JUDGMENT : 1. Heard Sri I.B. Singh, learned Senior Advocate assisted by Sri Amit Sinha, Sri Aditya Vaibhav Singh and Sri M.G. Khan, learned counsel for the applicant and Sri Rohit Tripathi, learned counsel for the Enforcement Directorate (E.D.). 2. As per learned counsel for the applicant, the present applicant (Shiv Priya) is languishing in jail since 03.12.2019 in Sessions Case No.1266 of 2020 arising out of Crime/ ECIR No.06/PMLA/LKZO/ U/s 3/4 of Prevention of Money Laundering Act, 2002, Police Station-ED/Lucknow titled as Assistant Director Enforcement Directorate vs. Ajay Kumar & Ors., pending before the learned Special Judge-PMLA, Lucknow (U.P.). 3. As per Sri I.B. Singh, learned Senior Advocate for the applicant, the present applicant happens to be erstwhile Director in Amrapali Group of Companies (here-in-after referred to as "AGC") which was into real estate and allied business in Noida/ Greater Noida, Uttar Pradesh. The role of the present applicant being qualified Civil Engineer by qualification was limited to conceiving Architectural Planning and Engineering thereof and was not involved in financial planning of the Company. The present applicant on account of being Director in Ultra-Home Construction Pvt. Ltd. i.e. flagship company of AGC was drawing salary and was receiving professional fee from other companies on account of rendering professional services related to their project being permissible under law. So many buyers of the said company feeling themselves aggrieved as they have not been provided the flats/ plots despite those buyers deposited their huge amount in the company, as many as 30 F.I.Rs. have been registered against the Directors of the Company including the present applicant under Sections 406, 420, 409 & 120-B I.P.C. in the year 2018 and the Economic Offences Wing, Delhi Police (in short EOW) has arrested the Directors of the Company including the present applicant. The present applicant was taken into custody by Noida Police on 11.10.2018. The aforesaid arrest was made pursuant to the order of Apex Court passed in Writ Petition (Civil) No.940 of 2017; Bikram Chaterjee vs. Union of India & others to assist / complete the Forensic Auditor's relating to the allegations of the F.I.Rs. On 26.02.2019 EOW, Delhi Police has taken custody of the present applicant. 4. On 01.07.2019, the E.D. has filed Enforcement Cases Information Report (here-in-after referred to as the "ECIR") No. ECIR/ 06/PMLA/LKZO/2019. The E.D. has taken custody of the present applicant on 03.12.2019. 5. On 26.02.2019 EOW, Delhi Police has taken custody of the present applicant. 4. On 01.07.2019, the E.D. has filed Enforcement Cases Information Report (here-in-after referred to as the "ECIR") No. ECIR/ 06/PMLA/LKZO/2019. The E.D. has taken custody of the present applicant on 03.12.2019. 5. On 16.03.2020, the Session Case No.1266 of 2020 was filed against the present applicant. On 13.08.2020 a Criminal Complaint / Session Case No.1234 of 2021 was filed against 04 co-accused persons. On 06.04.2022, 03 Criminal Complaint/ Session Case No.1266 of 2020, 1234 of 2021 and 1219 of 2022 were consolidated involving the present applicant. On 26.04.2022, the charges were framed against the present applicant. 6. Sri I.B. Singh, learned Senior Advocate for the applicant has submitted that with effect from 21.05.2022 till date as many as 15 dates have been fixed, and only two prosecution witnesses could be examined and the chief-examination of PW-3 has been completed on 01.02.2023 but he could not be cross-examined till date. Sri Singh has filed certified copy of the order-sheet to show that the examination of the prosecution witness/ witnesses could not be done properly on account of non-cooperation on the part of the prosecution inasmuch as the case is being regularly attended from the side of the present applicant/ defence. 7. Learned Senior Advocate has further submitted that there are 150 Prosecution Witnesses which are to be examined and if the progress of trail is seen with effect from 21.05.2022, wherein the prosecution witnesses are not co-operating, the trial in question cannot be completed in further five or six years. Further, if the total period of judicial custody of the present applicant is considered, it is about four years and four months with effect from his first date of custody i.e. 11.10.2018 and if the period of custody taken by the E.D. is considered, it is more than three years and three months and maximum punishment for the offence wherein the trial is going on is seven years. Therefore, in the first situation the present applicant has served much more than half of the sentence and in the second situation the present applicant has served about half of the sentence. 