1. This application for regular bail has been filed under Section 439(1) of the Code of Criminal Procedure read with Section 45 of the Prevention of Money Laundering Act, 2002 (`PML Act' for short hereinafter) and the petitioner is the 9th accused in Crime No. ECIR/KCZO/09/2021 registered by the Enforcement Directorate on 22.02.2021, within the jurisdiction of Special Court for PMLA Cases (SPE/CBI-III), Kaloor, Ernakulam.

2. Heard the learned Senior Counsel Sri Jaideep Gupta, appearing for the petitioner and Sri R.Sankara Narayanan, the learned Assistant Solicitor General of India (`ASGI' for short hereinafter) appearing for the respondents, in detail.

3. Shown off unnecessary embellishments, the prosecution case is that the petitioner herein, who is the 9th accused in the above crime, committed offences defined under Section 3 and punishable under Section 4 of PML Act. The predicate offences as stated in the arrest order in FIR No. VC.02/2020-SUI-1 dated 30.09.2020 registered by the Vigilance and Anti-corruption Bureau, Thiruvananthapuram registered for offences under Sections 7(a), 7(b), 13(2) r/w 13(1)(a) of Prevention of Corruption Act, 1988 and FIR No. RC-0332020A0005 registered by the CBI, ACB, Cochin for offences under Section 120B IPC r/w Section 35 r/w Section 3 of the FCRA, 2010. The crux of the allegation in the ECIR as epitomized in the Arrest Order is that pecuniary advantage/illegal gratification was obtained by the accused out of the funds received from UAE Red Crescent meant for flood victims in Kerala though `Life Mission Project'.

4. The prosecution case runs on the premise that the `Life Mission Project of Kerala Government' had made MoU on 11.07.2019 with M/s Red Crescent, UAE for construction of residential apartments to flood affected people in Wadakkanchery Municipality. The WhatsApp conversations between Smt. Swapna Suresh and the petitioner herein clearly would indicate that the contract for vendor for execution of the project was fixed in favour of M/s Unitac Builders & Developers run by Sri. Santhosh Eapen. Smt. Swapna Suresh had admitted that an upfront commission was demanded as bribe and M/s Unitac Builders & Developers agreed to pay the amount before execution of the project. The petitioner `had his interest' in the upfront commission earned by co-accused Smt. Swapna Suresh from M/s Unitac Builders & Developers run by Sri. Santhosh Eapen. It was also found that the petitioner had directed Mr. Venugopal, a Chartered Accountant, to open the locker account of Smt. Swapna Suresh where the proceeds of the crime was `handled'. It was also found that the Iphone in possession of the petitioner belonged to Shri Santhosh Eapen. Most importantly Santhosh Eapen admitted payment of upfront commission to procure the contract in the Life Mission Project. As regards to the above mentioned money trail, it was clearly revealed from the bank statements that an amount of Rs. 5.25 crore to the Federal Bank and an amount of Rs. 2.25 crore to the Axis Bank were transferred from the Red Crescent Organization on 01.08.2019 and part of the said amount (Rs. 3,80,00,000/-) (in foreign money) was subsequently withdrawn by Santhosh Eapen and handed over as an upfront commission for allocating the content to him. The petitioner is also alleged to be evasive and non-cooperative during the interrogation. To summarise, the prosecution allegation herein is; reception of bribe in foreign currency and rooting of the same through the diplomatic channel.

5. While pursuing the relief of regular bail to the petitioner, it is submitted by the learned counsel for the petitioner, that the petitioner is totally innocent of the allegations levelled against him. The action of arrest is a political stunt and is aimed at targeting the earlier existed professional privity the petitioner had with the Chief Minister of Kerala and the entire case is built up as a political hit by the Enforcement Directorate to falsely implicate the petitioner and by extension, the executive head of the State and his family members. The petitioner is a reputed retired IAS officer with an unblemished record of 30 years.

6. The petitioner also seeks regular bail on the ground of illness ascribing that the rigour under Section 45 of the PML Act does not apply to the petitioner since the petitioner is sick and infirm and the alleged money laundering pertaining to the petitioner is a sum less than Rs. 1 crore. While canvassing bail on medical ground, it is submitted that the petitioner is a cancer patient and he underwent surgery thrice. Further it is contended that as on 23.02.2023, the petitioner underwent medical examination at General Hospital, Ernakulam and the Medical Board recommended surgical intervention. In support of plea to relax the rigour under Section 45 of the PML Act, the learned counsel for the petitioner pointed out the decisions reported in P.Chidambaram v. Directorate of Enforcement; [2015 SCC OnLine SC 1333], Gautam Kundu v. Directorate of Enforcement (PMLA) and judgment dated 26.09.2022 in B.A. No. 540/2022 passed by Delhi High Court.

7. The first point argued by the learned counsel for the petitioner is that the allegations levelled against the petitioner in the instant crime are precisely and exactly the same as alleged in Crime No. ECIR/KCZO/31/2020, where Annexure 11 supplementary complaint was filed arraying the petitioner as an accused. In Annexure 11, the allegations/findings therein are also that the petitioner had received illegal gratification, under LIFE Mission project, worth Rs. 1,00,50,000/-which was parked over two bank lockers belonging to Ms. Swapna Suresh-SBI locker (Rs. 64,00,000/-) and Federal Bank locker (Rs. 36,50,000/-). The said amounts were seized by the NIA Kochi Unit on 23.07.2020. It is submitted that the allegation herein is also exactly the same and the same proceeds of crime is projected as the proceeds of crime in this case also. The substratum of allegations in the instant case is identical to those in Crime No. ECIR/KCZO/31/2020 and in that he was under remand custody for 98 days. Thus the present case is foisted with illegal motives and in colorable exercise of power wherein the petitioner was detained in custody for the same charge by registering a new case on same proceeds of crime and on same grounds.

