Delhi High Court
Ajay Yadav vs Directorate Of Enforcement on 31 May, 2025
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 13.05.2025
Pronounced on: 31.05.2025
+ BAIL APPLN. 1282/2025 & CRL.M.A. 9981/2025 INTERIM
BAIL
AJAY YADAV .....Petitioner
Through: Mr. Mohit Mathur,
Senior Advocate with Mr.
Yashvardhan, Ms. Kritika Nagpal &
Mr. Pranav Das, Advocates
versus
DIRECTORATE OF ENFORCEMENT .....Respondent
Through: Mr. Vivek Gurnani,
Panel Counsel, ED, Mr. Kanishk
Maurya, Mr. Kartik Sabharwal & Mr.
Kunal Kocchar, Advocates
CORAM:
HON'BLE MR. JUSTICE RAVINDER DUDEJA
JUDGMENT
RAVINDER DUDEJA, J.
1. The present application has been filed under Section 483 of
Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 45 of the
Prevention of Money Laundering Act, 2002 [PMLA, 2002] on behalf
of the applicant Ajay Yadav for grant of bail in Corruption Case
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01/2024 titled as “Enforcement of Directorate vs. Sunstar Overseas &
Ors.” arising out of ECIR/GNZO/09/2021 dated 09.04.2021.
FACTUAL BACKGROUND
2. The present ECIR arises out of FIR being RCHG2020A0021
dated 31.12.2020 registered with CBI on a complaint filed by the then
Chief Manager of Punjab National Bank, Sonipat [‘PNB’] against M/s
Sunstar Overseas Ltd. [‘SOL’] and its Directors. As per the FIR,
accounts of five banks, namely, PNB, ICICI Bank, IDBI Bank and
State Bank of India were declared Non-Performing Assets [‘NPAs’].
It was alleged that SOL had availed various credit facilities from
consortium of nine lender banks and had diverted /siphoned off the
said loan amount, thereby failing to repay the said loan amounts to the
banks. It was also alleged that the accused company had violated the
terms and conditions of the loan agreements in respect of the
hypothecated goods as the said goods were disposed of without
depositing sale proceeds in the cash credit accounts. The case of CBI
is that SOL, through its Directors/Promoters/employees and others had
committed fraud by siphoning off and diverting funds, criminal
misappropriation, criminal breach of trust, cheating, fraud etc., thereby
causing wrongful loss of approximately Rs. 951.88 crores to the
consortium of nine lenders banks. It has been alleged that SOL, after
July 2017 failed to submit stock report to the consortium of lender
banks, and subsequently, the said loan accounts of SOL were declared
NPAs with effect from 31.03.2015 by the Statutory Auditor on
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31.03.2017 and the consortium of lender banks approved a Master Re-
Structuring Agreement Package on 07.11.2015. The allegation against
SOL is that it, through its Directors had sold its entire stocks but the
sale proceeds were not deposited with the banks in the loan accounts.
It has also been alleged that SOL had advanced sums received by way
of the credit facilities for investment in real estate, which is non-core
business activity of the company.
ROLE OF THE APPLICANT AJAY YADAV
3. An application was filed by ICICI Bank under Section 7 of the
Insolvency of Bankruptcy Code, 2016 [‘IBC’] before the National
Company Law Tribunal [‘NCLT’]. Corporate Insolvency Resolution
Process [‘CIRP’] proceedings were initiated against SOL on
20.07.2018, wherein an Interim Resolution Professional was appointed
for the SOL. NCLT, vide order dated 12.09.2019 approved the
resolution plan of the resolution applicant Ajay Yadav and company,
body of individuals, through its Special Purpose Vehicle [SPV], M/s
Umaiza Infracon LLP [‘Umaiza’] for a total amount of Rs.196 crores.
The applicant is the partner in Umaiza. On approval of the resolution
plan, the shareholding of SOL was to be held by Umaiza. The
investigation revealed that the applicant being the active partner of
Umaiza was acting on the directions and advise of the ex-
directors/promoters of SOL so that they can indirectly acquire the
SOL, while it was undergoing CIRP.
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4. Following the Resolution Plan dated 12.09.2019, an alleged
Facility Agreement 30.09.2019 was executed with Shivakriti Agro
Private Limited which is presently under challenge in the ongoing
arbitration proceedings.
5. The investigations revealed that SOL through its
Directors/Promoters was indulged in generation of ‘proceeds of crime’
to the tune of Rs.539 crores approximately. The groups of
firms/companies were created as fictitious debtor of SOL for the sole
purpose of generation of ‘proceeds of crime’ by diversion/siphoning
off rice stocks procured out of loan availed from the aforesaid
consortium. It was further revealed that the said entities were owned
and controlled by ex-directors/promoters of SOL and were diverting
‘proceeds of crime’ to NBFC, namely, Kalptaru Fincap Limited
through layers of ARCs [Assets Reconstruction Companies]. It
further emerged that dummy entities owned and controlled by ex-
directors/promoters of SOL were used as mode for diversion of stocks
of rice from SOL and its fictitious debtor company. It was revealed
that ‘proceeds of crime’ to the tune of Rs.1.35 crores was possessed
and diverted from SGMV to Shivakriti through a fictitious seller/buyer
firm M/s Aastha Enterprise under the garb of sham trade transactions.
It has been further alleged that Rs.146 crores were diverted through
Shivakriti during the period commencing from 24.09.2019 to
20.03.2020 under the garb of sham instrument i.e Facility Agreement
dated 30.09.2019 with intent to take over the assets of SOL. The ex-
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directors/promoters of SOL were thus able to regain the actual control
of SOL indirectly through Umaiza, of which applicant is the partner,
whereby wrongful loss was caused to the consortium of lender banks.
SUBMISSIONS ON BEHALF OF THE PARTIES
6. Mr. Mohit Mathur, learned Senior Counsel for the applicant,
submits that the applicant is not named in the FIR (RCHG2020A0021)
and ECIR/GNZO/09/2021, or the CBI charge sheet filed on
20.11.2013, and no allegations have been made against the present
applicant in the investigation which revolves around SOL and its
promoters/directors. It has been further submitted that the applicant is
not involved in the predicate offence which involves fraud, criminal
breach of trust and siphoning off funds by SOL’s promoters. The
applicant’s role as a partner in Umaiza, which legally took over SOL
is in accordance with the Corporate Insolvency Resolution Process
[‘CIRP’] and was approved by NCLT.
7. Learned counsel submits that foundation of the predicate
offence is nowhere related to the applicant, thereby rendering the
PMLA proceedings against the applicant unsustainable. He further
submits that the applicant was summoned by ED on multiple
occasions for the purpose of investigation and applicant joined
investigation as well as cooperated fully with the investigation by
providing all material in his possession. Investigation by the ED has
now been completed, complaint has been filed and cognizance has
been taken by the trial court. Thus the applicant is not required to be
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kept in custody. He submits that trial is at a preliminary stage with no
foreseeable conclusion of the trial in near future. The applicant fulfills
the ‘triple test’ for bail concerning flight risk, tampering with evidence
and influencing the witnesses.
8. It is submitted that co-accused Rakesh Kumar Gulati and
Paramjeet have since been enlarged on bail. The co-accused against
whom there are graver and more serious allegations have not been
arrested till date, and therefore, the applicant is entitled to be released
on bail on the ground of parity.
9. Learned counsel for the petitioner further submits that bail and
not jail is the rule and prolonged incarceration of the applicant is in
violation of the fundamental rights under Article 21 of the
Constitution of India. He places reliance on the judgments of the
Hon’ble Supreme Court in the cases of Prem Prakash Vs. Union of
India through the Directorate of Enforcement (2024) 9 SCC 787
and Manish Sisodia Vs. Directorate of Enforcement (2024) SCC
OnLine SC 1920. It is submitted that courts should holistically
evaluate the overall circumstances including the applicant’s alleged
role, the evidentiary strength and delay in trial. He relies on the
decision in the case of Sanjay Jain vs. Enforcement Directorate,
(2024) OnLine Del 1656, wherein a co-ordinate Bench of this Court
directed strict compliance with procedural safeguards under Article 21
of the Constitution of India and re-affirmed the principle in Pankaj
Bansal Vs. Union of India, 2023, SCC OnLine SC 1244 that the
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grounds of arrest must be communicated in writing. The Court also
held that the non-arrest on similarly placed co-accused is a relevant
consideration and that the ‘doctrine of parity’ is applicable.
