V. SENTHIL BALAJIversusTHE DEPUTY DIRECTOR, DIRECTORATE OF ENFORCEMENT

                 [2024] 10 S.C.R. 393 : 2024 INSC 739

                          V. Senthil Balaji
                                  v.
           The Deputy Director, Directorate of Enforcement
                    (Criminal Appeal No. 4011 of 2024)
                             26 September 2024
           [Abhay S. Oka* and Augustine George Masih, JJ.]

                           Issue for Consideration
       Matter pertains to grant of bail to former Tamil Nadu transport
       minister against whom complaint was filed for offence u/s.3 PMLA,
       which is punishable u/s.4 PMLA for his alleged involvement in the
       job racket scam.

                                  Headnotes†
       Prevention of Money Laundering Act, 2002 – ss.3, 4, 45(1)
       (iii) – Offence of money-laundering – Appellant-former Tamil
       Nadu transport minister’s alleged involvement in the job
       racket scam – Arrested by the Enforcement Directorate in
       connection with the Enforcement Case Information Report –
       Bail application in connection with the alleged offence u/s.3,
       which is punishable u/s.4 – Rejected by the Single Judge of
       the High Court – Challenge to:
       Held: Appellant has been incarcerated for more than 15 months
       in connection with the offence punishable u/s.4 – There are
       more than 2000 accused in the three scheduled offences, and
       the number of witnesses proposed to be examined exceeds
       600 – 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 would
       amount to an infringement of his fundamental right u/Art.21 of
       speedy trial – Stringent provisions regarding the grant of bail,
       such as s.45(1)(iii), cannot become a tool which can be used to
       incarcerate the accused without trial for an unreasonably long
       time – At this stage, it would be very difficult to hold that there
       is no prima facie case against the appellant in the complaint
       u/s.44(1)(b) and material relied upon therein – Furthermore, when
       the trial of the complaint under PMLA is likely to prolong beyond

* Author
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       reasonable limits, the Constitutional Courts will have to consider
       exercising their powers to grant bail – s.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 – Reasonable time would depend
       on the provisions under which the accused is being tried and
       other factors – If the Constitutional Courts do not exercise their
       jurisdiction in such cases, rights of the undertrials u/Art.21 would
       be defeated – In a given case, if undue delay in the disposal of the
       trial can be substantially attributed to accused, the Constitutional
       Courts can always decline to exercise jurisdiction to issue
       prerogative writs – Considering the apprehension of the appellant
       tampering with the evidence, stringent conditions imposed –
       Appellant to be enlarged on bail till the final disposal of the case
       pending before the Principal Session Judge, on the condition that
       he would furnish bail bonds in the sum of Rs.25,00,000/- with two
       sureties in the like amount; surrender passport; appear before the
       Enforcement Directorate, and not to directly or indirectly attempt
       to contact or communicate with the prosecution witnesses and
       victims – Constitution of India. [Paras 21, 25, 27, 29-31]
       Criminal trial – Expeditious disposal – Crimes under the
       statutes-PMLA, Unlawful Activities (Prevention) Act, 1967
       and Narcotic Drugs and Psychotropic Substances Act, 1985:
       Held: Considering the gravity of the offences in such statutes,
       expeditious disposal of trials for the crimes under these statutes is
       contemplated – 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 – Bail
       is the rule, and jail is the exception – These stringent provisions
       regarding the grant of bail, such as s.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. [Paras 24, 25]

                                Case Law Cited
       Manish Sisodia v. Directorate of Enforcement (2024) SCC OnLine
       SC 1920; Union of India v. K.A. Najeeb [2021] 1 SCR 443 :
       (2021) 3 SCC 713 ; P. Dharamraj v. Shanmugam and Others
       [2022] 9 SCR 972 : (2022) 15 SCC 136; Y. Balaji v. Karthik
[2024] 10 S.C.R.                                                            395

