Himachal Pradesh High Court
Reserved On : 02.03.2026 vs Directorate Of Enforcement (Ed) on 12 March, 2026
Author: Virender Singh
Bench: Virender Singh
1 2026:HHC:6750
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. : 3041 of 2025
Reserved on : 02.03.2026
Decided on : 12.03.2026
Vikas Bansal …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. Swati Sharma, Advocate.
For the respondent : Mr. Zoheb Hossain, Advocate
(through Video Conferencing), with
Mr. Ajeet Singh Saklani & Mr. Surila
Sangam, Advocates, and Mr. Vikash
Kumar, Assistant Director, ED.
Virender Singh, Judge.
Applicant-Vikas Bansal 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, pending before the learned Special
Judge (PMLA), Shimla, arising out of case No.
ECIR/SHSZO/04/2019, dated 19.07.2019, registered
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2026:HHC:6750
with the Enforcement Directorate Office (ED), Sub-Zonal
Office, Shimla, Himachal Pradesh, under Sections 3 and 4
of the Prevention of Money Laundering Act, 2002
(hereinafter referred to as ‘PMLA’).
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 under Sections 409, 419,
465, 466 and 477 of the Indian Penal Code (hereinafter
referred to as ‘IPC‘), with Police Station East, Shimla, H.P.
The investigation of the said case was entrusted to CBI,
and a case, vide RC 0962019S0002, dated 7 th May, 2019,
was registered by CBI/ACB, Shimla, under Sections 409,
419, 465, 466 and 471 IPC. Since, Sections 419 and 471
IPC were the scheduled offences, as defined under the
PMLA, as, such, the present ECIR was registered by the
respondent-ED.
3. It is the further case of the applicant that after
the registration of RC 0962019S0002, dated 7th May, 2019,
by the CBI, raids were conducted at 22 private institutions,
including Himalayan Group of Professional Institutions
(hereinafter referred to as ‘HGPI’) and Apex Group of
3 2026:HHC:6750
Professional Institutions (hereinafter referred to as ‘AGPI’),
which had applied for and received post matric scholarship
scheme for SC, ST, OBC students of Himachal Pradesh and
the records were seized.
4. The applicant is stated to be the Vice Chairman
of HGPI and AGPI. The applicant is also stated to be one of
the Trustees of Maa Saraswati Educational Trust and
People Welfare Educational Trust.
5. According to the applicant, during the course of
investigation, in the aforesaid RC, he was arrested by the
CBI on 8th April, 2022, and was later on, released on bail,
by this Court, vide order, dated 9th May, 2022, passed, in
CrMP (M) No. 856 of 2022.
6. As per the further case of the applicant, after
investigation, the CBI has filed different charge sheets in
the Court of Special Judge (CBI), Shimla, and the applicant
has been arrayed as accused, alongwith eight other
persons, in one of the cases, which has been filed in the
Court of learned Special Judge (CBI), Shimla, on 18 th April,
2022, under Section 120-B read with Sections 409 and
471 IPC and Section 13(2) read with Section 13 (1) (c) and
4 2026:HHC:6750
(d) of the Prevention of Corruption Act (hereinafter referred
to as ‘PC Act‘).
7. As per the applicant, the ED conducted
searches under Section 17 of the PMLA on 29 th August,
2023, at various premises of the applicant, including the
residential premises of his brother Rajnish Bansal, who
was Chairman of HGPI and AGPI and took into possession
the relevant documents.
8. According to the applicant, he was summoned
only once on 5th November, 2019, by the then Investigating
Officer. The applicant joined the investigation and
submitted all the documents and material related to the
present ECIR.
9. It is the case of the applicant that even in the
present ECIR, before his arrest, the prosecution complaint,
dated 21st October, 2023, has already been submitted by
the ED before the PMLA Court and the said Court has
already taken cognizance on 23rd February, 2024, in the
said complaint, against 28 accused persons. Thereafter,
the ED has filed five more supplementary complaints,
5 2026:HHC:6750
including the supplementary complaint filed against the
applicant and the institutions – HGPI and AGPI.
