On August 28, 2024, the Hon’ble Supreme Court of India in case of Prem Prakash vs. Union of India through the Directorate of Enforcement, has reiterated that “Bail is the Rule and Jail is the Exception”
The Hon’ble Supreme Court allowed the bail application filed by the appellant/accused in the matter of money laundering. The previous application filed by the accused was dismissed by the High Court of Jharkhand. The Appellant was charged under Sections 3 and 4 of the Prevention of Money Laundering Act, 2002.
The Court has discussed section 45 of the Prevention of Money Laundering Act, 2002.
Section 45(1) of PMLA reads as:
Offences to be cognizable and non-bailable –
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), no person accused of an offence under this Act shall be released on bail or on his own bond unless-
(i) the Public Prosecutor has been 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 he is not guilty of such offence and that he is not likely to commit any offence while on bail:
Provided that a person, who, is under the age of sixteen years, or is a woman or is sick or infirm or is accused either on his own or along with other co-accused of money-laundering a sum of less than one crore rupees, may be released on bail, if the Special Court so directs:
Provided further that the Special Court shall not take cognizance of any offence punishable under Section 4 except upon a complaint in writing made by-
(i) the Director; or
(ii) any officer of the Central Government or a State Government authorized in writing in this behalf by the Central Government by a general or special order made in this behalf by that Government.”
Liberty of the individual is always a Rule and deprivation is the exception: All that Section 45 of PMLA mentions is that certain conditions are to be satisfied. The principle that, “bail is the rule and jail is the exception” is only a paraphrasing of Article 21 of the Constitution of India, which states that no person shall be deprived of his life or personal liberty except according to the procedure established by law. Liberty of the individual is always a Rule and deprivation is the exception. Deprivation can only be by the procedure established by law, which has to be a valid and reasonable procedure. Section 45 of PMLA by imposing twin conditions does not rewrite this principle to mean that deprivation is the norm and liberty is the exception. As set out earlier, all that is required is that in cases where bail is subject to the satisfaction of twin conditions, those conditions must be satisfied.
Reliance was placed on Vijay Madanlal Choudhary and Others vs. Union of India and Others, (2022) SCC OnLine SC 929, wherein it was held that while Section 45 of PMLA restricts the right of the accused to grant of bail, it could not be said that the conditions provided under Section 45 impose absolute restraint on the grant of bail.
The Appellant has satisfied the twin conditions under section 45 of PMLA. The Court also believed that the accused is not guilty of the offence of Money Laundering as alleged under Sections 3 and 4 of the PMLA and the Court was further satisfied that the appellant is not likely to commit any offence, if enlarged on bail.