8. Secondly it is argued that the petitioner was enlarged on bail in Crime No. ECIR/KCZO/31/2020 which culminated in the Annexure 11 Supplementary complaint. This Court categorically held in Annexure 9 judgment, that the petitioner would get the benefit of the proviso to Section 45 of PML Act, as he is a sick person and the proceeds of the crime in the case, in relation to the applicant goes, is less than 1 crore in value and therefore he was entitled to bail. It was also recorded that the petitioner was unlikely to commit further crimes on bail and also nothing on record to suggest that he is at flight risk or that he may tamper with evidence or influence witnesses. It is submitted that Annexure 9 bail order was challenged by Enforcement Directorate before the Hon'ble Supreme Court in SLP(Crl)No. 1403/2021 which was heard by the Hon'ble Supreme Court and refused to interfere and the matter has been pending, without any orders. Accordingly, it is submitted that in order to defeat Annexure 9 order, indirectly, the petitioner was arrested in the instant crime, germane from the allegations in Annexure 11 crime.

9. It is pointed out that except the statements given by the two co-accused, no other evidence is presented by the Department to show the petitioner's complicity in the crime. The sum and substance of the allegation, as supported by the evidence on record, is that, as per the statement of co-accused Smt. Swapna Suresh, the money parked at her locker (seized by NIA) was the kick back received by her for the petitioner and such statements by itself is insufficient to fasten culpability on the petitioner. No evidence is stated to show for whether the petitioner has demanded, seen, or touched or handled or transferred or at least knew about the money parked at her locker. The petitioner was never aware of the existence of such money or ever possessed the same. In such circumstances, such statements must not be treated as trustworthy enough to assume culpability of the petitioner so as to decline bail under Section 45 of PML Act. The learned Senior Counsel for the petitioner placed a decision of the Apex Court reported in T.T.Antony v. State of Kerala & Ors. to contend that registration of second F.I.R and fresh investigation, in relation to an occurrence whereby earlier FIR registered, are not prescribed by law. In this connection, the learned counsel for the petitioner placed emphasize to paragraphs 19 ad 20 of the above judgment.

10. Another decision reported in [2022 LiveLaw (SC) 731], Tarak Dash Mukharjee & Ors. v. State of Uttar Pradesh & Ors. also is placed in support of this contention.

11. Opposing the contentions raised by the learned counsel for the petitioner, respondents 1 and 2 herein filed a detailed objection.

12. The learned ASGI refuted the contentions raised by the learned counsel for the petitioner on the submission that the petitioner herein is the king pin, who orchestrated money laundering and bribery since the very beginning. It is argued that there are 3 different offences emerged from the facts involved. The same are; (i) gold smuggling, (ii) bribery and (3) a portion of bribe being converted into foreign currency and taken through diplomatic channel to a foreign country. The matters required to prove smuggling are completely different from the materials required to prove bribery, since the same is completely an independent transfer. It is argued that the contract had been given in favour of M/s. Unitac Builders and Developers of Mr. Santhosh Eapen and Ms. Swapna Suresh admitted that an upfront commission as bribe was demanded by Sivasankar and other consulate officials, which was paid by Santhosh Eapen. It is argued further that it was Sivasankar, who directed Sri P.Venugopal, his C.A, to assist Swapna Suresh to open a joint locker in the name of Venugopal and Swapna Suresh, wherein part of the proceeds of the crime generated out of commission from bribe was kept. It is argued further that for registration of a crime under the PML Act, the only necessity is registration of a predicate/schedule offence prior to it. It is also submitted that the investigation done by the Enforcement Directorate under the PML Act is independent of the investigation conducted by any predicate agency and Sivasankar would not have been arrested in the scheduled offence if there would be any immunity from proceeding with the investigation under the PML Act. It is specifically argued that the present case is different from ECIR/KCZO/31/2020 registered by Enforcement Directorate for gold smuggling through diplomatic channel and the allegation in the present case is conversion of a portion of bribe money into foreign currency and taking the same through the diplomatic channel to a foreign country.

13. It is argued further that the petitioner herein could not claim exemption granted under Section 45 of PML Act on the ground of illness or sickness, since Sivasankar did not have any serious illness and in the earlier crime also he was granted bail by relaxing the rigour under Section 45 of the PML Act on medical grounds. But when he was released on bail, he joined duty and also continued in service till his retirement without undergoing any further treatment. Therefore, the petitioner could not be given the benefit of sickness to relax the rigour under Section 45 of the PML Act, as argued by the learned counsel for the petitioner.

14. The learned ASGI submitted that the exemption sought by the petitioner by resorting to the proviso to Section 45 of PML Act on the ground of medical illness cannot be considered since he had denied surgery offered by the prosecution acting on the medical report. The learned ASGI argued that investigation under PMLA, 2002 revealed that the petitioner/9th accused was constantly and closely monitoring the M/s.UAE Red Crescent funded LIFE Mission Project of Wadakkancherry even when Shri U.V.Jose assumed his charge as the CEO of LIFE Mission Project. Shri U.V.Jose in his statement dated 17.02.2023 given u/s 50 of PMLA, 2002 stated that he had received the direction from the Government of Kerala to sign the MoU only by noon on 11.07.2019, the day of signing MoU. It shows that even the LIFE Mission CEO was not aware of the happenings in the project as everything was done by the petitioner/9th accused even when he was not CEO. Further, when Shri. Santhosh Eapen of M/s. Unitac Builders and Developers was awarded the contract, he went to meet the petitioner/9th accused and had extensive meeting with petitioner/9th accused. At that time, petitioner/9th accused had called the then CEO of LIFE Mission Shri. U.V.Jose and directed him to ensure that timely clearances are indeed given and petitioner/9th accused had introduced Shri. Santhosh Eapen to the then CEO of LIFE and asked Shri. Santhosh to follow-up with them and Inform him (petitioner/9th accused) in case of any difficulties. It may be noted that Shri. U. V.Jose had also stated that they have allowed M/s. Unitac Builders and Developers to start the work considering the direction from Principal Secretary to CM of Kerala and that as CEO of LIFE Mission he was bound to act on the directions of Principal Secretary to CM of Kerala i.e., petitioner/9th accused.

15. It is further submitted that the petitioner/9th Accused did not co-operate with the investigation during the custody period and was evasive in his answers and he has not divulged the name of the other persons involved with him in the instant case. Thus, the accused is not entitled to get bail. This position is reiterated by the Hon'ble Apex Court's judgment in the case of Gautam Kundu Vs. Manoj Kumar Assistant Director in CA. No. 1706 of 2015, dated 16.12.2015, the Hon'ble Supreme Court of India had held as follows:

"32. We have heard the learned counsel for the parties. At this stage we refrained ourselves from deciding the questions tried to be raised at this stage since it is nothing but a bail application. We cannot forget that this case is relating to Money Laundering which we feel is a serious threat to the national economy and national interest. We cannot brush aside the fact that the schemes have been prepared in a calculative manner with a deliberative design and motive of personal gain, regardless of the consequence to the members of the society."

16. It is respectfully submitted that similar observations were made by the Hon'ble Apex Court in the case of Rohit Tandon Vs. The Enforcement Directorate in CA. Nos. 1878-1879 of 2017 dated 10.11.2017, Hon'ble Supreme Court of India had held as follows:

"27. Suffice it to observe that the appellant has not succeeded in persuading us about the inapplicability of the threshold stipulation under Section 45 of the Act. In the facts of the present case, we are in agreement with the view taken by the Sessions Court and by the High Court. We have independently examined the materials relied upon by the prosecution and also noted the inexplicable silence or reluctance of the appellant in disclosing the source from where such huge value of demonetized currency and also new currency has been acquired by him. The prosecution is relying on statements of 26 witnesses/accused already recorded, out of which 7 were considered by the Delhi High Court. These statements are admissible in evidence, in view of Section 50 of the Act of 2002. The same makes out a formidable case about the involvement of the appellant in commission of a serious offence of money-laundering. It is, therefore, not possible for us to record satisfaction that there are reasonable grounds for believing that the appellant is not guilty of such offence. Further, the Courts below have justly adverted to the antecedents of the appellant for considering the prayer for bail and concluded that it is not possible to hold that the appellant is not likely to commit any offence ascribable to the Act of 2002 while on bail. Since the threshold stipulation predicated in Section 45 has not been overcome, the question of considering the efficacy of other points urged by the appellant to persuade the Court to favor the appellant with the relief of regular bail will be of no avail. In other words, the fact that the investigation in the predicate offence instituted in terms of FIR No. 205/2016 or that the investigation qua the appellant in the complaint CC No. 700/2017 is completed; and that the proceeds of crime is already in possession of the investigating agency and provisional attachment order in relation thereto passed on 13th February, 2017 has been confirmed; or that charge-sheet has been filed in FIR No. 205/2016 against the appellant without his arrest; that the appellant has been lodged in judicial custody since 2nd January, 2017 and has not been interrogated or examined by the Enforcement Directorate thereafter; all these will be of no consequence."

17. It is submitted that, in [2022/KER/21224], Thomas Daniel vs. Directorate of Enforcement this Court held as under:

"21. After considering the totality of the situation emerging in the case, I am not convinced that the petitioner is justified in seeking bail. The learned Additional Solicitor General and the learned Central Government Counsel have seriously opposed the application for bail. Having regard to the nature of the allegations against the petitioner, the stake involved, the gravity of offences, the fact that the petitioner has business Interests in Dubai, Australia etc., it cannot be said that there is no flight risk in the case. It has also been pointed out that the entire proceeds of the crime are not yet traced. There are prima facie materials to believe that he is guilty of the offence alleged against him. Moreover, some of the important witnesses are his own employees. In the circumstances, this is not a fit case to grant him bail,"

18. In (2009) 14 SCC 286] [LQ/SC/2009/1005] , Masroor v. State of Uttar Pradesh and Another, it was noted that while deciding the question of bail, Courts must strike a balance between the interest of the society in general and the right of an accused to personal liberty. While stressing on the importance of achieving said balance, the Supreme Court held,

"13. There is no denying the fact that the liberty of an individual is precious and is to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a person accused of an offence would depend upon the exigencies of the case. It is possible that in a given situation, the collective interest of the community may outweigh the right of personal liberty of the individual concerned. In this context, the following observations of this Court in Shahzad Hasan Khan v. Ishtiaq Hasan Khan are quite apposite: (SCC p. 691, para 6)

"6.... Liberty is to be secured through process of law, which is administered keeping in mind the interests of the accused, the near and dear of the victim who lost his life and who feel helpless and believe that there is no justice in the world as also the collective interest of the community so that parties do not lose faith in the institution and indulge in private retribution."

