Patna High Court
Nitesh KumarversusThe Union of India through Assistant Director, Patna Zonal Office, Enforcement Directorate (E.D.)
- Decided
- Disposal
- ALLOWED
- Bench
- SANDEEP KUMAR
Holding
The court allowed bail, finding that the statutory conditions of Section 45 PMLA were satisfied in view of the petitioner’s prolonged incarceration and the unlikely prospect of a speedy trial.
Summary
The petitioner, Nitesh Kumar, was arrested in a PMLA case alleging that he facilitated cyber‑fraud and money‑laundering by arranging bank accounts and transferring €950 from a foreign victim’s credit card to a shell company. He contended that he was an unwitting victim whose documents were misused, that the alleged proceeds were below the Rs 1 crore threshold, and that he had been in custody for over 15 months with no prospect of a speedy trial. The court examined the stringent bail conditions under Section 45 of the PMLA, the petitioner’s clean antecedents, the prolonged incarceration, and numerous Supreme Court precedents emphasizing the primacy of personal liberty and the right to a speedy trial. Balancing these factors, the court held that the twin conditions of Section 45 were satisfied and that continued detention would violate Article 21. Consequently, the court granted regular bail with stringent conditions, without expressing any view on the merits of the underlying offence.
Issues considered
- Whether bail can be granted under Section 45 of the PMLA given the alleged money‑laundering offences.
- Whether the amount involved (less than Rs 1 crore) makes the petitioner eligible for bail.
- Whether the petitioner poses a risk of tampering with evidence or influencing witnesses.
- Whether the prolonged pre‑trial detention violates the right to speedy trial under Article 21.
Legislation cited
- Code of Criminal Procedure, 1973
- Prevention of Money Laundering Act, 2002 — s. 3, 4, 45, 71
Subjects
- bail
- PMLA
- Section 45
- money laundering
- cyber fraud
- speedy trial
- Article 21
- prolonged incarceration
- conditional bail
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.58371 of 2025
Arising Out of PS. Case No.-27 Year-2023 Thana- E.C.I.R (GOVERNMENT OFFICIAL)
District- Patna
======================================================
Nitesh Kumar S/o Arvind Kumar Resident of Raj Bhawan, Salimpur Ahara,
Gali No. 03, Hajam Toli, Phulwari Sharif, P.S.- Phulwari Sharif, Distt.- Patna,
Bihar.
... ... Petitioner
Versus
The Union of India through Assistant Director, Patna Zonal Office,
Enforcement Directorate (E.D.) Govt. of Inida, New Delhi
... ... Opposite Party
======================================================
Appearance :
For the Petitioner : Mr. Prashant Kashyap, Advocate
For the Union of India : Mr. K.N.Singh, Addl. S.G.
For the E.D. : Mr. Prabhat Kumar Singh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR
C.A.V. JUDGMENT
Date : 16-01-2026
Heard Mr. Prashant Kashyap, learned counsel for
the petitioner, Dr. K.N. Singh, learned Additional Solicitor
General of India and Mr. Prabhat Kumar Singh, learned retained
counsel for the Enforcement Directorate.
2. The present application has been moved on
behalf of the petitioner seeking regular bail in connection with
Special Trial (P.M.L.A.) Case No.12 of 2023, arising out of
E.C.I.R. No. PTZO/27/2023 dated 17.10.2023 registered for the
offence under section 4 of the Prevention of Money Laundering
Act, 2002, pending before the Court of learned Sessions Judge-
cum- Special Judge (PMLA), Patna.
3. The prosecution case in brief is that an
information was received from NCB-Ireland alleging therein
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that cyber fraud was committed on 07.12.2021 with one Ms.
Carmel Fox, an Irish National, to the tune of 950 Euros
(Rs.84,941.40) received by the A.D., NCB, India (C.B.I.). It is
alleged that Ms. Carmel Fox received a call from a Mobile No.
08339852316 identifying herself as Stephanie from Eircom
Technological Service and asked her about her broadband
connection and said that a refund of 250 Euros is due and asked
her bank account details, to which Ms. Carmel Fox provided the
information. It is further alleged that as per information
provided by the NCB Ireland that Nitesh Kumar (petitioner)
allegedly transferred an amount of 950 Euros from the credit
card of Ms. Carmel Fox to a rewire bank account which was
further transferred to M/s. Leconix Business Centre Pvt. Ltd.
having its registered office at Kolkata. It is further alleged that
during investigation, it was found that the petitioner and Sk.
