Twin Test For Bail Under Section 45 Pmla Not A Tool To Indefinitely Jail Accused: Delhi Hc

It is certainly most refreshing, most reassuring and most reinvigorating to note that while taking potshots at the arbitrary manner in which an accused is jailed indefinitely, the Delhi High Court in a most learned, laudable, landmark, logical and latest judgment titled Pankaj Kumar Tiwari vs Enforcement Directorate in Bail Appln 3210/2024 and Bail Appln 3269/2024 and cited in Neutral Citation No.: 2024:DHC:8280 that was reserved on 08.10.2024 and then finally pronounced on 24.10.2024 has minced just no words to lay down in no uncertain terms that the stringent twin tests for the grant of bail under Section 45 of the Prevention of Money Laundering Act, 2002 (PMLA) cannot be invoked as a tool to indefinitely detain accused persons when there is a delay in completing trial. It must be noted that the Single Judge Bench comprising of Hon’ble Mr Justice Manoj Kumar Ohri made the observation while granting bail to two former Bhushan Steel Limited (BSL) officials named Pankaj Kumar Tiwari and Pankaj Kumar who had been booked in connection with a Rs 46,000 crore money laundering case and had been in jail for over nine months. It is really good to see that the Bench very rightly and most pragmatically took into account the irrefutable fact that as the case concerned numerous defendants, extensive evidence spanning lakhs of pages and many witnesses due to which the trial was unlikely to conclude anytime soon for no fault of the accused. The Bench very rightly concluded that, “The delay being not attributable to accused, keeping the accused in custody by using Section 45 PMLA as a tool for incarceration is not permissible. Flow of liberty cannot be dammed by Section 45 without taking all other germane considerations into account. It is the duty of Constitutional Courts to champion the constitutional cause of Liberty and uphold the majesty of Article 21 … 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.” Absolutely right!

At the very outset, this notable judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Manoj Kumar Ohri sets the ball in motion by first and foremost putting forth in para 1 that, “The applicants seek regular bail in the Complaint Case No. 26 of 2023 arising out of ECIR No. ECIR/06/DLZO-II/2019 dated 28.08.2019. As both the applications were taken up for consideration together and common submissions have been addressed, the applications are considered and disposed of by this common judgment.”

As we see, the Bench then discloses in para 2 that, “The predicate offence was investigated by the Serious Fraud Investigation Office (hereafter, the SFIO) which culminated into filing of complaint case being Complaint No. 770 of 2019 under Section 447 of Companies Act , 2013 and Sections 409, 467, 468, 471, 120B IPC. On the complaint filed by SFIO, cognizance stands taken. As the said offences are also scheduled offences under PMLA, 2002, the subject ECIR was registered on 29.08.2019 and after investigation, the prosecution complaint came to be filed on 08.08.2023. A supplementary prosecution complaint was filed on 07.03.2024.”

To put things in perspective, the Bench envisages in para 3 while elaborating on the allegations that, “In the prosecution complaint filed by ED, the allegations in nutshell are that as per the SFIO investigation report, ex-promoters of M/s Bhushan Steel Ltd. (hereafter, the BSL) i.e., Brij Bhushan Singhal and Neeraj Singhal had obtained loan of Rs. 56,000 Crores from various banks and financial institutions before BSL went into insolvency and CIRP were initiated. The aforesaid accused needed to infuse capital in BSL in order to avail credit facilities from the lender banks for its steel plant in Orissa; and to do so as well as to maintain the required level of debt equity, the said accused persons assisted by their employees and close associates siphoned off funds from BSL and Bhushan Energy Ltd (hereafter, the BEL) by using complex web of companies and financial transactions starting from the year 2009-10 onwards. The funds were transferred from BSL and BEL to the connected category ‘B’ and ‘C’ companies (approx. 150 in number in which employees of BSL were appointed as Directors/signatories and whose effective control was with the promoters) terming them as ‘Capital Advances’. The recipient companies through layering ultimately invested the said sum in BSL as promoter equity and for issuance of preference shares. Further, the layered funds were consolidated through bank accounts held by Uma Singhal and Ritu Singhal (the respective wives of Brij Bhushan Singhal and Neeraj Singhal). Further, the said accused persons in the garb of availing credit facilities from banks used forged documents. BSL opened a Letter of Credit (LC) with consortium banks for availing non-fund based limits against forged invoices for supply of goods by M/s Jindal Steel Works (JSW) and M/s Hindustan Zinc Ltd. (HZL). On the basis of forged documents, the LCs were discounted by using account No. of BSL on the request letters of JSW and HZL. No goods were ever supplied by JSW/HZL to BSL against the said LCs. The fraud was covered up by showing false increase in valuation of assets and fraudulent valuation and inflated figures of Stock-in-Transit. In this manner public funds to the tune of Rs. 45,818 Crores were diverted during the period 2013-14 to 2016-17 to its accounts. It is alleged that in the said siphoning off of funds, the main accused persons were aided, amongst others, by the present applicants.”