10. It is the specific case of the applicant that in the
year 2024, the investigation was handed over to Mr. Vishal
Deep, Assistant Director of ED, who demanded an amount
of ₹ 60.00 lacs from the brother of the applicant, who being
a law abiding citizen was disinclined to pay the bribe and
was continuously harassed by the said Vishal Deep, upon
which, the matter was reported to the CBI. After
verification, CBI registered RC0052024A0034, dated 22 nd
December, 2024, under Section 7 (a) of the PC Act and a
trap was laid. During the trap, said Vishal Deep succeeded
in fleeing from the spot, but, during investigation, the
money was recovered from the friend of Vishal Deep,
namely Yash Deep. Consequently, according to the
applicant, he was put under arrest, in this case.
11. As per the stand of the applicant, from the year
2019 till 2024, he has been cooperating throughout, in the
investigation, without any requirement of being arrested
and after the arrest of said Vishal Deep, the applicant has
been arrested out of sheer vengeance.
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12. According to the applicant, the act, conduct and
motive of the investigating agency is biased, prejudiced and
embroiled with personal aggrandizement and are sufficient
to establish that the entire exercise was done to clean the
image of the ED and insignia of corruption on ED.
13. As per the stand of the applicant, the complaint
filed against the applicant and others is devoid of truth and
has been filed by distorting the facts to show the
involvement of the applicant, in this case.
14. As per the stand taken by the applicant, after
completion of the investigation, the ED has filed
supplementary complaint against the applicant, Maa
Saraswati Trust, People Welfare Educational Trust,
Shivender Singh, Panna Lal and Preeti Bansal; and the
same is pending adjudication before the learned Special
Judge, PMLA Court, Shimla.
15. It is the further case of the applicant that there
are reasonable grounds for believing that he is not guilty of
offence and that he is not likely to commit any offence, if
granted bail. Further, according to the applicant, there is
no flight risk as he has already been granted the
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concession of regular bail by this Court in RC, registered
by the CBI and the applicant, is complying with all the
conditions imposed by this Court.
16. It is the case of the applicant that there are 71
witnesses in the original complaint and hundreds of
witnesses in the supplementary complaints, apart from
thousands of documents relied upon. According to the
applicant, in the supplementary challans, the ED has
relied upon 107 witnesses and 63749 documents. The
investigation is stated to have been kept open and the
matter is still under investigation.
17. It is the further case of the applicant that he is
being deprived of his fundamental right of speedy trial and
keeping the applicant in custody would only violate his
fundamental right of life and personal liberty, enshrined
under Article 21 of the Constitution of India.
18. According to the applicant, in the original
complaint, 28 persons were arrayed as accused and the
ED only arrested four persons. In the subsequent
complaints, filed as supplementary complaints, also, a few
persons have been arrested. The approach of the ED, of
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arresting the persons by adopting the procedure of pick
and choose, is not sustainable in the eyes of the law and
shows biasness on the part of the Investigating Agency.
19. According to the applicant, he had filed regular
bail application, before this Court, bearing CrMP (M) No.
1959 of 2025, which was dismissed as withdrawn, vide
order, dated 9th December, 2025. Subsequently, the
applicant approached the Court of learned Special Judge,
Shimla, by way of similar bail application, which came to
be rejected, vide order, dated 27th December, 2025.
20. The relief of bail has also been sought on the
ground of parity, as, according to the applicant, one of his
co-accused, namely Hitesh Gandhi, has already been
released on bail, by this Court, vide order, dated 20 th
December, 2025, passed in CrMP (M) No. 2558 of 2025.