Lutfur Rehman are the Directors of the Company which was
incorporated on 26.11.2020. It was revealed that M/s Leconix
Business Centre Pvt. Ltd has financial transactions with M/s
Scrapix Consultancy Services Pvt. Ltd., of which Sagar Yadav
and Prativa Yadav are the directors. It is stated that co-accused
Sagar Yadav was the beneficial owner of M/s Leconix Business
Centre and Nitesh Kumar (petitioner) was his associate and was
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working with them.
3.1. It is also the case of the prosecution that a
search operation was carried out in the premises of co-accused
Sagar Yadav situated at Kolkata and Kharagpur. Later on, Sagar
Yadav, his associate Santosh Kumar and Robin Kumar Yadav
were arrested.
3.2. It is alleged that during investigation, it was
found that the petitioner was an associate of the co-accused
Robin Yadav and was involved in running fake call centres for
committing cyber fraud with foreign nationals.
3.3. It is further the case of the prosecution that
the petitioner had arranged several bank accounts for receiving,
layering and laundering the Proceeds of Crime in lieu of
commission received from the co-accused Robin Kumar. It is
also alleged that the petitioner had provided the signed copies of
Aadhar Card, PAN card and photographs to accused Sagar
Yadav for incorporating a shell company used for receiving
Proceeds of Crime and further layering and laundering.
Investigation has further revealed that out of the several bank
accounts arranged by the petitioner, two of such bank accounts
have received the proceeds of crime to the tune of Rs.19.31
Lakhs and Rs.19.53 Lakhs as foreign remittance. Further, it is
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the case of the prosecution that the petitioner had been operating
his bank accounts in consultation with other co-accused persons
and the petitioner used to withdraw Proceeds of Crime in cash
and was in regular touch with Robin Kumar Yadav and Santosh
Kumar. Apart from his own accounts, the petitioner has also
arranged 7 to 8 bank accounts and provided the same to co-
accused Robin Kumar Yadav for payment in lieu of some
commission.
3.4. It is, therefore, the case of the prosecution
that the petitioner has been directly and knowingly involved in
the process or activity connected with commission of scheduled
offence and criminal activities relating thereto and thus, he has
committed the offence of money laundering as defined under
section 3 of PMLA, 2002 punishable under section 4 read with
Section 71 of PMLA, 2002, which, according to the
prosecution, is evident from the fact that the petitioner in his
statement recorded under section 50 of the P.M.L.A., has
admitted of being involved in the commission of offence of
cyber fraud committed with foreign nationals and has also
accepted to have provided nearly 15-16 bank accounts to co-
accused Robin Kumar Yadav in lieu of commission. Further, co-
accused Santosh Kumar in his statement under Section 50 of
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PMLA, 2002 has stated that the petitioner has provided bank
account details to co-accused Robin Yadav. Relying on bank
account transactions, extraction of mobile data and other
materials, the prosecution has contended that the Proceeds of
Crime is in the form of foreign remittance received in the
accounts of the accused persons.
3.5. Based on the basis of aforesaid, Special Trial
(P.M.L.A.) Case No.12 of 2023, arising out of E.C.I.R. No.
PTZO/27/2023 has been instituted.
4. The learned counsel for the petitioner, at the
outset, submits that the petitioner is innocent and has been
falsely implicated for oblique reasons in the present criminal
case. He further submits that according to the prosecution the
petitioner is alleged to have withdrawn cash, however, no cash
amount has ever been recovered from the conscious possession
of the petitioner. Further, the petitioner is totally unaware of any
cash transaction occurring in his HDFC bank account.
5. It has been submitted by learned counsel for
the petitioner that the petitioner is an unemployed youth, who
came in contact with the co-accused Robin Yadav in the hope of
getting employment, but the said co-accused Robin Yadav in the
name of giving employment took the Aadhar Card and other
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relevant documents of the petitioner and subsequently, opened a
shell company namely, M/s. Leconix Business Centre Private
Limited and made the petitioner as Director of the said
Company. It has further been submitted that the aforesaid bank
account was operated wholly and completely by co-accused
Robin Yadav and Sagar Yadav.
6. Learned counsel for the petitioner has
emphasized that the other co-accused persons, particularly,
Robin Yadav and Sagar Yadav have misused the personal
documents of the petitioner to open bank accounts and shell
companies in the name of the petitioner, for which, the
petitioner cannot be held liable.