10. On merits, it has been submitted that Umaiza Infracon LLP, of
which the applicant is a partner, is the successful resolution applicant
of SOL, and which has taken over SOL by due process of law under
the aegis of the NCLT and thus Umaiza Infracon LLP is now the
lawful owner of SOL, whose resolution plan has been approved by
NCLT. It is submitted that the entire case against the applicant is
premised upon the existence of the alleged Facility Agreement dated
30.09.2019 between Shivakriti Agro Pvt. Ltd and Umaiza Infracon
LLP, which the prosecution states is a sham document purportedly
executed to give back the control of SOL to its erstwhile promoters. It
is stated that even the applicant case is that the said Facility
Agreement is not the agreement/document signed by the applicant for
the purpose of availing loan from Shivakriti Agro Pvt. Ltd.; secondly
the Facility Agreement was never signed by the applicant in the form
that has been produced by Shivakriti Agro Pvt. Ltd and thirdly, there
was no agreement whatsoever to transfer the control or part of control
of SOL to Shivakriti Agro Pvt. Ltd. Rather Umaiza had availed the
said loan from Shivakriti Agro Pvt. Ltd. on interest basis alone. It is
submitted that by doubting the authenticity of the takeover of SOL by
Umaiza Infracon LLP, the respondent is doubting the entire corporate
insolvency resolution process, which has been conducted under the
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supervision of RP of SOL and NCLT. It is stated that merely on the
basis of the alleged Facility Agreement which the applicant himself
denies, the respondent cannot curtail the applicant’s liberty
particularly when the taking over of SOL by Umaiza Infracon LLP has
the judicial approval of NCLT.
11. It has been further submitted that no knowledge can be
attributed to by the applicant regarding the alleged proceeds of crime.
Funds were borrowed from Shivakriti Agro Pvt. Ltd by Umaiza
Infracon LLP as a loan to take over SOL. The applicant had no
knowledge as to how the said funds were procured by Shivakriti Agro
Pvt. Ltd., and therefore, the applicant is nowhere related to the alleged
‘proceeds of crime’ in any manner whatsoever. The applicant had no
knowledge that the alleged funds borrowed by Umaiza were the
tainted money.
12. Per contra, learned counsel for the respondent submits that
cognizance of offence of money laundering was duly taken by the
learned Special Court on 25.09.2024 based on prosecution complaint
filed under Sections 44 and 45 of PMLA, 2002, following the
investigation into the illicit acquisition and resolution of SOL. It is
contended that the applicant Ajay Yadav knowingly participated in a
conspiracy orchestrated by ex promoters of SOL to regain control over
the company using ‘proceeds of crime’.
13. It is submitted that shell companies like Umaiza were formed
solely to route and project illicit funds as legitimate during the CIRP
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proceedings with Ajay Yadav acting on instructions from former
Director Rohit Aggarwal and others. It is submitted that the resolution
funds amounting to Rs.196 crores were sourced from layered
transactions involving NBFCs, ARCs and sham investments such as a
Facility Agreement dated 30.09.2019 with Shivakriti Agro Pvt. Ltd.
Furthermore, it has been submitted that the applicant lacks financial
capacity and domain knowledge to independently propose the
resolution plan and relied on diverted funds to do so. Investigation
revealed his deep involvement with ex-directors/promoters well before
the CIRP, as he participated in bank meetings and helped manage
finances of the corporate debtor. It is thus submitted that applicant and
its entities are not protected under Section 32A of the IBC 2016 and
are guilty of money laundering under Section 3 read with Section
70(1) and are thus punishable under Section 4 of PMLA 2002.
