Impermissible To Use Section 45 Of PMLA As Tool For Incarceration When Delay In Trial Not Attributable To Accused: Delhi High Court

The Delhi High Court has held that keeping an accused in custody by using Section 45 of PMLA as a tool for incarceration is not permissible where the delay in trial is not attributable to the accused.

“Flow of liberty cannot be dammed by Section 45 without taking all other germane considerations into account. It is the duty of Constitutional Courts to champion the constitutional cause of Liberty and uphold the majesty of Article 21,” Justice Manoj Kumar Ohri said.

According to Section 45 of the PMLA, bail can be granted to an accused in a money laundering case only if twin conditions are satisfied - there should be prima facie satisfaction that the accused has not committed the offence and that he is not likely to commit any offence while on bail.

Justice Ohri observed that where it is evident that the trial in the money laundering case is not likely to conclude in a reasonable time, Section 45 of PA cannot be allowed “to become a shackle” which leads to unreasonably long detention of the accused.

“What is reasonable and unreasonable would have to be assessed in light of the maximum and minimum sentences provided for in the statute. In cases under the PMLA that, except in a few exceptional cases, the maximum sentence can be of seven years. The same has to be kept in mind while considering the period of incarceration which has been undergone,” the Court said.

Justice Ohri made the observations while granting bail to two accused persons- Pankaj Kumar Tiwari and Pankaj Kumar, in the Bhushan Steel money laundering case alleging fraud of Rs. 46,000 crores.

The Court noted that while ED's investigation was initiated in 2019, the trial in the case had not commenced yet.

“When there are multiple accused persons, lacs of pages of evidence to assess, scores of witnesses to be examined, the trial is not expected to end anytime in the near future. Importantly, the delay being not attributable to accused, keeping the accused in custody by using Section 45 PMLA as a tool for incarceration is not permissible,” the Court held.

Justice Ohri noted that both the accused persons were arrested by ED on January 11 and had been in custody since more than 9 months.

“No evidence has been led to show that the present applicants are a flight risk. In fact, records would show that both the applicants have joined investigation on multiple occasions. There is no incident alleged by the respondent wherein the applicants have tried to tamper with evidence or influence witnesses,” the Court said.

Senior Advocate Sanjay Jain along with Advocates Abhijit Mittal, Anukalp Jain, Palak Jain, Harshita Sukhija and Nishank Tripathi appeared for accused Pankaj Kumar Tiwari.

Senior Advocate Rebecca M. John along with Advocates Tapan Sangal, Dharmendra Singh and Pravir Singh appeared for accused Pankaj Kumar.

Special Counsel Manish Jain with Advocates Sougata Ganguly, Snehal Sharda and Gulnaz Khan appeared for ED.

Title: PANKAJ KUMAR TIWARI v. ED and other connected matter

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