Short answer: Bail in a PMLA case is harder than in most offences because Section 45 adds twin conditions: the prosecutor must be heard and, if bail is opposed, the court must find reasonable grounds to believe the accused is not guilty and is not likely to offend on bail. But the Supreme Court has held that these conditions are not an absolute bar. Long custody with no early end to the trial, as in Manish Sisodia (2024) and V. Senthil Balaji (2024), can justify bail under Article 21.
What Section 45 says
Section 45(1) provides that no person accused of an offence under the PMLA shall be released on bail unless (i) the Public Prosecutor has had an opportunity to oppose the application, and (ii) where he opposes it, the court is satisfied that there are reasonable grounds for believing that the accused is not guilty of the offence and is not likely to commit any offence while on bail. The proviso allows the Special Court to direct release of a person who is under sixteen, a woman, sick or infirm, or accused, alone or with others, of laundering a sum of less than one crore rupees.
What ‘reasonable grounds’ means
The three-judge bench in Vijay Madanlal Choudhary v. Union of India (2022) upheld the twin conditions but said they do not impose an absolute restraint on bail; the discretion is judicial. In Prem Prakash v. Union of India (28 August 2024), the Supreme Court explained that the court has to see only whether there is a genuine case against the accused, and the prosecution is not required to prove the charge beyond reasonable doubt. It also said that ‘bail is the rule and jail is the exception’ applies under the PMLA as well, because liberty is the rule under Article 21.
Long custody and slow trials
In Manish Sisodia v. Directorate of Enforcement (9 August 2024), Justice B.R. Gavai and Justice K.V. Viswanathan granted bail after about 17 months in custody. The trial had not started, 493 witnesses were named across the connected cases and the documents ran into thousands of pages. The Court held that delay coupled with long incarceration can justify relaxing the twin conditions, and that the case rested largely on documents already seized.
In V. Senthil Balaji v. Deputy Director, ED (26 September 2024), Justice Abhay S. Oka and Justice Augustine George Masih granted bail after more than 15 months in custody. The Court relied on Union of India v. K.A. Najeeb and held that stringent bail provisions cannot become instruments to keep an accused in custody indefinitely without a reasonable prospect of trial. It noted that the PMLA offence carries three to seven years (ten in specified narcotics-linked cases) and that the PMLA trial could not be finally decided before the scheduled offence trials. The Delhi High Court followed both rulings in Tarun Kumar v. Assistant Director, ED (20 November 2024), granting bail after about 29 months.
Where and how bail is sought
Regular bail is sought first before the Special Court and then the High Court, now under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) read with Section 45 PMLA. A strong application deals with both limbs of Section 45 on the record, and separately sets out the Article 21 facts: custody period, stage of trial, number of witnesses and documents, and conduct of the accused.
Related questions
Is there a fixed custody period after which bail is automatic?
No. Courts look at the custody already undergone, the likely length of trial and the maximum sentence. Section 479 BNSS (earlier Section 436A CrPC) gives a separate route linked to a portion of the maximum sentence, but the Supreme Court said in Manish Sisodia that it is not a precondition for bail under the PMLA.
Does a woman get bail automatically under the proviso?
No. The proviso allows the Special Court to direct bail without the twin conditions, but the Supreme Court has said it is not an automatic entitlement and that the person’s role and the material must still be examined.
Does bail granted to co-accused help?
It can. Parity, the bail of other accused and the number of named persons never arrested are relevant facts. In Tarun Kumar (2024), the Delhi High Court relied on custody periods and the Supreme Court’s Article 21 rulings, while distinguishing a co-accused’s earlier rejection.
Does the status of the predicate case matter for bail?
Yes. In V. Senthil Balaji, the Court noted that the PMLA trial could not be finally decided until the trials of the scheduled offences ended, which had not begun. Delay in the predicate case therefore feeds directly into the Article 21 argument.
Practical points
- Keep an exact custody calendar from the date of arrest.
- Record the trial stage: complaint filed, cognizance, charges, witnesses examined.
- Address both twin conditions with documents, not only the Article 21 ground.
- Offer workable conditions such as passport surrender and regular reporting.
Sources: Manish Sisodia v. ED, 9 Aug 2024; V. Senthil Balaji v. Deputy Director, ED, 26 Sep 2024; Prem Prakash v. Union of India, 28 Aug 2024; Tarun Kumar v. ED (Delhi HC), 20 Nov 2024.
For a confidential discussion on ED/PMLA matters, see ED and PMLA Defence.
General legal information only; not legal advice or solicitation.