14. The learned counsel further submits that applicant fails to
satisfy the twin conditions under Section 45(1) of the PMLA, 2002, as
there exists no reasonable grounds to believe he is not guilty or
unlikely to commit the offence again. It is submitted that applicant
played a key role in a deep rooted conspiracy involving diversion and
laundering of public funds, with material evidence prevailing during
investigation, his active involvement in acquiring SOL using
‘proceeds of crime’ routed through sham entities. The respondent
relies on the decision in the case of Vijay Madanlal Choudhary &
Ors. Vs. Union of India & Ors. (2022) SCC OnLine SC 929;
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Directorate of Enforcement Vs. Aditya Tripathi, 2023 SCC
OnLine SC 619 and Radha Mohan Lakhotia Vs. The Deputy
Director, PMLA, Directorate of Enforcement 2010 SCC OnLine
Bom 1116 to emphasize that the economic offence like money
laundering are grave in nature and bail must be granted cautiously,
especially when there is risk of tampering of evidence or influencing
witnesses. It is further submitted that the sham Facility Agreement
executed to transfer assets back to the ex-promoters through a dummy
entity underscores the deliberate design to project tainted money as
untainted.
15. Learned counsel for the respondent further submits that the
applicant’s arrest is based on circumstantial evidence indicating his
active role in the offence of money laundering, and the ongoing
investigation justifies differential treatment based on individual
culpability. The contention that other accused have not been arrested
does not entitle the applicant to bail, as parity in arrest is not a legally
valid ground under the PMLA. Reliance has been placed on CBI Vs.
Vijay Sai Reddy (2013) 7 SCC 452 and Tarun Gautam Vs.
Directorate of Enforcement (2023) SCC OnLine SC 1486 wherein
the Supreme Court clarified that each accused must be assessed
independently based on their role of evidence. Hence, it has been
submitted that applicant’s arrest under Section 19 of PMLA is lawful
and appropriate given the gravity of his involvement, and therefore,
applicant is not entitled for being released on bail.
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ANALYSIS & CONCLUSION:
16. Before dealing with the merits of the submissions, it will be
apposite to briefly set out the position of law as enunciated by the
Supreme Court regarding the considerations in the grant or denial of
bail under PMLA.
17. In Vijay Madanlal Choudhary v. Union of India , 2022 SCC
OnLine SC 929, while dealing with the twin conditions provided in
the PMLA, observed as under:-
“388. … Notably, there are several other legislations where
such twin conditions have been provided for. Such twin conditions
in the provisions concerned have been tested from time to time and
have stood the challenge of the constitutional validity thereof. The
successive decisions of this Court dealing with analogous provision
have stated that the court at the stage of considering the
application for grant of bail, is expected to consider the question
from the angle as to whether the accused was possessed of the
requisite mens rea. The court is not required to record a positive
finding that the accused had not committed an offence under the
act. The court ought to maintain a delicate balance between a
judgment of acquittal and conviction and an order granting bail
much before commencement of trial. The duty of the court at this
stage is not to weigh the evidence meticulously but to arrive at a
finding on the basis of broad probabilities. Further, the court is
required to record a finding as to the possibility of the accused
committing a crime which is an offence under the Act after grant of
bail.
∗∗∗
401. We are in agreement with the observation made by the
court in Ranjitsing Brahmajeetsing Sharma case [Ranjitsing
Brahmajeetsing Sharma v. State of Maharashtra, (2005) 5 SCC
294 : 2005 SCC (Cri) 1057] . The court while dealing with the
application for grant of bail need not delve deep into the merits of
the case and only a view of the court based on available material-
on-record is required. The court will not weigh the evidence to findBail Appln. 1282/2025 Page 11 of 23
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the guilt of the accused which is, of course, the work of trial
court. The court is only required to place its view based on
probability on the basis of reasonable material collected during
investigation and the said view will not be taken into consideration
by the trial court in recording its finding of the guilt or acquittal
during trial which is based on the evidence adduced during the
trial. As explained by this Court in Nimmagadda
Prasad v. CBI [Nimmagadda Prasad v. CBI, (2013) 7 SCC
466 : (2013) 3 SCC (Cri) 575] , the words used in Section 45 of the
2002 Act are ‘reasonable grounds for believing’ which means the
court has to see only if there is a genuine case against the
accused and the prosecution is not required to prove the charge
beyond reasonable doubt.”