  V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement


     Desari and Another [2023] 8 SCR 1026 : (2023) SCC OnLine
     SC 645 – referred to.
                                List of Acts
     Prevention of Money Laundering Act, 2002; Code of Criminal
     Procedure, 1973; Unlawful Activities (Prevention) Act, 1967; Narcotic
     Drugs and Psychotropic Substances Act, 1985; Constitution of India.
                             List of Keywords
     Bail; Grant of bail to former Tamil Nadu Transport minister;
     Job racket scam; Offence of money-laundering; Enforcement
     Directorate; Bail; Incarcerated for more than 15 months;
     Infringement of fundamental right u/Art.21; Speedy trial;
     Constitutional Courts; Undertrials; Enlarged on bail; Imposition
     of stringent conditions; Criminal trial; Expeditious disposal of
     trial; Inordinate delay; Justice delivery system; Clean acquittal
     by criminal courts; Compensation claim.
                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 4011
     of 2024
     From the Judgment and Order dated 28.02.2024 of the High Court
     of Judicature at Madras in CRLOP No. 1525 of 2024
                         Appearances for Parties
     Mukul Rohatgi, Siddharth Luthra, S. Prabakaran, N. R. Elango,
     Aditya Sondhi, Sr. Advs., Ma Gouthaman, N. Bharanikumar, Mrs.
     Usha Prabakaran, Maheswaran Prabakaran, Naveen M, Ms. Misha
     Rohatgi, Thangadurai, Agilesh Kumar S, Kartikeya Dang, Shashir
     Seth, Ms. Aishwarya S M, Ms. Meghna S M, G Jai Singh, Muthu
     Ganesa Pandian, Mrs. Harini Ramsankar, Dr. Ram Sankar (for M/s.
     Ram Sankar & Co.), Advs. for the Appellant.
     Tushar Mehta, Solicitor General, Kanu Agrawal, Zoheb Hussain, Arkaj
     Kumar, Merusagar Samantaray, Ms. Sansriti Pathak, Balaji Srinivas,
     Arvind Kumar Sharma, Advs. for the Respondent.
     S Gurukrishnakumar, Gopal Sankaranarayanan, Sr. Advs., Pranav
     Sachdeva, Jatin Bhardwaj, Abhay Nair, Ashwin Kumar, Ms. Neha
     Rathi, Balaji Srinivasan, Vishwaditya Sharma, Advs. for the
     Intervenors.
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                  Judgment / Order of the Supreme Court
                                  Judgment
       Abhay S. Oka, J.
       FACTUAL ASPECTS
1.     Leave granted.
2.     This appeal takes exception to the judgment and order dated 28th
       February 2024 passed by a learned Single Judge of the High Court
       of Judicature at Madras by which a bail application preferred by the
       appellant under Section 439 of the Code of Criminal Procedure,
       1973 has been rejected. The bail application was filed in connection
       with an alleged offence under Section 3 of the Prevention of Money
       Laundering Act, 2002 (for short, ‘the PMLA’), which is punishable
       under Section 4 of the PMLA.
3.     Between 2011 and 2016, the appellant was holding the post of
       Transport Minister in the Government of Tamil Nadu. Broadly, the
       allegation against the appellant is that while discharging his duties
       as a Minister, in connivance with his personal assistant and his
       brother, he collected large amounts by promising job opportunities
       to several persons in various positions in the Transport Department.
       This led to the registering of three First Information Reports against
       the appellant and others. The said First Information Reports are FIR
       no.441 of 2015 dated 29th October 2015 (CC Nos. 22 and 24 of
       2021), FIR No.298 of 2017 registered on 9th September 2017 (CC
       No.19 of 2020) and FIR no. 344 dated 13th August 2018 (CC No. 25
       of 2020). In the first FIR, six charge sheets have been filed. More
       than 2000 accused have been named in the charge sheets. 550
       witnesses have been named. In the case of the second FIR, there
       are 14 accused named in the chargesheet. In connection with this
       FIR, 24 witnesses have been cited. In the third FIR, 24 accused have
       been named in the charge sheet and 50 prosecution witnesses have
       been cited. The offences alleged in the aforementioned crimes are
       mainly under Sections 120B, 419, 420, 467 and 471 of the Indian
       Penal Code and Sections 7, 12, 13(2) read with Section 13(1)(d) of
       the Prevention of Corruption Act, 1988. Section 34 of the Indian Penal
       Code has been invoked. These offences are scheduled offences
       within the meaning of Section 2(y) of the PMLA. Therefore, relying
       on the final reports filed in aforementioned scheduled offences, for an
[2024] 10 S.C.R.                                                           397

