In Udhaw Singh vs. Enforcement Directorate (2025), Supreme Court's division bench of Justices Abhay S. Oka and Ujjal Bhuyan observed:"Our attention is invited to a decision of a coordinate Bench in the case of Union of India through the Assistant Director v. Kanhaiya Prasad, 2025 SCC OnLine SC 306 After having perused the judgment, we find that this was a case where the decisions of this Court in the case of Union of India v. K. A.Najeeb (2021) 3 SCC 713 and in the case of Senthil Balaji v. Deputy Director, Enforcement Directorate 2024 SCC OnLine SC 2626 were not applicable on facts. Perhaps that is the reason why these decisions were not placed before the coordinate Bench. The respondent-accused therein was arrested on 18th September, 2023 and the High Court granted him bail on 6th May, 2024. He was in custody for less than months before he was granted bail. There was no fining recorded that the trial is not likely to be concluded in a reasonable time. In the facts of the case, this Court cancelled the bail granted by the High Court. Therefore, there was no departure made from the law laid down in the case of Union of India v. K. A.Najeeb and Senthil Balaji."
This observation of Justice Oka led division bench of Supreme Court made on February 17 2025 seems to vindicate the judgement of Dr. Anshuman of Patna High Court in Kanhaiya Prasad case, which has been set aside by Justice Bela Trivedi led division bench of Supreme Court on February 13, 2025. It is apparent that he is implying lapse on the part of the counsels of the respondent. On behalf the respondent, Senior Advocate. Notably, Ranjit Kumar had argued that the respondent has not been shown as accused in the predicate offence.
Justice Oka led bench passed it's judgement after hearing an appeal from Udhaw Singh, the appellant from who was arrested for the offence under Section 3 of the Prevention of Money Laundering Act (PMLA), 2002. The appellant has undergone incarceration for a period of 1 year and 2 months. There are 225 witnesses cited, out of which only 1 has been examined. Therefore, the trial is not likely to be concluded within few years. Hence, a decision of this Court in the case of Senthil Balaji v. Deputy Director, Directorate of Enforcement will apply. Paragraphs 27 and 29 of the said decision read thus:
"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 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 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." It further pointed out that "the appellant has been incarcerated for 15 months or more for the offence punishable under the PMLA. In the facts of the case, the trial of the scheduled offences and, consequently, the PMLA offence is not likely to be completed in three to four years or even more. If the appellant's detention is continued, it will amount to an infringement of his fundamental right under Article 21 of the Constitution of India of speedy trial."
Justice Oka recorded that the Solicitor General of India has stated that in the facts of the case, the decision in the case of V.Senthil Balaji may be followed. Hence, the appellant deserves to be enlarged on bail, pending trial.
The division bench concluded: "the appellant shall be produced before the Special Court within a maximum period of one week from today. The Special Court shall enlarge the appellant on bail on appropriate terms and conditions including the condition of regularly and punctually attending the Special Court and cooperating with the Special Court for early disposal of the case. A further condition shall be imposed directing the appellant to surrender his passport, if any." The appeal was allowed. The verdict was authored by Justice Oka.
The appeal was against the judgement dated May 25, 2024 by Justice Jaspreet Singh of the High Court of Judicature at Allahabad, Lucknow Bench. The appeal was filed on December 3, 2024.
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