Introduction
The Bombay High Court (‘BHC’), in its pivotal decision of Vyomesh Shah v. Directorate of Enforcement,[i] granted permission to an accused under the Prevention of Money Laundering Act, 2002 (‘PMLA’) to travel abroad without seeking permission from the court every time for the travel. While discussing the provisions of s. 88 of the Code of Criminal Procedure, 1973 (‘CrPC) and ss. 3,19,45 and 50 of the PMLA, the BHC deliberated upon the arrest of the accused under the provisions of CrPC and PMLA.
Facts
The Applicant filed an application against the bail condition, which required the accused to seek permission from the court to travel abroad and wait for the pronouncement of the order before travelling.
The accused's job required frequent travels to different countries; sometimes, he was required to extend his travel plans, and the bail condition prevented him from availing himself of business opportunities.
The Enforcement Directorate (‘ED’) challenged the application on the grounds of the possibility of evidence tampering or fleeing away from the clutches of authorities.
Held
The BHC allowed the accused to travel abroad without seeking permission. However, the applicant would be required to share a detailed travel schedule with required itineraries with the ED. If any unusual activity is noticed, the ED would be entitled to initiate appropriate proceedings.
While relying on the decision of the Hon’ble Supreme Court in the case of Tarsem Lal v. Directorate of Enforcement Jalandhar Zonal Office[ii], the BHC decided that the Court cannot pass orders that hurdle the liberty of accused persons who were not arrested under the provisions of s.19 of the PMLA.
The right to travel abroad is a fundamental right, and it cannot be interfered with if the accused is not arrested under s.19 of the PMLA.
Our Analysis
If the twin conditions are satisfied, the accused, who is arrested under s.19 of the PMLA, may be released on bail under s.45 of the PMLA. However, if an accused is not arrested under s.19, he is not required to file a bail application under s. 45. An individual’s fundamental rights cannot be curtailed if the accused was not arrested under the PMLA. If the ED apprehends flight risk or evidence tampering, the accused should be arrested under s.19 of the PMLA. However, if such an arrest is not made, several High Courts have been inclined to release almost all the persons in the PMLA cases under s. 88 of the CrPC.
End Notes
[i] [2024] 163 taxmann.com 275 (Bombay) dated 24.05.2024.
[ii] 2024 SCC OnLine SC 971 dated 16.05.2024.
Authored by Rosy Gupta, Advocate at Metalegal Advocates. The views expressed are personal and do not constitute legal opinion.
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