Right to bail a recognition of presumption of innocence: Delhi Court grants bail to Chinese national accused of illegally staying in India

Right to bail is a statutory recognition of the sacrosanct principle of presumption of innocence, a Delhi court said on Friday while granting bail to a Chinese national accused of illegally staying in India and securing a passport after marrying an Indian woman..The Court held that there is no rule of law that says that bail cannot be granted in economic offence cases..Luo Sang, stated to be a Chinese national by the Enforcement Directorate (ED), was accused of money laundering by carrying out illegal business through companies created on the basis of forged documents.The ED had contended that Section 45 (offences to be cognizable and non-bailable) of the Prevention of Money Laundering Act (PMLA) places a statutory bar on grant of bail..However, while referring to a Delhi High Court judgment (Sai Chandrashekhar v. Directorate of Enforcement, 2021) on the same issue, Additional Sessions Judge Dharmender Rana held,“It has been specifically observed by Delhi High Court in the matter of Sai Chandrashekhar, that rigours of Section 45 of PMLA would not apply while considering the application for bail and the present bail application is accordingly required to be decided upon the touchstone of Section 439 CrPC.".It was observed that there was no contrary binding precedent either of any larger bench of the Delhi High Court or the Supreme Court brought to the notice of the Court by the ED special public prosecutor.“Consequently, I have no hesitation in observing that the reliance upon Section 45 of PMLA by the SPP in the case at hand is misplaced,” the Court held..Appearing for Sang, Senior Advocate Vikas Pahwa, assisted by advocates Shadman Ahmed Siddiqui and Sumer Singh Boparai, had argued that his client was carrying out the legitimate businesses of customs clearance and that his consultancy and was not connected to any agreements mentioned in the prosecution complaint. Pahwa stated that Sang had Tibetan roots.“These companies have been legally incorporated by using genuine PAN Card, AADHAR Card, etc., issued by the government authorities. The allegation of forgery in the predicate offence is yet to be established by the court concerned,” he submitted.Pahwa also argued that the twin conditions of bail under Section 45 of the PMLA had been held unconstitutional by the Supreme Court in Nikesh Tarachand Shah v. Union of India (2017)..The prosecution had also contended that under Section 24 of PMLA, the burden to prove non-involvement in the offence of money laundering lies on the accused, and that in this case, Sang had has failed to show it.Pahwa argued that the stated provision could only be invoked once the “essential foundation” for invoking the statutory presumption was laid down by the prosecution. He also submitted that the onus would be placed upon the accused only after framing of the charge and not at the stage of bail.The senior lawyer stressed that the chargesheet filed in the case and ED’s reply to his bail plea indicated that that the source of the money, alleged as "proceeds of crime", was under investigation..The Court agreed with this submission, noting,“I concur with the Senior Advocate that ‘proceeds of crime’ is a sine qua non for the commission of offence of money laundering.”The prosecution was stated to have conceded that the source of money involved was under investigation, and that at present, there was no material available with the agency to establish that the money involved in the present case came from a tainted source.“The fact that the applicant/accused is apparently not at flight risk coupled with the fact considering the intricate nature of investigation trial is expected to consume a considerable time, applicant/accused Luo Sang @ Charlie Peng is admitted to bail on his furnishing bail bond in the sum of Rs 1 lakh with two sureties each in the like amount,” the Court ordered.Among the many riders to the bail, Sang was directed to “drop a pin on Google map to ensure that his location is available to the investigating agency” and to “surrender his passport before the court concerned at least seven days after his release from jail."