In a significant ruling the Bombay High Court granted bail to an accused of Prevention of Money Laundering Act, 2002 (PMLA) and observed that the period of house arrest can be considered while calculating total period of custody.
The petitioner in the present matter is Mohammed Farooq Mohamemed Hanif Shaikh @ Farooqe Shaikh. The senior counsel for the Petitioner submitted that, the Petitioner is arrested on 23rd April, 2018 in the present crime and since then is in custody for last about 5 years and 8 months. The counsel submitted that, the Petitioner has been charged with the offence of money laundering as defined under Section 3 which is punishable under Section 4 of the Prevention of Money-Laundering Act, (“the P.M.L.A.”) for which maximum punishment prescribed is 7 years.
The counsel for the Respondent No.1-ED submitted that, the period of house arrest cannot be taken into consideration for computing the total period of custody of the Petitioner and it needs to be excluded. We are not in agreement with the learned counsel, as according to us house arrest is ultimately arrest of person, whereby his liberty to be a free person is ultimately curtailed by operation of law.
A Division Bench of Justices AS Gadkari and Shyam C Chandak observed that “It is by now well settled and recognized principle of law that, prolonged custody amounts to infringement or violation of Article 21 of the Constitution of India of an accused. There is no debate that, incarceration in custody for long period without trial or completion of trial affects personal liberty guaranteed under Article 21 of the Constitution of India of an accused.”
“The maximum sentence prescribed under Section 3 of the PMLA is 7 years. The period of incarceration undergone by the Petitioner has exceeded the substantial part of the prescribed sentence. It appears that, the Petitioner has already completed 3/4 of his sentence, if convicted and sentenced for minimum punishment of 7 years. The fact on record remains that, the Petitioner is in custody/house arrest for last more than five years and eight months for an offence wherein the maximum punishment prescribed is seven years” the Court concluded.
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