21. Learned senior counsel for the applicant has
also argued that the other co-accused of the applicant,
namely, Arvind Rajta, Krishan Kumar and Rajdeep Singh,
have also been released on bail, by this Court, vide orders,
dated 5th January, 2026 and 8th January, 2026, passed in
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CrMPs (M) No. 2795 of 2025; 3028 of 2025 and 3039 of
2025, respectively.
22. 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.
23. On the basis of the above submissions, a prayer
has been made to allow the bail application.
24. When put to notice, the reply, on behalf of the
ED, has been filed, mentioning therein, that the applicant
has been arrested, on 30th January, 2025, as per the
procedure.
24.1. The necessary facts, giving rise to the present
case, as mentioned by the ED, are as under:
24.2. The CBI had registered RC0962019A0002,
dated 7th May, 2019, under Sections 409, 419, 465, 466,
471 IPC. As per the said RC, on 20th March, 2019, the
investigation of FIR No. 133 of 2018, dated 16 th November,
2018, was entrusted by the Government of Himachal
Pradesh, from Police Station Shimla East to CBI, Shimla,
10 2026:HHC:6750upon which, CBI has registered the aforestated RC, against
unknown persons.
24.3. It has been mentioned, in the reply, that FIR
No. 133 of 2018 was registered, on the basis of the
complaint made by one Shakti Bhushan, the then State
Project Officer of the Education Department, wherein, he
has alleged that on receiving a number of complaints
regarding non-receipt of scholarship, the Secretary
(Education) to the Government of Himachal Pradesh, vide
its letter, dated 7th July, 2018, appointed him to conduct
inquiry into the distribution of scholarship to the students
of the State of Himachal Pradesh. During the course of
inquiry, conducted by said Shakti Bhushan and on the
statement of students, it was found that the scholarships,
which had been disbursed into the bank accounts opened
in the names of the students, were not received by them.
Irregularities were found in the H.P. e-Pass portal,
developed by the Directorate of Higher Education, Shimla,
for disbursement of Post Matric Scholarship for
SC/ST/OBC students. Thereafter, CBI conducted the
search and seizures at 22 private institutions, including,
11 2026:HHC:6750
the Himalayan Group of Professional Institutions, Kala
Amb (HGPI) and Apex Group of Professional Institutions,
Indri, Karnal (AGPI). Rajnish Bansal, being Chairman of
HGPI and AGPI and applicant-Vikas Bansal, being Vice
Chairman of HGPI and AGPI, were arrested by the CBI, in
the predicate offence, on 8th April, 2022 and both of them
were released on bail, by this Court, on 9th May 2022.
24.4. Thereafter, charge sheet No. 4, in case of AGPI
was filed by the CBI, in the aforesaid FIR, under Sections
120-B read with Sections 409, 420, 467, 468 and 471 IPC
and Sections 13 (1) (c), 13 (1) (d) read with Section 13 (2) of
PC Act, against Arvind Rajta, Mala Mehta, Shriram
Sharma, Surender Mohan Kanwar, Ashok Kumar, Rajnish
Bansal and Shivender Singh.
24.5. Subsequently, charge sheet No. 5, in the case of
HGPI, was filed by the CBI, in the aforesaid FIR, under
Sections 120-B read with Sections 409, 420, 467, 468 and
471 IPC and Sections 13 (1) (c), 13 (1) (d) read with Section
13 (2) of PC Act, against Arvind Rajta, Mala Mehta,
Shriram Sharma, Surender Mohan Kanwar, Virender
Kumar, Rajnish Bansal, Vikas Bansal (applicant), Panna
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Lal and Shivender Singh, before the Court of learned
Special Judge (CBI), Shimla.
24.6. Highlighting the role alleged against the
applicant, it has been pleaded that applicant-Vikas Bansal
became Trustee in Maa Saraswati Educational Trust in the
year 2012 and in People Welfare Education Trust in the
year 2014. Applicant-Vikas Bansal controlled the
operations of the bank accounts of Maa Saraswati
Educational Trust, People Welfare Education Trust and the
colleges under these Trusts. He was also looking after the
day-to-day affairs of both these institutions, being
Chairman of HGPI and AGPI.
