The Supreme Court on Thursday gave a fillip to the right to personal liberty by holding that a person, summoned under the Prevention of Money Laundering Act (PMLA), who chooses to appear before the designated Special Court is presumed to be not in custody and need not apply for bail under the draconian conditions posed by the anti-money-laundering law.

“If the accused appears before the Special Court pursuant to a summons,it cannot be treated that he is in custody. Therefore, it is not necessary for the accused to apply for bail,” a Bench of Justices AS Oka and Ujjal Bhuyan held in a judgment. However, the Special Court can direct the accused to furnish bonds in terms of Section 88 of the Code of Criminal Procedure.

“A bond furnished in terms of Section 88 CrPC is only an undertaking. An order accepting bond under Section 88 does not amount to grant of bail and hence the twin conditions of Section 45 of the PMLA are not applicable to it,” Justice Oka, who wrote the judgment, clarified.

The twin conditions of bail under Section 45 of the PMLA poses stringent thresholds for an accused. For one, the person has to prove in court that he or she is prima facie innocent of the offence. Secondly, the accused should be able to convince the judge he would not commit any offence while on bail. The burden of proof is entirely on the incarcerated accused, who would be often handicapped to fight the might of the state. The twin conditions make it almost impossible for an accused to get bail in PMLA.

In its judgment, the apex court said the Directorate of Enforcement (ED) would have to separately apply for custody of a person who appears in court. The Central agency would have to show specific grounds which necessitated custody.

“If ED wants custody after the person appears after summons, ED can get custody after application to Special Court. The Court will only grant custody with reasons satisfying that custodial interrogation is needed,” Justice Oka protected the right to liberty.

The questions of law in the case was whether an accused, appearing in the Special Court pursuant to its summons, can apply for bail under the regular provisions of the Code of Criminal Procedure. If so, whether such a bail plea would also have to satisfy the twin conditions imposed by Section 45 of the PMLA.