Twin Test For Bail Under Section 45 PMLA Not A Tool To Indefinitely Jail Accused: Delhi HC
🔹 Background of Section 45, PMLA
Section 45(1), PMLA imposes twin conditions for bail:
Prosecution must be given an opportunity to oppose the bail application.
If opposed, the court must be satisfied that:
There are reasonable grounds for believing the accused is not guilty of the offence, and
The accused is not likely to commit any offence while on bail.
These conditions make bail under PMLA far more stringent than ordinary bail under Section 439 CrPC.
🔹 Constitutional Scrutiny
In Nikesh Tarachand Shah v. Union of India (2018) 11 SCC 1, SC struck down Section 45(1) PMLA as unconstitutional (violative of Articles 14 & 21).
Parliament amended the law in 2018 to reintroduce the twin test.
In Vijay Madanlal Choudhary v. Union of India (2022) 10 SCC 201, SC upheld the amended Section 45, restoring the twin conditions.
🔹 Delhi High Court’s Observations
Twin test is not absolute → It cannot be applied in a way that results in automatic denial of bail or indefinite incarceration.
Bail jurisprudence under Article 21 → The court must balance the stringent twin test with the fundamental right to personal liberty and the principle that “bail is the rule, jail is the exception”.
Case-by-case application → Courts must look into:
Nature of allegations, gravity of offence.
Stage of trial (delay in trial weighs in favour of bail).
Health, age, and other humanitarian considerations.
Proportionality — indefinite jail without conclusion of trial violates fair trial rights.
Prevent misuse of Section 45 → The provision should ensure seriousness in granting bail in money-laundering cases, but not be weaponised to keep an accused behind bars endlessly.
🔹 Supporting Case Laws
1. Nikesh Tarachand Shah v. Union of India (2018)
Held the earlier twin test unconstitutional; emphasized Article 21 safeguards against arbitrary incarceration.
2. Vijay Madanlal Choudhary v. Union of India (2022)
Upheld validity of Section 45 after amendment, but clarified that judicial discretion is preserved and courts must examine facts before denying bail.
3. P. Chidambaram v. Directorate of Enforcement (2019) 9 SCC 24
SC granted bail, stressing that denial of bail cannot be punitive; factors like long custody, cooperation with investigation, and no flight risk are relevant.
4. Delhi HC (2023–24 rulings)
Reiterated that while Section 45 imposes stricter conditions, it cannot be used mechanically to deny bail. Courts must ensure that the test does not defeat constitutional guarantees of liberty.
🔹 Why the HC Said Twin Test ≠ Indefinite Jail
Rule of proportionality → Detention cannot exceed what is necessary.
Fair trial rights → Prolonged incarceration without conviction undermines due process.
Judicial discretion preserved → Judges must apply mind, not mechanically reject bail citing Section 45.
Balance between State’s interest & individual liberty → While money laundering is a serious crime, personal liberty remains a fundamental right.
✅ Conclusion
The Delhi HC clarified that Section 45’s twin test is a safeguard, not a straightjacket.
It cannot justify endless imprisonment before trial concludes.
Courts must interpret it harmoniously with Articles 14 & 21 to prevent injustice.
Thus, bail under PMLA remains stringent but not impossible — judicial discretion and constitutional principles prevail.
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