(emphasis supplied)
18. Similarly, while dealing with the question as to what is meant
by “not guilty”, in the case of Mohd. Muslim v. State (NCT of
Delhi), 2023 SCC OnLine SC 352, it has been held as under:-
“19. The conditions which courts have to be cognizant of are that
there are reasonable grounds for believing that the accused is ‘not
guilty of such offence’ and that he is not likely to commit any
offence while on bail. What is meant by ‘not guilty’ when all the
evidence is not before the court? It can only be a prima facie
determination. That places the court’s discretion within a very
narrow margin. Given the mandate of the general law on bails
(Sections 436, 437 and 439, CrPC) which classify offences based
on their gravity, and instruct that certain serious crimes have to be
dealt with differently while considering bail applications, the
additional condition that the court should be satisfied that the
accused (who is in law presumed to be innocent) is not guilty, has
to be interpreted reasonably. Further, the classification of offences
under Special Acts (NDPS Act, etc.), which apply over and above
the ordinary bail conditions required to be assessed by
courts, require that the court records its satisfaction that the accused
might not be guilty of the offence and that upon release, they are
not likely to commit any offence. These two conditions have the
effect of overshadowing other conditions. In cases where bail is
sought, the court assesses the material-on-record such as the nature
of the offence, likelihood of the accused cooperating with the
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investigation, not fleeing from justice: even in serious offences like
murder, kidnapping, rape, etc.
On the other hand, the court in these cases under such special Acts,
have to address itself principally on two facts: likely guilt of the
accused and the likelihood of them not committing any offence
upon release. This court has generally up held such conditions on
the ground that liberty of such citizens have to — in cases when
accused of offences enacted under special laws — be balanced
against the public interest.
20. A plain and literal interpretation of the conditions under Section
37 (i.e. that court should be satisfied that the accused is not guilty
and would not commit any offence) would effectively exclude
grant of bail altogether, resulting in punitive detention and
unsanctioned preventive detention as well. Therefore, the only
manner in which such special conditions as enacted under Section
37 can be considered within constitutional parameters is where the
court is reasonably satisfied on a prima facie look at the material-
on-record (whenever the bail application is made) that the accused
is not guilty. Any other interpretation, would result in complete
denial of the bail to a person accused of offences such as those
enacted under Section 37 of the NDPS Act.
21. The standard to be considered therefore, is one, where the court
would look at the material in a broad manner, and reasonably see
whether the accused’s guilt may be proved. The judgments of this
Court have, therefore, emphasised that the satisfaction which courts
are expected to record i.e. that the accused may not be guilty, is
only prima facie, based on a reasonable reading, which does not
call for meticulous examination of the materials collected during
investigation (as held in Union of India v. Rattan Mallik [Union of
India v. Rattan Mallik, (2009) 2 SCC 624 : (2009) 1 SCC (Cri)
831] ). Grant of bail on ground of undue delay in trial, cannot be
said to be fettered by Section 37 of the Act, given the imperative of
Section 436-A which is applicable to offences under the NDPS Act
too ref. Satender Kumar Antil v. CBI [Satender Kumar
Antil v. CBI, (2022) 10 SCC 51 : (2023) 1 SCC (Cri) 1] . Having
regard to these factors the court is of the opinion that in the facts of
this case, the appellant deserves to be enlarged on bail.
22. Before parting, it would be important to reflect that laws which
impose stringent conditions for grant of bail, may be necessary in
public interest; yet, if trials are not concluded in time, the injustice
wrecked on the individual is immeasurable. Jails are overcrowded
and their living conditions, more often than not, appalling.
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According to the Union Home Ministry’s response to Parliament,
the National Crime Records Bureau had recorded that as on 31-12-
2021, over 5,54,034 prisoners were lodged in jails against total
capacity of 4,25,069 lakhs in the country. Of these 122,852 were
convicts; the rest 4,27,165 were undertrials.”