Do note, the Bench notes in para 21 that, “From above, it is discernible that the only material cited against both the applicants is the statements recorded under Section 50 PMLA. As contended, some of the statements relied upon by the respondents are of persons who are co-accused in the investigation conducted by SFIO and therefore the veracity of same would be tested in trial.”

Be it noted, the Bench notes in para 24 that, “Bail is the rule and jail is the exception. This principle is nothing but a crystallisation of the constitutional mandate enshrined in Article 21, which says that that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty is the usual course of action, and deprivation of it a detour, which is why there are safeguards imposed to ensure that the deprivation of liberty is only by procedure established by law. This procedure should be fair and reasonable, and right of the accused to speedy trial is an important aspect which the Court must keep in contemplation when deciding a bail application as the same are higher sacrosanct constitutional rights, which ought to take precedence.”

Do further note, the Bench notes in para 25 that, “The right of bail was read into the provisions of Section 45 by the Supreme Court where the accused was incarcerated for about a year and the case was pending at the stage of charge (Ramkripal Meena v. Directorate of enforcement SLP (Crl) No. 3205 of 2024 dated 30.07.2024). The Court also deems it apposite to refer to some recent decisions where the above-noted issue has been categorically addressed.”

While referring to a recent and relevant case law, the Bench points out in para 26 that, “The Supreme Court in the case of Manish Sisodia v Directorate of Enforcement, 2024 SCC OnLine SC 1920 reiterated the right of an accused for expeditious trial even in PMLA cases and held as under;-

37. Insofar as the contention of the learned ASG that since the conditions as provided under Section 45 of the PMLA are not satisfied, the appellant is not entitled to grant of bail is concerned, it will be apposite to refer to the first order of this Court. No doubt that this Court in its first order in paragraph 25, after recapitulating in paragraph 24 as to what was stated in the charge-sheet filed by the CBI against the appellant, observed that, in view of the aforesaid discussion, the Court was not inclined to accept the prayer for grant of bail at that stage. However, certain paragraphs of the said order cannot be read in isolation from the other paragraphs. The order will have to be read in its entirety. In paragraph 28 of the said order, this Court observed that the right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 Cr.P.C. and Section 45 of the PMLA. The Court held that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted that he be ensured and given a speedy trial. It further observed that when the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, would be guided to exercise the power to grant bail. The Court specifically observed that this would be true where the trial would take years. It could thus clearly be seen that this Court, in the first round of litigation between the parties, has specifically observed that in case of delay coupled with incarceration for a long period and depending on the nature of the allegations, the right to bail will have to be read into Section 45 of PMLA.

49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.

50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.”  

While continuing in the same vein, the Bench observes in para 27 while citing another recent and relevant case law that, “Again, in the case of Prem Prakash v. Union of India through the Directorate of Enforcement, 2024 SCC OnLine SC 2270 the Supreme Court reiterated that the fundamental right enshrined under Article 21 cannot be arbitrarily subjugated to the statutory bar in Section 45 of the Act by holding as follows:-

11….All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, “bail is the rule and jail is the exception” is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 of PMLA by imposing twin conditions does not re-write this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied.

12. Independently and as has been emphatically reiterated in Manish Sisodia (II) (supra) relying on Ramkripal Meena v. Directorate of Enforcement (SLP (Crl.) No. 3205 of 2024 dated 30.07.2024) and Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 SCC OnLine SC 1693, where the accused has already been in custody for a considerable number of months and there being no likelihood of conclusion of trial within a short span, the rigours of Section 45 of PMLA can be suitably relaxed to afford conditional liberty. Further, Manish Sisodia (II) (supra) reiterated the holding in Javed Gulam Nabi Sheikh (Supra), that keeping persons behind the bars for unlimited periods of time in the hope of speedy completion of trial would deprive the fundamental right of persons under Article 21 of the Constitution of India and that prolonged incarceration before being pronounced guilty ought not to be permitted to become the punishment without trial. In fact, Manish Sisodia (II) (Supra) reiterated the holding in Manish Sisodia (I) v. Directorate of Enforcement (judgment dated 30.10.2023 in Criminal Appeal No. 3352 of 2023) where it was held as under:—

