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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. : 2795 of 2025
Reserved on : 24 .12.2025
Decided on : 05.01.2026
Arvind Rajta …Applicant
Versus
Directorate of Enforcement (ED) …Respondent
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?
1 Yes.
For the applicant : Mr. Ajay Kochhar, Senior Advocate,
with Ms. Pritika Thakur, Advocate.
For the respondent :Mr. Zoheb Hussain, Advocate
(through VC), with Mr. Ajeet Singh
Saklani, Mr. Surila Sangam and Ms.
Ananya Srivastava, Advocates.
Virender Singh, Judge.
Applicant-Arvind Rajta has filed the present
application, under Section 483 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as the
‘BNSS’), with a prayer to release him, on bail, during the
pendency of the trial, in case No. ECIR/SHSZO/04/2019,
dated 22.07.2019, registered with the Enforcement
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
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Directorate Office (ED), Sub-Zonal Office, Rani Villa,
Bagrian House, Strawberry Hills, Chhota Shimla, Shimla,
Himachal Pradesh.
2. According to the applicant, the said ECIR was
registered on the basis of the source information of case
FIR No. 133 of 2018, registered with Police Station East
and RC registered by CBI, vide RC 0962019S0002, dated
7
th
March, 2019, under Sections 409, 420, 467, 468 and
471 IPC, read with Sections 13(1)(c) & 13(1)(d) read with
Section 13 (2) of the Prevention of Corruption Act.
3. The investigation of FIR No. 133 of 2018 was,
thereafter, handed over to CBI and searches and seizures
from 22 private institutions were conducted. During
investigation of the case by CBI, the applicant was arrested
and released on bail, vide order, dated 24
th
September,
2020, passed in CrMP (M) No. 1040 of 2020.
4. According to the applicant, the CBI has filed the
charge sheet in twelve cases, including the case, related to
the present ECIR in the Court of learned Additional
Sessions Judge (CBI), Shimla.
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5. As per the stand taken by the applicant, after
the investigation, in the present ECIR, the ED has filed the
complaint, under Sections 44 and 45 of the PMLA, before
the learned Special Judge (PMLA) and the case is now
listed for consideration on charge.
6. It is the case of the applicant that there are
hundreds of witnesses, in the CBI challans, apart from the
thousands of documents, which are being relying upon.
According to the applicant, in the supplementary challans,
filed in the present ECIR, up till today, there are 132
witnesses apart from 83547 documents, relied upon, which
are to be proved by the respondent-Department.
7. It is the further case of the applicant that he is
being deprived of his fundamental right of speedy trial and
he is in custody since 30
th
August, 2023, i.e. more than
two years, without there being any progress in the ECIR, as
well as, in the trial of the predicate offence, which is
pending adjudication before the CBI Court, Shimla.
8. It is the stand of the applicant that the trial is
being delayed, without any fault on the part of the
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applicant and he is entitled to be released on bail, on the
ground of delay in trial.
9. According to the applicant, the trial of the
present complaint is going to take a considerable time and
certainly years together and the stringent provisions of
Section 45 of the PMLA cannot become a tool, which can
be used to incarcerate the applicant, without trial.
10. As per the further case of the applicant, there is
no evidence on record, collected by the investigating agency
to show the involvement of the applicant, as, instead of
collecting the evidence, the respondent-Department has
created evidence to implicate him.
11. It is the specific case of the applicant that he
has been arrayed as an accused, in this complaint, in the
supplementary complainants, being filed from time to time,
on the allegations that the applicant, in the capacity of
public servant, i.e. Dealing Assistant, in the Scholarship
Branch of the Department of Higher Education, for the
scholarship, under PMS Scheme, for SC/ST/OBC students
of H.P., has verified all the claims made by 28 institutions,
without pointing out the irregularities, including the
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change of course of students in subsequent years and
change in caste category of students and is actually
involved in generation, acquisition and concealment of
proceeds of crime and also intentionally and dishonestly
verified the claims of the PMS Scheme and entered into a
partnership through his wife, with Rajdeep Singh and
Krishan Kumar and formed shell entities by the name and
style of M/s ASA Marketing Solutions, M/s Skill
Development Society and M/s Skill Development School.
12. According to the applicant, his arrest, in this
case, is malafide, which can be appreciated from the fact
that out of around 50 accused persons, the Enforcement
Department has picked and without any reason had
chosen only a few accused and others are on bail, though,
all the other persons are accused of having committed the
offences, under Sections 3 and 4 of the PMLA.
13. As per the applicant, all the allegations, levelled
against him, have been made for the sake of allegations,
being false and incorrect and the same can only be proved
during the trial, which has remote possibility of being
concluded within a reasonable time. As such, according to
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the applicant, no fruitful purpose will be served by keeping
him in custody, for an indefinite amount of time.
14. The applicant is stated to be the permanent
resident of District Shimla, belonging to a respectable
family, as such, there is no chance of his, absconding from
the course of justice.
15. According to the applicant, he had filed regular
bail application, before this Court, bearing CrMP (M) No.
2444 of 2023, which was dismissed, vide order, dated 12
th
January, 2024.
16. The applicant has also given the details of the
earlier bail applications, filed by him, before this Court,
wherein he has been ordered to be released on interim bail,
to contend that he has not abused the liberty granted to
him, at any point of time, in the past.
17. It has been contended on behalf of the applicant
that he had filed SLP before the Hon’ble Supreme Court,
which came to be disposed of, vide order, dated 25
th
March,
2025.
18. Thereafter, the applicant had approached the
learned trial Court, as per the directions of the Hon’ble
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Supreme Court, by filing a regular bail application, which
came to be rejected, vide order dated 18
th
November, 2025.
19. Apart from this, the applicant has given certain
undertakings, for which, he is ready to abide by, in case,
he is ordered to be released on bail, during the pendency of
the trial.
20. On the basis of the above submissions, a prayer
has been made to allow the bail application.
21. When put to notice, the reply, on behalf of the
ED, has been filed, mentioning therein, that the applicant
is facing serious allegations of money laundering, under
Sections 3 and 4 of the PMLA, involving large scale
misappropriation of Government sponsored scholarship
funds, meant for SC/ST/OBC students, which has serious
socio-economic impacts on economic system, as well as,
the right of under-privileged students.
21.1. According to the ED, the nature of allegations
against the applicant is such that no sanction, under
Section 197 CrPC is required, however, the DoE has, out of
abundant caution, obtained prosecution sanction from the
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competent authority, qua the applicant, on 4
th
March,
2025.
21.2. According to ED, the matter revolves around a
scam, involving the allocation of scholarships to SC, ST
and OBC students, attending private institutions in
Himachal Pradesh, under the Post Matric Scheme. In this
fraudulent activity, officials from the Department of Higher
Education, alongwith private Educational Institutions and
Banks, were involved, which has resulted into
misappropriation of scholarship funds of more than 200
₹
crore.
21.3. The applicant, according to the stand taken by
ED, alongwith others, has played a major role in the scam,
wrongfully withholding the rightful scholarship entitlement
of the scholarships of the students, belonging to SC, ST
and OBC students of Himachal Pradesh. According to ED,
they have diverted the said funds into their
pockets/accounts. 22 institutions are stated to be
involved. In this regard, ED has relied upon the charge
sheet submitted by CBI. The investigation is stated to be
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going on to unearth the illicit money and ascertain the
proceeds of crime (PoC), obtained by way of this scam.
21.4. After recording the reason to believe in writing,
the applicant and his co-accused were arrested by ED on
30
th
August, 2023, under Section 19 of PMLA, in the said
ECIR. Thereafter, they were produced before the Special
Designated Court (PMLA), Shimla, on 31
st
August, 2023,
and the learned Special Court, after perusal of all the
documents, including the arrest memo, grounds of arrest,
reasons to believe and material for formation of such belief,
has granted five days’ ED custody, with a direction, to
produce the accused persons before the Special Court on
4
th
September, 2023, on which date, they were produced
before the Special Court and were remanded to judicial
custody.
21.5. It is the further case of the ED that
investigation is going on and is at crucial stage, which
requires collection of additional evidence, examination of
voluminous records and recording of statements of several
persons associated with the applicant and other accused
persons related to the case.
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21.6. Elaborating their stand, it is the case of the ED
that CBI registered the case vide RC0962019S0002, dated
7
th
May, 2019, under Sections 409, 419, 465, 466 and 471
IPC, against the unknown persons. As per the allegations
of the said case, there were complicity of individuals,
employees of State Government Education Department,
Bank Officials and private institutions. Misappropriation
in the disbursement of scholarship funds, in large scale,
has also been alleged. The offences, under Sections 419
and 471 IPC, are also stated to be scheduled offences,
mentioned in the schedule, appended to PMLA and as
such, inquiry was initiated by ED and the present case,
being ECIR/SHSZO/04/2019, dated 22
nd
July, 2019, was
registered.
21.7. According to the ED, it has filed prosecution
complaints in case of seven institutions, wherein, the
applicant is common accused, being the Dealing Assistant
in the Scholarship Branch of Directorate of Higher
Education, Shimla, entrusted with the duty to verify the
claims of scholarship under Post Matric Scheme for
SC/ST/OBC students of Himachal Pradesh.
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21.8. As per the stand of the ED, the applicant,
intentionally and dishonestly, verified all the claims made
by KCGI, Pandoga; KCGI, Nawanshahr; HGPI; AGPI; ITFT,
New Chandigarh; ICL Group of Colleges, for various
academic years, without pointing out the irregularities,
including change of courses of students in subsequent
years and change of caste category of students.
21.9. The applicant is also stated to have verified the
claims made by KCGI Pandoga, KCGI Nawanshahr and ICL
Group of Colleges, Ambala, whose complete documents
were not uploaded on HP-ePass.
21.10. It is the case of the ED that the applicant held
meeting with accused-Hitesh Gandhi outside the office and
took money in cash from him for verifying the claims of
KCGI Pandoga.
21.11. It is also the case of the ED that apart from his
official role, as employee of DoHE, the applicant, through
his wife and in partnership with accused-Rajdeep Singh
and Krishan Kumar, formed shell entities, company, by the
name and style of : (i) M/s ASA Marketing Solutions,
(ii) M/s Skills Development School; and (iii) M/s Skills
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Development Society. The applicant is also stated to have
made his relatives, Naresh Kalta and Rakesh Kumar,
members in shell entity, M/s Skill Development Society.
21.12. According to the ED, the role of the applicant,
in these entities, was to help in timely release of
scholarship claim, under PMS Scheme, which was claimed
by using false and forged documents, related to affiliation
and fees structure. The applicant, in complete knowledge
of these facts, stated to have deliberately, with an eye on
profit, verified the scholarship claims.
21.13. As per the stand of the ED, the proceeds of
crime obtained through shell entities was concealed by the
applicant, by transferring the same in the account of M/s
Pee Pee Construction and ultimately, using it to acquire a
plot at Fagu, Theog, Shimla, in the name of his wife.
21.14. The proceeds of crime are also stated to have
been used for business concerns namely, M/s Avinash
Rajta and M/s Avinash Rajta & Co., whose operations are
stated to have been controlled and handled by the
applicant. The applicant is also stated to have used the
proceeds of crime by investing the same in M/s Grand
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Emporio Hotels & Resorts Pvt. Ltd., in which, the applicant
made his brother-in-law a Director, alongwith accused-
Rajdeep Singh and Krishan Kumar.
21.15. As such, according to the ED, the applicant, is
knowingly a party in acquisition of proceeds of crime,
thereby, committing the offence of money laundering, as
defined under Section 3 and punishable under Section 4
of the PMLA.
21.16. It is the stand of the ED that delay cannot be
attributed to the prosecution in a case involving lakhs of
beneficiaries, voluminous digital records and complex
financial trails. The applicant cannot claim bail merely
because the case is large.
21.17. According to the ED, the ongoing investigation
does not justify bail. The complexity and magnitude of the
fraud justify the time taken. The prosecution is stated to
have acted with due diligence. The stage of considertion on
charge, in both the predicate offence and the PMLA
proceedings is stated to be a natural consequence of
magnitude and complexity of the case and not due to any
laxity or inaction on the part of the investigating agency.
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21.18. It is the specific stand of the ED that the
prosecution has been ready to proceed at every stage, as,
the learned Special Court (PMLA), in its orders, dated 26
th
July, 2025; 11
th
August, 2025; 3
rd
September, 2025; and
23
rd
September, 2025, has observed that the delay in
framing of charges is entirely on account of the conduct of
the accused persons, who have repeatedly sought
adjournments and on several occasions, failed to remain
present before the Court. As such, according to the ED,
the delay in the progress of the trial cannot, by any stretch,
be attributed to the ED.
21.19. Denying the allegation that the evidence has
been created, against the applicant, it is the stand of the
ED that the evidence includes bank records, statements,
digital records, shell entity documents and beneficiary
verification linked directly to the applicant and the strong
material establishes the applicant’s deliberate role in
verifying the falsified claims, and participating in shell
entities controlled through his family members and
associates.
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21.20. According to the ED, although, the Hon’ble
Supreme Court granted liberty to renew the bail
application after some time, the same does not restrict
power of either High Court or trial Court to adjudicate the
matter independently and on its merit. Mere grant of
liberty to re-file a bail cannot be construed as a right to be
enlarged on bail, at a later stage.
21.21. It has been averred in the reply that filing of
successive bail applications without any change in
circumstances cannot be entertained. In this regard,
reliance has been placed on the judgments of the Hon’ble
Supreme Court in Viruakshappa Gouda versus State of
Karnataka, (2017) 5 SCC 406; Kalyan Chandra Sarkar
versus Rajesh Ranjan, (2005) 2 SCC 42.
21.22. It has also been averred by the respondent-ED
that mere the period of incarceration cannot be the sole
consideration for grant of bail in a case of this nature,
involving large scale embezzlement and laundering of
public money meant for scholarships of poor students, as,
the trial, in the present case, is at the stage of framing
charge and the primary reason for non-framing of charges
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is the absence of majority of the accused persons.
According to the ED, the applicant should not be allowed
to derive benefit from the obstructive behaviour of his co-
accused.
21.23. In this regard, reliance has been placed on the
judgment of the Delhi High Court in CRL.A No. 1207/2024,
titled as Tasleem Ahmed versus State of NCT of Delhi,
decided on 2
nd
September, 2025, wherein, it has been held
that delay in trial caused by other co-accused persons
cannot constitute a valid ground for seeking bail.
21.24. It is the case of the ED that there is no thumb-
rule laid down by the Hon’ble Supreme Court that bail has
to be granted upon a year being spent in custody and that
the mandatory twin conditions under Section 45 of the
PMLA will stop applying upon a person completing a year
in custody. To substantiate this plea, the ED has relied
upon the decisions of the Hon’ble Supreme Court in
Manish Sisodia versus CBI, 2023 SCC OnLine SC 1393
(Manish Sisodia-I) and V. Senthil Balaji versus Deputy
Director, Directorate of Enforcement, 2024 SCC OnLine SC
2626.
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21.25. As per the stand of the ED, it is well settled that
the investigation into the offence of money laundering is
independent of the investigation conducted by the
predicate agency and that a person accused of the offence
of money laundering need not necessarily be accused of a
scheduled offence.
21.26. It is also the case of the ED that the mandatory
twin conditions under Section 45 of the PMLA are
applicable even while considering bail application, on
medical grounds. The plea of emergency medical condition
is stated to be wholly unfounded and cannot form a valid
ground for the applicant’s interim release.
21.27. According to the ED, the economic offences
constitute a distinct category and need to be visited with a
different approach in the matter of bail. Education is
stated to be a multiplier right, which enables a person
fulfill several other rights of himself and his family
members, but, those unscrupulous persons, like the
applicant, who deprive a chance of better education, by
siphoning of scholarship money of poor students, do not
deserve any sympathetic view in the matter of arrest.
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21.28. It is the further case of the ED that the
economic offences are not limited to physical records,
digital trails, financial channels, witnesses and co-
conspirators remain susceptible to influence. Investigation
continues with respect to money-trail and connected
persons.
21.29. The relief, as sought, in the application, has
also been opposed on the ground, that the applicant is a
public servant and was posted as Dealing Assistant, at the
relevant time. According to the ED, he is the person, who
had verified the claims, so submitted for scholarship, for
the last so many years and without his assistance, other
accused persons would not have been in a position to
commit the crime. His role is stated to be on higher
pedestal, than the other accused persons. Not only this,
the applicant is stated to have constituted shell companies
and proceeds of crime were invested in those shell
companies.
22. On the basis of the above facts, a prayer has
been made to dismiss the bail application.
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23. The applicant, in this case, has been booked,
under Section 3 of the PMLA and the punishment has been
provided, under Section 4 of the PMLA. Section 4 of the
PMLA is reproduced, as under:
“4. Punishment for money-laundering. -
Whoever commits the offence of money-
laundering shall be punishable with rigorous
imprisonment for a term which shall not be
less than three years but which may extend
to seven years and shall also be liable to
fine.
Provided that where the proceeds of crime
involved in money-laundering relates to any
offence specified under paragraph 2 of Part A
of the Schedule, the provisions of this section
shall have effect as if for the words “which
may extend to seven years”, the words
“which may extend to ten years” had been
substituted.”
24. It is not in dispute that before releasing the
accused on bail, in a case, registered under PMLA, it is
incumbent upon the Court to record the findings with
regard to the satisfaction of the twin conditions, as per
Section 45 of the PMLA, which are pari materia to
provisions of Section 37 of the NDPS Act.
25. The main thrust of the arguments of the learned
counsel appearing for the ED is that the delay, in the
present case, has been caused by the accused persons and
not on account of the prosecution. In order to buttress his
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contention, the learned counsel for the ED has drawn the
attention of this Court, towards the orders, dated 23
rd
September, 2025; 18
th
October, 2025; and 12
th
November,
2025, passed by the learned trial Court, in this case.
26. The applicant, in the present case, has been
arrested in the month of August, 2023 and prior to that, he
remained in judicial custody, in the case registered by CBI,
bearing No. RC0962019A0002, dated 7
th
May, 2019. Even,
in this case, the applicant is in custody for almost two
years and four months.
27. The copy of the complaint has also been
annexed with the reply. As per the complaint, there are as
many as 71 witnesses and the documentary evidence is
consisting of 31608 pages.
28. Apart from this, it has also been argued that the
earlier bail application of the applicant has been dismissed
on merit, by this Court; thereafter, the applicant has tried
his luck by moving SLP before the learned Supreme Court
and his SLP has also been dismissed. As such, it has been
argued that the period of custody of the applicant is not
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the sole criterion to accept the prayer for bail, made by
him.
29. First of all, coming to the arguments of the
learned counsel appearing for the ED, qua the fact that his
earlier bail application has been dismissed, on merit, by
this Court and SLP preferred by him before the Hon’ble
Supreme Court has also been dismissed, by the Hon’ble
Supreme Court. Copy of the order, dated 25
th
March,
2025, passed by the Hon’ble Supreme Court, in the SLP,
has been placed on record, by the applicant. Relevant
portion of the said order, is reproduced, as under:
“We do not find any ground to interfere with
the impugned order(s) passed by the High
Court. However, insofar as the petitioner(s)
who have received interim relief from the High
Court, we are inclined to give them four weeks
time for surrendering.
Liberty is given to the petitioners to renew the
prayer for bail by way of filing a fresh bail
application before the concerned trial Court
with a period of six months, if the trial does
not proceed.
The Special Leave Petition are, accordingly,
dismissed with the aforesaid liberty.”
30. By way of the order, dated 25
th
March, 2025,
reproduced hereinabove, liberty has been granted, by the
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Hon’ble Supreme Court, to the applicant to file fresh bail
application, before the concerned trial Court, within a
period of six months, from the date of the order, in case,
the trial does not proceed.
31. Consequently, the applicant had moved the bail
application before the learned trial Court, which has been
dismissed, by the learned trial Court, vide order, dated 18
th
November, 2025, and now, he is before this Court.
32. Now, coming to the objection of the learned
counsel appearing for the ED, qua the fact that delay in the
trial is caused due to the accused persons and not by the
ED. As per orders, dated 23
rd
September, 2025; 16
th
October, 2025; and 12
th
November, 2025, produced on the
record, this Court is of the view that no role can be
attributed to the applicant for causing delay in the trial.
33. Moreover, whatsoever has been prayed, which
resulted into adjournment of the proceedings, before the
learned trial Court, that has been done by the other
accused persons and learned counsel appearing for the ED
could not satisfy the judicial conscience of this Court as to
how the applicant can be said to be attributing delay in the
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said proceedings. Even otherwise, no fault can be found
with the applicant, on account of the exemption
applications, moved by other accused persons.
34. Admittedly, charges have not been framed and
considering the total number of witnesses to be examined
by the prosecution and the voluminous record, relied upon,
this Court can foresee the fact that in near future, chances
of conclusion of the trial, against the applicant, are not so
bright.
35. The view of this Court is being guided by the
decision of the Hon’ble Supreme Court, in case titled as
Mahesh Joshi versus Directorate of Enforcement,
Neutral Citation No. 2025 INSC 1377. Relevant paras-
10 to 14, of the said judgment, are reproduced, as under:
10. Furthermore, attention is drawn to the
documentary nature of the case, wherein
large number of pages, witnesses and
documents are cited by the prosecution, and
that the matter remains at the stage of supply
of copy of the police report and other
documents under Section 207, Code of
Criminal Procedure (for short, “CrPC”). It is
urged that the trial is unlikely to commence in
the near future, and prolonged incarceration
would be inconsistent with Article 21 of the
Constitution of India.
11. On the contrary, the learned ASG submits
that the allegations relate to serious economic
offences. He refers to what the agency
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describes as a financial trail involving
movement of funds through M/s Mugdog
Packaging India LLP, M/s Maxclenz Retail Pvt.
Ltd., and M/s Jay The Victory, before reaching
the firm of the Appellant’s son, M/s
Sumangalam LLP. According to the
respondent, the layering of transactions is
consistent with money-laundering methods.
12. Reliance is placed on statements of certain
co-accused recorded during the investigation,
with the submission that the later retractions
are belated. It is contended that the Rs. 50
lakh entry is not isolated and forms part of a
larger financial pattern which, according to the
agency, totals Rs. 2.01 crore. The learned ASG
submits that the Appellant, being a senior
political figure, may influence witnesses who
were departmental officials or contractors.
Continued custody is therefore sought.
13. In V. Senthil Balaji v. Deputy Director,
Directorate of Enforcement, 2024 SCC
OnLine SC 2626, of which, one of us was a
member (Augustine George Masih, J.,), this
Court, particularly in para 27, held that where
a trial cannot be reasonably concluded and
incarceration becomes prolonged,
constitutional courts must intervene to
safeguard the right to personal liberty under
Article 21. The Court further emphasised that
Section 45(1)(ii) of the PMLA cannot be
interpreted to justify indefinite detention in
cases involving voluminous, document-heavy
material where trial is unlikely to begin
promptly. The present case, in our view,
stands on a similar footing. Para 27 of V.
Senthil Balaji (supra) reads as follows:
“27. Under the Statutes like PMLA, the
minimum sentence is three years, and
the maximum is seven years. The
minimum sentence is higher when the
scheduled offence is under the NDPS
Act. When the trial of the complaint
under PMLA is likely to prolong beyond
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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. What a reasonable time is will
depend on the provisions under which
the accused is being tried and other
factors. One of the most relevant factor
is the duration of the minimum and
maximum sentence for the offence.
Another important consideration is the
higher threshold or stringent conditions
which a statute provides for the grant of
bail. Even an outer limit provided by the
relevant law for the completion of the
trial, if any, is also a factor to be
considered. The extraordinary powers,
as held in the case of K.A.
Najeeb [(2021) 3 SCC 713], can only be
exercised by the Constitutional Courts.
The Judges of the Constitutional Courts
have vast experience. Based on the facts
on record, if the Judges 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 of India
notwithstanding the statutory
provisions. The Constitutional Courts
can always exercise its jurisdiction
under Article 32 or Article 226, as the
case may be. The Constitutional Courts
have to bear in mind while dealing with
the cases under the PMLA that, except in
a few exceptional cases, the maximum
sentence can be of seven years. 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
26 2026:HHC:809
when there is no possibility of a trial of
the scheduled offence and the PMLA
offence concluding within a reasonable
time. If the Constitutional Courts do not
exercise their jurisdiction in such cases,
the rights of the undertrials under Article
21 of the Constitution of India will be
defeated. In a given case, if an undue
delay in the disposal of the trial of
scheduled offences or disposal of trial
under the PMLA can be substantially
attributed to the accused, the
Constitutional Courts can always
decline to exercise jurisdiction to issue
prerogative writs. An exception will also
be in a case where, considering the
antecedents of the accused, there is
every possibility of the accused
becoming a real threat to society if
enlarged on bail. The jurisdiction to
issue prerogative writs is always
discretionary.”
14. Upon considering the material placed
before us, we find that several co-accused,
whose alleged roles will ultimately be
evaluated at trial, have already been granted
bail. The Appellant has remained in custody
for over seven months. The record is entirely
documentary, as of now there are 66
witnesses, 184 documents, and more than
14,600 pages are involved, and the
proceedings are still at the stage of supply of
copy of the police report and other documents
under Section 207, CrPC. In our view, these
circumstances indicate that the commencement
of trial is not imminent and that the trial itself
is not likely to conclude once started in the
near future. The continued detention of the
Appellant requires closer scrutiny in light of
constitutional considerations.
36. The learned senior counsel appearing for the
applicant has also argued that the case, filed by the CBI,
27 2026:HHC:809
regarding the predicate offences, against the applicant,
alongwith other accused persons are at the stage of
consideration on charge.
37. In this background, the chances of
commencement and conclusion of the trial, against the
applicant, in near future, seem to be not so bright, as, the
Hon’ble Supreme Court, in V. Senthil Balaji versus
Deputy Director, Directorate of Enforcement, reported
in 2024 SCC OnLine SC 2626, has held that the existence
of proceeds of crime, at the time of trial of the offence,
under Section 3 of the PMLA, can be proved only if the
scheduled offence is established in the prosecution of the
scheduled offence. Relevant paras-21 to 27, of the
judgment, are reproduced, as under:
“21. Hence, the existence of a scheduled
offence is sine qua non for alleging the
existence of proceeds of crime. A property
derived or obtained, directly or indirectly, by a
person as a result of the criminal activity
relating to a scheduled offence constitutes
proceeds of crime. The existence of proceeds
of crime at the time of the trial of the offence
under Section 3 of PMLA can be proved only
if the scheduled offence is established in the
prosecution of the scheduled offence.
Therefore, even if the trial of the case under
the PMLA proceeds, it cannot be finally
decided unless the trial of scheduled offences
concludes. In the facts of the case, there is no
28 2026:HHC:809
possibility of the trial of the scheduled
offences commencing in the near future.
Therefore, we see no possibility of both trials
concluding within a few years.
22. In the case of K.A. Najeeb, in paragraph 17
this Court held thus:
“17. It is thus clear to us that the
presence of statutory restrictions like
Section 43-D(5) of the UAPA per se does
not oust the ability of the constitutional
courts to grant bail on grounds of
violation of Part III of the Constitution.
Indeed, both the restrictions under a
statute as well as the powers exercisable
under constitutional jurisdiction can be
well harmonised. Whereas at
commencement of proceedings, the
courts are expected to appreciate the
legislative policy against grant of
bail but the rigours of such
provisions will melt down where
there is no likelihood of trial being
completed within a reasonable time
and the period of incarceration
already undergone has exceeded a
substantial part of the prescribed
sentence. Such an approach would
safeguard against the possibility of
provisions like Section 43-D(5) of the
UAPA being used as the sole
metric for denial of bail or for
wholesale breach of constitutional
right to speedy trial.”
(emphasis added)
23. In the case of Manish Sisodia v.
Directorate of Enforcement in paragraphs 49
to 57, this Court held thus:
“49. We find that, on account of a
long period of incarceration running
for around 17 months and the trial even
not having been commenced, the
29 2026:HHC:809
appellant has been deprived of his right
to speedy trial.
50. As observed by this Court, the right
to speedy trial and the right to liberty
are sacrosanct rights. On denial of these
rights, the trial court as well as the High
Court ought to have given due weightage
to this factor.
51. Recently, this Court had an occasion
to consider an application for bail in the
case of Javed Gulam Nabi Shaikh v.
State of Maharashtra wherein the
accused was prosecuted under the
provisions of the Unlawful Activities
(Prevention) Act, 1967. This Court
surveyed the entire law right from the
judgment of this Court in the cases of
Gudikanti Narasimhulu v. Public
Prosecutor, High Court of Andhra
Pradesh, Shri Gurbaksh Singh Sibbia v.
State of Punjab, Hussainara Khatoon
(I) v. Home Secretary, State of Bihar,
Union of India v. K.A. Najeeb and
Satender Kumar Antil v. Central Bureau
of Investigation. The Court observed
thus:
“19. If the State or any
prosecuting agency including the
court concerned has no
wherewithal to provide or protect
the fundamental right of an
accused to have a speedy trial
as enshrined under Article 21 of
the Constitution then the State or
any other prosecuting agency
should not oppose the plea for bail
on the ground that the crime
committed is serious. Article 21 of
the Constitution applies
irrespective of the nature of the
crime.”
30 2026:HHC:809
52. The Court also reproduced the
observations made in Gudikanti
Narasimhulu (supra), which read thus:
“10. In the aforesaid context, we
may remind the trial courts and the
High Courts of what came to be
observed by this Court in Gudikanti
Narasimhulu v. Public Prosecutor,
High Court reported in (1978) 1 SCC
240. We quote:
“What is often forgotten, and
therefore warrants reminder, is
the object to keep a person in
judicial custody pending trial
or disposal of an appeal.
Lord Russel, C.J., said [R v.
Rose, (1898) 18 Cox]:
“I observe that in this case bail
was refused for the prisoner. It
cannot be too strongly
impressed on the, magistracy
of the country that bail is not to
be withheld as a punishment,
but that the requirements as
to bail are merely to secure the
attendance of the prisoner at
trial.””
53. The Court further observed that,
over a period of time, the trial courts
and the High Courts have forgotten
a very well settled principle of law
that bail is not to be withheld as a
punishment. From our experience, we
can say that it appears that the trial
courts and the High Courts attempt to
play safe in matters of grant of bail. The
principle that bail is a rule and refusal is
an exception is, at times, followed in
breach. On account of non-grant of bail
even in straight forward open and shut
cases, this Court is flooded with huge
number of bail petitions thereby adding
31 2026:HHC:809
to the huge pendency. It is high time that
the trial courts and the High Courts
should recognize the principle that “bail
is rule and jail is exception”.
54. In the present case, in the ED
matter as well as the CBI matter,
493 witnesses have been named. The
case involves thousands of pages of
documents and over a lakh pages of
digitized documents. It is thus clear
that there is not even the remotest
possibility of the trial being
concluded in the near future. In our
view, keeping the appellant behind
the bars for an unlimited period of
time in the hope of speedy
completion of trial would deprive
his fundamental right to liberty
under Article 21 of the
Constitution. As observed time and
again, the prolonged incarceration
before being pronounced guilty of
an offence should not be permitted
to become punishment without trial.
55. As observed by this Court in the case
of Gudikanti Narasimhulu (supra), the
objective to keep a person in judicial
custody pending trial or disposal of an
appeal is to secure the attendance of
the prisoner at trial.
56. In the present case, the appellant
is having deep roots in the society. There
is no possibility of him fleeing away
from the country and not being available
for facing the trial. In any case,
conditions can be imposed to address the
concern of the State.
57. Insofar as the apprehension given by
the learned ASG regarding the
possibility of tampering the evidence
is concerned, it is to be noted that the
case largely depends on documentary
32 2026:HHC:809
evidence which is already seized by
the prosecution. As such, there is no
possibility of tampering with the
evidence. Insofar as the concern with
regard to influencing the witnesses is
concerned, the said concern can be
addressed by imposing stringent
conditions upon the appellant.
……………….”
(emphasis added)
24. There are a few penal statutes that make
a departure from the provisions of Sections
437, 438, and 439 of the Code of Criminal
Procedure, 1973. A higher threshold is
provided in these statutes for the grant of bail.
By way of illustration, we may refer to Section
45(1)(ii) of PMLA, proviso to Section 43D(5) of
the Unlawful Activities (Prevention) Act, 1967
and Section 37 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (for short,
‘NDPS Act’). The provisions regarding bail in
some of such statutes start with a nonobstante
clause for overriding the provisions of Sections
437 to 439 of the CrPC. The legislature has
done so to secure the object of making
the penal provisions in such enactments. For
example, 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.
25. Considering the gravity of the offences in
such statutes, expeditious disposal of trials
for the crimes under these statutes is
contemplated. Moreover, such statutes
contain provisions laying down higher
threshold for the grant of bail. The expeditious
disposal of the trial is also warranted
considering the higher threshold set for the
grant of bail. Hence, 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. It is a
33 2026:HHC:809
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.
26. There are a series of decisions of this
Court starting from the decision in the case of
K.A.Najeeb, which hold that such 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 of India. We have already
referred to paragraph 17 of the said decision,
which lays down that the rigours of such
provisions will melt down where there is no
likelihood of trial being completed in a
reasonable time and the period of
incarceration already undergone has exceeded
a substantial part of the prescribed sentence.
One of the reasons is that if, because of such
provisions, incarceration of an undertrial
accused is continued for an unreasonably long
time, the provisions may be exposed to the vice
of being violative of Article 21 of the
Constitution of India.
27. Under the Statutes like PMLA, the
minimum sentence is three years, and the
maximum is seven years. The minimum
sentence is higher when the scheduled offence
is under the NDPS Act. 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. What a reasonable time is
will depend on the provisions under which the
accused is being tried and other factors. One
of the most relevant factor is the duration of
34 2026:HHC:809
the minimum and maximum sentence for the
offence. Another important consideration is
the higher threshold or stringent conditions
which a statute provides for the grant of bail.
Even an outer limit provided by the relevant
law for the completion of the trial, if any, is
also a factor to be considered. The
extraordinary powers, as held in the case of
K.A. Najeeb, can only be exercised by the
Constitutional Courts. The Judges of the
Constitutional Courts have vast experience.
Based on the facts on record, if the Judges
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 o the Constitution of India
notwithstanding the statutory provisions. The
Constitutional Courts can always exercise its
jurisdiction under Article 32 or Article 226, as
the case may be. The Constitutional Courts
have to bear in mind while dealing with the
cases under the PMLA that, except in a few
exceptional cases, the maximum sentence can
be of seven years. 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 rial of the scheduled
offence and the PMLA offence concluding
within a reasonable time. If the Constitutional
Courts do not exercise their jurisdiction in such
cases, the rights of the undertrials under
Article 21 of the Constitution of India will be
defeated. In a given case, if an undue delay in
the disposal of the trial of scheduled offences
or disposal of trial under the PMLA can be
substantially attributed to the accused, the
Constitutional Courts can always decline to
exercise jurisdiction to issue prerogative writs.
An exception will also be in a case where,
considering the antecedents of the accused,
there is every possibility of the accused
becoming a real threat to society if enlarged on
bail. The jurisdiction to issue prerogative writs
is always discretionary.”
35 2026:HHC:809
(self emphasis supplied)
38. As stated earlier, in the cases filed by the CBI,
the charges have not yet been framed, what to talk about
the commencement and conclusion of the trial, regarding
the predicate offences.
39. The Hon’ble Supreme Court, in a case, titled as
Bachhu Yadav versus Directorate of Enforcement,
reported as (2023) 19 Supreme Court Cases 815, has
released the applicant, before it, after considering the fact
that out of 42 witnesses, five had been examined and the
custody period of the said applicant was little over one
year. Relevant paras-6 to 11, of the said judgment, are
reproduced, as under:
6. In the light of the gist of the contentions
noted above, we have perused the petition
papers, but without adverting to much details
at this stage since the basic facts required for
considering an application for bail alone is to
be noted without effecting the main
contentions of the parties to be put forth during
trial. The basic allegation as made against the
petitioner as noted is regarding the illegal
activity during the period 1-6-2022 to 26-6-
2022. Though the learned Additional Solicitor
General with reference to the objection
statement wherein details of the FIR filed in
three other cases is referred to indicate the
illegal activities in which the petitioner is
involved, it is needless to mention that in the
said cases the proceedings in any event would
36 2026:HHC:809
be taken against the petitioner to its logical
conclusion.
7. In that background, keeping in view the
allegation against the petitioner is of
possessing the amount of Rs 30 lakhs in his
bank account, apart from the fact that the very
allegation is that the said amount was
deposited on 24-1-2022 which is prior to the
period of illegal activity alleged, for the present
there is an explanation as put forth by the
petitioner during the course of investigation in
answer to the specific question on being
confronted with the account details in
Jharkhand Gramin Bank, Bhagiamari Branch.
The explanation is that the amount was
deposited by him in respect of the transaction
for purchase of house with land in Asansol for
Rs 26 lakhs. It is further stated that the sum of
Rs 26,00,024 was transferred through NEFT
to one Munmun Maji and it is stated that the
said amount was the sale consideration for the
property. To enable transfer of the same, it
had been deposited in the bank account. At
the point of hearing this petition, it was stated
across the Bar that the sale has also been
registered. Be that as it may, these are
aspects which, in any event, would be looked
at during the course of the trial.
8. Further, though the learned Additional
Solicitor General has contended that the bail
application filed by the main accused Pankaj
Mishra has been dismissed by this Court on
26-4-2023 in Pankaj Mishra v. Union of India,
it is seen that the application filed has in fact
been withdrawn with liberty to file an
application for interim bail on medical ground
and also to file afresh bail application after six
months.
9. Be that as it may, in the instant facts, the
nature of the allegation in the present
proceedings has been taken note. In that
circumstance, it is seen that the petitioner was
arrested on 5-8-2022 and he has spent a little
37 2026:HHC:809
over one year of incarceration. The charge-
sheet is filed and the trial court having framed
the charges, no doubt has started the trial and
it is stated across the Bar that five witnesses
have been examined but it is also stated that
in all 42 witnesses are cited to be examined.
10. In that circumstance, taking into
consideration all aspects of the matter and
also making it subject to the condition that the
petitioner shall diligently participate in the trial
without interfering in the course of justice and
also complying with the other appropriate
conditions to be imposed by the trial court, the
prayer is accepted.
11. Hence, we direct that the petitioner be
enlarged on bail subject to appropriate
conditions being imposed by the trial court and
the petitioner diligently adhering to such
conditions, as also not being required in any
other case. For the purpose of imposition of
such conditions and issue of release order the
petitioner shall be produced forthwith before
the trial court. The petition is disposed of in the
above terms.”
40. The Hon’ble Supreme Court in Manish Sisodia
versus Directorate of Enforcement, reported as 2024
SCC OnLine SC 1920, has elaborately discussed the
provisions of PMLA, viz-a-viz, offences, which are
punishable for death, imprisonment for life, ten years or
more like offences under the Narcotic Drugs and
Psychotropic Substances Act, murder, cases of rape,
dacoity, kidnapping for ransom, mass violence, etc.
38 2026:HHC:809
Relevant paras-28 and 49 to 57 of the judgment, are
reproduced, as follows:
“28. Before considering the submissions of the
learned ASG with regard to maintainability of
the present appeals on account of the second
order of this Court, it will be apposite to refer
to certain observations made by this Court in
its first order, which read thus:
“26. However, we are also concerned
about the prolonged period of
incarceration suffered by the appellant –
Manish Sisodia. In P. Chidambaram v.
Directorate of Enforcement, (2020) 13
SCC 791, the appellant therein was
granted bail after being kept in custody
for around 49 days [P. Chidambaram v.
Central Bureau of Investigation, (2020)
13 SCC 337], relying on the Constitution
Bench in Shri Gurbaksh Singh Sibbia v.
State of Punjab, (1980) 2 SCC 565, and
Sanjay Chandra v. Central Bureau of
Investigation, (2012) 1 SCC 40, that
even if the allegation is one of grave
economic offence, it is not a rule that bail
should be denied in every case.
Ultimately, the consideration has to be
made on a case to case basis, on the
facts. The primary object is to secure
the presence of the accused to stand
trial. The argument that the appellant
therein was a flight risk or that there
was a possibility of tampering with the
evidence or influencing the witnesses,
was rejected by the Court. Again, in
Satender Kumar Antil v. Central Bureau
of Investigation, (2022) 10 SCC 51, this
Court referred to Surinder Singh Alias
Shingara Singh v. State of Punjab,
(2005) 7 SCC 387 and Kashmira Singh
versus State of Punjab, (1977) 4 SCC
291, to emphasise that the right to
speedy trial is a fundamental right
39 2026:HHC:809
within the broad scope of Article 21 of
the Constitution. In Vijay Mandanlal
Choudhary (supra), this Court while
highlighting the evil of economic offences
like money laundering, and its adverse
impact on the society and citizens,
observed that arrest infringes the
fundamental right to life. This Court
referred to Section 19 of the PML Act, for
the in-built safeguards to be adhered to
by the authorised officers to ensure
fairness, objectivity and accountability.
