Introduction
The Hon’ble Supreme Court recently granted another bail under the Prevention of Money Laundering Act, 2002 (‘PMLA’) in Vijay Nair v. Directorate of Enforcement[i] A review of the subsequent order reveals that the Supreme Court is on a mission to revive and rebuild bail jurisprudence and reinstate the supremacy of constitutional principles.
Factual Background
Mr. Vijay Nair (‘Petitioner’), a primary accused in the Delhi Excise policy case, was denied bail by the Hon’ble Delhi High Court due to his alleged role as a middleman in framing and implementing the irregular Delhi Excise policy.
Arrested in November 2022, the Petitioner approached the Supreme Court seeking the grant of bail on the following grounds:
(i) Parity – on the grounds that two co-accused persons, K. Kavitha and Manish Sisodia, were granted bail, the Petitioner was similarly entitled to seek bail; and
(ii) Continued period of incarceration—the Petitioner, who is currently on trial, has been incarcerated for the last 22 months.
The Petitioner also submitted that his implication was solely based on the 12th statement of a co-accused-turned-approver, while none of the 11 previously recorded s. 50 statements implicated him.
Having made the aforementioned submissions, amongst certain others, the Petitioner prayed for a grant of bail before the Supreme Court.
Submissions, Observations and Holdings
The Prosecution opposed the Petitioner’s bail on two primary grounds: firstly, the Prosecution, while referring to the threshold of bar under s. 45 of the PMLA stated that K. Kavitha’s[ii] case could be distinguished from that of the Petitioner’s, considering that the former, being a woman, had the benefit of the proviso to s. 45(1) of the PMLA, which was not available to the petitioner; and secondly, the Prosecution, while drawing reference from Vijay Madanlal Chaudhary’s[iii] judgement, submitted that stringent conditions of bail provided for under PMLA are to be satisfied prior to the grant of bail.
The Supreme Court accepted the Petitioner’s submissions and granted bail, making the following observations:
Keeping the Petitioner in jail as an under-trial defies the cardinal principle that bail is the rule and jail is the exception.
The statutory bar provided for under s. 45 of the PMLA cannot eclipse the accused's right to a speedy trial and his right to life and personal liberty.
Withholding the bail of the accused as a form of punishment contravenes the established bail jurisprudence, whereby bail is the rule and jail is an exception.
The liberty guaranteed under a. 21 of the Constitution of India (‘Constitution’) cannot be compromised, and even in the case of special statutes that require the twin conditions to be satisfied prior to the grant of bail, a contrary exception that allows prolonged incarceration is, thus, not allowed.
Our Analysis
Recently, the Supreme Court has made significant efforts to restore bail jurisprudence to its former prominence. The observations made in Manish Sisodia’s case have had a (positive) trickle-down effect on several other related/unrelated PMLA cases, wherein such observations have graciously been considered and applied by the Supreme Court while granting subsequent bails in matters wherein the impenetrable twin conditions are applicable.
While no new observations were made regarding the grant of bail and the grounds for consideration, an earnest attempt has been made to flatten the overreaching flatter of s. 45 of the PMLA, to hold that no law, statute, or provision should undermine the authority and rights enshrined under a. 21 of the Constitution.
End Notes
[i] SLP (Crl.) Diary No. 22137/2024.
[ii] 2024 SCC OnLine SC 2269, Kalvakuntla Kavitha v. Directorate of Enforcement. Supreme Court Clarifies Interpretation of Special Treatment for Women under the PMLA by Maarij Ahmad
[iii] 2022 SCC Online SC 929, Vijay Madanlal Chaudhary v. Union of India.
Authored by Anshi Bhatia, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinions.