Bail in ED Money-Laundering (PMLA) Cases

Can you get bail after an ED arrest? Yes, but the test is stricter

Bail in a money-laundering case is possible, and the Supreme Court has granted it in several high-profile cases since 2024. But the Prevention of Money Laundering Act 2002 (PMLA) makes the path narrower than in an ordinary criminal case. Section 45 says that a person accused of money laundering shall not be released on bail unless the Public Prosecutor has been given a chance to oppose, and, where the prosecutor opposes, 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. These are the twin conditions.

Those conditions do not mean the accused must prove innocence. The court looks at the material on a broad, prima facie basis, without conducting a mini-trial. A bail case in PMLA is therefore built around the twin conditions from the start: what the ED's own documents show about the money, the accused's knowledge and role, and why there is no risk of further offending.

The other side of the picture is time. PMLA trials are slow, and the Supreme Court has said that long custody without trial can itself justify bail even where Section 45 applies. Many successful petitions combine an attack on the merits with the length of custody and the state of the trial.

The PMLA provisions and rulings that decide bail

The ECIR, the predicate offence and why they matter for bail

Every ED case starts with an Enforcement Case Information Report (ECIR), which records the ED's case internally. Unlike an FIR, the ECIR need not be given to the accused at the start, though its contents are often disclosed through the grounds of arrest and the remand applications. Our guide on whether an ECIR is like an FIR explains the difference.

Money laundering under the PMLA depends on a scheduled offence, often called the predicate offence. This is usually an FIR by the CBI or a state police unit, for example for cheating, corruption or forgery. The ED's case is that the proceeds of that crime were laundered. If the predicate FIR is quashed, closed or ends in acquittal, the foundation of the PMLA case goes. Checking the status of the predicate case is one of the first tasks in any PMLA bail.

This also tells you where the second fight is. A person may face an ED case and a CBI case together, each with its own custody and bail application. Bail in one does not mean release if custody continues in the other. Our page on bail in CBI cases covers the parallel track.

Where PMLA bail is heard in Delhi

Delhi's PMLA special courts, along with the CBI special courts, sit at the Rouse Avenue court complex near ITO. An accused arrested by the ED in a Delhi case is produced before the special court for remand, and the first bail application is filed there. Section 45 binds the special court as much as the High Court.

If the special court refuses bail, the accused can apply to the Delhi High Court under Section 483 BNSS (old Section 439 CrPC). The petition is heard by a single judge according to the roster, and the ED is represented by its Special Counsel. The High Court decides the matter afresh, and the twin conditions apply there too. The court's seat is at Sher Shah Road, New Delhi.

If the ED case is registered by an ED office in another city and the trial is before a special court outside Delhi, the High Court of that state is the right forum. Where the ED's case is in Delhi but the accused lives in Gurugram or Noida, Delhi remains the forum. A refusal by the Delhi High Court can be challenged by special leave petition before the Supreme Court.

For families, the practical points are simple. Persons in judicial custody in Delhi ED cases are usually lodged in Tihar, and are produced before the special court on each remand date, sometimes by video link. Relatives can attend the open court hearing at Rouse Avenue, which is a short walk from ITO. Jail visits are booked through the prison's mulaqat system, and that is also how the vakalatnama for the High Court petition is signed by the accused and attested by the jail superintendent.

The arrest itself: grounds, reasons and remand

Before arguing bail, look closely at the arrest. Section 19 requires the ED officer to have material showing reason to believe that the person is guilty, recorded in writing, and the grounds of arrest must be supplied in writing. If the grounds were not given properly, or the reasons to believe are missing or mechanical, the arrest itself can be challenged. That challenge is separate from bail and can lead to release without the twin conditions being considered at all.

Remand orders matter too. The special court records why it allowed ED custody and for how long. The remand applications often reveal the ED's theory of the case: which transactions, which companies, which statements. They become the first map for the bail petition.