     V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement


       offence of money laundering under Section 3 of the PMLA punishable
       under Section 4, the Enforcement Directorate (ED) registered an
       Enforcement Case Information Report (for short “ECIR”) bearing
       ECIR No. MDSZO/21/2021 on 29th July 2021.
4.     The appellant was arrested on 14th June 2023 in connection with
       the said ECIR and was remanded to judicial custody. A complaint
       was filed for the offence under Section 3 of the PMLA Act, which
       is punishable under Section 4, on 12th August 2023. The appellant
       is the only accused named in the complaint. Cognizance has been
       taken based on the complaint by the Special Court under the
       PMLA. The scheduled offences cases have been transferred to the
       learned Assistant Sessions Judge, Additional Special Court for Trial
       of Criminal Cases related to Elected Members of Parliament and
       Members of Legislative Assembly of Tamil Nadu (Special MPMLA
       Court), Chennai.
       SUBMISSIONS
5.     Learned senior counsel appearing in support of the appeal pointed
       out that in this case, ED is relying upon material collected by the
       investigating agencies investigating the scheduled offences. He
       submitted that five articles were allegedly seized during the search on
       6th February 2020 in the appellant’s premises. He invited our attention
       to the averments made in the complaint and, in particular, paragraph
       no.14.5, which deals with incriminating documents relating to money
       collected for providing jobs in the posts of Drivers, Conductors, Junior
       Tradesmen, Junior Engineers, Assistant Engineers, etc. He pointed
       out that the prosecution mainly relies upon a file named CS AC,
       allegedly found in the seized pen drive. The file allegedly gives details
       regarding the amounts received against each post. He submitted that
       the Tamil Nadu Forensic Science Laboratory (TNFSL)’s analysis of
       the seized pen drive shows that the said file CS AC was not found
       on the pen drive, and a file named csac.xlsx was found. As regards
       the allegation of the prosecution of the deposit of cash amount of
       Rs.1.34 crores in the appellant’s bank account, the learned senior
       counsel urged that said amount represents the income received
       by way of remuneration as MLA and agriculture income. Learned
       senior counsel submitted that in any event, all the documents and
       all relevant electronic evidence have been seized in the predicate
       offences and statements of the witnesses under Section 50 of the
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       PMLA have been recorded. He submitted that the appellant has
       undergone incarceration under the PMLA Act for more than 14
       months. He pointed out that as far as three predicate offences are
       concerned, charges have not even been framed. There are more
       than 2000 accused and 600 prosecution witnesses in the predicate
       offences and therefore, there is no possibility of trial of scheduled
       offences getting over in the near future. He submitted that unless the
       trials pertaining to scheduled offences are concluded, the complaint
       under the PMLA cannot be finally decided. He would, therefore,
       submit that there is no possibility of the trial for the PMLA offence
       concluding within five to six years and hence, the appellant deserves
       to be enlarged on bail. The learned senior counsel extensively relied
       upon a recent decision of this Court in the case of Manish Sisodia1
       and especially what is observed in paragraph 54. He submitted that
       on facts, this case is similar to the case of Manish Sisodia.1 He
       also relied upon a decision of this Court in the case of Union of
       India v. K.A. Najeeb.2
6.     The learned Solicitor General of India and learned counsel appearing
       for the E.D. have made separate detailed submissions. The first
       submission is that there is no discrepancy in the description of file
       name CS AC in the pen drive and the file name of the same file in the
       TNFSL report dated 31st March 2023, which shows collection of the
       sum of Rs. 67.74 crores by the appellant for providing employment
       in the various posts in the Transport Department. He submitted that
       if the TNFSL report is perused, the document at Sr.No.24 has the
       same name, CS AC. He submitted that the portion “.xlsx” is only
       a file extension, which signifies that it is a Microsoft Excel sheet.
       He submitted that a printout of the Microsoft Excel spreadsheet file
       with the name CS AC found in the seized pen drive was certified
       by the Special MPMLA Court, which is relied upon in the complaint.
       He submitted that at this stage, there is no reason to doubt the
       correctness of the printout of the file CS AC provided by the Special
       MPMLA Court. The learned counsel appearing for ED also pointed
       out that there is no discrepancy in the seizure of the H.P. hard disk.
       The learned counsel submitted that the salary/remuneration payable
       to MLAs is directly credited to the bank account of the concerned