“28. Detention or jail before being pronounced guilty of an offence should not become punishment without trial. If the trial gets protracted despite assurances of the prosecution, and it is clear that case will not be decided within a foreseeable time, the prayer for bail may be meritorious. While the prosecution may pertain to an economic offence, yet it may not be proper to equate these cases with those punishable with death, imprisonment for life, ten years or more like offences under the Narcotic Drugs and Psychotropic Substances Act, 1985, murder, cases of rape, dacoity, kidnaping for ransom, mass violence, etc. Neither is this a case where 100/1000s of depositors have been defrauded. The allegations have to be established and proven. The right to bail in cases of delay, coupled with incarceration for a long period, depending on the nature of the allegations, should be read into Section 439 of the Code and Section 45 of the PML Act. The reason is that the constitutional mandate is the higher law, and it is the basic right of the person charged of an offence and not convicted, that he be ensured and given a speedy trial. When the trial is not proceeding for reasons not attributable to the accused, the court, unless there are good reasons, may well be guided to exercise the power to grant bail. This would be truer where the trial would take years.” It is in this background that Section 45 of PMLA needs to be understood and applied. Article 21 being a higher constitutional right, statutory provisions should align themselves to the said higher constitutional edict. (emphasis added).”

Moving on, the Bench hastens to add in para 28 while citing yet another recent and relevant case law that, “The view taken in the Manish Sisodia and Prem Prakash cases (Supra) was reiterated by the Supreme Court in the case of Vijay Nair v. Directorate of Enforcement, decided on 02.09.2024 in SLP (Crl) Diary No. 22137/2024, where it was 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.”

We need to also pay attention that while referring to yet another recent and relevant case law, the Bench discloses in para 29 that, “Supreme Court, in the case of V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement, 2024 INSC 739 while underscoring the importance of Article 21 and the effect of delays in trial in PMLA cases held as under:-

“21. Hence, the existence of a scheduled offence is sine qua non for alleging the existence of proceeds of crime. A property derived or obtained, directly or indirectly, by a person as a result of the criminal activity relating to a scheduled offence constitutes proceeds of crime. The existence of proceeds of crime at the time of the trial of the offence under Section 3 of PMLA can be proved only if the scheduled offence is established in the prosecution of the scheduled offence. Therefore, even if the trial of the case under the PMLA proceeds, it cannot be finally decided unless the trial of scheduled offences concludes. In the facts of the case, there is no possibility of the trial of the scheduled offences commencing in the near future. Therefore, we see no possibility of both trials concluding within a few years.

25…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.

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 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.” (emphasis added).”

Adding more to it, the Bench notes in para 30 that, “On similar lines is the decision of Supreme Court in Sunil Dammani v. Directorate of Enforcement Criminal Appeal No. 4108/2024 decided on 03.10.2024, where considering the one year custody of the accused and the factum of investigation being complete, the bail was granted noting that the prosecution had cited 98 witnesses.”  

It is worth noting that the Bench while citing very recent and relevant case law then further notes in para 31 that, “The right to speedy trial was also upheld and other special legislations where provisions akin to Section 45 PMLA exist. Notable ones being, the decision in the case of Javed Gulam Nabi Shaikh v. State of Maharashtra, 2024 SCC OnLine SC 1693 wherein Supreme Court while granting bail to an accused under UAPA, observed as under:-    

“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.” (Emphasis added)
On similar lines is the case of Union of India v. K.A. Najeeb (Three Judge bench) (2021) 3 SCC 713, wherein the Supreme Court is held:-

“12. Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (“the NDPS Act”) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi) [Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 : 1999 SCC (Cri) 1156] , Babba v. State of Maharashtra [Babba v. State of Maharashtra, (2005) 11 SCC 569 : (2006) 2 SCC (Cri) 118] and Umarmia v. State of Gujarat [Umarmia v. State of Gujarat, (2017) 2 SCC 731 : (2017) 2 SCC (Cri) 114] enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.

15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India [Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, (1994) 6 SCC 731, para 15 : 1995 SCC (Cri) 39] , it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, the courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, the courts would ordinarily be obligated to enlarge them on bail.

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)

Taking note of above decision , in the case of Sk. Javed Iqbal v. State of U.P., (2024) 8 SCC 293 the Supreme Court held that:-

“42. This Court has, time and again, emphasised 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 21of 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 constitutionalism and the rule of law of which liberty is an intrinsic part. In the given facts of a particular case, a constitutional court may decline to grant bail. But it would be very wrong to say that under a particular statute, bail cannot be granted. It would run counter to the very grain of our constitutional jurisprudence. In any view of the matter, K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713] being rendered by a three-Judge Bench is binding on a Bench of two Judges like us.” (Emphasis added).

