Read Order: Vikram Kumar Seth v. Directorate of Enforcement, Jalandhar 

LE Correspondent

Chandigarh, March 24, 2021: While dealing with a bail plea of an accused under the Prevention of Money Laundering Act, 2002, the Punjab and Haryana High Court has granted bail to a 53-year-old man accused of acquiring huge movable and immovable properties worth crore of rupees which he procured as loans from various banks on the basis of forged documents and committing cheating. 

Reflecting on the settled legal position governing grant of bail in such a case, the Bench of Justice Harnaresh Singh Gill opined, “It is well-settled principle of law that when the investigation is complete and the charge-sheet is filed in the Court, conclusion of the trial is likely to take a long time, a person/accused like the petitioner, who is aged about 53 years, can be released on bail, subject to his furnishing bail/surety bonds and with a condition that his passport shall remain deposited with the Court/Prosecuting Agency and he will not leave the country without seeking prior permission of the Court.”

In this case, an FIR was registered by CBI, ACB, Chandigarh under Sections 120-B, 420, 467, 468, 471 IPC and Sections 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act against the applicant-accused Vikram Kumar Seth and others, on the allegations that on the basis of forged and fabricated documents, they obtained loan from the banks. Another FIR was registered against the accused. 

Since the offences under Sections 120-B,420,467,471 IPC and Section 13 of Prevention of Corruption Act are scheduled offences, the Directorate of Enforcement, Jalandhar registered the ECIR under the Prevention of Money Laundering Act, 2002 against the applicant-accused. The Directorate of Enforcement (ED), after a thorough investigation, arrested the accused for committing the offence punishable under Sections 3 and 4 of PMLA, 2002. Hence, the present petition was filed seeking regular bail. 

As per the case of the petitioner’s counsel, the petitioner tested Covid positive as a result of which he could not appear before the respondent-ED. He further argued that the act of attachment of the petitioner’s properties by the respondent-ED was under challenge by the petitioner before the Adjudicating Authority, New Delhi. It was further submitted that the petitioner made himself available to the agency as and when called upon to do so. 

Also, it was contended that the petitioner already entered a compromise with the Bank by paying an amount of Rs. 2.5 crore to the Bank and in proportion to the amount, the Bank vacated the charge on the respective properties. The counsel concluded his arguments by stating that there was no rational justification in retaining the petitioner behind the bar as an under-trial. Reliance was placed by the counsel on Sukhpal Singh Khaira Vs. Assistant Director, Directorate of Enforcement.

Per Contra, the Additional Solicitor General submitted that the petitioner was the king-pin of the alleged offence and that he did not cooperate with the investigating agency and rather, made every possible effort to thwart the investigation. Further, while emphasizing upon Sections 45, 65 and 71 of the PML Act, the Counsel submitted that the Supreme Court in Shivinder Mohan Singh Vs. Directorate of Enforcement, granted status quo against the order of the Delhi High Court, vide which regular bail was granted to PMLA accused holding that the law laid down therein shall not be treated as a precedent. Further, the Counsel argued that after Section 45 was struck down by the Supreme Court in 2017 and the issue of its revival surfaced again in 2018 after an amendment brought by the legislature. Since there were rival observations by different High Courts on whether Section 45 was revived or not, the matter reached the Supreme Court and it is pending adjudication by the Top Court.

It was also the counsel’s case that under Section 45 of the PML Act, no person accused of any offence under the PMLA is to be released on bail or on his own bonds unless (i) the Public Prosecutor is given an 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 accused is not guilty of such offence and that he is not likely to commit any offence while on bail. Lastly, the Counsel stated that the petitioner did not qualify the twin test of Section 45 of PMLA as there was every possibility that him leaving the country if granted the concession of bail. 

After considering the rival submissions, the Court perused the provisions of Section 45 of the PMLA to observe that this provision imposed two conditions before bail could be granted to a person accused of an offence punishable for a term of imprisonment for more than three years under Part A of the Schedule attached to the PML Act. As per these conditions, the Court added, before granting bail, the Public Prosecutor was required to be given an opportunity to oppose the plea for bail and that where the Public Prosecutor opposed such plea, the Court could order the release of the accused on bail only after recording satisfaction that there were reasonable grounds to believe that the person to be released was not guilty of the offence he was accused of and that while on bail he was not likely to commit any offence. 

Also, on the issue of revival of Section 45(1) after being declared violative of Articles 14 and 21 of the Constitution by the Apex Court and after the 2018 amendment, the Court opined that the same (issue) is pending adjudication of the Supreme Court. 

Additionally, on the aspect of the grant of bail to such an accused, the Court opined that the law on this aspect is settled to the effect that when the investigation is complete and the charge-sheet is filed in the Court and the conclusion of the trial is likely to take a long time then, in such a situation a person/accused like the petitioner (aged about 53 years) can be released on bail, subject to his furnishing bail/surety bonds and with a condition that his passport shall remain deposited with the Court/Prosecuting Agency and he will not leave the country without seeking prior permission of the Court.

Thus, after considering the fact that the investigation in the case was complete and a complaint was already filed by the E.D. as also the fact that the petitioner was in custody since July 2021, the Court allowed the petition. However, the grant of bail to the petitioner was made subject to certain conditions. 

0 CommentsClose Comments

Leave a comment