trial courts and the High Courts have
forgotten a very well-settled principle of law that bail
is not to be withheld as a punishment. From our
experience, we can say that it appears that the trial
courts and the High Courts attempt to play safe in
matters of grant of bail. The principle that bail is a
rule and refusal is an exception is, at times, followed
in breach. On account of non-grant of bail even in
straight forward open and shut cases, this Court is
flooded with huge number of bail petitions thereby
adding to the huge pendency. It is high time that the
trial courts and the High Courts should recognize the
principle that “bail is rule and jail is exception”.
54. In the present case, in the ED matter as well as
the CBI matter, 493 witnesses have been named. The
case involves thousands of pages of documents and
over a lakh pages of digitized documents. It is thus
clear that there is not even the remotest possibility of
the trial being concluded in the near future. In our
view, keeping the appellant behind the bars for an
unlimited period of time in the hope of speedy
completion of trial would deprive his fundamental
right to liberty under Article 21 of the Constitution.
As observed time and again, the prolonged
incarceration before being pronounced guilty of an
offence should not be permitted to become
punishment without trial.”
(Emphasis added)
20. The Supreme Court in the case of Arvind Kejriwal vs. Central
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Bureau of Investigation7 held as under:
“38. The evolution of bail jurisprudence in India
underscores that the ‘issue of bail is one of liberty, justice,
public safety and burden of the public treasury, all of which
insist that a developed jurisprudence of bail is integral to a
socially sensitised judicial process’. The principle has
further been expanded to establish that the prolonged
incarceration of an accused person, pending trial, amounts
to an unjust deprivation of personal liberty. This Court in
Union of India v. K.A. Najeeb has expanded this principle
even in a case under the provisions of the Unlawful
Activities (Prevention) Act, 1967 (hereinafter ‘UAPA’)
notwithstanding the statutory embargo contained in
Section 43-D(5) of that Act, laying down that the legislative
policy against the grant of bail will melt down where there
is no likelihood of trial being completed within a
reasonable time. The courts would invariably bend towards
‘liberty’ with a flexible approach towards an undertrial,
save and except when the release of such person is likely to
shatter societal aspirations, derail the trial or deface the
very criminal justice system which is integral to rule of
law.”
(Emphasis added)
21. Following position emerges from the analysis of the above
decisions of the Supreme Court:-
A) The underlying principles and rigors of Section 45 of
the PMLA must come into play and without exception
ought to be reckoned to uphold the objectives of the PMLA
which is a special legislation providing for stringent
regulatory measures for combating the menace of money-
7 2024 SCC OnLine SC 2550
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laundering.
B) There is, however, an exception carved out to the strict
compliance of the twin conditions in the form of Section
436A of the CrPC, which has come into being on 23.6.2006
vide Act 25 of 2005. Section 436A of the CrPC being the
subsequent law enacted by the Parliament, must prevail
over Section 45 of the PMLA.
C) If the period of deprivation pending trial becomes unduly
long, the fundamental right of Accused of the speady trial
and fairness assured by Article 21 would receive a jolt.
After the accused persons have suffered imprisonment
which is half of the maximum punishment provided for the
offence, any further deprivation of personal liberty would
be violative of the fundamental right visualised by Article
21, which has to be telescoped with the right guaranteed by
Article 14 which also promises justness, fairness and
reasonableness in procedural matters.
D) The provision in the form of Section 436A of the CrPC, as
has now come into being is in recognition of the
constitutional right of the accused regarding speedy trial
under Article 21 of the Constitution. For, it is a sanguine
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hope of every accused, who is in custody in particular, that
he/she should be tried expeditiously – so as to uphold the
tenets of speedy justice. If the trial cannot proceed even
after the accused has undergone one-half of the maximum
period of imprisonment provided by law, there is no reason
to deny him this lesser relief of considering his prayer for
release on bail or bond, as the case may be, with
appropriate conditions, including to secure his/her
presence during the trial.