1    (2024) SCC OnLine SC 1920
2    [2021] 1 SCR 443 : (2021) 3 SCC 713
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     V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement


       MLAs. Therefore, there is no question of any cash amount being
       received on the said count. He pointed out that the appellant claims
       that there is a cash deposit of salary to the tune of 68 lakhs in his
       account. He also pointed out that the appellant’s agricultural income
       between 2014 and 2020 is to the tune of Rs. 20.24 lakhs, and
       therefore, the justification that a substantial part of the deposit of
       Rs.1.34 crores is his agricultural income must be rejected. Learned
       counsel pointed out that there is an unexplained cash deposit of Rs.
       20.24 lakhs even in the appellant’s wife’s account.
7.     Learned counsel also pointed out other documentary evidence
       indicating the appellant’s involvement in the job racket scam,
       including the file AC1.xlsx. He pointed out that there is sufficient
       material on record to show that the posts of Drivers, Conductors,
       Junior Assistants and Technicians were priced and sold at Rs.1.5
       lakhs, Rs.2.0 lakhs, Rs.1.25 lakhs and Rs.4 lakhs, respectively. He
       submitted that there is material on record to show that an amount of
       at least Rs.38 crores was collected from candidates by giving them
       the promise of providing jobs. He submitted that there are a large
       number of email communications indicating more than prima facie
       material about the involvement of the appellant. His submission is
       that, in fact, the twin conditions under clause (ii) of sub-section (1)
       of Section 45 of the PMLA have not been satisfied in this case.
8.     The Learned Solicitor General of India pointed out that three rounds
       of litigations have travelled to this Court arising out of scheduled
       offences. He pointed out that the decisions of this Court indicate how
       the complainants were won over and how a so-called compromise
       between the complainants and the accused was brought about. He
       submitted that the appellant had been a minister for a long time in
       the Tamil Nadu government. He pointed out that he continued to
       be a Minister without portfolio, even during the first few months of
       his detention, and that he continues to be a Member of Legislative
       Assembly (MLA).
9.     He submitted that observations made by this Court indicate that the
       appellant will be able to influence the witnesses if he is enlarged
       on bail. Learned Solicitor General relied upon a decision of this
       Court in the case of P. Dharamraj v. Shanmugam and others.3