19. The Hon'ble Apex Court in [ (2013) 7 SCC 439] [LQ/SC/2013/568] , Y.S. Jagan Mohan Reddy Vs. CBI, observed that the economic offences having deep rooted conspiracy and involving huge loss of public funds, need to be viewed seriously and considered as grave offences affecting the economy of the country as whole and thereby poising serious threat to the financial health of the country. Relevant paras in Y.S.Jagan Mohan Reddy Vs. CBI 's case (supra) while taking special note of cases involving economic offences, are reproduced herein below:-

"15. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby, posing serious threat to the financial health of the country.

16. While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."

The Hon'ble Supreme Court of India has laid down certain conditions for granting bail in its order in Cr. MA No. 728 of 2023 in the case of Shri. Nammagadda Prasad Vs. Central Bureau of Investigation which also related to financial Crimes. The Hon'ble Court has inter alia observed as follows in the said order dated 09.05.2013:

"While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the Court dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt."

A larger bench of the Hon'ble Supreme Court has, inter alia, made following observations in its order dated 12.09.2019 in the matter of bail in Cr. MA 1381 of 2019 in the case of Serious Fraud Investigation Office Vs. Nitin Johari:

"Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threat to the financial health of the country.

While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations."

In B.A. No. 4295/2021 of Delhi High Court in Raj Singh Gehlot v. Directorate of Enforcement, it was held as follows:

"47. Considering the parameters of Section 45(1) PMLA, I find no reasonable ground for believing that the applicant is not guilty of the alleged offence. From a prima facie view of the material placed on record and in light of the gravity of the alleged offences, it cannot be said either that the applicant is not likely to commit any such offence while on bail. Accordingly, the bail application is dismissed."

In Prem Prakash vs. Union of India, BA 12350/2022, the Hon'ble High Court of Jharkhand held as follows:

"19. After having considered the rival submissions advanced on behalf of both the sides, this Court is of the view that the argument advanced on behalf of the E.D. is persuasive enough to reject the petition for bail. Contrary to the submission by the learned Counsel on behalf of the petitioner, the offence of money laundering is an independent offence and it is not necessary that the accused charged with the offence of money laundering are the same who are made accused in predicate offence as per the ratio decided in Vijay Madan Lal Choudhary (supra) (Para 269 and 270). The law enforcement agencies are now confronted with a new species of crime in the form of money laundering, which necessitated the special Act. The law is evolving with different amendments and Judicial pronouncements. These are not like conventional crime and the modus operandi involves three stages: (a) Placement: which is to move the funds from direct association of the crime. (b) Layering: which is disguising the trail to foil pursuit. (c) Integration: which is making the money available to the criminal from what seem to be legitimate sources.

20. A normal business transaction between the different entities involved in the criminal conspiracy cannot be expected in such cases and therefore, the provision for reverse burden has also been made under Sections 23 and 24 of the PMLA. In the present case, the role of this petitioner has come-up in the statement of Ravi Kejriwal and Anil Jha, as discussed above. Huge cash transactions have been shown in the account of the company in the name of this petitioner, regarding which no plausible explanation has been offered. The investigation revealed that the cash receipts amounting to Rs. 5,65,17,000/-in Punjab National Bank Account No. 21881132000179 of M/s Herbal Green Solutions Pvt. Ltd, and subsequent payments worth Rs. 5,31,18,000/-to one company M/s/ Aurora Studio Pvt. Ltd., a company of Amit Agarwal, required to be satisfactorily answered by the petitioner, but he failed to do so. Quite interestingly, even two AK 47 rifles were seized from his house which are said to be of the security guards not posted in his place.

The case is still at its nascent stage and it will not be in the interest of justice to enlarge the petitioner on bail.

20. It is pointed out that the High Court of Chennai held in the matter of P.Rajendran vs. Assistant Director, ED as follows:

"15. On facts, we find that Rajendran [A6] had voluntarily lent his name for the purchase of the property under the sale deed dated 09.09.2009 with the tainted money that was generated by G.Srinivasan [A1] and R.Manoharan [A2] by committing a scheduled offence. Under Section 24 of the PMLA, there is a statutory presumption which can be discharged only during trial.

In the result, this Criminal Original Petition is devoid of merits and the same is accordingly dismissed."

21. It is submitted that unlike the submissions of the petitioner/9th Accused, the arrest of the Petitioner in ECIR/KCZO/09/2021 in the LIFE Mission Case is distinct from the ECIR registered against the gold smuggling case. Some reference of the facts of LIFE Mission Case in the complaint filed in Gold Smuggling case does not mean that both cases are overlapping. The registration of ECIR/KCZO/09/2021 and the ensuing investigation is on a different crime and the Petitioner/9th Accused is trying to mislead this Court.