8. Learned Senior Advocate for the applicant has further submitted that the present applicant is in judicial custody with effect from 11.10.2018 for the same allegations in the same issue, however, the agencies are different. 8. Learned Senior Advocate for the applicant has further submitted that the present applicant is in judicial custody with effect from 11.10.2018 for the same allegations in the same issue, however, the agencies are different. Therefore, his total custody period may be considered as more than four years and four months. If the progress of trial remains the same, there is likelihood that the present applicant will have to serve the maximum period of punishment i.e. seven years. 9. Sri Singh has apprised that the present applicant was granted an interim bail by the Apex Court vide order dated 22.08.2022 passed in Writ Petition (Cril.) No.311 of 2022; Shiv Priya vs. N.C.T. Delhi and another and he remained on interim bail till 07.11.2022. Thereafter, he surrendered before the Court of C.M.M. East District, Karkardooma Court, Delhi. He did not misuse the liberty of interim bail granted by the Apex Court. He is again under custody with effect from 07.11.2022. Sri Singh has referred Annexure No.RA-3 which is a custody certificate of the present applicant relating to his custody in the matter of E.D. from 03.12.2019 to 24.08.2022. 10. Sri I.B. Singh, learned Senior Advocate for the applicant has referred the dictum of Apex Court rendered in re:-Union of India vs. K.A. Najeeb reported in (2021) 3 SCC 713 referring paras-14, 15 & 17 to submit that since there is no likelihood to conclude the trial with expedition and the applicant has suffered incarceration for a significant period of time, so he may be enlarged on bail. Paras-14, 15 & 17 read as under:- "14. The facts of the instant case are more egregious than these two above cited instances. Not only has the respondent been in jail for much more than five years, but there are 276 witnesses left to be examined. Charges have been framed only on 27.11.2020. Still further, two opportunities were given to the appellant NIA who has shown no inclination to screen its endless list of witnesses. It also deserves mention that of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years’ rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. It also deserves mention that of the thirteen co-accused who have been convicted, none have been given a sentence of more than eight years’ rigorous imprisonment. It can therefore be legitimately expected that if found guilty, the respondent too would receive a sentence within the same ballpark. Given that two third of such incarceration is already complete, it appears that the respondent has already paid heavily for his acts of fleeing from justice. 15. This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail. 16. ... 17. It is thus clear to us that the presence of statutory restrictions like Section 43-D (5) of UAPA per se does not oust the ability of the Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial." 11. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial." 11. Sri I.B. Singh, learned Senior Advocate for the applicant has also referred the dictum of Apex Court rendered in re:-Ramchand Karunakaran vs. Directorate of Enforcement & Anr. (Criminal Appeal No.1650 of 2022, arising out of SLP (Crl.) No.6061 of 2020) dated 23.09.2022 by submitting that in the aforesaid case the Apex Court granted bail to the said accused person noticing the fact that the said accused person has completed more than three years of actual custody in connection with the offence in respect of PMLA. The aforesaid accused person was however the Senior Citizen. In the present case, the applicant has completed more than three years of actual custody in connection with the offence relating to the PMLA. Therefore, he may be enlarged on bail. The relevant para-6 reads as under:- "6. We are presently concerned with the proceedings arising out of the complaint filed under the provisions of PML Act. In the instant case, the appellant was taken in custody on 19.06.2019 and has remained in custody since then. Thus, the appellant has completed more than three years of actual custody in connection with the offence in respect of PML Act." 12. Sri I.B. Singh, learned Senior Advocate for the applicant has also submitted that the present applicant was granted an opportunity of hearing by the Apex Court in respect of the issue regularly vide order dated 21.02.2022, the Receiver was appointed by the Apex Court and the Receiver has prima-facie found discrepancy with respect to recovery relating to the present applicant. The amount was substantially reduced by the Forensic Auditors. 