3     [2022] 9 SCR 972 : (2022) 15 SCC 136
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       He submitted that the High Court’s decision to quash one of the
       scheduled offences based on an alleged compromise between
       bribe givers and bribe recipients was under scrutiny in the case. He
       pointed out that this Court heavily came down on such compromises
       in the said decision. He relied upon various paragraphs of the said
       decision. He submitted that the argument of learned senior counsel
       for the appellant in the said case that one Shri Shanmugam, who
       is allegedly involved, was not his personal assistant, has been
       expressly rejected. This Court found that he was working as a
       personal assistant of the appellant.
10. Learned SG relied upon a decision of this Court in the case of Y.
    Balaji v. Karthik Desari and Another.4 He pointed out observations
    made from paragraph 17 onwards of the said decision. He pointed out
    that this Court objected strongly to not registering offences under the
    Prevention of Corruption Act, 1988. He pointed out the observations
    of this Court regarding the compromise entered in the scheduled
    offence. It was observed that two teams were created just for the
    record, and an investigation was carried out as if it were a friendly
    match between the complainants and the accused. This Court further
    observed that it was only because of the position of the appellant as a
    Minister that the complainants purported to enter into a compromise.
    He submitted that there is very strong material on record to show
    the appellant’s involvement in the offence punishable under Section
    4 of the PMLA and the predicate offences. He submitted that the
    appellant brought about such an illegal settlement between bribe
    givers and bribe receivers. Therefore, there is no manner of doubt
    that once he comes out, he will influence the witnesses proposed to
    be examined by the prosecution, as he wields considerable influence
    in the State due to his political clout.
11. He submitted that though there are a large number of accused and
    witnesses in the scheduled offences, if a competent special public
    prosecutor is appointed, perhaps the prosecution may be in a position
    to drop a large number of witnesses. He submitted that in Misc.
    Application no.1381 of 2024 arising out of the decision of this Court
    in Criminal Appeal no.1677 of 2023, there is already a prayer made
    for the appointment of a special public prosecutor.


4   [2023] 8 SCR 1026 : (2023) SCC OnLine SC 645
[2024] 10 S.C.R.                                                       401

  V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement


12. We have also heard learned senior counsel for the intervenors who
    supported the ED.
     CONSIDERATION OF SUBMISSIONS
13. We have carefully considered the submissions. The main document
    relied upon by the ED showing incriminatory material against the
    appellant is a part of the pen drive seized by the State police from
    the appellant’s premises in connection with scheduled offences. The
    concerned Court dealing with the scheduled offences has provided
    the printed version of the soft files in the seized pen drive. There is
    no reason, at this stage, to doubt the authenticity of the soft files.
    There is also prima facie material to show a deposit of cash amount
    of Rs.1.34 crores in the appellant’s bank account. At this stage, the
    contention of the appellant regarding the deposit of remuneration
    received as MLA and agriculture income cannot be accepted in the
    absence of any prima facie evidence to show the existence of the
    appellant’s cash income as MLA and the appellant’s agriculture
    income. Therefore, at this stage, it will be very difficult to hold that
    there is no prima facie case against the appellant in the complaint
    under Section 44 (1)(b) of the PMLA and material relied upon therein.
     EFFECT OF THE DELAY IN DISPOSAL OF THE CASES
14. As of now, the appellant has been incarcerated for more than 15
    months in connection with the offence punishable under Section 4
    of the PMLA. The minimum punishment for an offence punishable
    under Section 4 is imprisonment for three years, which may extend
    to seven years. If the scheduled offences are under paragraph 2 of
    Part A of the Schedule in the PMLA, the sentence may extend to
    10 years. In the appellant’s case, the maximum sentence can be of
    7 years as there is no scheduled offence under paragraph 2 of Part
    A of Schedule II alleged against the appellant.
15. We have already narrated that there are three scheduled offences.
    In the main case (CC Nos. 22 and 24 of 2021), there are about 2000
    accused and 550 prosecution witnesses cited. Thus, it can be said that
    there are more than 2000 accused in the three scheduled offences,
    and the number of witnesses proposed to be examined exceeds 600.
16. This Bench is also dealing with MA no.1381 of 2024 seeking various
    reliefs such as a transfer of investigation of scheduled offences,
    appointment of special public prosecutor etc. The orders passed
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       in the said application would reveal that the sanction to prosecute
       all public servants, including the appellant, has now been granted.
       Charges have not been framed in the scheduled offences.
17. Thus, on the issue of framing of charge or discharge, a large
    number of accused will have to be heard. The trial of the scheduled
    offences will be a warrant case. Therefore, even if the trials of the
    scheduled offences are expedited, the process of framing charges
    may take a few months as many advocates representing more than
    2000 accused persons will have to be heard. There are bound to
    be further proceedings arising out of orders on charge. After that,
    more than 600 witnesses will have to be examined. Documentary
    and electronic evidence is relied upon in the scheduled offences.
    Even if few witnesses are dropped, a few hundred witnesses will
    have to be examined. Presence of all the accused will have to be
    procured and their statements under Section 313 of the Code of
    Criminal Procedure,1973 will have to be recorded. Therefore, even
    in ideal conditions, the possibility of the trial of scheduled offences
    concluding even within a reasonable time of three to four years
    appears to be completely ruled out.
18. In the offence under the PMLA, the charge has not been framed.
    In view of Clause (d) of sub-section (1) of Section 44 of PMLA,
    the procedure for sessions trial will have to be followed for the
    prosecution of an offence punishable under Section 4 of the PMLA.
    In view of clause (c) of sub-section (1) of Section 44, it is possible
    to transfer the trial of the scheduled offences to the Special Court
    under the PMLA.
19. The offence of money laundering has been defined under Section
    3 of the PMLA which reads thus:
            “3. Offence of money-laundering.—Whosoever directly
            or indirectly attempts to indulge or knowingly assists or
            knowingly is a party or is actually involved in any process
            or activity connected with the [proceeds of crime including
            its concealment, possession, acquisition or use and
            projecting or claiming] it as untainted property shall be
            guilty of offence of money-laundering.
            [Explanation.—For the removal of doubts, it is hereby
            clarified that,—
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          (i) a person shall be guilty of offence of money-laundering if
          such person is found to have directly or indirectly attempted
          to indulge or knowingly assisted or knowingly is a party or is
          actually involved in one or more of the following processes
          or activities connected with proceeds of crime, namely:—
                (a) concealment; or
                (b) possession; or
                (c) acquisition; or
                (d) use; or
                (e) projecting as untainted property; or
                (f) claiming as untainted property, in any manner
                whatsoever;
          (ii) the process or activity connected with proceeds of
          crime is a continuing activity and continues till such time
          a person is directly or indirectly enjoying the proceeds of
          crime by its concealment or possession or acquisition or
          use or projecting it as untainted property or claiming it as
          untainted property in any manner whatsoever.]
20. Existence of proceeds of crime is a condition precedent for the
    offence under Section 3. Proceeds of crime have been defined in
    Section 2(u) of the PMLA which reads thus:
          “2 ……………………………………………
          (u) “proceeds of crime” means any property derived or
          obtained, directly or indirectly, by any person as a result
          of criminal activity relating to a scheduled offence or the
          value of any such property or where such property is taken
          or held outside the country, then the property equivalent
          in value held within the country [or abroad];
          Explanation.—For the removal of doubts, it is hereby
          clarified that “proceeds of crime” include property not only
          derived or obtained from the scheduled offence but also
          any property which may directly or indirectly be derived
          or obtained as a result of any criminal activity relatable to
          the scheduled offence;”
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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.
22. In the case of K.A. Najeeb,2 in paragraph 17 this Court held thus:
          “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)
23. In the case of Manish Sisodia v. Directorate of Enforcement1 in
    paragraphs 49 to 57, this Court held thus:
          “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.
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          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.
          51. Recently, this Court had an occasion to consider
          an application for bail in the case of Javed Gulam Nabi
          Shaikh v. State of Maharashtra 6 wherein the accused was
          prosecuted under the provisions of the Unlawful Activities
          (Prevention) Act, 1967. This Court surveyed the entire
          law right from the judgment of this Court in the cases of
          Gudikanti Narasimhulu v. Public Prosecutor, High Court of
          Andhra Pradesh,7 Shri Gurbaksh Singh Sibbia v. State of
          Punjab,8 Hussainara Khatoon (I) v. Home Secretary, State
          of Bihar,9 Union of India v. K.A. Najeeb 10 and Satender
          Kumar Antil v. Central Bureau of Investigation.11 The Court
          observed thus:
             “19. If the State or any prosecuting agency including the
             court concerned has no wherewithal to provide or protect
             the fundamental right of an accused to have a speedy
             trial as enshrined under Article 21 of the Constitution
             then the State or any other prosecuting agency should
             not oppose the plea for bail on the ground that the
             crime committed is serious. Article 21 of the Constitution
             applies irrespective of the nature of the crime.”
          52. The Court also reproduced the observations made in
          Gudikanti Narasimhulu (supra), which read thus:
             “10. In the aforesaid context, we may remind the
             trial courts and the High Courts of what came to be
             observed by this Court in Gudikanti Narasimhulu v.
             Public Prosecutor, High Court reported in (1978) 1 SCC
             240. We quote:
             “What is often forgotten, and therefore warrants
             reminder, is the object to keep a person in judicial
             custody pending trial or disposal of an appeal. Lord
             Russel, C.J., said [R v. Rose, (1898) 18 Cox]:
             “I observe that in this case bail was refused for the
             prisoner. It cannot be too strongly impressed on the,
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         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.” ”
       53. The Court further observed that, over a period of
       time, the trial courts and the High Courts have forgotten
       a very well-settled principle of law that bail is not to
       be withheld as a punishment. From our experience, we
       can say that it appears that the trial courts and the High
       Courts attempt to play safe in matters of grant of bail. The
       principle that bail is a rule and refusal is an exception is,
       at times, followed in breach. On account of non-grant of
       bail even in straight forward open and shut cases, this
       Court is flooded with huge number of bail petitions thereby
       adding to the huge pendency. It is high time that the trial
       courts and the High Courts should recognize the principle
       that “bail is rule and jail is exception”.
       54. In the present case, in the ED matter as well as the
       CBI matter, 493 witnesses have been named. The case
       involves thousands of pages of documents and over
       a lakh pages of digitized documents. It is thus clear
       that there is not even the remotest possibility of the
       trial being concluded in the near future. In our view,
       keeping the appellant behind the bars for an unlimited
       period of time in the hope of speedy completion of
       trial would deprive his fundamental right to liberty
       under Article 21 of the Constitution. As observed
       time and again, the prolonged incarceration before
       being pronounced guilty of an offence should not be
       permitted to become punishment without trial.
       55. As observed by this Court in the case of Gudikanti
       Narasimhulu (supra), 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.
       56. 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 available for facing the
       trial. In any case, conditions can be imposed to address
       the concern of the State.
[2024] 10 S.C.R.                                                          407

