How Does a Person Get Bail in a PMLA Case?

Bail under the Prevention of Money Laundering Act (PMLA), 2002, is more complex than in regular criminal cases due to its stringent conditions. If a person is accused of money laundering, securing bail requires satisfying strict legal requirements set by the Act. In this article, we will break down the process of getting bail in a PMLA case and the challenges faced in securing relief.

Understanding PMLA and Its Bail Provisions

The PMLA, 2002, was enacted to combat money laundering and confiscate proceeds of crime. Since financial crimes can have a far-reaching impact on the economy, the Act imposes stricter conditions for granting bail.

Under Section 45 of the PMLA, bail is granted only if:

1. The Public Prosecutor has been given an opportunity to oppose the bail application.
2. The court is satisfied that the accused is not guilty of the offense and is unlikely to commit a similar offense if released.

These conditions make obtaining bail a challenging task, as the burden of proof largely rests on the accused.

Steps to Obtain Bail in a PMLA Case

1. Filing a Bail Application

The accused or their legal representative must file a bail application before the appropriate court. Depending on the stage of the case, this could be the Special PMLA Court, the High Court, or even the Supreme Court in some instances.

2. Arguing on Twin Conditions of Bail

The defense must convince the court that the accused is:

• Not guilty of money laundering, based on available evidence.
• Not likely to commit any further offenses if granted bail.

Since these conditions are strict, strong legal arguments backed by relevant case laws and precedents are crucial.

3. Medical or Humanitarian Grounds (If Applicable)

In cases where the accused is suffering from a serious medical condition or has humanitarian concerns (such as being the sole caretaker of dependents), the court may consider granting bail on these grounds.

4. Seeking Regular or Anticipatory Bail

• Regular Bail: If the accused has been arrested, they must apply for regular bail under Section 439 of the CrPC.
• Anticipatory Bail: If the accused fears arrest, they can apply for anticipatory bail under Section 438 of the CrPC, provided that they can justify why they should not be arrested.

5. Supreme Court’s Liberalized Approach

Earlier, Section 45 of PMLA made bail nearly impossible, but after the Nikesh Tarachand Shah v. Union of India (2017) case, the Supreme Court struck down the twin conditions, making it easier for some accused persons to seek bail. However, the 2022 amendments revived these conditions, making bail difficult again.

Factors That Can Strengthen a Bail Plea

• Absence of Direct Involvement: If the accused can prove they had no direct role in money laundering, their chances of getting bail increase.
• No Flight Risk: If the accused is a law-abiding citizen with no history of absconding, courts may consider bail more favorably.
• Cooperation with Authorities: If the accused has cooperated with the Enforcement Directorate (ED) during the investigation, the court may take a lenient view.

Conclusion

Securing bail in a PMLA case is challenging due to the stringent legal provisions. The accused must present a strong case to satisfy the twin conditions and prove they do not pose a risk of repeating the offense. Engaging an experienced advocate is crucial to navigating the complexities of the PMLA and increasing the chances of getting bail.