22. It is submitted that the exemption granted under Section 45 is applicable only to those who are terminally sick and not to persons like the petitioner/9th Accused who claims to be sick only when they realize that an arrest is imminent in a crime. After obtaining bail from this Hon'ble Court on the ground of sickness vide Order dated 25.01.2021 and subsequent to his reinstation to service on 06.01.2022, Shri M. Sivasankar resumed his duties and retired on superannuation on 31.01.2023. Moreover, as rightly noted by the Special Court (PMLA) in the order impugned, the Petitioner refused a second opinion on his illness while in custody. It is submitted that while in judicial custody, the petitioner was admitted in Hospital on 20th March 2023 and his Surgery was fixed on 21st March 2023. However, it would be pertinent to note that the Petitioner himself withdrew the consent and the Surgery was cancelled. Thus the contention of the Petitioner that he may be granted bail on the grounds of his sickness and the urgency of surgery has no legs to stand as he himself refused to undergo surgery. Hence it is evident that the Petitioner is misrepresenting facts before this Court.

23. It is further submitted that Shri M. Sivasankar had played a very pivotal role in the employment of Smt. Swapna. Prabha Suresh as Junior Consultant, in Space Park Project of KSITIL.

24. The Petitioner is a highly influential person closely associated with the Kerala Government and his involvement with other Government functionaries are under investigation. Hence, granting bail to the Petitioner at this stage would derail the investigation as there is a likelihood of tampering with the evidence and influencing other witnesses. The possibility of the petitioner/9th Accused likely to commit the offence of Money Laundering again by concealing the proceeds of crime or by projecting it as untainted money, is very high, especially in light of the highly influential position of Principal Secretary to the Chief Minister of Kerala, which he held and the tremendous power he wields throughout the State of Kerala, by virtue of having held such office. There is a strong apprehension and likelihood that material evidence would be tampered with and witnesses would be influenced, if the petitioner/9th accused is released on bail. There is also a very strong likelihood that he would continue to commit the offence of Money Laundering by concealing the proceeds of crime and projecting it as untainted.

25. While addressing the first question that has been raised by the learned counsel for the petitioner on the submission that since earlier crime vide Crime No. ECIR/KCZO/31/2020 was registered based on the same facts, ie. Rs. 1,00,50,000/-, which was kept in 2 bank lockers belonged to Ms. Swapna Suresh, ie. in SBI locker Rs. 64,00,000/-and in Federal Bank locker Rs. 36,50,000/-, and this crime also was registered on the same facts, it has to be observed that this is a larger issue to be decided after perusing the entire case records pertaining to both crimes. Since this Court is considering bail plea at the instance of the petitioner in the instant crime on scrutiny of the relevant materials in the present case, this Court cannot consider the said aspect without going into niceties of the facts of the two cases in detail. Therefore, I leave the said question to be decided at an appropriate stage after referring all the materials in both these crimes meticulously. As of now, for the just disposal of the bail application, I am inclined to accept the argument tendered by the learned ASGI that a portion of the bribe being converted into foreign currency and taken to diplomatic channel to the foreign country, emanated from the predicate offence as pointed out by the learned ASGI, and the said aspect is a matter within the ambit of PML Act for which detailed investigation shall go on.

26. Now comes the significance as to whether the petitioner is liable to be released on bail by resorting to proviso to Section 45(1) of PML Act. In this connection, I am inclined to extract Section 45 of PML Act, which runs as under:

45. 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 punishable for a term of imprisonment of more than three years under Part A of the Schedule 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 the other 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 State Government authorised in writing in this behalf by the Central Government by a general or a special order made in this behalf by that Government.

(1A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), or any other provision of this Act, no police officer shall investigate into an offence under this Act unless specifically authorised, by the Central Government by a general or special order, and, subject to such conditions as may be prescribed.

(2) The limitation on granting of bail specified in sub-section (1) is in addition to the limitations under the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force on granting of bail."

On a plain reading of the proviso to Section 45(1), it could be gathered that a person who is under the age of sixteen years or is a woman or is sick or infirm, may be released on bail, if the special court so directs. Coming to the mandate of Section 45 of the PML Act, Section 45(1) provides that no person accused of an offence punishable for a term of imprisonment of more than 3 years under part A of the schedule shall be released on bail or on his own bond unless 2 conditions, viz., (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. However proviso to Section 45(1) carves out an exception to the twin conditions. The exceptions are: (i) in the case of a person aged 16 years; (ii) a woman and (iii) a sick or an infirm person. In Gautam Kundu (supra) the Apex Court observed that we have not missed the proviso to Section 45 of the said Act (PML Act) which indicates that the legislature has carved out an exception for grant of bail by or special court when any person is under the age of 16 years or is a woman or is a sick or infirm.

27. It is interesting to note that the Act doesn't define the term either `sick' or `infirm'. The term `sick' as per the Oxford English dictionary means, "affected by illness; unwell, ailing". Similarly, the term `infirm' means "not physically strong or healthy; weak; feeble, especially through old age". Therefore, the `sick' or `infirm' condition of a person has to be inferred from the materials available in each individual case. However, it is pertinent to note that the statute provides release of an accused on bail, who are covered by the proviso reading the same disjunctively and the statute used the word `may'. Thus it has to be held that release of a person covered by the proviso to Section 45(1) of PML Act is not mandatory and the same is the discretion of the court.