24.7. According to the ED, applicant-Rajnish Bansal,
alongwith his brother Vikas Bansal and his employees, had
signed claim letters and forwarded the said claim letters,
alongwith the verified details of students of HGPI and AGPI
to Directorate of Higher Education, Shimla, for disbursal of
scholarship, under PMS in the name of bogus SC/ST/OBC
students.
24.8. It is the further case of the ED that on the
instructions of applicant-Vikas Bansal and Rajnish Bansal,
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HGPI had fraudulently submitted the claim letters to
Directorate of Higher Education, through his staff, by
projecting one Panna Lal, who was working as
Superintendent at HGPI, as Director General (Academics)
at HGPI, Director at Himalayan Institute of Engineering
and Technology, Principal at HP College of Law and Chief
Administrator at HGPI.
24.9. As per the stand of the ED, under the
knowledge and directions of the applicant, those claim
letters were signed by Panna Lal and Shivender Singh,
both, the then Registrars at HGPI, for claiming scholarship
under PMS and the same were then forwarded to
Directorate of Higher Education, however, both of them
never remained employed with AGPI. As such, according
to the ED, the claim letters signed by them, on behalf of
HGPI and AGPI, were bogus and ineligible for claiming
scholarship under PMS scheme.
24.10. According to the ED, when the scholarship
under PMS was received in the bank accounts of the
students, the applicant, while holding the post of Vice
Chairman of HGPI, used to get the information of credit of
14 2026:HHC:6750
scholarship from the officials of the Directorate of Higher
Education, Shimla, via e-mail or telephone, which amount,
under supervision and instructions of applicant-Vikas
Bansal, was fraudulently transferred in the bank accounts
of the students to the bank accounts of Maa Saraswati
Educational Trust, through, pre-signed cheques/vouchers,
collected from the students, at the time of admission
process. The said amount, later on, was withdrawn in
cash from the bank accounts of the students, which were
controlled by the applicant.
24.11. It is the further case of the ED that under the
supervision of the applicant, HGPI had made 2162 false
and bogus scholarship claims and had generated proceeds
of crime worth ₹ 14,49,36,065/- and AGPI had made 636
false and bogus scholarship claims, pertaining to proceeds
of crime worth ₹ 3,79,95,870/-.
24.12. According to the ED, the applicant is actually
involved in acquisition, concealment, possession, use,
projecting and claiming the proceeds of crime as untainted,
thereby, committing the offence of money laundering, as
15 2026:HHC:6750
defined under Section 3 and punishable under Section 4 of
the PMLA.
24.13. It is the stand of the ED that the allegations
relating to the FIR registered under PC Act, against one
Vishal Deep, Assistant Director of ED, are wholly
extraneous, misconceived and irrelevant to the present
proceedings, under the PMLA and the arrest of the
applicant has no nexus with the said FIR, as, the
investigation under the PMLA is based upon evidence and
carried out strictly in accordance with law and the
allegations against an individual officer cannot vitiate or
taint the independent statutory proceedings under the
PMLA. The applicant is stated to have been arrested only
after sufficient material surfaced during investigation,
establishing his involvement in the offence of money
laundering and after recording reasons to believe, as
mandated under Section 19 of the PMLA.
24.14. As per the stand taken by the ED, the
complaint filed before the learned Special Court is based
on cogent evidence, including verification from Universities,
statements of students and financial record. The attempt
16 2026:HHC:6750
of the applicant to label the complaint as distortion is
stated to be not sustainable in the eyes of law.
24.15. The attempt of the applicant to shift liability on
ex-trustees is stated to be a diversionary tactic. The
undertakings given by the applicant to co-operate in the
investigation are also stated to be non-substitute of the
requirement of custodial interrogation.
24.16. According to the ED, the bail application is
liable to be dismissed, as, the applicant has failed to satisfy
the mandatory twin conditions, prescribed under Section
45 of the PMLA.
