SC raps govt, ED for efforts to deny bail in PMLA cases

The Supreme Court on Wednesday rebuked the Union government and the Enforcement Directorate (ED), condemning their “consistent efforts” to deny bail and prolong incarceration under the Prevention of Money Laundering Act (PMLA) “by hook or by crook”.

A bench of justices Abhay S Oka and Ujjal Bhuyan termed such an approach “unacceptable” and underscored that the Union’s submissions in court, which went beyond statutory provisions, were contrary to fair legal principles.

“The consistent attempt before us is that by hook or crook, bail should be denied... This is unfair. The only endeavour is to see that anyone who is arrested under PMLA must remain behind bars forever,” the bench told solicitor general Tushar Mehta, who appeared for the Centre and ED in the matter.

The strong remarks came in the aftermath of a previous contention made by another law officer of the government on December 18 last year, suggesting that even women and minors would not qualify for relaxed bail conditions under PMLA.

“It is completely unfair on the part of the government’s law officer to make submissions contrary to the law. If those appearing for the Union feel that the judges do not understand even the basic provisions of the law, how do we conduct the proceedings? We will not tolerate the counsel for the Union of India to make such arguments...some signal has to go from this court,” the court told SG Mehta.

The observations were made by the bench while granting bail to Shashi Bala Singh, a woman who was in custody since November 2023 in connection with a money laundering case. The bench took issue with the fact that Singh, despite being a woman with no prior criminal record, was detained for more than a year, during which no charges were framed and the trial not commenced.

The court criticised the submission made in Singh’s case, describing it as contrary to statutory provisions. The bench questioned the apparent intent behind such arguments, calling them an attempt to deny bail at any cost, regardless of the facts of the case or statutory provisions benefitting such individuals.

“One year is gone, and even the charge is not framed. It is unacceptable for the Union of India to make submissions contrary to the statutory provisions,” the bench said during the hearing.

The bench further expressed dismay at the lack of understanding demonstrated by the counsel for the Union government. “If those appearing for the Union of India do not even know the basic provisions of statutes, they should not appear. This is unfair. The only endeavour seems to be ensuring that anyone arrested under PMLA must remain behind bars,” the court observed.

Referring to Singh’s case, the court asked why she should not be released on bail given the circumstances. “She was arrested in November 2023, and charges were also framed recently. There are 67 witnesses in the case. Why should she not be granted bail?” the bench asked, adding, “She does not have any criminal antecedents, and there is no likelihood of the trial concluding in the near future. Even in cases involving multiple murders, if there is no trial and no antecedents, justice Krishna Iyer’s principle on bail applies. Why should it not apply here?”

Mehta, on his part, argued that Singh was a “kingpin” in the case and that the seriousness of the allegations justified her continued detention. However, the court rejected this argument, noting that mere allegations could not justify indefinite incarceration.

The court emphasised the importance of adhering to statutory provisions, particularly the proviso to Section 45(1) of PMLA, which relaxes stringent bail conditions for women, minors, and those who are sick or infirm.

The court’s final order noted that Singh was in custody since November 25, 2023, and that charges were framed recently -- after a year. The bench highlighted that the maximum sentence for the offence alleged against her was seven years and that the trial was unlikely to conclude in the near future. Observing that she had no prior criminal record and that the rigours of Section 45 did not apply to her case, the court ruled that she was entitled to bail.

The bench’s remarks echoed the landmark principle laid down by justice VR Krishna Iyer in State of Rajasthan Vs Balchand in 1977, where he famously stated that “bail is the rule, jail the exception.” This principle underscores the presumption of innocence and the idea that detention should not be punitive.

Throughout 2024, the apex court invoked this principle in a series of judgments, especially in cases relating to stringent provisions of PMLA and the Unlawful Activities (Prevention) Act, (UAPA). In a series of rulings that involved several political and corporate personalities, the court highlighted that personal liberty enshrined under Article 21 of the Constitution must be protected unless restricted by law. It called upon courts to adopt a balanced approach, ensuring that judicial processes did not turn punitive in nature.