28. In this connection, I am inclined to refer 3 decisions of the Hon'ble Supreme Court, viz., [ 1984 (3) SCC 555] [LQ/SC/1984/158] , State v. Jaspal Singh Gill, State of U.P. v. Gayatri Prasad Prajapati and [ 1998 (2) SCC 105] [LQ/SC/1998/26 ;] , Directorate of Enforcement v. Ashok Kumar Jain, referred in the judgment of the High Court of Delhi in Bail Application No. 540/2022, Crl.M.A.2909/2022 and 3665/2022 dated 26.09.2022.

29. In Jaspal Singh Gill's case (supra), the Apex Court dealt with a case alleging commission of offence under Section 3 of the Official Secrets Act 1923 with which the accused is charged relates to military affairs, punishable upto 14 years and observed in paragraph 11 as under:

"11. In the circumstances, I am of the view that the High Court should not have enlarged the respondent on bail in the larger interests of the State. It is urged that the respondent is a person who has undergone a cardiac operation and needs constant medical attention. I am sure that the prison authorities will arrange for proper treatment of the respondent whenever the need for it arises."

30. In Ashok Kumar Jain (supra), the Apex Court dealt with a case under the Foreign Exchange Regulation Act, 1973 (FERA), it has been observed that, we have noticed that learned Sessions Judge while dismissing the application for pre-arrest bail has taken due note of the aforesaid plea of the respondent and made necessary observations regarding the need to provide medical care and protection to the respondent in view of the medical reports. It cannot be contended, nor has it been contended before us, that respondent is immune from arrest on even interrogation simply on account of his physical conditions. No doubt investigating officials of the Directorate are duty bound to bear in mind that the respondent has put forth a case of delicate health conditions. They cannot overlook it and they have to safeguard his health while he is in their custody. But to say that interrogation should be subject to the opinion of the cardiologists of the AIIMS and that the officials of the Directorate should approach the Director of AIIMS to constitute a Board of Cardiologists to examine the respondent etc. would, in our opinion, considerably impair the efficient functioning of the investigating authorities under FERA. The authorities should have been given freedom to chalk out such measure as are necessary to protect the health of the person who would be subjected to interrogatory process. They cannot be nailed to fixed modalities stipulated by the court of conducting interrogations. It is not unusual that persons involving themselves in economic offences, particularly those living in affluent circumstances, are afflicted by conditions of cardiac instability. So the authorities dealing with such persons must adopt adequate measures to prevent deterioration of their health during the period of custodial internment. The court would interfere when such authorities fail to adopt necessary measures. But we are not in favour of stipulating in advance modalities to be followed by the authorities for that purpose. According to us such anticipatory stipulations are interferences with the efficient exercise of statutory functions when dealing with economic offences. Hence learned Single Judge ought not have imposed such conditions on the Directorate.

31. In , Surjeet v. State (Govt. of NCT of Delhi), where the court while rejecting bail noted the following :

"5. It is not in dispute that petitioner is on interim bail since 12.06.2020 on medical grounds and another extension of interim bail is sought on medical grounds only. As per status report dated 28.01.2021, necessary verification was done from the Head of the Department of Deen Dayal Hospital, New Delhi. Discharge summary sheet dated 25.01.2021 placed on record notes that petitioner was admitted on 13.01.2021 for anti coagulation therapy and optimization and after treatment was discharged on 25.01.2021 in stable condition. In the aforesaid discharge summary sheet, Dr. P.S. Sarang, Specialist and HOD (Surgery) has specifically stated that this treatment is also available in Tihar Jail. In view of aforesaid, I am of the view that petitioner can continue his treatment within jail premises, if so required and extension of his interim bail on medical grounds is unwarranted."

32. In Karim Morani v Central Bureau of Investigation, where court refused bail whilst making the following observations :

"8. From the aforesaid record, it transpires that the petitioner underwent by-pass surgery around the year 2007. Thereafter, for a continuous period of 4 years, there is no medical record, which prima facie indicates that during the period from 2007 to 2011, the petitioner did not suffer any medical complication. Coming to the medical record of the petitioner for the year 2011, it would be seen that the record submitted by the petitioner starts from 25th April, 2011. It is pertinent to note that supplementary charge sheet showing the petitioner as one of the accused was also filed in the court on 25th April, 2011. From the medical record of year 2011 submitted by the petitioner, it cannot be said that petitioner is suffering from such a medical condition which cannot be managed by proper treatment regime in jail hospital. As per the report of Dr. Yash Lokhandwala, D.M. (Cardiology) dated 13th May, 2011, following line of treatment was suggested to the petitioner:

"Suggest

• Neurosurgery opinion.

• No anti-hypertensives.

• Stop Aquazide.

• Increase the salt and water intake.

• Dietary and postural advice

• Strongly avoid any stressful situation.

• To see the Holter report.

• LP (a) and Homocysteine"

The record also suggests that the petitioner got admitted in Lilavati Hospital & Research Centre for treatment on 11th May, 2011 with the complaint of episode of Syncope two days earlier and breathlessness. He was diagnosed for Neurocardiogenic Syncope, Pituitary Adenoma-cystic IHD, Post CABG Status, HTN, Nasal Polynosis, Cervical lumbar spondylosis etc. and as per his Discharge Summary, his stay in the hospital was uneventful. He was advised medication and physiotherapy. Besides that, the petitioner has also placed on record a certificate dated 20th June, 2011, purported to have been issued by Dr. Jolly Bansal which is based upon the medical record provided to him and not on the basis of physical examination of the patient. This certificate does not even indicate as to what medical record was shown to him. Therefore, much reliance cannot be placed upon it.

......