7. Adverting to the statements of the witnesses
namely, Tuhin Mukhopadhyay and Aniket Gupta, recorded
under section 50 of the P.M.L.A., learned counsel for the
petitioner has submitted that the co-accused Sagar Yadav has
introduced himself to the aforesaid witnesses as Nitesh Kumar
(petitioner), purportedly acting as the Director of M/s. Leconix
Centre Business Private Limited and further upon such
impersonation, the co-accused Sagar Yadav had also applied for
hiring commercial spaces on rent in the name of the aforesaid
shell company. Therefore, it is the categorical submission of
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leanned counsel for the petitioner that the petitioner himself is a
victim, whose identity and documents have been misused for
the wrongful gain of the other accused persons.
8. Adverting to the proviso of Section 45 of the
P.M.L.A., it has been submitted that in the present case, the
allegation against the petitioner is that he had received a sum of
Rs.83,941.40/- which is far less than Rs. 1 crore and therefore,
no case under section 4 of the P.M.L.A. is made out.
9. It has been emphatically submitted by
learned counsel for the petitioner that the petitioner is in custody
since 20.12.2023 having clean antecedent and there is no
likelihood of conclusion of trial in near future. The petitioner
has already suffered a long period of incarceration while still
being an under-trail and the trial itself is moving at a snail’s
pace and therefore, the petitioner is entitled to be enlarged on
bail in view of the decision of the Hon’ble Supreme Court in the
case of V. Senthil Balaji vs. The Deputy Director, Directorate
of Enforcement reported as 2024 SCC OnLine SC 2626
wherein the Hon’ble Supreme Court has held that the
Constitutional Courts can enlarge the accused on bail in cases of
continued and prolonged incarceration and where there is no
possibility of conclusion of trial in near future.
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10. Lastly, learned counsel for the petitioner has
submitted that similarly situated co-accused persons namely,
Md. Hussain, Ravindran Prasad Verma and Ramesh Prasad
Barnawal have been granted bail by a coordinate Bench of this
Court vide orders dated 07.10.2025 passed in Criminal
Miscellaneous Nos. 14280 of 2025, 8957 of 2025 and 11780 of
2025 respectively. Therefore, it is the contention of the
petitioner that the petitioner also deserves bail on the ground of
parity in view of the judgment of the Hon’ble Supreme Court in
the case of Sagar vs. State of U.P. & Anr. reported as 2025 SCC
OnLine SC 2584.
11. In this case, the Enforcement Directorate has
filed a counter affidavit wherein the facts of the present case
leading to the recording of the subject ECIR dated 17.10.2023
have been elaborated. It has been submitted by learned counsel
for the Enforcement Directorate that the petitioner has been
directly and knowingly involved in the process of laundering the
Proceeds of Crime and has assisted co-accused Sagar Yadav and
his associates in the crime.
12. Refuting the submission advanced on behalf
of the petitioner, learned counsel for the Enforcement
Directorate has submitted that Section 45 of the P.M.L.A.
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imposes two conditions for grant of bail specified under the Act
and the same would have overriding effect on the general
provisions of the Cr.P.C. In support of this submission, he has
placed reliance on a decision of the Hon’ble Supreme Court in
the case of Gautam Kundu vs. Directorate of Enforcement
reported as (2015) 16 SCC 1.
13. The learned counsel for the Enforcement
Directorate has relied upon the following decisions in order to
contend that in the facts of the present case the threshold of
section 45 of the P.M.L.A. is not met and therefore, the
petitioner may not be enlarged on bail:-
i. Tarun Kumar vs. Assistant Director,
Directorate of Enforcement reported as
2023 SCC OnLine SC 1486;
ii. Enforcement Directorate vs. Aditya
Tripathi reported as 2023 SCC OnLine SC
619;
iii. State of Bihar & Anr. vs. Amit Kumar @
Bachcha Rai reported as (2017) 4 SCR 503
iv. Nitesh Purohit vs. Enforcement Directorate
reported in 2023 SCC OnLine Chh 3828.
v. Union of India vs. Kanhaiya Prasad
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reported as 2025 SCC OnLine SC 306;
vi. Pradeep Nirankarnath Sharma vs. Union
of India reported as 2025 INSC 349.
14. Lastly, it has been submitted that during the
course of search at the premises of the petitioner, he tried to flee
away and tried to frustrate the proceeding under the P.M.L.A.
and therefore, the petitioner may not be granted bail.
15. I have considered the submissions of the
parties and perused the material on record.