When Advocate B.K. Singh takes up an ED bail, he reads the grounds of arrest against the remand applications and the statements recorded under Section 50 to see whether the ED's story is the same in all three. Inconsistencies in the ED's own papers are often more persuasive at the bail stage than anything the defence can produce.

How the twin conditions are argued in practice

The first condition, reasonable grounds to believe that the accused is not guilty, is argued from the ED's material. The usual lines are: the money traced to the accused is not proceeds of crime but has a legitimate source shown in income tax returns and bank records; the accused had no knowledge that the money was tainted; the accused's role is that of an employee, accountant or relative with no control over the funds; the amount attributed to the accused is small; or the predicate offence does not involve the accused at all.

Statements recorded under Section 50 PMLA carry weight, but they are not beyond question. Statements of co-accused, statements retracted at the first opportunity, and statements taken from a person already in custody in another case have been examined critically by the Supreme Court, including in Prem Prakash. Where the ED's case rests mainly on such statements, that weakness should be put plainly before the court.

The second condition, that the accused is not likely to commit an offence while on bail, is usually argued from antecedents, the nature of the business, whether the alleged activity has stopped, and the conditions the accused is ready to accept: surrender of passport, no contact with witnesses, no dealing with attached property and regular appearance.

Long custody, slow trials and Section 479 BNSS

PMLA cases often involve dozens of accused, hundreds of documents and many witnesses. The prosecution complaint may be followed by supplementary complaints. Trials can take years to start. The Supreme Court has said in Manish Sisodia and later rulings that keeping an accused in custody for long periods with no prospect of the trial ending soon cannot be justified by Section 45 alone.

Section 479 BNSS (old Section 436A CrPC), which requires release of an undertrial who has served half the maximum sentence, applies to PMLA cases as well; Vijay Madanlal confirmed that the old Section 436A applies. With a maximum of seven years in most PMLA cases, that ceiling comes after three and a half years, or less for a first-time offender under the BNSS, subject to the section's exceptions. Long before that point, the length of custody becomes a strong ground on its own.

To use this argument well, the petition must show the court the actual state of the trial: whether charges are framed, how many witnesses and documents are cited, whether the ED has filed supplementary complaints, and whether the delay is caused by the prosecution or by the accused. A delay caused by the accused's own applications weakens the plea.

When the twin conditions do not apply

• Women. The proviso to Section 45 lets the special court grant bail to a woman without the twin conditions. Courts still look at the role and the facts, but the threshold is lower.
• Sick or infirm persons. Serious illness, documented by medical records and often by a medical board report, brings the proviso into play. Ordinary ailments treatable in jail usually do not.
• Amount under Rs 1 crore. Where the money laundering alleged against the accused, alone or with others, is less than Rs 1 crore, the proviso applies.
• Persons under sixteen. Rare in practice, but covered by the same proviso.
• Not arrested before cognizance. Under Tarsem Lal, an accused who was not arrested during investigation and appears on summons after cognizance is released on a bond without the twin conditions.
• Default bail. If the ED does not file the prosecution complaint within the time allowed under Section 187(3) BNSS, usually 60 days for PMLA offences, the accused gets default bail regardless of Section 45. Our page on default bail when the chargesheet is late explains how to claim it.

Step by step: PMLA bail from Rouse Avenue to the Delhi High Court

1. Secure the arrest papers

   Get the written grounds of arrest, the arrest memo, the remand applications and remand orders from the special court record. If the grounds were not given in writing, note it at once.

2. Check the predicate offence

   Find the FIR on which the ED relies and its current status: under investigation, chargesheeted, stayed or quashed. A change in the predicate case can change the bail case completely.

3. File bail before the PMLA special court

   The first application goes to the special court at Rouse Avenue. It should address the twin conditions directly, or claim the proviso if the accused is a woman, sick or the amount is below Rs 1 crore.

4. Obtain the special court's order and the ED's reply

   The ED usually files a detailed reply. Its contents, and the reasons given by the special court, shape the High Court petition.

5. File the bail petition in the Delhi High Court

   The petition under Section 483 BNSS explains why the special court was wrong and what has changed, with an affidavit and a vakalatnama signed in jail. An advance copy is served on the ED's counsel.