E) It is the constitutional obligation of the State to ensure that
trials are concluded expeditiously and at least within a
reasonable time where strict bail provisions apply. If a
person is detained for a period extending up to one-half of
the maximum period of imprisonment specified by law and
is still facing trial, it is nothing short of failure of the State
in upholding the constitutional rights of the citizens,
including person accused of an offence.
F) Section 436A of the CrPC, is a wholesome beneficial
provision, which is for effectuating the right of speedy trial
guaranteed by Article 21 of the Constitution and which
merely specifies the outer limits within which the trial is
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expected to be concluded, failing which, the accused ought
not to be detained further. Indeed, Section 436A of the
CrPC also contemplates that the relief under this provision
cannot be granted mechanically. It is still within the
discretion of the Court, unlike the default bail under
Section 167 of the CrPC. Under Section 436A of the CrPC,
however, the Court is required to consider the relief on
case-to-case basis. As the proviso therein itself recognises
that, in a given case, the detention can be continued by the
Court even longer than one-half of the period, for which,
reasons are to be recorded by it in writing and also by
imposing such terms and conditions so as to ensure that
after release, the accused makes himself/herself available
for expeditious completion of the trial.
G) Right to life and personal liberty enshrined under Article 21
of the Constitution of India is overarching and sacrosanct.
A constitutional court cannot be restrained from granting
bail to an accused on account of restrictive statutory
provisions in a penal statute if it finds that the right of the
accused-undertrial under Article 21 of the Constitution of
India has been infringed. In that event, such statutory
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restrictions like Section 45 of the PMLA would not come in
the way.
H) The presence of statutory restrictions like Section 45 of the
PMLA per se does not oust the ability of the constitutional
courts to grant bail on grounds of violation of Part III of the
Constitution. Indeed, both the restrictions under a statute
as well as the powers exercisable under constitutional
jurisdiction can be well harmonised. Whereas at
commencement of proceedings, the courts are expected to
appreciate the legislative policy against grant of bail but the
rigours of such provisions will melt down where there is no
likelihood of trial being completed within a reasonable time
and the period of incarceration already undergone has
exceeded a substantial part of the prescribed sentence.
I) If the State or any prosecuting agency including the court
concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as
enshrined under Article 21 of the Constitution then the
State or any other prosecuting agency should not oppose
the plea for bail on the ground that the crime committed is
serious. Article 21 of the Constitution applies irrespective of
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the nature of the crime.
J) Notwithstanding the statutory embargo contained in
Section 45 of the PMLA, the legislative policy against the
grant of bail will melt down where there is no likelihood of
trial being completed within a reasonable time. The courts
would invariably bend towards ‘liberty’ with a flexible
approach towards an undertrial, save and except when the
release of such person is likely to shatter societal
aspirations, derail the trial or deface the very criminal
justice system which is integral to rule of law.
22. Thus, as per the settled legal position whereas at
commencement of proceedings, the courts are expected to
appreciate the legislative policy against grant of bail as enacted
under Section 45 of the PMLA Act, but the rigours of such
provisions will melt down where there is no likelihood of trial
being completed within a reasonable time and the period of
incarceration already undergone has exceeded a substantial part of
the prescribed sentence.
23. Thus, inspite of restrictive statutory provisions like Section
45 of the PMLA Act, the right of the accused undertrial under
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Article 21 of the Constitution of India cannot be allowed to be
infringed. In such a situation, statutory restrictions will not come
in the way of the Court to grant bail to protect the fundamental
right of the accused under Article 21 of the Constitution of India.
24. The Supreme Court in the case of V. Senthil Balaji vs. Deputy
Director, Directorate of Enforcement 8 discussed the duty of the
Constitutional Courts while considering bail applications under the
provisions of the PMLA. The Supreme Court held as follows:
“27. Under the Statutes like PMLA, the minimum
sentence is three years, and the maximum is seven years.