13. Sri Singh has submitted that the amount alleged by the E.D. was Rs.95.54 crores. The amount removed by the Forensic Auditors was 68.88 crores. Therefore, the actual remaining amount is Rs.26.66 crores. A sum of Rs.28.95 crores has already been recovered from the applicant. Therefore, the present applicant is very much hopeful that after the conclusion of trial, he may not only be acquitted from the charges but a sum of Rs.2.29 crores would be refunded to him. Therefore, in view of the above, no amount is recoverable from the present applicant. 14. Therefore, the present applicant is very much hopeful that after the conclusion of trial, he may not only be acquitted from the charges but a sum of Rs.2.29 crores would be refunded to him. Therefore, in view of the above, no amount is recoverable from the present applicant. 14. Learned Senior Advocate has also submitted that the learned counsel for the E.D. has incorrectly mentioned that as many as 19 cases involving the scheduled offences have been registered against the present applicant on the basis of which investigation in the present matter was undertaken and the applicant continuous to be in judicial custody in most of the cases. However, the present ECIR was registered on the basis of 14 cases i.e. FIR Nos. 336 of 2018, 273 of 2017, 561 of 2017, 563 of 2017, 565 of 2017, 566 of 2017, 118 of 2018, 70 of 2018, 219 of 2018, 783 of 2017, 44 of 2018, 213 of 2017, 767 of 2017 and 123 of 2018. The copy of the ECIR is already on record and filed as Annexure No.4 of the bail application. The applicant has not been arrested in any of the predicate offence as the chart to that effect is already on record and filed as Annexure No.20 of the bail application. 15. Per contra, Sri Rohit Tripathi, learned counsel for the E.D. has submitted that the applicant by means of the instant application has prayed for bail in Session Case No.1266 of 2020, arising out of ECIR/06/PMLA/LKZO/2019. He has also submitted that the inquiry/ investigation in the present matter was initiated/ monitored by the Hon'ble Supreme Court of India by means of Writ Petition (Civil) No.940 of 2017; Bikram Chaterjee vs. UOI and others. It has also been submitted that the bail application of the co-accused, namely, Anil Kumar Sharma has been rejected by this Hon'ble Court on three occasions despite the fact that the said applicant had extensively pleaded medical grounds. On that Sri I.B. Singh, learned Senior Advocate has submitted that his bail applications were rejected either during investigation or before framing of the charges but now the stage is altogether different as demonstrated above. 16. On that Sri I.B. Singh, learned Senior Advocate has submitted that his bail applications were rejected either during investigation or before framing of the charges but now the stage is altogether different as demonstrated above. 16. Sri Tripathi has further submitted that as per the complaint, as amount of Rs.5982.84 crores have been diverted by the various accused persons and the present applicant had a major role not only as a beneficiary of the loot of public money but also for being actively involved n the decision making exercise regarding diversion of funds raised as a consequence of deposits by thousands of prospective home buyers. The role of the present applicant in the process of diversion of funds and his consequent enrichment out of the laundered money have been convincingly established by the documentary and oral evidence collected by E.D. The modus operandi adopted by the accused persons including the present applicant and the proceeds of crime, the evidence is rather overwhelming. In this regard, Sri Tripathi has drawn attention of this Court towards paras-4.12 to 4.21 and paras-5.1.17, 5.1.24, 5.1.26, 5.1.50, 5.1.52, 5.1.54 & 5.1.55 to 5.1.65 of the memorandum of complaint (Annexure No.7). 17. Sri Tripathi has submitted that the above mentioned evidence is mostly in form of bank accounts and statements of the accused persons, which have not been disputed. In any case, in view of the reverse presumption stipulated in Section 24 of the PMLA, it is the applicant's duty to discharge the burden of proof regarding these documents. The applicant/ accused has miserably failed to place on record any cogent or reliable material which can even prima facie dislodge the presumption against him. 18. Sri Tripathi has further submitted that the present case is one where accused persons have been charged for various offences for having carried out mass loot of public money deposited by innocent prospective home buyers and have laundered the said money and have used it for their personal enrichment. Therefore, in view of the overwhelming and irrebutable evidence against the present applicant, the present application does not pass the twin test stipulated in Section 45 (i) of the PMLA. This, coupled with the fact that the act complained of involves diversion of funds of thousands of innocent prospective home buyers dis-entitles the present applicant to be released on bail. Therefore, the present bail application deserves to be rejected. 