(emphasis supplied)
19. The entire case of the Enforcement Directorate is that SOL had
misappropriated the funds availed through loan from consortium of
banks and thereafter diverted the same into different entities and used
Umaiza, of which, applicant is the partner to acquire control of the
said company through resolution plan passed by NCLT. It is thus the
case of the ED that the entire process of the ED was misused and that
the present applicant is a key member in the crime conspiracy.
20. Admittedly, the predicate offence registered by the CBI is
against the SOL and its Directors and Promoters. It is also an admitted
case that applicant is not an accused in the charge sheet filed in the
predicate offence. Applicant is the successful resolution applicant of
SOL, which has been taken over by the orders of NCLT after the
resolution plan of Umaiza Infracon LLP was approved by the NCLT.
The Facility Agreement, which is alleged to be a sham agreement, is
already a subject matter of arbitration, which is pending adjudication,
and therefore, imputations cannot be made till such time the
arbitration is decided.
21. In the case of V. Senthil Balaji Vs. State, 2024 SCC OnLine
SC 2626, it has been held that the existence of scheduled offence is a
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sine qua none for alleging existence of proceeds of crime and the
existence of proceeds of crime at the time of trial of offence under
Section 3 of PMLA can be proved only if the predicate/scheduled
offence is established during trial of the said offence. The trial in case
under the PMLA cannot be finally decided unless the trial of
predicate/scheduled offence concludes. As noted by the Coordinate
Bench while granting bail to co-accused Paramjeet in Bail Application
No. 4240/2024, the trial in the predicate/scheduled offence has not
even started and is at a preliminary stage. The prosecution therein has
cited 98 witnesses and the trial is not likely to be completed in a
reasonable time. There are nearly 8000 documents in the
predicate/scheduled offence registered with CBI and around 6000
documents in the present complaint case filed by the respondent/ED.
Even as per the reply of respondent/ED, investigation is still
continuing with respect to identification and location of the remaining
proceeds of crime and determining the role of other persons/entities
involved in the present case. In V. Senthil Balaji (supra), Supreme
Court further observed and held as under:-
“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 jailBail Appln. 1282/2025 Page 15 of 23
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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.
26. There are a series of decisions of this Court starting from the
decision in the case of K.A. Najeeb, which hold that such stringent
provisions for the grant of bail do not take away the power of
Constitutional Courts to grant bail on the grounds of violation of
Part III of the Constitution of India. We have already referred to
paragraph 17 of the said decision, which lays down that the rigours
of such provisions will melt down where there is no likelihood of
trial being completed in a reasonable time and the period of
incarceration already undergone has exceeded a substantial part of
the prescribed sentence. One of the reasons is that if, because of
such provisions, incarceration of an undertrial accused is continued
for an unreasonably long time, the provisions may be exposed to
the vice of being violative of Article 21 of the Constitution of India.
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 on
record, 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 exerciseBail Appln. 1282/2025 Page 16 of 23
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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.”
22. Similarly, in the case of Vijay Nair v. Directorate of
Enforcement, 2024 SCC OnLine SC 3597, it was observed and held
as under:-
“12. Here the accused is lodged in jail for a considerable period and there
is little possibility of trial reaching finality in the near future. The liberty
guaranteed under Article 21 of the Constitution does not get abrogated
even for special statutes where the threshold twin bar is provided and
such statutes, in our opinion, cannot carve out an exception to the
principle of bail being the rule and jail being the exception. The cardinal
principle of bail being the rule and jail being the exception will be
entirely defeated if the petitioner is kept in custody as an under-trial for
such a long duration. This is particularly glaring since in the event of
conviction, the maximum sentence prescribed is only 7 years for the
offence of money laundering.”