The minimum sentence is higher when the scheduled
offence is under the NDPS Act. When the trial of the
complaint under PMLA is likely to prolong beyond
reasonable limits, the Constitutional Courts will have to
consider exercising their powers to grant bail. The reason
is that Section 45(1)(ii) does not confer power on the
State to detain an accused for an unreasonably long
time, especially when there is no possibility of trial
concluding within a reasonable time. What a reasonable
time is will depend on the provisions under which the
accused is being tried and other factors. One of the most
relevant factor is the duration of the minimum and
maximum sentence for the offence. Another important
consideration is the higher threshold or stringent
conditions which a statute provides for the grant of bail.
Even an outer limit provided by the relevant law for the
completion of the trial, if any, is also a factor to be
considered. The extraordinary powers, as held in the
case of K.A. Najeeb, can only be exercised by the
Constitutional Courts. The Judges of the Constitutional
Courts have vast experience. Based on the facts on82024 SCC OnLine SC 2626
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21-BA-4843-2024.DOCrecord, if the Judges conclude that there is no possibility
of a trial concluding in a reasonable time, the power of
granting bail can always be exercised by the
Constitutional Courts on the grounds of violation of Part
III of the Constitution of India notwithstanding the
statutory provisions. The Constitutional Courts can
always exercise its jurisdiction under Article 32 or Article
226, as the case may be. The Constitutional Courts have
to bear in mind while dealing with the cases under the
PMLA that, except in a few exceptional cases, the
maximum sentence can be of seven years. The
Constitutional Courts cannot allow provisions like
Section 45(1)(ii) to become instruments in the hands of
the ED to continue incarceration for a long time when
there is no possibility of a trial of the scheduled offence
and the PMLA offence concluding within a reasonable
time. If the Constitutional Courts do not exercise their
jurisdiction in such cases, the rights of the undertrials
under Article 21 of the Constitution of India will be
defeated. In a given case, if an undue delay in the
disposal of the trial of scheduled offences or disposal of
trial under the PMLA can be substantially attributed to
the accused, the Constitutional Courts can always decline
to exercise jurisdiction to issue prerogative writs. An
exception will also be in a case where, considering the
antecedents of the accused, there is every possibility of
the accused becoming a real threat to society if enlarged
on bail. The jurisdiction to issue prerogative writs is
always discretionary.
28. Some day, the courts, especially the Constitutional
Courts, will have to take a call on a peculiar situation
that arises in our justice delivery system. There are cases
where clean acquittal is granted by the criminal courts to
the accused after very long incarceration as an
undertrial. When we say clean acquittal, we are
excluding the cases where the witnesses have turned
hostile or there is a bona fide defective investigation. In
such cases of clean acquittal, crucial years in the life of
the accused are lost. In a given case, it may amount to
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compensation.”
(Emphasis added)
25. With regard to Section 45 of the PMLA, the Supreme Court
in the said case of V. Senthil Balaji (supra) in paragraph No.25 held
as under:
26. “25. Considering the gravity of the offences in
such statutes, expeditious disposal of trials for the crimes
under these statutes is contemplated. Moreover, such
statutes contain provisions laying down higher threshold
for the grant of bail. The expeditious disposal of the trial
is also warranted considering the higher threshold set for
the grant of bail. Hence, the requirement of expeditious
disposal of cases must be read into these statutes.
Inordinate delay in the conclusion of the trial and the
higher threshold for the grant of bail cannot go together.
It is a well-settled principle of our criminal jurisprudence
that “bail is the rule, and jail is the exception.” These
stringent provisions regarding the grant of bail, such as
Section 45(1)(iii) of the PMLA, cannot become a tool
which can be used to incarcerate the accused without
trial for an unreasonably long time.”
Thus, what has been held by the Supreme Court that the
expeditious disposal of the trial is also warranted under PMLA
considering the higher threshold set for the grant of bail. Hence,
the requirement of expeditious disposal of cases must be read into
statutes like PMLA.