  V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement


           57. 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 added)
24. There are a few penal statutes that make a departure from the
    provisions of Sections 437, 438, and 439 of the Code of Criminal
    Procedure, 1973. A higher threshold is provided in these statutes
    for the grant of bail. By way of illustration, we may refer to Section
    45(1)(ii) of PMLA, proviso to Section 43D(5) of the Unlawful Activities
    (Prevention) Act, 1967 and Section 37 of the Narcotic Drugs and
    Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). The
    provisions regarding bail in some of such statutes start with a non-
    obstante clause for overriding the provisions of Sections 437 to 439
    of the CrPC. The legislature has done so to secure the object of
    making the penal provisions in such enactments. For example, the
    PMLA provides for Section 45(1)(ii) as money laundering poses a
    serious threat not only to the country’s financial system but also to
    its integrity and sovereignty.
25. Considering the gravity of the offences in such statutes, expeditious
    disposal of trials for the crimes under these statutes is contemplated.
    Moreover, such statutes contain provisions laying down higher
    threshold for the grant of bail. The expeditious disposal of the trial
    is also warranted considering the higher threshold set for the grant
    of bail. Hence, the requirement of expeditious disposal of cases
    must be read into these statutes. Inordinate delay in the conclusion
    of the trial and the higher threshold for the grant of bail cannot go
    together. It is a well-settled principle of our criminal jurisprudence that
    “bail is the rule, and jail is the exception.” These stringent provisions
    regarding the grant of bail, such as Section 45(1)(iii) of the PMLA,
    cannot become a tool which can be used to incarcerate the accused
    without trial for an unreasonably long time.
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26. There are a series of decisions of this Court starting from the decision
    in the case of K.A. Najeeb,2 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,2 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
[2024] 10 S.C.R.                                                        409