13. On careful consideration of the previous medical reports of the petitioner and the medical reports received from the Board of Doctors of G.B. Pant Hospital, it is apparent that since his detention in jail, the condition of the petitioner is stable and it is being properly managed by medication. Thus, I do not find it a fit case for grant of interim bail on medical grounds, particularly when the release of the petitioner for a period of 4-6 weeks would not change his medical history or situation."

33. Reading the ratio of the above decisions, if the jail authorities or the prosecution agency could arrange proper and adequate treatment, even a sick person need not be released on bail.

34. While canvassing dilution of the rigour under Section 45 of PML Act, the learned counsel for the petitioner given emphasize to 2 specific aspects: first one is that this Court while granting bail in Crime No. ECIR/KCZO/31/2020 as per order dated 25.01.2023 in B.A. No. 7878/2020 in para.8 considered the said aspect relying on P.Chidambaram's case (supra) and finally granted bail. Para.18 of the order is as under:

"18. Reverting to the rigour of the twin test under Section 45 of the PMLA, it has to be considered whether the applicant would qualify to get bail. There is no doubt about the complicity of the applicant and there are no reasonable grounds to believe that he is not guilty. However, it should also be considered whether there is a likelihood of the applicant committing any offence while on bail. I am afraid that the prosecution has not been able to establish this fact. Going by the allegations made by the ED, the applicant was indulged in laundering of 64 lakhs which was seized from the SBI locker. ¹ There is no indication that the applicant had anything to do with the locker belonging to A2 in Federal Bank. Thus the proviso to Section 45 (1) of the PMLA would operate in view of the fact that the money allegedly laundered is less than rupees one crore. The fact that the applicant is suffering from various illness would also come to his benefit as the proviso to Section 45 exempts a sick person from the rigours of the Section. As was held by the Hon'ble Supreme Court in P Chidambaram's case, the applicant is neither a flight risk nor has he been shown to have any propensity to tamper with evidence or influencing witnesses, apart from the fact that the evidence is all documentary in nature and has already been collected according to the ED. In Sanjay Chandra v. CBI 2011 KHC 5051 : AIR 2012 SC 830 [LQ/SC/2011/1492] it was held that the object of bail is not punitive but to secure the presence of the accused for trial. The accused may not be detained just to give him a taste of imprisonment is what the Supreme Court held."

35. Anyhow it is an admitted fact that the said order produced as Annexure 9 by the petitioner is a subject matter pending before the Honourable Apex Court. Secondly, the learned counsel given much emphasis to the medical board report given by the medical board consisting of Head of Departments of General Medicine and Department for Orthopaedics, Medical College Hospital, Ernakulam as extracted in the lower court order in para.12, which is as under:

"Mr. Sivasankar, has come with complaints of low back ache radiating to right lower limb of 4 years duration and pain right knee of 10 days duration. He gives a history of twisting injury right knee 10 days ago after which the back pain aggravated and pain right knee started. Clinical examination of the lower back and right knee revealed signs suggestive of inter vertebral disc prolapse and internal derangement of right knee. MRI of Lumbosacral spine and right knee was done. MRI revealed severe inter vertebral disc prolapse L1-2, L2-3, L4-5 and L5-S1 medical medial meniscal injury of right knee. The patient need urgent admission in hospital, bed rest, physiotherapy (IFT, UST, MFR-myofascial release and electrical traction) and other supportive measures (intra venous steroids and analgesics and other neurotropic vitamins) and arthroscopy procedure of right knee. He is suggested to avoid lifting, bending sitting prolonged and long travel."

36. To be on the crux of the matter, no doubt, crime No. ECIR/KCZO/31/2020 arose out of predicate offence registered by the Vigilance and Anti-corruption Bureau and CBI and the present crime arose out of predicate offence in OR. No. 7/2020, registered by the Customs (Preventive) Commissionerate of Cochin and Crime No. 2/2020, registered by NIA and, therefore, as I have already pointed out, there is no reason to hold at this stage that registration of this crime is bad in law.

37. In this connection, the learned ASGI submitted that as per the statement given by Venugopal and Swapna Prabha Suresh in this crime it is crystal clear that they opened joint locker since Sivasankar had told Venugopal to open locker with Swapna Prabha Suresh and it was opened during November, 2018 till December, 2018. Subsequently Venugopal gave statement that Sivasankar messaged through WhatsApp that Rs. 35 lakh should be done separately. It is pointed out by the learned ASGI that as per the statement given by Sri Venugopal on 16.02.2023 when he was asked to give details about the visit of Sri Sivasankar along with Smt. Swapna Prabha Suresh to the house of Venugopal, the date of visit, purpose of visit, cash and cash brought by them, it was stated by Sri Venugopal that it was on 28.11.2018 both of them came to his house with cash to the tune of Rs. 34 lakh and money was brought by Sri Swapna Prabha Suresh and Sivasankar together. Both of them came in different cars. Further Venugopal gave statement that Sivasankar asked him to include his name also in the locker for operational purposes. That apart, the learned ASGI given emphasis to the WhatsApp chat in between Swapna Prabha Suresh and Sivasankar running into pages whereby the entrustment of Life Mission Project to Unitac owned by Santhosh Eapen and the arrangement of the subject matter which led to receipt of bribe and conversion of the same into foreign money. It is relevant to note that Santhosh Eapen given statement that Rs. 3,80,00,000/-was withdrawn by him from bank accounts of his firms and an amount of Rs. 1.4 crore (approximately) was converted into USD which was around USD 190000 with the help of Irshad and Sheshadri both were Axis Bank employees. Further Rs. 25 lakh was converted into USD on 1.8.2019 by one of his staff and it was transported and handed over to him at Hotel Hycinth Hotel, Trivandrum. Further Rs. 50 lakh was converted into USD on 2.8.2019 by one of his staff, Jose, with the help of Irshad and others and it was transported by Bijulal and was handed over to him at Hotel Hycinth, Trivandrum and some amount also was arranged by Sheshadri of Axis Bank, Karamana Branch, Trivandrum, but he did not know how much amount was converted by Sheshadri. He also stated about the transfer of money in 3 bank accounts and in turn entrusted the same to Swapna Prabha Suresh. Further, Venugopal given statement that Sri Sivasankar IAS had immense trust on him and it was stated that "the amount is 35 lakh and `so it is to be done separately'", but Venugopal didn't know what was meant by that. Joint application filed by Venugopal and Swapna Prabha Suresh to operate joint locker in their names also is part of the records. That apart, U.V.Jose, the CEO, Life Mission Project also given statement regarding the implementation of the project and the role of Savasankar in this deal as the Principal Secretary of the Chief Minister of Kerala.