27. Thus, it is necessary to consider this Bail Application on the
touchstone of the above legal position and to consider whether the
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Applicant is entitled to be released on bail inspite of not fulfilling
the twin conditions as contemplated by Section 45 of the PMLA.
28. In this case, as far as the scheduled offences are concerned
i.e. C. R. No. 26 of 2020, there are about 256 witnesses proposed
to be examined by the prosecution. Insofar as the present case i.e.
ECIR case there are about 150 witnesses proposed to be examined
by the prosecution. The Charge-sheet in both the cases is
voluminous.
29. Mr. Mundargi, learned Counsel appearing for the Applicant
submitted that in fact, in PMLA case the investigation is still going
on and last supplementary charge-sheet has been filed on 16 th
October 2024.
30. Mr. Venegavkar, learned SPP submits that the investigation is
still going on and the Respondent-ED is proposing to file further
supplementary charge-sheet. Thus, it is clear that the investigation
is not yet completed.
31. It is an admitted position that both the cases will be tried
simultaneously and trial has not yet commenced. Thus, this is a
case where the trial is unlikely to conclude any time soon and is
likely to take a considerably long time. As noted hereinabove, the
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Applicant has completed more than half of the punishment. The
maximum punishment which can be imposed on the Applicant is 7
years and the Applicant has completed about 3 years and 10
months of imprisonment i.e. more than half of the punishment. As
noted earlier although the offence is very serious and laundering of
public fund is involved, substantial part of money is either
recovered or secured. Thus, by taking into consideration overall
circumstances, the Applicant is entitled to the benefit of Section
436A of the CrPC. The Judgment cited by Mr. Venegavkar, learned
PP in the case of Tarun Kumar (Supra) is not applicable to the facts
of the present case, as in that case, the Accused has not completed
half of the punishment.
32. However, as the offence is very serious, stringent conditions
are required tobe imposed on the Applicant.
33. Mr. Mundargi, learned Counsel appearing for the Applicant,
after taking instructions, states that as most of the witnesses are
from District-Pune, the Applicant will therefore, not reside within
District-Pune and that the Applicant will reside at Sukhada
Building, Sir Pochkhanawala Road, Worli, Mumbai and he will
report to the Worli Police Station, Mumbai.
34. The Applicant does not appear to be at risk of flight.
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35. Accordingly, the Applicant can be enlarged on bail by
imposing conditions. In view thereof, the following order:
ORDER
(a) The Applicant – Anil Shivajirao Bhosale be released on bail
in connection with ECIR No. ECIR/MBZO-II/20/2020 registered
with the Enforcement Directorate on his furnishing P. R. Bond of
Rs. 10,00,000/- with one or two solvent sureties in the like
amount;
(b) The Applicant shall not enter District – Pune after being
released on bail, except for reporting to the Investigating Officer, if
called and for attending the trial;
(c) On being released on bail, the Applicant shall furnish his cell
phone number and residential address to the Investigating Officer
and shall keep the same updated, in case of any change thereto;
(d) The Applicant shall report to the office of Director of
Enforcement, Government of India, Mumbai Zonal Office-II, 301-
303, Ceejay House, Dr. Annie Besant Road, Worli, Mumbai
400018 twice in a month on the first and thrid Wednesday
between 11:00 a.m. and 1:00 p.m. till the conclusion of the trial;
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(e) The Applicant 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 such a person from disclosing the
facts to the Court or to any Police personnel;
(f) The Applicant shall not tamper with the prosecution
evidence and shall not contact or influence the Complainant or any
witness in any manner;
(g) The Applicant shall attend the trial regularly. The Applicant
shall co-operate with the Trial Court and shall not seek
unnecessary adjournments there at;
(h) The Applicant shall surrender his passport, if any, to the
Investigating Officer;
36. The Bail Application stands disposed of accordingly.
37. It is clarified that the observations made herein are prima
facie and the trial Court shall decide the case on its merits,
uninfluenced by the observations made in this order.
[MADHAV J. JAMDAR, J.]
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