New Delhi: The Supreme Court delivered a harsh reprimand to the central government on 15 January, underscoring its stern stance on statutory compliance and warned government agencies against attempting to bypass the law.
The top court’s censure was aimed at the Enforcement Directorate (ED) in the case of Sashi Bala, an accused under the Prevention of Money Laundering Act (PMLA).
The apex court overruled the ED’s opposition to her bail–which was trying to apply the stringent Section 45 of the Act in her case–and said there were misrepresentations about the applicability of bail terms under this section.
The ED had contended that the harsh bail terms under Section 45 applied to women, but the court pointed out the law expressly exempted women from these requirements.
Arguing for the ED, Solicitor General Tushar Mehta apologised for the misunderstanding and admitted that women were excluded from the twin bail requirements.
However, he attempted to rationalise the ED’s position by alleging that Bala played a key role in the offences. Justice Abhay S. Oka promptly dismissed this argument as a purposeful distortion, expressing strong opposition to such judicial activity.
The ED is probing Lucknow’s real estate company Shine City Group for fraudulently collecting nearly Rs 1,000 crore from the public through bogus investment programmes. The ED launched the inquiry after 554 FIRs were filed by the Uttar Pradesh Police.
Promoter Rasheed Naseem fled, but the ED arrested Shashi Bala in November 2023 and charged her with being Naseem’s accomplice.
Despite the Allahabad High Court’s initial rejection of her release, which cited her relationship to the absconding Naseem, the Supreme Court noted that Bala had already been in detention for an extended amount of time (since November 2023), with the trial still ongoing. Given the statutory exemption for women, Justice Oka granted her bail.
Legal provisions under Section 45
Section 45 of the PMLA sets out stringent bail conditions requiring the accused to prove their innocence and that they were not likely to commit further offenses–this is called the “twin condition test”.
However, an exception for women and children is provided under Section 45(1A), which presumes that women and children are less likely to reoffend while on bail. This presumption can be rebutted by the prosecution, but the burden of proof lies on them. The law says individuals under 16 years of age, women, or those who are sick or infirm may be granted bail at the discretion of the special court.
‘You don’t know basic provisions of law’
The Supreme Court was clearly frustrated by the ED’s last-minute arguments, which it interpreted as an attempt to postpone proceedings and unjustifiably reject bail.
Justice Oka stated: “If people who appear for the Union of India do not know basic provisions of law why should they appear in the matter?” He said this type of approach could not be condoned and asked the government counsel to better understand laws.
Despite the ED’s resistance, the court released Shashi Bala, citing her lengthy detention and the fact that 67 prosecution witnesses were still to be examined. Given the uncertainty surrounding the trial’s timeliness, the apex court underlined women’s legal rights.
(Edited by Tikli Basu)
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