16. From perusal of the records, it appears that
the thrust of allegation against the petitioner is that he had
arranged several bank accounts in order to commit financial
fraud on foreign nationals in lieu of commission from other co-
accused persons. From the records, it appears that the NCB,
Ireland provided information that the petitioner allegedly
transferred an amount of 950 Euros from the credit card of Ms.
Carmel Fox to a rewire bank account which was further
transferred to M/s Leconix Business Centre Pvt. Ltd. having its
registered office at Kolkata. Subsequently, the name of the
petitioner has been arrayed as accused no.3 in the prosecution
complaint based on the subject ECIR.
17. The grant of bail in the cases of P.M.L.A.
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requires consideration in terms of section-45 of the Act and
therefore, it will be relevant to quote Section 45 of the P.M.L.A.,
2002, which reads as under:-
“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 a
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 [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
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by that Government.
(1A) 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 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
sub-section (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
fulfillment of conditions under section 19 and
subject to the conditions enshrined under this
section.”
18. In the case of Vijay Madanlal Choudhary
vs. Union of India reported as (2023) 12 SCC 1, the Hon’ble
Supreme Court while upholding the Constitutionality of section
45 of the P.M.L.A. has held that though the aforesaid provision
imposes stringent twin conditions for grant of bail, but the
aforesaid statutory condition does not impose an absolute
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restraint on the grant of bail and the discretion vests in the
Court, which is to be exercised fairly, judiciously and not in an
arbitrary manner. The relevant paragraphs of the aforesaid
decision read as under:-
“302. It is important to note that the twin conditions
provided under Section 45 of the 2002 Act, though
restrict the right of the accused to grant of bail, but
it cannot be said that the conditions provided under
Section 45 impose absolute restraint on the grant of
bail. The discretion vests in the court which is not
arbitrary or irrational but judicial, guided by the
principles of law as provided under Section 45 of
the 2002 Act. While dealing with a similar provision
prescribing twin conditions in Mcoca, this Court in
Ranjitsing Brahmajeetsing Sharma [(2005) 5 SCC
294] held as under :-
“44. The wording of Section 21(4), in our
opinion, does not lead to the conclusion that
the court must arrive at a positive finding
that the applicant for bail has not committed
an offence under the Act. If such a
construction is placed, the court intending to
grant bail must arrive at a finding that the
applicant has not committed such an offence.
In such an event, it will be impossible for the
prosecution to obtain a judgment of
conviction of the applicant. Such cannot be
the intention of the legislature. Section 21(4)
of Mcoca, therefore, must be construed
reasonably. It must be so construed that the
court is able to maintain a delicate balance
between a judgment of acquittal and
conviction and an order granting bail much
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before commencement of trial. Similarly, the
court will be required to record a finding as
to the possibility of his committing a crime
after grant of bail. However, such an offence
in futuro must be an offence under the Act
and not any other offence. Since it is difficult
to predict the future conduct of an accused,
the court must necessarily consider this
aspect of the matter having regard to the
antecedents of the accused, his propensities
and the nature and manner in which he is
alleged to have committed the offence.
45. It is, furthermore, trite that for the purpose of
considering an application for grant of bail,
although detailed reasons are not necessary
to be assigned, the order granting bail must
demonstrate application of mind at least in
serious cases as to why the applicant has
been granted or denied the privilege of bail.
46. 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. However, while dealing with a
special statute like Mcoca having regard to
the provisions contained in sub-section (4) of
Section 21 of the Act, the court may have to
probe into the matter deeper so as to enable
it to arrive at a finding that the materials
collected against the accused during the
investigation may not justify a judgment of
conviction. The findings recorded by the
court while granting or refusing bail
undoubtedly would be tentative in nature,
which may not have any bearing on the
merit of the case and the trial court would,
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thus, be free to decide the case on the basis
of evidence adduced at the trial, without in
any manner being prejudiced thereby.”
(emphasis supplied)
303. We are in agreement with the observation made by
the Court in Ranjitsing Brahmajeetsing Sharma.
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 find the guilt of the
accused which is, of course, the work of the 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, (2013) 7 SCC 466, 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.”
19. The Hon’ble Supreme Court in its recent
decision rendered in the case of Manish Sisodiya vs.
Directorate of Enforcement reported as (2024) 12 SCC 660 has
clarified and crystallized the law on the aspect of harmonization
between the stringent twin conditions under section 45 of the
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P.M.L.A. and the valuable and treasured right to personal liberty
enshrined under Article 21 of the Constitution of India. The
relevant portion of the aforesaid decision read as under:-
“47. 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.