23. A Coordinate Bench of this Court in Pankaj Kumar Tiwari &
Anr. Vs. Enforcement Directorate, 2024 DHC 8280, has observed
and held as under: –
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“34. Moreover, as repeatedly held, Constitutional Courts can
always exercise their powers to grant bail on the grounds of
violation of Part III of the Constitution of India and stringent
provisions for the grant of bail such as those provided in Section 45
of the PMLA do not take away the power of Constitutional Courts
to do so. The right of liberty and speedy trial guaranteed under
Article 21 is a sacrosanct right which needs to be protected and
duly enforced even in cases where stringent provisions have been
made applicable by way of special legislation. The stringent
provisions would have to be interpreted with due regard to Article
21 and in case of a conflict, the stringent provisions, such as
Section 45 of the PMLA in the instant case, would have to give
way.
35. Thus, where it is evident that the trial is not likely to conclude
in a reasonable time, Section 45 cannot be allowed to become a
shackle which leads to unreasonably long detention of the accused
persons. What is reasonable and unreasonable would have to be
assessed in light of the maximum and minimum sentences provided
for in the statute. In cases under the PMLA that, except in a few
exceptional cases, the maximum sentence can be of seven years.
The same has to be kept in mind while considering the period of
incarceration which has been undergone.
36. In the present cases, both the applicants were arrested on 11-1-
2024. They have been in custody since more than 9 months.
Moreover, the trial in the predicate as well as the present complaint
is yet to commence and would take some time to conclude. It is
also pertinent to note that the main accused and other similarly
placed co-accused persons have been enlarged on bail.
No evidence has been led to show that the present applicants are a
flight risk. In fact, records would show that both the applicants
have joined investigation on multiple occasions. There is no
incident alleged by the respondent wherein the applicants have tried
to tamper with evidence or influence witnesses.”
24. The whole case of the respondent is that applicant acted on the
advice and instructions of the ex-promoters/Directors of SOL – Rohit
Aggarwal and submitted the resolution plan in NCLT to acquire SOL
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with a view to facilitate the diversion of proceeds of crime to Rohit
Aggarwal, who thus is stated to be the main beneficiary. However, the
alleged main beneficiary of the proceeds of crime, Rohit Aggarwal has
not been arrested.
25. Even though, ED not having arrested the co-accused persons,
against whom there are more serious allegations, would not be
dispositive of a bail plea one way or the other, it will not be wholly
irrelevant. In the case of Ashish Mittal Vs. SFIO, 2023 SCC OnLine
Del. 2484, the Court held that considering the nature of the offence
where the gravamen of the offence is that several persons acting in
concert have siphoned off and “laundered” monies, it is manifestly
arbitrary for the ED to have made selective arrests and arraignments.
Similarly, the Hon’ble Supreme Court in Himansh @ Himanshu
Verma Vs. ED, Order dated 08.07.2024 passed in SLP (Crl.) Nos.
2438/2024, held as under:-
“2. We are inclined to set aside the impugned judgment on the sole
ground that the mastermind of the alleged offence named Bharat
Bomb has never been arrested in view of the statement made on
behalf of the Directorate of Enforcement. What the appellant seeks
is enlargement on bail.
3. Thus, taking note of the aforesaid fact alone, we are inclined to
set aside the impugned order by granting bail to the appellant
subject to the conditions that may be imposed by the designated
Court. We make it clear that it is well open to the designated Court
to impose such conditions so as to enable it to proceed with the trial
as it is submitted by Mr. S.V. Raju, learned Additional Solicitor
General appearing for the respondent that the appellant may be a
flight risk.”
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26. Admittedly, the applicant has joined the investigation and has
been in custody for the last about 11 months. In the case of Udhaw
Singh Vs. Enforcement Directorate, 2025 SCC OnLine SC 357, the
Hon’ble Supreme Court held as under:-
“4. In this case, the appellant has undergone incarceration for a
period of 1 year a20-23nd 2 months. There are 225 witnesses cited,
out of which only 1 has been examined. Therefore, the trial is not
likely to be concluded within few years. Hence, decision of this
Court in the case of V. Senthil Balaji v. Deputy Director,
Directorate of Enforcement will apply. …..
