Right To Personal Liberty Under Article 21 Can't Be Deprived By Long Incarceration Even If 'Twin Test' Under PMLA Not Satisfied: Delhi HC

While granting bail to Aam Aadmi Party (AAP) volunteer Chanpreet Singh Rayat in a money laundering case linked to the scrapped excise policy, the Delhi High Court said that even if Section 45 PMLA twin test is not met, bail jurisprudence states that a person cannot deprived of his right to personal liberty under Article 21 of the Constitution when there is prospect of long incarceration without conclusion of trial. 

A single judge bench of Justice Neena Bansal Krishna in its September 9 judgment observed,

"The twin conditions as provided in Section 45 of the PMLA, 2002 are primarily satisfied. Even if it is held that these conditions are not met by the petitioner, the jurisprudence for grant of bail is that the petitioner cannot be deprived of his constitutional right of personal liberty enshrined under Article 21 especially when there is a prospect of long incarceration without the conclusion of the trial". 

For context, the twin conditions under Section 45 for grant of bail is that the court has reasonable grounds for believing that a person is not guilty of offence under PMLA and that he is not likely to commit any offence while on bail. 

The high court in its order noted that the allegations were that "Rs.100 Crores" were generated from the predicate offence by the main accused persons in the excise policy money laundering case, which had "trickled down through the Hawala Operators/Angadiyas" to Rayat. 

The high court thereafter observed that "at this stage" the "only allegation" against Rayat was that he received Rs.45 Crores, which were part of the proceeds of the crime and had been "placed, layered, and integrated" by him in the expenditure incurred in the various events organized during the Goa Campaign for AAP Party.

Statements of witnesses need to be proved during trial

The court said that the statement of the Angadiyas and others persons, need to be proved through "cogent evidence" during the trial that this amount, which was allegedly utilized by the Rayat, were in fact the part of the proceeds of crime and this fact was within Rayat's knowledge. 

"It has already been observed at the time of grant of bail to the petitioner in the predicate offence registered by CBI that the case against him is extremely weak. It has been held in the case of Sanjay Pandey (supra) that where the involvement of the petitioner in the predicate offence itself is weak, it may be observed that his guilt in the present case is also weak," Justice Krishna said. 

Rayat's nature of work is of a freelancer, does not point to a strong case 

The high court further observed that Rayat had sought to explain Rs.12 lakhs, which was recovered from his account,  by stating that he did "odd jobs and working and this Rs.12 lakhs were part of his earnings".

The court further noted, that Rayat had "explained" that he was a "freelancer working for the political parties like BJP, TMC etc., in the past". 

The High Court then said, "Looking at his nature of work of a free lancer for various political parties which he has been doing in the past, merely because he spent certain amount the source of which is not certain, for the campaigning events in the election of Goa, it cannot be said that there is a strong case against the petitioner". 

The court further considering the "nature of his business" and observed that it cannot be said that there is a "likelihood" of Rayat committing the same offence if granted bail. 

Reference to SC's decision in Manish Sisodia's case

The high court then further referred to the Supreme Court's recent decision in Manish Sisodia v. Directorate of Enforcement where the apex court had while granting the former Delhi Deputy Chief Minister observed, that "prolonged incarceration before being pronounced guilty of an offence should not be permitted to become punishment without trial".

The high court that the Supreme Court had also observed that "fundamental right of liberty provided under Article 21 of the Constitution is superior to statutory restrictions" and had reiterated the principle that “bail is the rule and refusal is an exception”. This, the high court said had been reiterated by the Supreme Court in Kalvakuntla Kavitha v. Directorate of Enforcement while granting her bail. 

With regard to Rayat's role, the high court observed that he stands on a "better footing that the other co-accused, who have been recently granted bail". 

"The Apex Court in Manish Sisodia (supra) reiterated observation in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P. (1978) 1 SCC 240 that the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure their attendance at trial. In the present case, the petitioner is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing trial. Regardless, conditions can be imposed to ensure the petitioner‟s attendance to face the trial," the high court said. 

Further referring to Supreme Court's decision in Manish Sisodia, the high court said even the conditions of "triple test"–possibility of tampering evidence, influencing witnesses, flight risk–had been "satisfied" by Rayat. 

It also noted that Rayat had been in jail since April 18 this year and admittedly there are around 69,000 pages of documents involved in both CBI and ED matters pertaining to the excise policy. Moreover, the high court said, there are "493 witnesses" who have to be examined on behalf of the prosecution. The court further noted that in the same case, other accused persons–Manish Sisodia, K.Kavitha, and Vijay Nair have already been admitted to bail in similar circumstances.

The high court thereafter granted bail to Rayat in the ED matter subject to him furnishing a bail bond of Rs. 5 Lakh with one surety of the like amount to the satisfaction of the learned trial court along with other conditions. 

The high court however said that its observations in the judgment is "without prejudice to the trial". 

Background

ED arrested Rayat on April 12 alleging that he managed cash funds for AAP campaign for the 2022 Goa Assembly elections and was subsequently remanded to judicial custody on April 18. He moved the high court for grant of bail after the special court rejected his bail plea in June this year. 

Case title: Chanpreet Singh Rayat v ED 

Counsel for Petitioner: Senior advocate Ramesh Gupta, advocates Chirag Madan, Ms. Ravleen Sabharwal, Rahul Agarwal and Ronit Bose.

Counsel for Respondent: Special Cousel Zoheb Hossain, advocates Vivek Gurnani, Kartik Sabharwal,  Abhipriya Rai and Vivek Gaurav

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