No need to satisfy PMLA’s twin bail condition if the accused is sick and infirm; Delhi High Court grants bail

Delhi High Court

   

Delhi High Court: In a case filed seeking bail for an accused being involved in an alleged bank loan scam by Shakti Bhog Foods Limited (SBFL), Jasmeet Singh, J. granted bail considering the medical condition of the accused as the proviso to Section 45(1) of Prevention of Money Laundering Act, 2002 (PMLA), carves out an exception from the rigors of Section 45 for persons who are sick or infirm.

An FIR was registered under Section 120-B read with Sections 420, 467, 468 and 471 of Penal Code, 1860 (‘IPC’) and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 (‘PC Act’) and since the offences in the FIR are scheduled offences under the provisions of the Prevention of Money Laundering Act, 2002 Enforcement Directorate was roped in.

Submissions

Relying on the medical reports, the counsel for applicant submitted that the applicant suffers from multiple serious ailments like one kidney is non-functional and the other one is impaired resulting in inability to effectively remove toxicity from his body. The Applicant also has a serious heart condition which highlights that he is not only sick, but infirm, and hence, needs to be released on bail in accordance with Proviso to Section 45(1) of PMLA.

Counsel for respondents submitted that a bare perusal of the medical history will show that the applicant is suffering from these ailments from 2001 onwards, and even during the period of alleged offences i.e., from the year 2007 to 2012, the applicant was suffering from these ailments. Hence, all the medical conditions of the applicant are historical. He further submits that the jail provided proper and satisfactory medical facilities to the applicant.

Observations

The Court noted that a bare perusal of the Statement of Objects and Reasons of PMLA goes to show that inclusion of the above conditions for grant of bail as a proviso to section 45(1) of PMLA elucidates the legislature’s intent to incorporate relaxations for persons below sixteen years of age; a woman; or one who is sick or infirm. Thus, the proviso to Section 45(1) of PMLA carves out an exception from the rigors of Section 45 for persons who are sick or infirm.

The Court opined that sick and infirm have not been defined under the PMLA, therefore, the Court relied on dictionaries to define the term, “Sick” which refers to being “affected by illness; unwell, ailing.” and “infirm” is defined as “not physically strong or healthy; weak or feeble, esp. through old age”.

Issue 1: Whether the applicant falls within the category of sick or infirm so as to grant him the benefit of the proviso to section 45(1) PMLA?

The Court noted that in view of the said medical reports, it leaves no room for doubt that the applicant is both, sick and infirm as he is functioning on 30% capacity of one kidney and the other kidney is dead and requires constant monitoring otherwise his fluctuations can cause death. He has also undergone multiple surgeries for removal of his large intestine, gall bladder, peptic ulcer, colostomy and even a hernia operation. He has a pacemaker installed due to his heart condition and is also suffering from Spondylitis and Vertigo.

Issue 2: Whether the applicant suffers from a condition which cannot be addressed from the jail?

On the contention raised by the respondents that that to enlarge the accused on bail, the High Court has to record a finding that the treatment accorded to the accused by the jail authorities is not “Satisfactory”, the Court noted that prisons provide medical facilities but the services are not comparable to or equivalent to the level of treatment and care one can avail from private hospitals. The facilities in the jail are of a general nature and character which is inadequate to monitor proper health of the applicant who is suffering from multiple serious ailments. The jail is not equipped to provide special and intensive treatment and care that the applicant is in need of.

Conclusion

Thus, the Court concluded that his condition is such that he requires emergent medical assistance which cannot be provided in jail in a prompt and efficient manner vis-à-vis hospital atmosphere. The fact that the applicant is suffering from these ailments from the year 2001 is also not of much help to the respondents” as it is a given fact that ailments aggravate with age. Therefore, the ailments which, coupled with old age bring the applicant within the purview of “Infirm Person”.

The Court granted bail to the accused on furnishing a personal bond with surety in the sum of Rs. 50,000 each to the satisfaction of the Investigating Officer, considering that the applicant is aged, sick and infirm, who is suffering from various complicated diseases.

[Devki Nandan Garg v. Directorate of Enforcement, 2022 SCC OnLine Del 3086, decided on 26-09-2022]


Advocates who appeared in this case :

Mr. Siddharth Luthra, Sr. Adv. with Mr. Rishi Agarwala, Mr. Parminder Singh, Mr. Vishnu Tallapragada, Mr. Kanav Vir Singh, Mr. Akshat Kumar and Mr. Fazan Ahmed, Advocates, for the Applicant;

Mr. Zoheb Hossain, Adv. with Mr. Vivek Gurnani, Advocates, for the Respondent.


*Arunima Bose, Editorial Assistant, has prepared this brief.

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