24.17. The plea of the applicant that he be enlarged on
bail due to long period of incarceration is stated to be
misconceived, due to serious allegations against him and
the complexity of the offence.
24.18. 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.
17 2026:HHC:6750
24.19. 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.
24.20. 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.
24.21. 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
18 2026:HHC:6750
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.
24.22. The contention of the applicant seeking bail on
the basis of parity has also been objected to by the ED, on
the ground, that bail granted to other co-accused cannot
be a consideration for grant of bail in PMLA cases, which
are governed solely by the rigors of Section 45 of the PMLA.
24.23. It has also been submitted on behalf of the ED
that the economic offences constitute a distinct category
and warrant a differential approach in the grant of bail.
24.24. On the basis of the above facts, a prayer has
been made to dismiss the bail application.
25. The applicant, in the present case, has been
arrested in the month of January, 2025 and prior to that,
he remained in judicial custody, in the case registered by
CBI, bearing No. RC0962019A0002, dated 7th May, 2019.
26. The copy of the complaint has also been
annexed with the reply. As per the complaint, there are as
19 2026:HHC:6750
many as 107 witnesses and the documentary evidence is
consisting of 63749 pages.
27. 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.”
28. 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.
29. Considering the total number of witnesses to be
examined by the prosecution and the voluminous record,
20 2026:HHC:6750
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.
30. The said findings can be recorded, in view of 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
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
21 2026:HHC:6750
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
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
22 2026:HHC:6750maximum 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
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
23 2026:HHC:6750decline 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.
(self emphasis supplied)
31. 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 as 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,
24 2026:HHC:6750
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
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
25 2026:HHC:6750
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
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
26 2026:HHC:6750Satender 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.”
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,
27 2026:HHC:6750but 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
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.
28 2026:HHC:6750
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
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
29 2026:HHC:6750
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
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
30 2026:HHC:6750
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
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)
31 2026:HHC:6750
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.”
(self emphasis supplied)
32. 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
32 2026:HHC:6750contentions 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
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,
33 2026:HHC:6750
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
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.”
33. If the facts and circumstances of the present
case are seen, in view of the decision of the Hon’ble
Supreme Court in Bachhu Yadav‘s case (supra), then, the
34 2026:HHC:6750
case of the applicant is at better footing, as, in the present
case, even the charges have not been framed against the
applicant and his co-accused, that too, not only in the
present case, but, also, in the case, which has been
registered by the CBI against him.
34. 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.
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
35 2026:HHC:6750
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
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
36 2026:HHC:6750
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
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
37 2026:HHC:6750
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
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
38 2026:HHC:6750
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
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
39 2026:HHC:6750has 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]:
“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,
40 2026:HHC:6750
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
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
41 2026:HHC:6750
said concern can be addressed by imposing
stringent conditions upon the appellant.”
(self emphasis supplied)
35. 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.
36. 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:
“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,
42 2026:HHC:6750(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
(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.
43 2026:HHC:6750
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
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
44 2026:HHC:6750
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
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
45 2026:HHC:6750
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.
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
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
46 2026:HHC:6750
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)
37. 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.
38. 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 30th 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.
47 2026:HHC:6750
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
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.
39. A feeble attempt has been made by the learned
counsel for the ED, when, he argued that the principle of
parity is not applicable, in the present case, as, the role
attributed to the applicant, is altogether different and
serious, in comparison to the role, which has been alleged
against his co-accused. In order to buttress his
48 2026:HHC:6750
contention, he has further argued that the other accused,
arrayed in this case, are subordinate staff of the applicant.
40. To counter these arguments, the learned senior
counsel for the applicant has argued that the role
attributed to the applicant is similar to the role, which has
been alleged against the other accused persons, who even
have not been arrested by the ED, in the present case.