(See also Pankaj Bansal v Union of
India, 2023 SCC OnLine SC 1244] Vijay
Madanlal Choudhary (supra), also held
that section 436A of the Code can apply
to offences under the PML Act, as it
effectuates the right to speedy trial, a
facet of the right to life, except for a valid
ground such as where the trial is
delayed at the instance of the accused
himself. In our opinion, Section 436A
should not be construed as a mandate
that an accused should not be granted
bail under the PML Act till he has
suffered incarceration for the specified
period. This Court, in Arnab Manoranjan
Goswami v. State of Maharashtra,
(2021) 2 SCC 427, held that while
ensuring proper enforcement of criminal
law on one hand, the court must be
conscious that liberty across human
eras is as tenacious as tenacious can
be.
27. The appellant - Manish Sisodia has
argued that given the number of
witnesses, 294 in the prosecution filed
by the CBI and 162 in the prosecution
filed by the DoE, and the documents
31,000 pages and 25,000 pages
respectively, the fact that the CBI has
filed multiple charge sheets, the
arguments of charge have not
commenced. The trial court has allowed
application of the accused for furnishing
40 2026:HHC:809
of additional documents, which order
has been challenged by the prosecution
under Section 482 of the Code before the
High Court. It was stated at the Bar, on
behalf of the prosecution that the said
petition under Section 482 will be
withdrawn. It was also stated at the
Bar, by the prosecution that the trial
would be concluded within next six to
eight months.
28. Detention or jail before being
pronounced guilty of an offence should
not become punishment without trial. If
the trial gets protracted despite
assurances of the prosecution, and it is
clear that case will not be decided
within a foreseeable time, the prayer for
bail may be meritorious. While the
prosecution may pertain to an economic
offence, yet it may not be proper to
equate these cases with those
punishable with death, imprisonment for
life, ten years or more like offences
under the Narcotic Drugs and
Psychotropic Substances Act, 1985,
murder, cases of rape, dacoity,
kidnapping for ransom, mass violence,
etc. Neither is this a case where
100/1000s of depositors have been
defrauded. The allegations have to be
established and proven. The right to bail
in cases of delay, coupled with
incarceration for a long period,
depending on the nature of the
allegations, should be read into Section
439 of the Code and Section 45 of the
PML Act. The reason is that the
constitutional mandate is the higher
law, and it is the basic right of the
person charged of an offence and not
convicted, that he be ensured and given
a speedy trial. When the trial is not
proceeding for reasons not attributable
to the accused, the court, unless there
are good reasons, may well be guided to
41 2026:HHC:809
exercise the power to grant bail. This
would be truer where the trial would
take years.
29. In view of the assurance given at the
Bar on behalf of the prosecution that
they shall conclude the trial by taking
appropriate steps within next six to eight
months, we give liberty to the appellant
Manish Sisodia to move a fresh
application for bail in case of change in
circumstances, or in case the trial is
protracted and proceeds at a snail's
pace in next three months. If any
application for bail is filed in the above
circumstances, the same would be
considered by the trial court on merits
without being influenced by the
dismissal of the earlier bail application,
including the present Judgment.
Observations made above, re. right to
speedy trial, will, however, be taken into
consideration. The appellant Manish
Sisodia may also file an application for
interim bail in case of ill health and
medical emergency due to illness of his
wife. Such application would be also
examined on its own merits."
xxx xxx xxx
49. We find that, on account of a long period of
incarceration running for around 17 months
and the trial even not having been commenced,
the appellant has been deprived of his right to
speedy trial.
50. As observed by this Court, the right to
speedy trial and the right to liberty are
sacrosanct rights. On denial of these rights,
the trial court as well as the High Court ought
to have given due weightage to this factor.
51. Recently, this Court had an occasion to
consider an application for bail in the case of
Javed Gulam Nabi Shaikh v. State of
42 2026:HHC:809
Maharashtra, 2024 SCC OnLine SC 1693,
wherein the accused was prosecuted under
the provisions of the Unlawful Activities
(Prevention) Act, 1967. This Court surveyed the
entire law right from the judgment of this Court
in the cases of Gudikanti Narasimhulu v.
Public Prosecutor, High Court of Andhra
Pradesh, (1978) 1 SCC 240, Shri Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC
565, Hussainara Khatoon (1) v. Home
Secretary, State of Bihar, (1980) 1 SCC 81,
Union of India v. K.A Najeeb, (2021) 3 SCC
713, and Satender Kumar Antil v Central
Bureau of Investigation, (2022) 10 SCC 51.
The Court observed thus:
"19. If the State or any prosecuting
agency including the court concerned
has no wherewithal to provide or protect
the fundamental right of an accused to
have a speedy trial as enshrined under
Article 21 of the Constitution then the
State or any other prosecuting agency
should not oppose the plea for bail on
the ground that the crime committed is
serious. Article 21 of the Constitution
applies irrespective of the nature of the
crime."
52. The Court also reproduced the
observations made in Gudikanti Narasimhulu
(supra), which read thus:
10. In the aforesaid context, we may
remind the trial courts and the High
Courts of what came to be observed by
this Court in Gudikanti Narasimhulu v.
Public Prosecutor, High Court reported in
(1978) 1 SCC 240. We quote:
"What is often forgotten, and therefore
warrants reminder, is the object to keep
a person in judicial custody pending trial
or disposal of an appeal, Lord Russel,
C.J., said [R v. Rose, (1898) 18 Cox]:
43 2026:HHC:809
"I observe that in this case bail was
refused for the prisoner. It cannot
be too strongly impressed on the,
magistracy of the country that bail is
not to be withheld as a punishment,
but that the requirements as to bail
are merely to secure the attendance
of the prisoner at trial.""
53. The Court further observed that, over a
period of time, the trial courts and the High
Courts have forgotten a very well-settled
principle of law that bail is not to be withheld
as a punishment. From our experience, we can
say that it appears that the trial courts and the
High Court attempt to play safe in matters of
grant of bail. The principle that bail is a rule
and refusal is an exception is, at times,
followed in breach on account of non-grant of
bail even in straightforward open and shut
cases, this Court is flooded with huge number
of bail petitions thereby adding to the huge
pendency. It is high time that the trial court ad
the High Courts should recognize the principle
that “ bail is rule and jail is exception”.
54. In the present case, in the ED matter as
well as the CBI matter, 493 witnesses have
been named. The case involves thousands of
pages of documents and over a lakh pages of
digitized documents. It is thus clear that there
is not even the remotest possibility of the trial
being concluded in the near future. In our
view, keeping the appellant behind the bars
for an unlimited period of time in the hope of
speedy completion of trial would deprive his
fundamental right to liberty under Article 21 of
the Constitution. As observed time and again,
the prolonged incarceration before being
pronounced guilty of an offence should not be
permitted to become punishment without trial.
55. As observed by this Court in the case of
Gudikanti Narasimhulu (supra), the objective
to keep a person in judicial custody pending
44 2026:HHC:809
trial or disposal of an appeal is to secure the
attendance of the prisoner at trial.
56. In the present case, the appellant is having
deep roots in the society. There is no
possibility of him fleeing away from the
country and not being available for facing the
trial. In any case, conditions can be imposed to
address the concern of the State.
57. Insofar as the apprehension given by the
learned ASG regarding the possibility of
tampering the evidence is concerned, it is to be
noted that the case largely depends on
documentary evidence which is already seized
by the prosecution. As such, there is no
possibility of tampering with the evidence.
Insofar as the concern with regard to
influencing the witnesses is concerned, the
said concern can be addressed by imposing
stringent conditions upon the appellant.”
(self emphasis supplied)
41. In view of the discussions made hereinabove,
now, the next question, which arises for determination,
before this Court, is, about the fact as to whether the twin
conditions, as per Section 45 of the PMLA, are existing in
favour of the applicant, on account of his long custody.