48. 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.
49. Recently, this Court had an occasion to consider an
application for bail in Javed Gulam Nabi Shaikh v.
State of Maharashtra [(2024) 9 SCC 813] 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 Gudikanti Narasimhulu v.
High Court of A.P. [(1978) 1 SCC 240], Gurbaksh
Singh Sibbia v. State of Punjab [(1980) 2 SCC 565],
Hussainara Khatoon (1) v. State of Bihar [(1980) 1
SCC 81], Union of India v. K.A. Najeeb [(2021) 3
SCC 713] and Satender Kumar Antil v. CBI [(2022)
10 SCC 51] .
50. The Court observed thus: (Javed Gulam Nabi Shaikh
case
“17. 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
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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.”
51. The Court also reproduced the observations made in
Gudikanti Narasimhulu [(1978) 1 SCC 240], which
read thus:
“8. 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. High Court of A.P.
(1978) 1 SCC 240. We quote (SCC p. 243,
para 5):
‘5. … 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 CC 717]:
“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 a punishment, but that the
requirements as to bail are
merely to secure the
attendance of the prisoner at
trial.”
52. The Court in Javed Gulam Nabi Shaikh case
further observed that, over a period of time, the
trial courts and the High Courts have forgotten a
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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
straightforward 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 recognise
the principle that “bail is rule and jail is
exception”.
53. In the present case, in ED matter as well as CBI
matter, 493 witnesses have been named. The case
involves thousands of pages of documents and over
a lakh pages of digitised 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 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.
54. As observed by this Court in Gudikanti Narasimhulu
v. High Court of A.P., (1978) 1 SCC 240, the
objective to keep a person in judicial custody
pending trial or disposal of an appeal is to secure
the attendance of the prisoner at trial.
55. In the present case, the appellant is having deep
roots in the society. There is no possibility of him
fleeing away from the country and not being
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available for facing the trial. In any case, conditions
can be imposed to address the concern of the State.
56. Insofar as the apprehension given by the learned
ASG regarding the possibility of tampering the
evidence is concerned, it is to be noted that the case
largely depends on documentary evidence which is
already seized by the prosecution. As such, there is
no possibility of tampering with the evidence.
Insofar as the concern with regard to influencing the
witnesses is concerned, the said concern can be
addressed by imposing stringent conditions upon the
appellant.” (emphasis supplied).
20. In light of the aforesaid judgments, it is
evident that the stringent requirement under section 45 of the
P.M.L.A. for grant of bail i.e. the twin conditions do not create
an absolute restraint or barrier in granting bail on the grounds of
delay in conclusion of trial and long period of incarceration.
21. In cases involving money laundering, the
PMLA provides stringent conditions under section 45 for grant
of bail, however such provisions have to be harmoniously
interpreted with the right of personal liberty enshrined under
Article 21 of the Constitution of India. It is trite law that
statutory bar under such bail provisions cannot override the
rights of personal liberty and speedy trial, nor can such statutory
restrictions be construed as an instrument for indefinite
incarceration.
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22. The Hon’ble Supreme Court in the case of
Prem Prakash vs. Union of India through Directorate of
Enforcement reported as (2024) 9 SCC 787 relying upon Vijay
Madanlal Choudhary (supra) has held as under:-
“12. All that Section 45 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
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.
13. Independently and as has been emphatically
reiterated in Manish Sisodia v. Enforcement
Directorate, (2024) 12 SCC 660, relying on
Ramkripal Meena v. Enforcement Directorate,
(2024) 12 SCC 684 and Javed Gulam Nabi Shaikh v.
State of Maharashtra, (2024) 9 SCC 813, 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 PMLA can be
suitably relaxed to afford conditional liberty.
Further, Manish Sisodia v. Enforcement
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Directorate, (2024) 12 SCC 660 reiterated the
holding in Javed Gulam Nabi Sheikh v. State of
Maharashtra, (2024) 9 SCC 813], 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.
14. In fact, Manish Sisodia v. Enforcement Directorate,
(2024) 12 SCC 660 reiterated the holding in Manish
Sisodia v. CBI (2024) 12 SCC 691 : wherein it was
held as under : (Manish Sisodia case [Manish
Sisodia v. CBI, (2024) 12 SCC 691 : 2023 SCC
OnLine SC 1393], SCC paras 34-35)
“34. 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, kidnapping
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.
