New Delhi: The Supreme Court on Thursday said the constitutional courts cannot allow the Enforcement Directorate to use stringent bail conditions to continue incarcerating an accused for a long time when there is no possibility of a trial of the scheduled offence and the Prevention of Money Laundering Act (PMLA) offence concluding within a reasonable time.
A bench of Justices Abhay S Oka and Augustine George Masih made a series of observations while granting bail to former Tamil Nadu minister V Senthil Balaji in connection with a money laundering case.
Justice Oka, who authored the judgment on behalf of the bench, said that 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," said Justice Oka.
After hearing senior advocates Mukul Rohatgi and Sidharth Luthra, representing Balaji, the bench said 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.
The bench also relied upon the K A Najeeb case, which held that the 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.
Justice Oka said the judges of the constitutional court have vast experience and if they 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 notwithstanding the statutory provisions.
"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," said Justice Oka.
He stressed that if constitutional courts do not exercise their jurisdiction in such cases, the rights of the undertrials under Article 21 of the Constitution will be defeated.
Justice Oka said someday, the courts, especially the constitutional courts, will have to take a call on a peculiar situation that arises in our justice delivery system. He said 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 a 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 a violation of the rights of the accused under Article 21 of the Constitution which may give rise to a claim for compensation," said Justice Oka.
The bench pointed out that 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. The bench said that considering the gravity of the offences in such statutes, expeditious disposal of trials for the crimes under these statutes is contemplated and moreover such statutes contain provisions laying down higher thresholds for the grant of bail.
The bench said that expeditious disposal of the trial is also warranted considering the higher threshold set for the grant of bail and 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," said Justice Oka.
The bench stressed that 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," said Justice Oka.
Balaji's counsel pointed out that he has undergone incarceration under the PMLA Act for more than 14 months and that as far as three predicate offences are concerned, charges have not even been framed. The counsel said 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.
The counsel said 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.
Solicitor General Tushar Mehta, representing the ED, argued that there is no discrepancy in the description of a file on the pen drive and the file name of the same file in the Tamil Nadu Forensic Science Laboratory report dated March 31, 2023, which shows the collection of the sum of Rs. 67.74 crores by the appellant for providing employment in the various posts in the Transport Department.
The ED's counsel 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. The counsel said 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.
Between 2011 and 2016, Balaji was holding the post of Transport Minister in the government of Tamil Nadu. Broadly, the allegation against Balaji 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 FIRs against the appellant and others.
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