42. A three Judge Bench of the Hon’ble Supreme
Court, in Union of India versus K.A. Najeeb, reported as
(2021) 3 Supreme Court Cases 713, has elaborately
discussed the statutory restrictions, provided under
Section 43-D(5) of the UAPA. Relevant paras-10 to 19, of
the judgment, are reproduced, as under:
45 2026:HHC:809
“10. It is a fact that the High Court in the
instant case has not determined the likelihood
of the respondent being guilty or not, or
whether rigours of Section 43-D(5) of the UAPA
are alien to him. The High Court instead of
incarceration and the unlikelihood of the trial
being completed anytime appears to have
exercised its power to grant bail owing to the
long period in the near future. The reasons
assigned by the High Court are apparently
traceable back to Article 21 of our Constitution,
of course without addressing the statutory
embargo created by Section 43-D(5) of the
UAPA.
11. The High Court's view draws support from
a batch of decisions of this Court, including in
Shaheen Welfare Assn. v. Union of India,
(1996) 2 SCC 616, laying down that gross
delay in disposal of such cases would justify
the invocation of Article 21 of the Constitution
and consequential necessity to release the
undertrial on bail. It would be useful to quote
the following observations from the cited case:
(SCC p. 622, para 10)
"10. Bearing in mind the nature of the
crime and the need to protect the society
and the nation, TADA has prescribed in
Section 20(8) stringent provisions for
granting bail. Such stringent provisions
can be justified looking to the nature of
the crime, as was held in Kartar Singh
v. State of Punjab, (1994) 3 SCC 569, on
the presumption that the trial of the
accused will take place without undue
delay. No one can justify gross delay in
disposal of cases when undertrials
perforce remain in jail, giving rise to
possible situations that may justify
invocation of Article 21."
(emphasis supplied)
12. Even in the case of special legislations like
the Terrorist and Disruptive Activities
46 2026:HHC:809
(Prevention) Act, 1987 or the Narcotic Drugs
and Psychotropic Substances Act, 1985 ("the
NDPS Act") which too have somewhat rigorous
conditions for grant of bail, this Court in
Paramjit Singh v. State (NCT of Delhi), (1999) 9
SCC 252, Babba v. State of Maharashtra,
(2005) 11 SCC 569 and Umarmia v. State of
Gujarat, (2017) 2 SCC 731, enlarged the
accused on bail when they had been in jail for
an extended period of time with little
possibility of early completion of trial. The
constitutionality of harsh conditions for bail in
such special enactments, has thus been
primarily justified on the touchstone of speedy
trials to ensure the protection of innocent
civilians.
13. We may also refer to the orders enlarging
similarly-situated accused under UAPA passed
by this Court in Angela Harish Sontakke v.
State of Maharashtra, (2021) 3 SCC 723. That
was also a case under Sections 10, 13, 17, 18,
18-A, 18-B, 20, 21, 38, 39 and 40(2) of the
UAPA. This Court in its earnest effort to draw
balance between the seriousness of the
charges with the period of custody suffered
and the likely period within which the trial
could be expected to be completed took note of
the five years' incarceration and over 200
witnesses left to be examined, and thus
granted bail to the accused notwithstanding
Section 43-D(5) of the UAPA. Similarly, in
Sagar Tatyaram Gorkhe v. State of
Maharashtra, (2021) 3 SCC 725, an accused
under UAPA was enlarged for he had been in
jail for four years and there were over 147
witnesses still unexamined.
14. The facts of the instant case are more
egregious than these two abovecited
instances. Not only has the respondent been in
jail for much more than five years, but there
are 276 witnesses left to be examined.
Charges have been framed only on 27-11-
2020. Still further, two opportunities were
given to the appellant NIA who has shown no
47 2026:HHC:809
inclination to screen its endless list of
witnesses. It also deserves mention that of the
thirteen co-accused who have been convicted,
none have been given a sentence of more than
eight years' rigorous imprisonment. It can,
therefore, be legitimately expected that if found
guilty, the respondent too would receive a
sentence within the same ballpark. Given that
two-third of such incarceration is already
complete, it appears that the respondent has
already paid heavily for his acts of fleeing
from justice.
15. This Court has clarified in numerous
judgments that the liberty guaranteed by Part
III of the Constitution would cover within its
protective ambit not only due procedure and
fairness but also access to justice and a
speedy trial. In Supreme Court Legal Aid
Committee (Representing Undertrial Prisoners)
v. Union of India, (1994) 6 SCC 731, it was
held that undertrials cannot indefinitely be
detained pending trial. Ideally, no person
ought to suffer adverse consequences of his
acts unless the same is established before a
neutral arbiter. However, owing to the
practicalities of real life where to secure an
effective trial and to ameliorate the risk to
society in case a potential criminal is left at
large pending trial, the courts are tasked with
deciding whether an individual ought to be
released pending trial or not. Once it is obvious
that a timely trial would not be possible and
the accused has suffered incarceration for a
significant period of time, the courts would
ordinarily be obligated to enlarge them on bail.
16. As regards the judgment in NIA v. Zahoor
Ahmad Shah Watali, (2019) 5 SCC 1, cited by
the learned ASG, we find that it dealt with an
entirely different factual matrix. In that case,
the High Court had reappreciated the entire
evidence on record to overturn the Special
Court's conclusion of their being a prima facie
case of conviction and concomitant rejection of
bail. The High Court had practically conducted
48 2026:HHC:809
a mini-trial and determined admissibility of
certain evidence, which exceeded the limited
scope of a bail petition. This not only was
beyond the statutory mandate of a prima facie
assessment under Section 43-D(5), but it was
premature and possibly would have
prejudiced the trial itself. It was in these b
circumstances that this Court intervened and
cancelled the bail.
17. It is thus clear to us that the presence of
statutory restrictions like Section 43-D(5) of the
UAPA per se does not oust the ability of the
constitutional courts to grant bail on grounds
of violation of Part III of the Constitution.
Indeed, both the restrictions under a statute as
well as the powers exercisable under
constitutional jurisdiction can be well
harmonised. Whereas at commencement of
proceedings, the courts are expected to
appreciate the legislative policy against grant
of bail but the rigours of such provisions will
melt down where there is no likelihood of trial
being completed within a reasonable time and
the period of incarceration already undergone
has exceeded a substantial part of the
prescribed sentence. Such an approach would
safeguard against the possibility of provisions
like Section 43-D(5) of the d UAPA being used
as the sole metric for denial of bail or for
wholesale breach of constitutional right to
speedy trial.
18. Adverting to the case at hand, we are
conscious of the fact that the charges levelled
against the respondent are grave and a
serious threat to societal harmony. Had it been
a case at the threshold, we would have
outrightly turned down the respondent's
prayer. However, keeping in mind the length of
the period spent by him in custody and the
unlikelihood of the trial being completed
anytime soon, the High Court appears to have
been left with no other option except to grant
bail. An attempt has been made to strike a
balance between the appellant's right to lead
49 2026:HHC:809
evidence of its choice and establish the
charges beyond any doubt and simultaneously
the respondent's rights guaranteed under Part
III of our Constitution have been well
protected.
19. Yet another reason which persuades us to
enlarge the respondent on bail is that Section
43-D(5) of the UAPA is comparatively less
stringent than Section 37 of the NDPS Act.
Unlike the NDPS Act where the competent
court needs to be satisfied that prima facie the
accused is not guilty and that he is unlikely to
commit another offence while on bail; there is
no such precondition under UAPA. Instead,
Section 43-D(5) of the UAPA merely provides
another 9 possible ground for the competent
court to refuse bail, in addition to the well-
settled considerations like gravity of the
offence, possibility of tampering with evidence,
influencing the witnesses or chance of the
accused evading the trial by absconsion, etc.”
(self emphasis supplied)
43. In view of the ratio of law, laid down by the
Hon’ble Supreme Court, in the aforesaid dictum, this Court
is of the view that the twin conditions, as enumerated in
Section 45 of the PMLA can be said to be existing in favour
of the applicant, on account of his long incarceration, by
holding that, at this stage, it can be said that he is not
guilty of such offence and while, on bail, he will not commit
any offence. Moreover, for the second condition, that he
will not commit any offence, reasonable conditions can be
imposed on him.