19. This, coupled with the fact that the act complained of involves diversion of funds of thousands of innocent prospective home buyers dis-entitles the present applicant to be released on bail. Therefore, the present bail application deserves to be rejected. 19. Heard learned counsel for the parties and perused the material available on record. 20. At the very outset, it is clear that I am not entering into merits of the issue inasmuch as this is a domain of the learned trial court to look into the entire issue, contentions of the parties and perused the entire material and evidences available on the record. The consideration and observation of this order would only be confined to disposal of the bail application. Therefore, the learned trial court shall not influence from any observations or findings of this order and shall conduct and conclude the trial independently strictly in accordance with law with expedition without giving any unnecessary adjournment to any of the parties by fixing short dates and if any of the parties do not co-operate in the trial proceedings properly any appropriate coercive steps which are permissible under law may be taken. 21. In the present case, undoubtedly, the present applicant was taken into custody on 11.10.2018 for the same allegations for which the E.D. has filed ECIR in question. However, EOW of Delhi Police has taken custody of the present applicant on 26.10.2019 and the E.D. has taken custody on 03.12.2019. Therefore, for all practical purposes the present applicant is in judicial custody for more than four years and four months and if the period of judicial custody, so taken by the E.D. is considered, it is more than three years and three months. Undisputedly, the maximum punishment for the offence wherein the trial is going on is seven year. Therefore, in both the situations the present applicant has served half of the sentence. 22. The certified copy of the order-sheet of the learned trial court shows that charges were framed on 26.04.2022, thereafter with effect from 21.05.2022 the prosecution witness was to be examined. Notably, with effect from 21.05.2022 till date as many 15 dates have been fixed but only 02 prosecution witnesses could be examined and the chief examination of the prosecution witness No.3 has been completed on 01.02.2023 but he could not cross-examine in subsequent dates. Notably, with effect from 21.05.2022 till date as many 15 dates have been fixed but only 02 prosecution witnesses could be examined and the chief examination of the prosecution witness No.3 has been completed on 01.02.2023 but he could not cross-examine in subsequent dates. The order-sheet reveals that the prosecution witnesses are not co-operating properly and there is no report to the effect that from the side of the applicant/ defence any adjournment has been sought. Notably, there are 150 prosecution witnesses, out of which, the examination of 02 prosecution witnesses have been completed. Therefore, if the progress of trial remains the same, there is no possibility or likelihood to conclude the trial with expedition, at least it may not likely be completed in further five or six years and in that case the present applicant will have to serve the maximum punishment of seven years even before completion of trial. In view of the aforesaid circumstances, I would like to refer the dictum of Apex Court in re: K.A. Najeeb (supra) wherein the Apex Court has held that once it is obvious that admittedly the trial would not be possible and the accused has suffered incarceration for a significant period of time, the court would ordinarily be obligated to be enlarged him on bail. The case before the Apex Court in re: K.A. Najeeb (supra) was relating to the offence of Unlawful Activities (Prevention) Act, 1967 (in short UAPA) wherein the punishment is more severe than the punishment prescribed under PMLA. 23. In the present case, I find that admittedly trial would not be possible and the present applicant has suffered incarceration for a significant period of time, as considered above, therefore, the present applicant may be given the benefit of dictum of Apex Court in re: K.A. Najeeb (supra). 