41. In this case, the applicant has mainly sought
the relief of bail, on the ground of inordinate delay in trial
and at the time of deciding the said question, it is not
permissible for this Court to distinguish the role attributed
to other accused persons, by the investigating agency.
42. Although, the relief, in the present case, has
also been sought on the ground that the applicant has
been arrested, in this case, after the arrest of Mr. Vishal
Deep, the then Investigating Officer, however, the said plea
is not available to the applicant, as, he has unsuccessfully
assailed his arrest before this Court and all his contentions
have been negated by a coordinate Bench of this Court,
while delivering judgment in CWP No. 3600 of 2025. As
49 2026:HHC:6750
such, his release can be considered only on account of
undue delay in trial.
43. It has rightly been argued by the learned senior
counsel for the applicant that even, the charges have not
been framed in the present case, as well as, in the trial of
predicate offence. As such, the chances of conclusion of
the trial, in the absence of definite findings qua the
existence of proceeds of crime, cannot be anticipated in
near future.
44. The learned counsel for the ED has also argued
that the applicant is not entitled for the relief on the
ground of parity, as, the other co-accused, namely Hitesh
Gandhi, Arvind Rajta, Krishan Kumar and Rajdeep Singh,
have been granted the relief of bail, when, the period of
their custody was more than two years and as such, till the
completion of the custody of the applicant at par with his
co-accused, he is not entitled for the relief on the ground of
parity.
45. This argument does not hold water as a person
cannot be compelled to seek parity only after undergoing
similar period of custody as of his co-accused. It is the
50 2026:HHC:6750
stage of the trial, which has to be considered for
determining the fact whether there are chances of
commencement and conclusion of the trial, within a
reasonable period. Compelling the applicant to undergo
the custody for the period similar to that of his co-accused,
to seek relief of bail, would be nothing, but, fallacy of law.
46. Now, coming to the argument of the learned
senior counsel for the applicant qua the fact that the
investigating agency/ED has adopted pick and choose
method to arrest the applicant, as, the other accused
persons, in this case, against whom, similar allegations
have been levelled, have not been arrested. Although, it is
the sole prerogative of the investigating agency to arrest,
but, this fact cannot go unnoticed by this Court, as, the
arrest of the applicant was made, when complaint against
him had already been filed. Merely, a stand has been
taken by the ED that the investigation is still going on, is
not sufficient to discard the allegations of the learned
senior counsel for the applicant qua selective arrest, as,
unfettered powers have not been granted to the
investigating agency.
51 2026:HHC:6750
47. It has rightly been pointed out by the learned
counsel for the applicant that the applicant is permanent
resident of Haryana and 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 bail, on earlier occasion.
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
section 45 of the PMLA, are existing in favour of the
applicant.
49. Even otherwise, the applicant is also entitled to
be released on bail on the ground of parity, as, his co-
accused, namely Hitesh Gandhi, Arvind Rajta, Krishan
Kumar and Rajdeep Singh, have already been released on
52 2026:HHC:6750
bail, by this Court, vide order, dated 20 th December, 2025;
5th January, 2026 and 8th January, 2026, passed in CrMPs
(M) No. 2558 of 2025; 2795 of 2025; 3028 of 2025 and
3039 of 2025, respectively.
50. Considering all these facts, this Court is of the
view that the bail application is liable to be allowed and is
accordingly allowed.
51. Consequently, the applicant is ordered to be
released on bail, during the pendency of the trial, in case
No. ECIR/SHSZO/04/2019, dated 19.07.2019,
registered with the Enforcement Directorate Office (ED),
Sub-Zonal Office, 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;
53 2026:HHC:6750
c) The applicant shall not make any
inducement, threat or promises to any person
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.
52. 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.
53. 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.
54. 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.
55. 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
54 2026:HHC:6750
inform this fact to the Secretary, DLSA, Shimla. The
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
March 12, 2026
( rajni )
Digitally signed by
RAJNI RAJNI
Date: 2026.03.12
13:08:42 +0530