50 2026:HHC:809
44. In this case, the earlier bail application of the
applicant was dismissed by this Court, on the basis of the
non-fulfillment of the conditions, as enumerated under
Section 45 of the PMLA, however, considering the fact that
there is no possibility regarding the commencement and
conclusion of the trial, against the applicant, in near future
and considering the fact that the trial, arising out of the
RC, registered by CBI, has also not yet been commenced,
this Court is of the view that the embargo, as created by
Section 45 of the PMLA, does not come in the way of
releasing the applicant, on bail, as the applicant is in
custody for about two years and four months, since, the
Hon’ble Supreme Court in Athar Parwez versus Union of
India, Neutral Citation No. 2024 INSC 995, has held
that the constitutional jurisdiction, viz-a-viz, the
restrictions, under the statute need to be harmonized.
Relevant paras-19 to 21, of the judgment, are reproduced,
as under:
“19. Long incarceration and unlikely likelihood
of trial being completed in near future has also
been taken as a ground for exercising its
constitutional role by the Constitutional Courts
to grant bail on violation of Article 21 of the
Constitution of India which guarantees trial to
be concluded within a reasonable time. Gross
51 2026:HHC:809
delay in conclusion of the trial would justify
such invocation leading to a conclusion of
violation of Part III the Constitution of India,
which may be taken as a ground to release an
undertrial on bail. A reference in this regard
may be made to the judgment of this Court in
Union of India v. K.A. Najeeb, (2021) 3 SCC
713. It requires mention that in that case this
Court considered the factum that there were
276 witnesses left to be examined which
would lead to a prolong trial resulting in no
possibility of the trial coming to an end at an
early date resulting in suffering of
incarceration for a significant period of time by
an accused, making it an obligation on the
Court on such consideration to enlarge such an
accused on bail. It may be mentioned here that
the Court was cautious enough to mention that
the restrictions under the statute as in this
case, Section 43-D (5) of UAPA, 1967 as well
as the powers exercisable under the
Constitutional jurisdiction by the Court need to
be harmonized.
20. At the initial stage, the legislative policy
needs to be appreciated and followed by the
Courts. Keeping the statutory provisions in
mind but with the passage of time the effect of
that statutory provision would in fact have to
be diluted giving way to the mandate of Part III
of the Constitution where the accused as of
now is not a convict and is facing the charges.
Constitutional right of speedy trial in such
circumstances will have precedence over the
bar/strict provisions of the statute and cannot
be made the sole reason for denial of bail.
Therefore, the period of incarceration of an
accused could also be a relevant factor to be
considered by the constitutional courts not to
be merely governed by the statutory
provisions.
21. Reference can also be made to the
judgments of this Court in Thwaha Fasal v.
Union of India, (2022) 14 SCC 766, as also
Javed Gulam Nabi Shaikh v. State of
52 2026:HHC:809
Maharashtra and Anr., 2024 SCC OnLine SC
1693, where again, the Court was dealing
with the provisions of UAPA, 1967 and had
reiterated the abovesaid principles. Giving
precedence to the protection of Fundamental
Rights and emphasising upon their primacy
over the statutory provisions in case of
delayed trial. In the above judgments, this
Court had even gone to the extent of asserting
that the seriousness of the crime for which the
accused is facing the trial would not be
material as an accused is presumed to be
innocent until proven guilty.”
45. The Hon’ble Supreme Court, in Petition for
Special Leave to Appeal (Crl.) No. 3205 of 2024, titled
as Ramkripal Meena versus Directorate of
Enforcement, vide order, dated 30
th
July, 2024, has held
that the rigors of Section 45 of the PMLA can be suitably
relaxed to afford conditional liberty to the accused, who
has spent considerable time in custody and there being no
likelihood of the trial being concluded, in the short span.
Relevant paras-6 and 7, of the judgment, are reproduced,
as under:
“6. The only scheduled offence against the
petitioner is the one under Section 420 IPC,
which is in relation to the leakage of REET
question paper, and in which the petitioner
has already been enlarged on regular bail by
this Court.
7. of Adverting to the prayer for grant of bail in
the instant case, it is pointed out by learned
counsel for ED that the complaint case is at the
53 2026:HHC:809
stage of framing of charges and 24 witnesses
are proposed to be examined. The conclusion
proceedings, thus, will take some reasonable
time. The petitioner has already been in
custody for more than a year. Taking into
consideration the period spent in custody and
there being no likelihood of conclusion of trial
within a short span, coupled with the fact that
the petitioner is already on bail in the
predicate offence, and keeping in view the
peculiar facts and circumstances of this case,
it seems to us that the rigours of Section 45 of
the Act can be suitably relaxed to afford
conditional liberty to the petitioner. Ordered
accordingly.
46. Moreover, at the time of deciding the bail
application, the Court should not dwell deep into the
merits and de-merits of a case, to ascertain the
guilt/innocence of the accused (applicant), as, it is the sole
prerogative of the learned trial Court to decide, on the
basis of the evidence, so adduced before it, during the trial.
The decision of this Court, affecting the merits of the case
would cause prejudice to the case of the prosecution, as
well as, to the case of the accused (applicant). However,
merely because the applicant falls within the definition of
‘government servant’, responsible for the verification of the
claims submitted for scholarship, is too short to decline the
relief to him, as, the bail is being granted, mainly, on the
ground of undue delay, in the conclusion of trial, as, his
54 2026:HHC:809
application for bail, on merit, has already been rejected by
this Court. From the pace of the trial, it cannot be
concluded, at this stage, that there are chances of
commencement and conclusion of the trial, against the
applicant, in near future.
47. Moreover, the applicant is permanent resident
of District Shimla and in view of the apprehensions
expressed by the ED, for securing his presence, during the
trial, stringent conditions can be imposed. Even
otherwise, the applicant has not misused the liberty, which
was granted to him, by way of interim bail, on various
occasions.
48. At the cost of repetition, keeping in view the
number of witnesses, stage of the trial, as well as, the
voluminous record, relied upon, by the prosecution, before
the learned trial Court, read with the fact that the trial of
the predicate offences has not yet commenced, this Court
is of the considered opinion that the chances of
commencement and conclusion of the trial, against the
applicant, in near future, are not so bright and all these
facts are sufficient to hold that the twin conditions, as per
55 2026:HHC:809
section 45 of the PMLA, are existing in favour of the
applicant.
49. Considering all these facts, this Court is of the
view that the bail application is liable to be allowed and is
accordingly allowed.
50. Consequently, the applicant is ordered to be
released on bail, during the pendency of the trial, in case
No. ECIR/SHSZO/04/2019, dated 22.07.2019 ,
registered with the Enforcement Directorate Office (ED),
Sub-Zonal Office, Rani Villa, Bagrian House, Strawberry
Hills, Chhota Shimla, Shimla, Himachal Pradesh , on his
furnishing personal bail bond, in the sum of 2,00,000/-,
₹
with two sureties of the like amount, to the satisfaction of
the learned trial Court. This order, however, shall be
subject to the following conditions:
a) The applicant shall regularly attend the
trial Court on each and every date of hearing
and if prevented by any reason to do so,
seek exemption from appearance by filing
appropriate application;
b) The applicant shall not tamper with the
prosecution evidence nor hamper the
investigation of the case in any manner
whatsoever;
c) The applicant shall not make any
inducement, threat or promises to any person
56 2026:HHC:809
acquainted with the facts of the case so as to
dissuade them from disclosing such facts to
the Court or the Police Officer;
d) The applicant shall not leave the territory
of India without the prior permission of the
Court; and
e) The applicant shall furnish an affidavit by
tenth day of every month, before the learned
trial Court, disclosing therein that he has not
been named, as accused, in any other case,
during that period.
51. Any of the observations, made hereinabove,
shall not be taken as an expression of opinion, on the
merits of the case, as these observations, are confined,
only, to the disposal of the present bail application.
52. It is made clear that the respondent-ED is at
liberty to move an appropriate application, in case, any of
the bail conditions, is found to be violated by the applicant.
53. The Registry is directed to forward a soft copy of
the bail order to the Superintendent of Jail, District Jail
Kaithu, through e-mail, with a direction to enter the date of
grant of bail in the e-prison software.
54. In case, the applicant is not released within a
period of seven days from the date of grant of bail, the
Superintendent of Jail, District Jail, Kaithu, is directed to
inform this fact to the Secretary, DLSA, Shimla. The
57 2026:HHC:809
Superintendent of Jail, District Jail, Kaithu, is further
directed that if the applicant fails to furnish the bail bonds,
as per the order passed by this Court, within a period of
one month from today, then, the said fact be submitted to
this Court.
( Virender Singh )
Judge
January 05, 2026
( rajni )
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