  V. Senthil Balaji v. The Deputy Director, Directorate of Enforcement


     cases under the PMLA that, except in a few exceptional cases, the
     maximum sentence can be of seven years. The Constitutional Courts
     cannot allow provisions like Section 45(1)(ii) to become instruments
     in the hands of the ED to continue incarceration for a long time when
     there is no possibility of a trial of the scheduled offence and the PMLA
     offence concluding within a reasonable time. If the Constitutional
     Courts do not exercise their jurisdiction in such cases, the rights of
     the undertrials under Article 21 of the Constitution of India will be
     defeated. In a given case, if an undue delay in the disposal of the
     trial of scheduled offences or disposal of trial under the PMLA can be
     substantially attributed to the accused, the Constitutional Courts can
     always decline to exercise jurisdiction to issue prerogative writs. An
     exception will also be in a case where, considering the antecedents
     of the accused, there is every possibility of the accused becoming
     a real threat to society if enlarged on bail. The jurisdiction to issue
     prerogative writs is always discretionary.
28. Some day, the courts, especially the Constitutional Courts, will
    have to take a call on a peculiar situation that arises in our justice
    delivery system. There are cases where clean acquittal is granted
    by the criminal courts to the accused after very long incarceration
    as an undertrial. When we say clean acquittal, we are excluding
    the cases where the witnesses have turned hostile or there is a
    bona fide defective investigation. In such cases of clean acquittal,
    crucial years in the life of the accused are lost. In a given case, it
    may amount to 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.
30. The decisions the learned SG relied upon indicate that the
    appellant’s influential position in the State may have resulted in a
    so-called compromise between the bribe givers and the bribe takers.
    Considering the apprehension of the appellant tampering with the
    evidence, stringent conditions must be imposed.
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31. Therefore, the appeal is allowed, and the appellant shall be enlarged
    on bail till the final disposal of CC No. 9 of 2023 pending before
    the Principal Session Judge, Chennai, on the following conditions:
       a.      The appellant shall furnish bail bonds in the sum of Rs.25,00,000/-
               (Rupees twenty-five lakhs only) with two sureties in the like
               amount;
       b.      The appellant shall not directly or indirectly attempt to contact
               or communicate with the prosecution witnesses and victims of
               the three scheduled offences in any manner. If it is found that
               the appellant directly or indirectly made even an attempt to
               contact any prosecution witness or victim in the scheduled as
               well as offences under the PMLA, it will be a ground to cancel
               the bail granted to the appellant;
       c.      The appellant shall mark his attendance every Monday and
               Friday between 11 am and 12 noon in the office of the Deputy
               Director, the Directorate of Enforcement at Chennai. He shall
               also appear on the first Saturday of every calendar month before
               the investigating officers of the three scheduled offences;
       d.      Before the appellant is enlarged on bail, he shall surrender
               his passport to the Special Court under the PMLA at Chennai;
       e.      The appellant shall regularly and punctually remain present
               before the Courts dealing with scheduled offences as well as
               the Special Court and shall cooperate with the Courts for early
               disposal of cases; and
       f.      If the appellant seeks adjournments on non-existing or frivolous
               grounds or creates hurdles in the early disposal of the cases
               mentioned above, the bail granted to him shall be liable to be
               cancelled.
32. The appeal is allowed on the above terms.

       Result of the Case: Appeal allowed



       †
           Headnotes prepared by: Nidhi Jain