24. In the subsequent judgment of Apex Court rendered in re: Ramchand Karunakaran (supra) wherein the case is relating to the offence of PMLA wherein the complaint has been filed by the E.D. The Apex Court has granted bail to the accused persons considering the fact that the said accused persons have completed more than three years of actual custody in connection with offence of PMLA. One more fact may be considered that the present applicant was granted interim bail by the Apex Court and as soon as the period of interim bail expired, he immediately surrendered before the trial court and during the period of his interim bail he did not misuse the liberty of bail and has abide by all terms and conditions of bail order. 25. At this stage, I am not considering the arguments of learned Senior Advocate Sri I.B. Singh that more than actual amount has already been recovered from the applicant inasmuch as the said amount has been determined by the Forensic Auditor in compliance of order of Apex Court and those things shall remain subject matter of the trial proceedings. Therefore, what is the actual amount and what is to be recovered from the present applicant would be determined by the learned trial court by considering all the relevant evidences and material as well as appreciating the arguments of learned counsel for the parties. The opinion of the Forensic Auditor shall be tested by the learned trial court in the light of the strict principles of the Evidence Act, however, the opinion of the Forensic Auditor being an opinion of an expert, it shall be considered by the learned trial court carefully. 26. Learned counsel for the E.D., Sri Rohit Tripathi, has been asked as to whether there is any possibility to conclude the trial with expedition where there are total 150 prosecution witnesses are to be examined and only two prosecution witnesses have been examined with effect from 21.05.2022 till date, Sri Tripathi has stated that he shall instruct the learned counsel for E.D. who is conducting the case before the learned trial court to do the needful to expedite the trial however he has fairly stated that it will take some substantial time to examine total 150 prosecution witnesses. He has been further confronted as to whether the present applicant has misused the liberty of interim bail so granted by the Apex Court, he has submitted that there is no adverse information against the present applicant to that effect. 27. He has been further confronted as to whether the present applicant has misused the liberty of interim bail so granted by the Apex Court, he has submitted that there is no adverse information against the present applicant to that effect. 27. On being further confronted regarding the case of Ramchand Karunakaran (supra) where the Apex Court granted bail to the accused person for an offence of PMLA considering the fact that the said accused has completed more than three years of actual custody, Sri Tripathi has stated that since the Apex Court has granted bail to the accused person, therefore, he has nothing to say on that but there was one more fact noticed by the Apex Court that the said accused person was a senior citizen. 28. Since the learned counsel for the E.D. has been heard at good length and a some of Rs.28.95 crores have already been recovered from the applicant in furtherance of the proceed of crime and considering the statement that nothing remains to be recovered from him now, I find it appropriate that the present applicant may be enlarged on bail as rigour of Section 45 of PMLA are satisfied, particularly in view of the fact that the present applicant has already served more than half of the punishment, has not misused the liberty of interim bail granted by the Apex Court and there is no possibility or likelihood to conclude the trial with expedition inasmuch as there are total 150 prosecution witnesses and only two prosecution witnesses have been examined by now. The Apex Court in para-86 of the dictum of Satender Kumar Antil vs. CBI and others, Special Leave to Appeal (Criminal) No.5191 of 2021 has held as under:- "Special Acts (Category C) 86. Now we shall come to Category C. We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. To make it clear, the provision contained in Section 436-A of the Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code." 29. Accordingly, the bail application is allowed. 30. Let the present applicant (Shiv Priya) be released on bail in the aforesaid case crime number on his furnishing a personal bond of Rs.2,00,000/- with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) The applicant shall not leave the country without prior permission of the Court and shall surrender his passport to the court concerned.