38. Although it is argued by the learned counsel for the petitioner that none of the witnesses had given statements showing involvement of the petitioner in the present crime in the matter of conversion of foreign currency to Indian currency, the pith and substance of the statements, as recorded as that of the witnesses, form part of the lengthy statements available before this Court, inclusive of the WhatsApp messages, would go to show that the petitioner has also involvement in this crime and the money deposited in the joint locker opened in the name of Smt. Swapna Prabha Suresh and Mr. Venugopal is the money converted into foreign currency given by Santhosh Eapen as upfront commission for allocating the project in his name. Further, a portion of the money is meant for Sivasankar.

39. As far as the sick condition of the petitioner is concerned, the learned counsel for the petitioner pointed out the medical board report on 25.02.2023 suggesting treatment of the petitioner and also the medical certificate showing admission and discharge of the petitioner at Thriveni Nursing Home from 14.03.2021 to 27.03.2021.

40. The prime question to be considered herein is as to whether the petitioner is entitled to get exemption under the proviso to Section 45(1) of the PML Act. It is true that in para.18 of Annexure-A9 judgment, this Court found that the petitioner is entitled to get benefit of the proviso holding that the petitioner is a sick person. According to the learned counsel for the petitioner, the said finding would bind this Court even though the said finding is under challenge before the Apex Court since there is no interference or stay of its operation.

41. In this matter, though the learned ASGI placed statement of the witnesses in sealed cover, the same was returned since `sealed cover production of documents' is not a generally accepted rule. Therefore, this Court called for the entire case records from the Special Court and perused the same in detail. Here, the prosecution has specific case as to involvement of the petitioner who was the Principal Secretary of the Chief Minister and the records available would also justify the same prima facie. As far as release of the petitioner by relaxing the twin conditions under Section 45(1) of the PML Act with reference to its proviso treating the petitioner as a sick person, the learned ASGI vehemently submitted that the petitioner is not a sick person covered by the proviso since he claimed to be sick only when arrest and detention are imminent and on getting bail such ground would cease. It is submitted that after release of the petitioner on bail as per Annexure-A9 order, he got reinstated in service on 6.1.2022 and continued the same till 31.01.2023 without undergoing any treatment. It is also pointed out that even though a second opinion was suggested with regard to his medical conditions, he had denied consent for the same. Further the petitioner was admitted in hospital on 20.03.2023 and his surgery was fixed on 21.03.2023, he refused to undergo surgery. According to the learned ASGI, the petitioner in fact is not a sick person within the meaning of the proviso of Section 45(1) and he wanted to be released on bail on medical ground. In fact, these aspects are having force. That apart, the argument advanced by the learned ASGI as stated in paragraphs 12 to 24 is having force.

42. In P.Chidambaram's case (supra), the Honourable Apex Court considered 2 aspects while considering bail. Those are, flight risk and the propensity to tamper with evidence or influencing witnesses.

43. In the instant case, the petitioner could not be held as a person who would flee from trial. However, his propensity to tamper with the evidence and to influence witnesses could be foreseeable, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala. It is apposite to refer that even after his initial arrest and subsequent release on bail, the petitioner was reinstated in service w.e.f 6.1.2022 and he continued the same till his retirement holding pivotal post in the State of Kerala, ignoring his involvement in serious crimes. That is to say, his involvement in serious crimes prior to this crime, in no way affected his official stature because of his authority in the State Government.

44. Since it has been discussed that the petitioner is not co-operating with the treatment offered, I am not inclined to release him on medical ground since his sickness would be addressed by the prosecution agency/jail authorities by providing adequate treatment. Similarly, his chance of propensity to tamper with evidence or influencing witnesses, is very much there, since the petitioner is a person having very much influence in the ruling party of Kerala, particularly with the Chief Minister of Kerala.

45. In this matter, the investigation is at the initial stage. Many accused are yet to be arrested including Smt. Swapna Prabha Suresh. Why the prosecution is delaying the arrest of Swapna Prabha Suresh is also a matter of serious concern, though she had an active role in the present crime.

46. For the above reasons, the petitioner cannot be released on bail at this stage and this application is liable to be dismissed. In the result, this Bail Application is dismissed.