5. Our attention is invited to a decision of a coordinate Bench in the
case of Union of India through the Assistant Director v. Kanhaiya
Prasad After having perused the judgment, we find that this was a
case where the decisions of this Court in the case of Union of India
v. K.A. Najeeb and in the case of V. Senthil Balaji were not
applicable on facts. Perhaps that is the reason why these decisions
were not placed before the coordinate Bench. The respondent-
accused therein was arrested on 18th September, 2023 and the High
Court granted him bail on 6th May, 2024. He was in custody for
less than 7 months before he was granted bail. There was no
finding recorded that the trial is not likely to be concluded in a
reasonable time. In the facts of the case, this Court cancelled the
bail granted by the High Court. Therefore, there was no departure
made from the law laid down in the case of Union of India v. K.A.
Najeeb and V. Senthil Balaji.
6. The learned Solicitor General of India very fairly stated that in
the facts of the case, the decision in the case of V. Senthil Balaji1
may be followed. Hence, the appellant deserves to be enlarged on
bail, pending trial.”
27. In the most recent judgment in the case of Anwar Dhebar Vs.
Enforcement Directorate, Crl. Appeal No (s) 2669/2025, arising out
of SLP (Crl.) No (s) 3592/2025 in Chhattisgarh Liquor Scam case,
following the law laid down in the case of V. Senthil Balaji (supra),
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the Court granted bail to the appellant, who was in custody for about 9
months.
28. While placing reliance on the aforesaid judicial
pronouncements, the Coordinate Bench granted bail to co-accused
Paramjeet and Rakesh Kumar Gulati, observing that continued
incarceration of the accused with no possibility of trial being
completed in near future, restrictions provided under Section 45 of the
PMLA would not come in the way of ensuring the right to personal
liberty and speedy trial under Article 21 of the Constitution of India.
29. The role of co-accused Paramjeet is that he being an ex-
employee of SOL and close aide of ex-promoter of SOL i.e. Rohit
Aggarwal, while acting as C.O.O./Director/ Shareholder/Controller of
M/s. Shivakriti Agro Private Limited played a key role and facilitated
the transfer of proceeds of crime through sham transactions of
Shivakriti Agro Private Limited with SOL and other companies and
facilitated the takeover of SOL indirectly via Umaiza. The role alleged
against co-accused Paramjeet, already granted bail, is no lesser than
the role of the present applicant.
30. There is nothing on record to indicate the previous criminal
antecedents of the applicant, no reasonable apprehension has been
raised by the ED to demonstrate that applicant will commit similar
offence while on bail.
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31. Hence, in the light of above discussion and particularly
considering the period of incarceration already undergone by the
applicant coupled with the absence of any real likelihood of the trial
concluding in near future, the rigors of Section 45 of the PMLA must
yield to the constitutional safeguard under Article 21. On this
foundational principle, the Court is of the view that the continued
detention of the applicant cannot be justified on the sole of ground of
statutory bar under Section 45.
32. Hence, considering the entirety of facts and circumstances, the
Court is inclined to grant bail to the present applicant. The applicant is
therefore directed to be released upon his furnishing a personal bond
in the sum of Rs. 1 lakh with two sureties of the like amount each to
the satisfaction of learned trial court/Duty Magistrate, subject to
following terms and conditions:-
i) that applicant shall surrender his passport with the concerned
Special Court, if not already deposited;
ii) applicant shall not leave the country without the permission of
the trial court;
iii) upon release, the applicant shall share his mobile number with
the concerned IO and shall keep the mobile phone switched on at all
times;
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iv) applicant shall regularly appear before the trial court, as and
when directed;
v) applicant shall not in any manner contact the witnesses or
tamper with the evidence;
vi) in case of change of address, applicant shall inform the same to
the learned trial court/Investigating Officer.
33. Needless to state that any observation concerning the merits of
the case are solely for the purpose of deciding the question of grant of
bail and shall not be construed as an expression of opinion on the
merits of the case.
34. The application stands allowed and disposed of along with all
the pending application(s), if any.
35. Copy of this judgment be sent to the concerned Jail
Superintendent and judgment be uploaded on the website of the Court
forthwith.
RAVINDER DUDEJA, J.
May 31, 2025
IB/RM
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