6. First hearing and the ED's response

   The court issues notice to the ED and fixes a date for its reply. The ED often seeks time to file a detailed reply and may hand over sealed material.

7. Arguments on the twin conditions and custody

   Arguments in PMLA bail can run over more than one date. The defence takes the court through the ED's own documents and the state of the trial.

8. Order, bonds and release

   If bail is granted, bonds are furnished before the special court as directed and a release order goes to the jail. If refused, the accused can approach the Supreme Court.

Time and cost at each stage

Documents needed for a PMLA bail petition

Mistakes that weaken a PMLA bail petition

• Ignoring the twin conditions. A petition that argues bail as if it were an ordinary cheating case will fail. Each condition must be addressed in terms.
• Not tracking the predicate case. Families sometimes do not know that the predicate FIR has been stayed or closed. That fact can change everything.
• Overstating health. Claiming serious illness without hospital records invites a medical board and a report that may undercut the plea.
• Delaying the trial and then pleading delay. Repeated adjournments sought by the accused, or applications filed only to stall, are held against the accused when long custody is argued.
• Statements to the media. Public statements by family or associates about the case can be used to argue influence over witnesses.
• Overlooking the CBI or police case. Bail in the PMLA case is of limited use if custody continues in the predicate case. Plan both together.

Anticipatory bail when you fear an ED arrest

A person who has been summoned by the ED and fears arrest can apply for anticipatory bail under Section 482 BNSS (old Section 438 CrPC). In Vijay Madanlal, the Supreme Court held that the twin conditions of Section 45 apply to anticipatory bail in PMLA cases as well, so the application must meet the same test as a regular bail petition. That makes pre-arrest protection in ED matters harder to obtain than in an ordinary FIR, and courts are slow to grant it where the ED says it needs to question the person in custody.

Even so, the application is sometimes the right step, especially for a woman, a person who is seriously ill, or someone whose alleged role is small and documented. It also forces the ED to place its case on record at an early stage. Where the applicant has appeared on every summons and given documents, that cooperation is put before the court as the main reason why arrest is unnecessary.

Anticipatory bail is not the only tool. Some people challenge the summons itself, or the predicate FIR, in the High Court. Others wait for the prosecution complaint, because under Tarsem Lal the position changes once the special court takes cognizance without an arrest. Which route fits depends on the stage of the ED inquiry and the strength of the predicate case. Our page on anticipatory bail in the Delhi High Court explains the general procedure.

Interim bail, attachment and frozen accounts

Short-term release is possible in PMLA cases for surgery, a serious illness in the family, a death or a wedding. Courts grant interim bail on medical grounds after checking records and sometimes after a report from a government hospital such as AIIMS or Safdarjung. Our page on interim bail for medical treatment or family emergencies explains how those applications work.

Bail does not release attached property or frozen bank accounts. Provisional attachment under Section 5 is confirmed by the Adjudicating Authority and challenged before the Appellate Tribunal, while a freezing order under Section 17 has its own procedure. Families often need living expenses and business funds released while the bail case is pending. Our guide on how provisional attachment works under the PMLA covers that side of the case.

If a family member has only been summoned so far and has not been arrested, the strategy is different. Our page on ED summons under the PMLA explains what to do before and during questioning.

What to do this week

Collect the grounds of arrest, the remand orders and any order on bail from the special court. Find out the number and status of the predicate FIR. Put together the accused's income tax returns and bank statements for the years the ED has questioned. If health is an issue, get the jail hospital records and the treating doctor's papers. Read our guide on Section 45 PMLA and the twin conditions to understand what the court will ask.

Do not discuss the case on the phone with witnesses or co-accused, and do not move or sell property that may be attached. Fees are discussed at the first meeting and agreed in writing, stage by stage.

If you would like Advocate B.K. Singh to review the ED papers in a family member's case, or want an update on how the courts are currently applying Section 45, contact Advocate B.K. Singh.