To the similar extent are the decisions in Mohd. Muslim alias Hussain v State (NCT of Delhi 2023 SCC OnLine SC 352, Jitendra Jain v. Narcotics Control Bureau 2022 SCC OnLine SC 2021, Rabi Prakash v. State of Odisha 2023 SCC OnLine SC 1109 and Man Mandal and Anr. v. State of West Bengal reported as 2023 SCC OnLine SC 1868, wherein while taking into account the prolonged custody and unlikelihood of completion of trial in immediate future, the accused was granted bail.”

It cannot be glossed over that the Bench observes in para 32 that, “Examining the present case in the aforenoted backdrop, it is noted that the investigation was initiated in the year 2019 and the prosecution has named 156 accused persons and cited 82 witnesses. There are 2.5 lac pages of documents which need to be analysed. Learned Special Judge took cognizance of the supplementary chargesheet vide order dated 26.07.2024. It is also observed that in the supplementary complaint dated 08.03.2024, permission was taken by the ED under Section 173(8) Cr.P.C. for further investigation into the matter. As such, the Trial is yet to commence.”

Most significantly and most forthrightly, the Bench mandates in para 33 propounding that, “When there are multiple accused persons, lacs of pages of evidence to assess, scores of witnesses to be examined, the trial is not expected to end anytime in the near future. Importantly, the delay being not attributable to accused, keeping the accused in custody by using Section 45 PMLA as a tool for incarceration is not permissible. Flow of liberty cannot be dammed by Section 45 without taking all other germane considerations into account. It is the duty of Constitutional Courts to champion the constitutional cause of Liberty and uphold the majesty of Article 21.”

Most remarkably and most sagaciously, the Bench expounds in para 34 that, “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.”

Most commendably, we see that while taking a very pragmatic approach, the Bench postulates in para 35 that, “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.”

It cannot be lost sight of that the Bench points out in para 36 that, “In the present cases, both the applicants were arrested on 11.01.2024. 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.”

Resultantly, the Bench directs and stipulates in para 37 holding that, “Considering the totality of the facts and circumstances, the fact that the main accused are out on bail, the period of custody undergone and that the trial is yet to commence, keeping in mind the import of the Catena of decisions of Supreme Court discussed hereinabove, it is directed that both the applicants be released on regular bail subject to them furnishing a personal bond in the sum of Rs.1,00,000/- with one surety of the like amount each to the satisfaction of the concerned Jail Superintendent/concerned Court/Duty J.M. and subject to the following further conditions: -

i)  The applicants shall not leave Delhi/NCR without prior permission of the concerned Court and surrender their passports, if any.

ii) The applicants shall provide their mobile numbers to the Investigating Officer on which they will remain available during the pendency of the trial.

iii)  In case of change of residential address or contact details, the applicants shall promptly inform the same to the concerned Investigating Officer as well as to the concerned Court.

iv) The applicants shall not directly/indirectly try to get in touch with the prosecution witnesses or tamper with the evidence.

v) The applicants shall regularly appear before the concerned Court during the pendency of the trial.”         

What’s more, the Bench directs in para 39 that, “Copy of the order be communicated to the concerned Jail Superintendent electronically for information and necessary compliance.”

Still more, the Bench directs in para 40 that, “Copy of the order be uploaded on the website forthwith.”

Finally and for sake of clarity, the Bench then concludes by clarifying in para 41 that, “Needless to state that this Court has not expressed any opinion on the merits of the case and has made the observations only with regard to present bail applicants and nothing observed hereinabove shall amount to an expression on the merits of the case and shall not have a bearing on the trial of the case as the same has been expressed only for the purpose of the disposal of the present bail application.”

In sum, the Delhi High Court while granting bail to the two bail applicants named Pankaj Kumar Tiwari and Pankaj Kumar who were the former Vice Presidents of the finance and accounts departments of Bhushan Steel Limited (BSL) made it indubitably clear that keeping the accused in custody by using Section 45 PMLA as a tool for incarceration is not permissible. Mr Kapil Sibal who is the President of Supreme Court Bar Association has thus frankly very rightly conceded recently without mincing any words that nothing has changed in last 78 years of independence! Mr Sibal was quick to add that, “In developed countries, investigations precede arrests while here, arrests precede investigations. In the developed world, the allegation is first investigated and then the arrest takes place. In our world, the arrest comes first and the investigation takes place later. Which country (apart from India) has police remand? It’s the colonial past which has given the police this power.” Absolutely right! It is the “poorest of the poor” who suffer the most and spend more time in jail as an undertrial than the criminal who commits the crime as he is unable to fight the case which reflects the shoddy state of affairs in our legal system which must be changed root and branch!