By TIOL News Service

NEW DELHI, SEPT 19, 2017: THE petitioner has prayed for grant of bail to her in Enforcement Case ECIR/15/DLZO-1/2014.

The case concerns a contract signed by Ministry of Defence with M/s Augusta Westland International Limited for supply of 12 numbers of AW 101 VVIP helicopters.

During the CBI investigation, it was revealed that total 70 million Euros was paid as "kick backs" by the said company; Petitioner and co-accused Gautam Khaitan, Rajiv Saxena (husband of petitioner, based in Dubai) and others were instrumental in laundering the bribe money in India and abroad; They were the carriers of proceeds of crime.

Petitioner was arrested in Chennai on 16th July, 2017 and her custody remand was taken. During this period, her statement under Section 50 of the Act was recorded. She was confronted with the records but she gave evasive replies. She also avoided to furnish information regarding companies situated in Mauritius and Dubai with which she and her husband (co-accused) were associated. Petitioner did not cooperate in the investigation. Huge transactions were noticed in the HDFC Bank accounts of the petitioner in India.

As per the respondent, the proceeds of crime were routed to India by way of investments made by the petitioner, her husband and their companies.

The Senior counsel for the petitioner contended that petitioner is a woman aged about 53 years; is a house wife and is also sick; since petitioner is a woman and sick, rigours of Section 45(1)(ii) of the PMLA will not be applicable in view of the first proviso to the said Section; though petitioner is Director in M/s Matrix Holding Ltd. but has no role to play in decision making process; her husband is a Chartered Accountant and manages his profession and the companies; Petitioner is shown as an employee with a mere designation of Employee Director; Petitioner is also entitled to bail on parity since main accused Gautam Khaitan and other accused, namely, Ritu Khaitan, R.K. Nanda and J.B. Subramaniam have already been released on bail; in the predicate offencethe main accused namely Air Chief Marshell (Rtd.) Shashinder Pal Tyagi, Gautam Khaitan and Sanjeev Tyagi have also been released on bail.

The ASG submitted that the petitioner is actively involved in the offence of money laundering and cannot be treated separately for the purpose of bail, merely because she is a woman and sick; that the discretion given to Court in the first proviso of Section 45 of the PMLA cannot be invoked to enure to the benefit of petitioner in the facts of the present case; that there is nothing extraordinary in the condition of the petitioner warranting bail, inasmuch as, in more serious medical conditions bail on the medical ground has been declined in Chhagan Chandrakant Bhujbal vs. Assistant Director, Enforcement Directorate and Anr. by the Bombay High Court;that Petitioner and her family are residents of Dubai for the last 25 years and if released she may flee to Dubai using porous borders of India; that Petitioner's husband is still in Dubai and has not participated in the investigation despite notices being issued to him; that petitioner is not a house wife and, in fact, was actively associated with the affairs of the companies and done Masters in Finance.

The High Court extracted Section 45 [ Offences to be cognizable and non-bailable. ] of the PMLA and observed -

++ I am of the view, that rigours of Section 45(1)(ii) of PMLA will not be applicable to the categories of persons, as mentioned in the proviso. In case it is held that conditions as laid in Section 45(1)(ii) shall also be attracted in respect of the persons, as notified in the proviso, in my opinion, proviso will be rendered nugatory, inasmuch as, an accused will otherwise be entitled to be released if he satisfies the condition laid down in section 45(1)(ii). However, in my view, the discretion as envisaged in the proviso has to be applied depending upon the special circumstances attending to such categories of person and not as a matter of Thumb rule that all such categories of persons shall necessarily be granted bail.

The Court noted that a similar proviso finds mentioned in Section 437 (1) of the Code, and in this context –

+ Single Judge of this Court in Meenu Dewan has held that merely because the petitioner is a woman does not entitle her for bail under the proviso but the nature, gravity and seriousness of offence have also to be considered.

+ In Prahalad Singh Bhati ( (2001) 4 SCC 280 ), Supreme Court has held thus  "the condition of not releasing the person on bail charged with an offence punishable with death or imprisonment for life shall not be applicable if such person is under the age of 16 years or is a woman or is sick or infirm, subject to such conditions as may be imposed.  It does not, however, mean that persons specified in the first proviso to sub-section (1) of Section 437 should necessarily be released on bail. The proviso is an enabling provision which confers jurisdiction upon a court, other than the High Court and the Court of Session, to release a person on bail despite the fact that the there appears reasonable ground for believing that such person has been guilty of an offence punishable with death or imprisonment for life. There is no gainsaying that the discretion conferred by the Code has to be exercised judicially" . (Emphasis laid)

The Court further observed –

++ In the present case, sufficient material has been placed on record to show, of course, prima facie , that petitioner is not a house wife. She is a highly qualified lady having completed Masters in Finance in the year 2002 from international university . She was actively involved in the affairs of the various companies by virtue of her holding responsible positions, inasmuch as, she was holding power of attorney in her favour from M/s Atlanta Natural Resources PTE. Ltd., Cronimet Mining GmbH, Matrix Holdings Limited etc.

++ There is nothing on record to establish that petitioner is suffering from such serious ailments which necessitates her treatment in multi specialty hospital from specialist doctor. Petitioner can be and is being provided medical treatment in jail itself. Petitioner only requires physiotherapy which can easily be provided either in jail or in any other hospital affiliated to the jail or in the vicinity of the jail.

++ The offence alleged against the petitioner falls under the category of economic offences which stand on a graver footing. These crimes are professionally committed by white-collared people which inflict severe injuries on both health and wealth of the nation. Such offences need to be dealt with a heavy hand and releasing such accused on bail will affect the community at large and also jeopardize the economy of the country.

++ The plea of parity is also not tenable in this case since the court did not consider, refer to and discuss the rigours of Section 45(1) of the PMLA. Petitioner has also failed to bring out any special circumstances for her release on bail being a woman or sick.

The bail application was dismissed.

(See 2017-TIOL-1932-HC-DEL-PMLA)