35. The right to bail in cases of delay, coupled
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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.”
15. It is in this background that Section 45 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 supplied)
23. In another decision, the Hon’ble Supreme
Court in the case of V. Senthil Balaji (supra) has 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
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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.
26. There are a series of decisions of this Court starting
from the decision in the case of K.A. Najeeb2,
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
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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. Najeeb2, 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
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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 violation of
rights of the accused under Article 21 of the
Constitution which may give rise to a claim for
compensation.
29. As stated earlier, the appellant has been incarcerated
for 15 months or more for the offence punishable
under the PMLA. In the facts of the case, the trial of
the scheduled offences and, consequently, the PMLA
offence is not likely to be completed in three to four
years or even more. If the appellant's detention is
continued, it will amount to an infringement of his
fundamental right under Article 21 of the
Constitution of India of speedy trial.” (emphasis
supplied).
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24. It is now settled principle that the stringent
statutory provisions under section 45 of the PMLA has to be
harmonized with the right to personal liberty enshrined under
Article 21 of the Constitution in light of the decisions of the
Hon’ble Supreme Court in the cases of V. Senthil Balaji (supra)
and Manish Sisodia (supra). The prolonged incarceration
before even being pronounced guilty of an offence should not be
permitted to become a punishment without trial and when there
is long period of incarceration and the trial is not likely to be
concluded soon then the accused cannot be deprived of his
liberty and weightage has to be given while considering his bail
application. In the case of V. Senthil Balaji (supra), the Hon’ble
Supreme Court has categorically held that if the Court
concludes that there is no possibility of the trial concluding in a
reasonable time, the power of granting bail can always be
exercised by Constitutional Courts on the ground of violation of
part-III of the Constitution notwithstanding the statutory
provisions.
25. In the present case, there are altogether 31
prosecution witnesses and 44 documents, which runs into 6125
pages and the trial itself will take considerable time and it is not
reasonably excepted to conclude soon and therefore, it would
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not be in the interest of justice and would be affront to the
fundamental rights of the petitioner, to keep him in custody as
under-trial for an indefinite period. Further, the allegations
levelled against the petitioner involves complex questions and
issues which warrants detailed appreciation of evidence which is
to be considered by the Special Court during trial.
26. In the considered opinion of this Court, the
petitioner, who is in custody since 20.12.2023 having clean
antecedent and similarly situated co-accused persons have been
granted bail by a coordinate Bench of this Court, deserves to be
enlarged on bail on the grounds of his prolonged incarceration
and that there being no possibility of conclusion of trial in near
future. Further, keeping the petitioner in custody without
actually being held guilty would be against Article 21 of the
Constitution of India and the law laid down by the Hon’ble
Supreme Court in the cases of V. Senthil Balaji (supra) and
Manish Sisodia (supra).
27. Accordingly, let the petitioner be released on
bail on furnishing bail bonds of Rs.1,00,000/- (Rupees One
Lakh) with two sureties of the like amount each to the
satisfaction of learned Sessions Judge-cum-Special Judge
(PMLA), Patna / concerned Court below, in connection with
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Special Trial (P.M.L.A.) Case No.12 of 2023, arising out of
E.C.I.R. No. PTZO/27/2023, subject to the following
conditions:-
i. The petitioner shall not leave the country
without the permission of the Trial Court;
ii. The petitioner shall appear before the Special
Court / concerned Court as and when the
matter shall be taken up i.e. on each and
every date.
iii. The petitioner shall provide his mobile
number to the Enforcement Directorate at the
time of his release, which shall be kept in
working condition and active at all times and
he shall not switch off or change the same
without prior intimation to the Enforcement
Directorate during the period of bail.
iv. In case, the petitioner changes his address,
he will inform the Enforcement Directorate
as well as to the concerned Court.
v. The petitioner shall not indulge in any
criminal activity during the bail period.
vi. The petitioner shall not influence the
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prosecution witnesses directly or remotely.
vii. The prosecuting agency will be at liberty to
file an application for modification /
recalling of the order passed by this Court if
the petitioner violates any of the conditions
imposed by this Court.
28. Accordingly, the present bail application is
allowed with the aforesaid conditions.
29. Needless to state that this Court has not
expressed any opinion on the merits of the case.
(Sandeep Kumar, J)
pawan/-
AFR/NAFR N.A.F.R.
CAV DATE 10.12.2025
Uploading Date 16.01.2026
Transmission Date 16.01.2026
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